Rike's

National Labor Relations Board - Board Decisions

Mar 20, 1979

241 N.L.R.B. 240 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rike's, a Division of Federated Department Stores,
Inc. and Retail Clerks Local 1552, Retail Clerks In-
ternational Association, AFL-CIO. Cases 9-CA-
11287-1 and 9-RC- 11876
March 20, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On September 15, 1978, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
Respondent has excepted to the Administrative Law Judge's crediting of
Melinda Longenecker over Marsha Moritz on the basis of the findings that
Moritz was still employed by Respondent at the time of the hearing and that
Moritz had voluntarily appeared and testified at the hearing on Respon-
dent's behalf. In support of its exception, Respondent submitted an affidavit
of Moritz in which she stated that at the time of the hearing she was no
longer in Respondent's employ and that she had testified pursuant to a sub-
pena. The Administrative Law Judge independently found, however, that
based upon "comparative testimonial demeanor" he preferred Longenecker's
testimony over that of Moritz. Accordingly, we find it unnecessary to pass
upon the Administrative Law Judge's findings regarding Moritz' employ-
ment status at the time of the hearing or whether she testified pursuant to a
subpena.
Respondent also has excepted to the Administrative Law Judge's crediting
of employee Frieda Hensley, in part at least, because of her "religious con-
victions." Federal Rule of Evidence 610 states: "Evidence of the beliefs or
opinions of a witness on matters of religion is not admissible for the purpose
of showing that by reason of their nature his credibility is impaired or en-
hanced." We agree that a witness' religious convictions or lack thereof has
no bearing whatsoever on that witness' credibility. Accordingly, we find that
the Administrative Law Judge erred in relying on Hensley's "religious con-
victions." However, since the Administrative Law Judge also based his credi-
bility resolution independently on Hensley's "testimonial demeanor," we
adopt the Administrative Law Judge's credibility finding.
2 In the absence of exceptions thereto, we adopt proforma the Administra-
tive Law Judge's dismissal of the allegation that Respondent violated Sec.
8(aXl) of the Act when Supervisor Jerry Severt told employee Henry Yospur
that because of Yospur's lack of seniority he might be out of a job if the
Union won the election.
Further, since we are setting the election aside on other grounds, we find it
unnecessary to pass upon the Administrative Law Judge's obiter dictum re-
garding Objection 2 as set forth in fn. 40 of his Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Rike's, a Division of
Federated Department Stores, Inc., Dayton, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, ex-
cept that the attached Appendix B is substituted for
that of the Administrative Law Judge.
IT IS FURTHER ORDERED that those allegations in
the complaint as to which no violations have been
found be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the election held at
Dayton, Ohio, on April 14, 1977, in Case 9-RC-
11876 be, and the same hereby is, set aside, and that
Case 9-RC- 11876 be, and the same hereby is, severed
from Case 9-CA-11287-1 and remanded to the Re-
gional Director for Region 9 for the purpose of con-
ducting a new election.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be con-
ducted among the employees in the unit found appro-
priate, at such time as the Regional Director deems
appropriate. The Regional Director for Region 9
shall direct and supervise the election, subject to the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended. Eligible to vote are those
in the unit who were employed during the payroll
period ending immediately before the date of issu-
ance of the Notice of Second Election, including em-
ployees who did not work during that period because
they were ill, on vacation, or temporarily laid off.
Also eligible are employees engaged in an economic
strike which commenced less than 12 months before
the election date and who retained their status as such
during the eligibility period and their replacements.
Those in the military services of the United States
may vote if they appear in person at the polls. Ineligi-
ble to vote are employees who have quit or been dis-
charged for cause since the designated payroll period
and employees engaged in a strike who have been
discharged for cause since the commencement
thereof, and who have not been rehired or reinstated
before the election date, and employees engaged in an
economic strike which commenced more than 12
months before the election date and who have been
permanently replaced.3 Those eligible shall vote
I In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
241 NLRB No. 25
240
RIKE'S, A DIV. OF FEDERATED DEPFT. S.ORES
whether or not they desire to be represented for col-
lective-bargaining purposes by Retail Clerks Local
1552, Retail Clerks International Association, AFL-
CIO.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had an opportuni-
ty to present evidence, the National Labor Relations
Board has found that we committed certain unfair
labor practices and has ordered us to post this notice.
We intend to abide by the following:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT violate these rights of yours.
WE WILL NOT question you in violation of the
Act about your or other employees' union views,
sympathies, activities, voting intentions, or exer-
cise of any right under the National Labor Rela-
tions Act.
WE WILL NOT discriminatorily enforce or ap-
ply against any employees who advocate or are
in favor of a union any rule forbidding solicita-
tion on our premises in any way differently from
the way in which we enforce or apply (or fail to
enforce or apply, or relax the enforcement or ap-
plication of) and such rule.
WE WILL NOT threaten any employee with the
loss, cancellation, or withdrawal of any job-re-
lated benefit (including, but not limited to, dis-
counts on store purchases) or with layoff or other
dresses which may be used to communicate with them. Excelsior Underwear
Inc., 156 NLRB 1236 (1966); N.LR.B. v. Wyman-Gordon Co., 394 U.S. 759
(1969). Accordingly, it is hereby directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 9 within 7 days after the
date of issuance of the Notice of Second Election by the Regional Director.
The Regional Director shall make the list available to all parties to the
election. No extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances. Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed.
reprisal because of union affiliation, support, or
voting or in case of unionization.
WE WILL NOT offer or suggest that we will ad-
just employee grievances in exchange for, or in
the event of, any employee abandonment of his
or her union support or for urging other employ-
ees to do so or to vote against the Union in any
election conducted by the National Labor Rela-
tions Board, or in case of unionization.
WE WILL NOT offer or hold out to any em-
ployee the prospect of a promotion for speaking
out against the Union or if he or she ceases his or
her union activity or support.
WE WILL NOT physically assault, restrain, co-
erce, or otherwise unlawfully interfere with any
employee in connection with his or her free right
to vote in accordance with his or her conscience
in any Board-conducted election.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the rights guaranteed them in Section 7 of the
Act.
The election held on April 14, 1977, by the National
Labor Relations Board has been set aside and its results
voided because of our conduct affecting the outcome of
that election, as found by the Board, during the period
preceding the holding of that election. In due time, an-
other election will be held, and you will be notified of the
date, time, and place.
All of our employees are free to join or not to join,
to be active or not to be active on behalf of, or to vote
for or not to vote for Retail Clerks Local 1552, Retail
Clerks International Association, AFL-CIO, or other
labor organizations of their choice, as they see fit,
without interference, restraint, or coercion from us.
RIKE'S, A DIVISION OF FEDERATED DEPART-
MENT STORES, INC.
DECISION
PRELIMINARY STATEMENT; ISSuES
STANLEY N. OHLBAUM, Administrative Law Judge: This
consolidated proceeding' under the National Labor Rela-
t Case 9-CA-11287-1: Complaint issued June 30, growing out of charge
filed April 20, 1977. Case 9-RC-11876: Upon the basis of an RC petition for
certification of representative filed by the Union on January 20, 1977, a
Decision and Direction of Election was issued by the Board's Regional Di-
rector on March 25. A representation election was conducted under the
Regional Director's auspices on April 14, 1977, resulting in 164 votes for and
234 against representation by the Union and in 398 valid ballots cast and 7
additional ballots challenged (total 405) out of approximately 448 eligible
voters, the challenges being numerically insufficient to affect the election
outcome. However, on or about April 19 or 20, 1977, the Union interposed
timely objections to the conduct of the election and to employer conduct
allegedly affecting its result. On September 2, the Regional Director issued a
Supplemental Decision overruling certain of these objections and setting the
remainder down for hearing, consolidating for that purpose the foregoing
RC and CA cases, and, upon the coming in of the Administrative Law
Judge's decision. transfernng the RC case to the Board.
Unless otherwise indicated, dates are 1977 throughout.
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Act, as amended, 29 U.S.C. §151, et seq. (The Act)
was heard by me in Dayton, Ohio, on October 25-28 and
November 7-10, 1977, (8 hearing days), with all parties par-
ticipating throughout by counsel, who were afforded full
opportunity to present evidence and arguments, as well as
to file briefs and proposed findings and conclusions2 which,
after unopposed application for time extension, were re-
ceived by January 18, 1978. Record, proposed findings and
conclusions, and briefs have been carefully considered.
The principal issues presented are whether, in violation
of Section 8(a)(1) of the Act, Respondent on various dates
and occasions between January and mid-April--the eve of
a Board-conducted union representation election-engaged
in improper surveillance over employees' lawful union or-
ganizational activities, conducted coercive interrogation
with respect to employees' union views and activities, dispa-
rately enforced against union-sympathizing employees an
otherwise valid no-solicitation rule, threatened employees
with loss of economic benefits and with layoff for union
support or in the event of unionization, offered to adjust
employee grievances if employees abandoned support of
the Union and dissuaded other employees from voting for
the Union, offered promotion to an employee for proselytiz-
ing other employees against the Union, offered financial
assistance to an employee for dissuading other employees
from voting for the Union, exercised physical restraint
against and attempted to seize an employee's personal
property supposedly relating to employees' union activity,
and physically assaulted and instructed an employee to
vote against the Union. The union objections to the ensuing
election, also here for resolution by consolidation (fn. I,
supra), cover most of the same issues, as will be shown.
Upon the entire record and my observation of the testi-
monial demeanor of the witnesses, I make the following:
FINDINGS AND CONC(LUSIONS
I. JURISDICTION
At all material times, Respondent has been and is a Dela-
ware corporation engaged in operation of department
stores in and around Dayton, Ohio, including its 5200 Sa-
lem Avenue store about 7 miles northwest of Dayton (with
over 400 employees, of 50 or more retail establishments
comprising the Dayton Mall shopping center), the only lo-
cation here involved. During the 12 months immediately
antedating issuance of the complaint, a representative pe-
riod, the gross volume of Respondent's business exceeded
$500,000, and it purchased and received at its Dayton Mall
store, through direct shipments in interstate commerce from
places outside of Ohio, goods and materials valued at over
$50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that at all of those times Charging
Party-Petitioner Union has been and is a labor organization
as defined in Section 2(5) of the Act.
2 These alone total almost 300 pages.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent is alleged to have engaged in an assortment
of 8(a)(1) violations during the 3-month period (January-
mid-April) up to the very eve of the April 14 Board-con-
ducted representation election. These will be considered by
subject categories.
A. Surveillance. January-April (Complaint Pars. 5(m)(i)
and (ii))
It is alleged3 that Ms. Billie M. Shortt maintained unlaw-
ful surveillance over Respondent's employees during the
months of January through April. Shortt is the supervisor
of security of Respondent's department store.
As to this, Respondent's cosmetics saleslady Francine
Harvey (a member of the union organizing committee) tes-
tified that from November 1976 on, while she and others
handbilled, usually at the employee entrance at the auto
pickup door, she observed Shortt watching; and that on one
occasion in February4 she noticed Shortt leaning on a store
counter, chin in hand, observing or "staring" at her-a
practice and stance which, according to Harvey, Shortt fol-
lowed and affected for periods of around 15 minutes, inter-
mittently during the day, over a period of months; and that
from January to or through April, Shortt followed nonem-
ployee union representatives (the latter sometimes accom-
panied by store employees) throughout the store. Conced-
edly, Shortt made no accusation or comment to Harvey.
Also concerning this, Respondent's plant saleslady (and
union organizing committee member) Jane Rousseau testi-
fied that on April 13 (the evening before the election), while
she was shopping in the store with fellow employee Harvey
after work, she and Harvey were "followed" by Shortt (in
the company of several others) to the jewelry counter,
where they were asked by one of Shortt's associates or sub-
ordinates (Wysong) what they were doing there. They re-
plied that they were just shopping. When Harvey volun-
teered, "Tomorrow is our big [Union election] day," Shortt
rejoined, "[You] shouldn't get [your] hopes up." Rousseau
and Harvey continued their shopping without interrup-
tion-concededly neither at work nor engaged in any union
or other concerted activity within the Act's protection.
Further, according to Respondent's budget store lead
saleslady of draperies, Lois Weist (also a union organizing
committeeperson) and cashier-clerk Frieda Hensley, on or
about March , while they were handbilling with other em-
ployees just outside of the back entrance to the store (lead-
ing to a parking lot), they observed Shortt looking through
the door and taking notes.5
Regarding these alleged surveillance activities on her
part, Shortt merely testified, in effect, that in her capacity as
Respondent's security supervisor at its Salem Avenue store
3 Complaint pars. 5(m)(i) as amended at the heanng (to include April) and
5(m)(ii).
'Seemingly testifying concerning the same or another such incident, Re-
spondent's sportswear saleslady Theresa M. Clark dates it early in March.
I Hensley testified additionally that on the following morning while at
work, Department Manager Knox remarked to her that she had heard she
had been handbilling at the back door on the previous evening and that if
she had seen her "I would have kicked your butt," to which Hensley re-
sponded that she had a right to her views.
242
RIKE'S, A DIV. OF FEDERATED DEPT. STORES
(with Wysong and other subordinates), she is on the con-
stant lookout for shoplifters, particularly in high pilferage
sections of the store, for this purpose frequently or usually
positioning herself in the cosmetics department near the
"high shortage" ladies' and junior sportswear sections: that
she is unable specifically to recall any occasion on which
she rested on her elbow for an extended period of time
concentrating her stare or attention on Harvey; and that it
was her practice to intermittently leave and return to her
perch in the cosmetics department.
Concerning these alleged surveillance activities on the
part of Shortt, while I credit the employees' testimony de-
scribing them, I nevertheless am unable to regard them as
violative of the Act. As Respondent's store supervisor of
security, it was Shortt's responsibility to observe and see
what was going on concerning shoplifting and other secu-
rity matters and in that connection to resort to appropriate
measures and techniques, including positioning herself at
strategic vantage points, to combat store crime or impropri-
ety. If, as here, in the course of the exercise of that respon-
sibility, employees-here seemingly not even engaged in
protected concerted activity in the store-came within the
range of or fell under Shortt's roving eyes, I am unable to
perceive any illegality about that under the Act. Nor do I
regard Shortt's observation of the employees' open and un-
concealed handbilling activities as violative of the Act,
since those activities were carried on in the plain view of all.
There was no element of "spying" or secret, illicit surveil-
lance thereof on the part of Shortt. Nor was Shortt's note-
taking of what was in her plain view to see, on Respon-
dent's own premises or with immediate access thereto, and
her presumed relaying of her observations to her employer
in her capacity as its agent and supervisor, violative of the
Act. Cf., e.g., Beaird-Poulan Division, Emerson Electric
Company, 233 NLRB 736, 739-740 (1977); Tarrant Manu-
facturing Company, 196 NLRB 794. 798 (1972); Schrementi
Bros., Inc., 179 NLRB 853 (1969); Emerson Electric Com-
pany, 177 NLRB 75, 87 (1969); The Deutsch Company, etc.,
165 NLRB 140. 144 (1967).
It is accordingly found that the complaint allegations
concerning surveillance by Shortt in violation of the Act
have not been sustained.6
B. Interrogation: February-April
The complaint' alleges that Respondent, through various
of its supervisors and agents,' engaged in coercive interro-
gation of employees concerning their union views, sympa-
thies, activities, and voting intentions.
1. Melinda Longenecker: Mid-February and March 29
(complaint pars. 5(e) and 5(g))
On this subject (complaint par. 5(e)), the testimony of Re-
spondent's former saleslady for young men's clothing, Me-
' A further possible instance of alleged surveillance on the part of Shortt
(complaint par. 5(m)(ii)), involving alleged interrogation of Respondent's for-
mer saleslady Melinda Longenecker by Security Chief Larry Kroger, is dealt
with under the subject of sec. B. "Interrogation," infra, B, I, fn. 9. See also fn.
40, infra.
7 Complaint pars. 5(e) (c), (bXi), (g), (nXi), and (nXii).
I All persons identified herein as Respondent's supervisors and agents are
admitted by the answer to be such.
linda Longenecker-currently employed in internal security
work for stores including Respondent's-is uncontradicted.
Longenecker's testimony shows that while she was at work
one afternoon in February, she was beckoned to the tele-
phone by Respondent's Security Supervisor Billie Shortt.9
Respondent's Security Chief Larry Kroger-who, without
explanation, was not called to testify-on the wire asked
Longenecker what she had been talking about to her (and
her fellow-employee Ryan's) worktime store visitor Fuchs,
a union representative not employed at the store. Prevari-
cating, Longenecker responded, "[A]bout an old white-
haired lady." Although the incident is uncontradicted, I can
see no illegality in it under the Act. As has been said,
"Working time is for work" (Republic A viation Corporation
v. N.L.R.B., 324 U.S. 793, 803, fn. 10 (1945), quoting from
Peyton Packing Company, 49 NLRB 828, 843 (1943)). A
storekeeper may not be faulted for noncoercively inquiring,
as here, of an employee what business-store or personal-
the employee is transacting during paid working time, in-
cluding with a union organizer not employed in the store.
Cf., e.g., Mason & Hanger-Silas Mason Co., Inc., 167 NLRB
894, 910,(1967), enfd. in relevant part 405 F.2d 1 (5th Cir.
1968): Sarkes Tarzian, Inc., 157 NLRB 1193, 1205 (1966),
enfd. 374 F.2d 734 (7th Cir. 1967), cert. denied 389 U.S. 839
(1967); Threads-Incorporated, 124 NLRB 968, 976-977
(1959). There is no indication that anything further was
made or came of the described incident, which I find not to
have been violative of the Act under the circumstances de-
scribed.
Another alleged incident involving interrogation of Lon-
genecker is set forth in the complaint (par. 5(g)). As to this,
Longenecker testified that on March 29 she was ap-
proached at work by her department manager, Marsha
Moritz, who asked her how she was going to vote in the
upcoming union election. Longenecker responded that she
had not yet made up her mind. Flatly denying that she
asked Longenecker how she intended to vote, Moritz' ver-
sion of this incident is that she merely responded to an
inquiry initiated by Longenecker to Moritz that Longe-
necker was "interested in familiarizing herself with both
sides," in order to make up her mind about the Union, and
that Moritz merely answered Longenecker's questions.
Moritz' version thus throws an entirely different cast upon
the entire episode. However, upon comparative testimonial
demeanor observations, I prefer and accept Longenecker's
version. I found Longenecker to be an extremely impressive
witness not prone to fictionalizing, exaggeration, or selec-
tive recall. I was not similarly impressed by Moritz, who
professed a somewhat selective memory. Furthermore,
Longenecker, who is engaged in police-type work and who
selected her words with care and did not deviate from her
testimony, is no longer an employee of Respondent and
attended under subpena, unlike Moritz, who is still in Re-
spondent's employ and at least potentially an interested
witness. In any event, on comparative testimonial demea-
nor observations, as already indicated, I have no hesitancy
in preferring the testimony of Longenecker. It is accord-
' See fn. 6, .rura. I do not regard Shortt's calling Longenecker to the
telephone, or any immediately preceding observations of Longenecker by
Shortt, under the circumstances described, as constituting surveillance or
other action violative of the Act on the part of Shortt.
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly found that this incident of interrogation is established
by a fair preponderance of substantial credible evidence
upon the record as a whole.
2. Frieda Hensley: February 24 (complaint para. 5(c))
Respondent's cashier-clerk Frieda Hensley testified with
great credibility that while in the office of Respondent's
personnel administrator, Millie Griffin, on or about Febru-
ary 25, concerning a possible vacation pay discrepancy,' °
Griffin questioned her about whether she had received a
letter from the Union and why anybody would want to join
a union. Hensley replied that she had gone to the union
meeting to learn and judge for herself, and that "had you
been there and seen the people opening up their hearts to
those union people about their problems, it was almost like
being in church." Griffin thereupon indicated that the
Union was coming between the employees and the Com-
pany, prompting the response from Hensley that the trou-
ble was that the employees got nowhere by going to the
Company directly and that this was one of the reasons the
employees had sought out the Union. Griffin said she would
not work there if the Union came in because of union graft,
as at her husband's place of employment. This drew from
Hensley the rejoinder that her own husband's working con-
ditions had improved under a union. Griffin pressed Hens-
ley as to why Hensley wanted to continue on with the
Union "rather than come [to us] .... that's what [we are
here] for." Calling attention to such matters as her lack of
seniority after 19 years, working until I p.m. before Christ-
mas, and cutbacks in vacations, Hensley defended her
union adherence, describing it as "like going to church."
Salem Mall Personnel Administrator Millie Griffin (and
prior thereto its Director of Personnel Relations in its
downtown store) throws an entirely different cast upon this
episode. Conceding that Hensley was in her office to discuss
an unremembered personal problem, after Hensley de-
scribed the problem, she (Hensley)-according to Griffin-
added, "This is why others are interested in a Union,"
drawing from Griffin the rejoinder that "I wish I knew what
those things were so that I could help.... We could do it
together and we didn't need someone else to help us do it,"
and a reference to her husband's problems in a union shop
(succeeded by a counterreference by Hensley regarding her
own husband). According to Griffin, she added, "Only if
the [employees] would come to us and talk to us. That we
couldn't do anything about problems if they didn't talk to
us about them." Also according to Griffin, when she spoke
of her husband's experiences with "dishonesty" under a
union, Griffin could "not recall" (seemingly in possible con-
trast to her earlier testimony, described above) whether
there was any response by Hensley. Although Griffin con-
cedes she did indeed ask Hensley "why would anyone want
to have someone else .. referring to the Union . . help
them with their problems when we could help them if we
knew what they were," Griffin professes to be unable to
"recall" Hensley's response. According to Griffin, Hensley
did liken her attendance at a union meeting to attendance
'0 To Hensley's inquiry as to why she had received only 35 hours instead
of her 40-hour working week, Griffin explained that Hensley's sick time was
deducted or prorated.
at a "church service," but (still according to Griffin) Hens-
ley indicated she was not interested in the Union but had
gone merely to listen to others; and, in turn, Griffin listened
to Hensley.
After carefully comparing and weighing my testimonial
demeanor observations of these two witnesses, I have grave
difficulty in accepting Griffin's bland description of the epi-
sode in question (to the extent of her imperfect or selective
memory recall"), and after observing Hensley as she testi-
fied, I simply cannot believe that Hensley-an extremely
impressive witness, with religious convictions, who contin-
ues in Respondent's employ since 1958, about 20 years' 2-
brazenly fabricated her described version of the episode in
question. Accordingly preferring and crediting Hensley's
version, I find that this alleged incident of interrogation is
established by a fair preponderance of substantial credible
evidence upon the record as a whole.
3. James C. Gilroy: Last week of March (complaint para.
5(b)(ii))
Respondent's housekeeping maintenanceman James C.
Gilroy, a union activist and member of the union organiz-
ing committee, testified that around the end of March he
was called into the office of Dresses and Coats Department
Manager Margaret J. Ford, who, after reminding him of
past discussions, asked him outright how he was going to
vote in the upcoming union election. He replied that, just as
in the presidential election, it was his own business, where-
upon, persisting, Ford asked him to speak to his coworker
Lydia Willingham with a view to changing her mind, add-
ing that employees could gain advantages from manage-
ment not available through the Union. At this, Gilroy re-
marked that he hoped she had her head screwed on right,
and he left.
Respondent's Dresses and Coats Department Manager
Ford displayed a rather eclectic recollection of this episode,
which she concedes occurred but which she insists involved
an uninvited visit to her office by Gilroy. Although Ford
denies she reminded Gilroy of past discussions, questioned
him concerning his voting intentions, asked him to inter-
cede with Willingham, or indicated the possibility of advan-
tages flowing from management, she admits that Gilroy
spoke of the privacy of his voting intentions but she pro-
fesses-quite unconvincingly, to my view-to be unable to
recall the context in which this subject arose. First denying
that Gilroy made any remark about her (Ford's) head being
screwed on right, Ford then seemingly backtracked and tes-
tified she merely could not "recall" that.
I found Gilroy, who was not cross-examined by Respon-
1 Regarding Griffin's professed difficulties of recall, although she con-
ceded on cross-examination that she had instructed supervisory employees to
observe and report back to her on employees' handbilling activities, she
professed to be unable to "recall" whether the handbilling activities of Hens-
ley-open and notorious as they seemingly were-were observed by her or
reported to her. I find this somewhat difficult to accept.
12 We have been instructed that currently employed witnesses, exposing
themselves to employer displeasure through their adverse testimony and thus
to potential risk of job reprisal, may merit an extra meed of credibility. Cf.
Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961), enfd. as modified, 308
F.2d 89 (5th Cir. 1962); Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14, 16
(4th Cir. 1962).
244
RIKE'S, A DIV. OF FEDERATED DEPT. STORES
dent, to be a highly credible witness whose testimony had
the solid ring of truth. Ford, on the other hand, observed as
she testified, impressed me as to a degree evasive, in addi-
tion to having a professedly clouded recollective sensorium.
Since, upon comparative testimonial demeanor observa-
tions. I have no hesitancy in preferring and crediting Gil-
roy's testimony, it is found that the described additional
instance of interrogation has been established by a fair pre-
ponderance of substantial credible evidence upon the rec-
ord as a whole.
4. Francine Harvey: March 31 (complaint par. 5(n)(i))
Respondent's cosmetics saleslady Francine Harvey testi-
fied credibly and without contradiction that on March 31
Sunday Manager Fred Walker approached her at work
and, after saying he wished to talk to her, indicated he had
been instructed by the Company to "find out what the
problems were and why [the employees] wanted a union,"
explaining that "N.C.R. [National Cash Register] . . . had
moved out of town and that hundreds of people were out of
jobs ... because the union came in and lots of people [are]
out of jobs.... [I can't] grasp the fact that anybody [wants]
a union." At this point Harvey indicated she did not wish to
be drawn into this discussion, and Walker left.
Since without explanation Walker was not produced to
controvert this testimony by Hanrvey, which I credit, I find
the incident as testified to by Harvey established. Although
Harvey declined to become enmeshed in the discussion on
unionization and her views which Walker instigated, the
incident in question may be and is nevertheless viewed as
coercive, restraintful, and violative of the Act. Contrary to
Respondent's apparent argument, it is unessential to viola-
tion of the Act that an employee be stung to respond affir-
matively to attempted employer interrogation. Such em-
ployer activity may be coercive, restraintful, and in
interference with employees' rights protected under the Act
even if the employee at whom it is leveled fails to respond
affirmatively. Moreover, if, as in this case, the employee
does respond affirmatively to the extent of specifically refus-
ing to be drawn into the discussion provoked by the Em-
ployer, that in itself may serve as a clue to the Employer
that it is because the employee is harboring prounion senti-
ments that he is not responding with a resounding dis-
avowal of such sentiments, else why should he not un-
equivocally deny them when asked?
Under all of the undisputed circumstances, it is found
that the interrogation episode in question stands estab-
lished.
5. Jane Rousseau: April 5 (complaint par. 5(n)(ii))
A final alleged instance of interrogation involves Respon-
dent's plant saleslady Jane Rousseau, who testified-also
without contradiction-that on or about April 5 she was
approached at work by Respondent's Sunday manager,
Fred Walker, who put the direct question to her. "[H]ow
[do you feel] about the 3rd party ... the union." Notwith-
standing Rousseau's response that she "didn't think we
were supposed to talk about [it] on store time," Walker
continued in the same vein, adding something to the effect
that he liked to work for Respondent and did not under-
stand why the employees would want the Union.
As in the instance of Harvey, supra, the testimony of
Rousseau stands wholly uncontradicted, and, for the same
reasons as in the Harvey instance, I find the interrogation
incident involving Rousseau established.
C. Disparate enforcement of no-solicitation rule. February
and April 7 (complaint Par. 5(o))
It is alleged' that during February and on or about April
7 (a week before the union representation election) Respon-
dent enforced its otherwise valid no-solicitation rule dis-
criminatorily against prounion employees while permitting
antiunion employees to speak and campaign against the
Union.
It is agreed that at all material times Respondent has had
in effect the following no-solicitation rule:
1. Any solicitation by any persons who are not em-
ployed by Rike's is prohibited at all times throughout
all Rike's locations.
2. It is the policy of the company that solicitation by
our associates is prohibited on all selling floors during
all hours when the store is open to the public. Solicita-
tion by associates is also prohibited in all sales support-
ing areas during an employee actual working sales sup-
porting areas during an employee actual working time,
i.e., actual 'productive time,' not including lunch time,
paid break, etc.
3. This rule applies at all Rike's locations and in-
cludes solicitation for lotteries, raffles, charitable or
policital [sic] organizations, labor organizations, frater-
nal organizations, and the like. The only exceptions to
this policy are the annual United Fund Campaign and
the semi-annual Group Blood Drive, both of which are
total company projects.
4. This policy will be strictly enforced at all loca-
tions. Violations should be reported to the Personnel
Department immediately. Violators will be subject to
appropriate discipline.
The aggregate, mutually corroborative, credited testi-
mony of General Counsel witnesses Harvey, Longenecker,
Pullen, Rousseau, Booher, Weist, Clark, and Eastridge-all
Respondent's employees now or at the time-fairly estab-
lishes that although Respondent enforced this no-solicita-
tion rule with determination and rigor against union advo-
cates, it at least tolerated and condoned, if it did not
sanction and authorize, its breach by nonsupervisory (as
well as supervisory) personnel opposed to the Union.
In illustration of Respondent's condonation, if not sup-
port, of antiunion solicitational activities by its staff, cred-
ited testimony of employees Harvey and Rousseau concern-
ing Sunday Manager Walker's solicitous antiunion
advances upon them will be recalled. Additionally, about a
week before the April 14 Board-conducted election, accord-
ing to uncontroverted testimony of Respondent's former
shipping-receiving-mailing and relief security clerk Julia
Anne Booher, whom I credit, Booher was approached
1 Complaint par. 5(0).
245
DI)4l.ISIONS OF NA IIONAI. LABOR RELATIONS BOARD
while at working by Mary Riley, a rank-and-file pay clerk
and secretarial employee (who later served as the company
observer at the Board-conducted election). Riley solicited
Booher to sign a paper about "Rike's not needing a union."
Booher declined. Later in the day, while Booher was dis-
tributing mail in the office. Riley again on working time
renewed her request to Booher that the latter sign the docu-
ment. When Booher again refused, Riley remarked that she
(Riley) was worried about Booher's job, but that if Booher
changed her mind about signing the antiunion document it
would be available in the office of Shoe Department Man-
ager Margaret Greene fir Booher's signature. When Boo-
her later, out of curiosity, checked in Department Manager
Greene's office, she did indeed see that document there, to
the effect that the signers did not desire a Union. Since,
without explanation, neither Riley nor Greene was called to
controvert the foregoing, the described testimony of Booher
stands uncontradicted and is credited.
In March or April, again shortly prior to the election, as
established by the mutually corroborative credited testi-
mony of Respondent's employees Eastridge, Pullen, Longe-
necker, and Rousseau. at the employees' regular Saturday
morning assemblage, shoe salesman Rick Couture who
was not called to controvert this in any way was permit-
ted, in the presence of and without interference from or
disavowal then or thereafter by any of Respondent's super-
visory personnel, including Store Manager Gary E. Molin,
to take the podium (allegedly set up for the first time) and
from prepared notes to make an antiunion speech, pro-
claiming that "the 3rd party or the union was upsetting our
store and that . . . if the people in the store didn't like the
way the store was run, they should get the hell out." Var-
ious department managers applauded these remarks. When
Store Manager Molin then went to the podium. he stated
that although he did not know the speech was going to be
made he nevertheless agreed "we did not need the 3rd party
[Union]." In no way did Molin or any other of the numer-
ous store supervisors there seek to prevent Couture from
talking, interrupt him, or in any way disavow what he said.
In his testimony concerning this episode, Molin acknowl-
edged that in his office prior to the assemblage in question,
although he had been informed by his high-ranking sub-
ordinate, Divisional Group Manager Spano, that Spano
had learned from Couture's supervisor, Shoe Department
Manager Margaret Greene, that Couture was going "to
give the speech today," Molin did nothing to stop Couture.
Molin attempted to justify this at the hearing- -in contra-
distinction to his pretrial affidavit-by explaining that he
had done nothing to stop Couture's intended speech (which
he apparently had also been alerted about by Spano during
the previous week) because it was only "hearsay" and that,
besides, it would have been "rude" as well as "poor judg-
ment" for him to interrupt Couture.
In dramatic contrast to Respondent's toleration, it not
sanctioning of, acquiescence in, and approbation of; these
antiunion solicitations of its employees in relaxation or vio-
lation of its professed no-solicitation rule is its rigorous en-
forcement of that rule against its union-adherent employ-
ees. Thus, subsequent to the described Couture speech
incident and about a week prior to the April 14 election as
established by the mutually corroborative. credited testi-
mony of General Counsel witnesses Harvey, Weist, and
('lark- Respondent's cosmetics saleslady and union pro-
tagonist Harvey was, during her breaktime", carrying a let-
ter to Budget Men's Department employees Kennedy and
Wells for their signature, requesting a talk by a union repre-
sentative. Harvey was accosted by Department Manager
Philip Parker, who demanded to know what she had with
her that was "disturbing [my] people." When Harvey told
him it was none of his business, Parker refused to permit
her to return to work before she showed him the document,
chasing her back and forth around a clothes rack and
roughly grabbing her by the arm as well as attempting to
seize her purse (into which she had placed the paper). When
Parker exclaimed that that was "strike three and . .. [you]
evidently [have] something to hide," Harvey showed him
the document (G.C. Exh. 2), which then bore 18 employee
signatures. After Parker read it, he told Harvey she should
not be doing this "on store time." She pointed out to Parker
that antiunion personnel were being permitted to do so.
The document in question, with many additional signa-
tures, was subsequently delivered to Store Manager Molin.
According to employee Weist, who had typed the docu-
ment, it was provoked by Respondent's having permitted
Couture earlier to make the aforedescribed antiunion
speech to employees, and the prounion employees merely
wanted equal treatment. Molin's response, however, was
that he would not "let the store be a forum for the union"
and that "there [will] be no invitation sent to the union."
The nature and quality of Respondent's application and
entorcement of its no-solicitation rule is thus revealed as
rather startlingly different, depending upon to whom it was
applied-in favor of whom it was relaxed, and against
whom it was enforced. As here shown and established be-
yond peradventure of doubt, Respondent relaxed or failed
to apply that rule against antiunion advocates, while it ap-
plied the rule with strict severity and rigor against union
advocates. General Counsel does not contend that the rule
itself is violative of the Act but merely that it was dispa-
rately and discriminatorily applied against union-advocat-
ing employees in violation of the Act. Cf, e.g., Rockwell
International C'orporation, 226 NLRB 870, 875-876 (1976);
The Contract Knitter, Inc., 220 NLRB 558, 560 (1975); Ma-
son & Hanger-Silas Mason Co., Inc., 167 NLRB 894 (1967),
enfd. as modified 405 F.2d 1 (5th Cir. 1968). As shown,
disparate and discriminatory application of Respondent's
own rule in relation to different rank-and-file employees has
been amply demonstrated by preponderating credible evi-
dence, much of it uncontradicted. It is accordingly found
that these allegations of the complaint have been estab-
lished.' 5
14 While Harvey was on breaktime, the two employees (Kennedy and
Wells) in the Budget Men's Department apparently were not, although they
were not waiting on customers but merely hanging pants on a rack.
1 This is not to suggest that an employer is under obligation to invite or
permit a union to utilize or have access to the employer's premises for the
purpose of addressing employee assemblages there (particularly in absence
of proof of nonexistence of reasonable alternative modes of reaching the
employees): or that an employer may not prohibit union solicitation during
the worktime of solicitor or solicitee; or that an employer may not itself
conduct employee assemblages to present its views. without thereby creating
an obligation to permit a union to do likewise. Cf.. e.g., Republic Aviation
Corporation v.,V LR. B., 324 U.S. 793 (1945). It means only that, under the
circumstances here shown, Respondent was required to apply its own no-
246
RIKE'S. A DIV. OF FEDERATED )EPT. SORES
D. Threats of Loss of Economic Benefits and of 'Latof/:
February-April (Complaint pars. 5(1)(i). (h)(i) and (ii), (a),
(j)(i), ()(ii). (i)(ii), (f), (k), and (h)(iii))
1. Henry Yospur: February (Complaint par. 5(1)(i))
Respondent's stockman Henry Yospur testified that
while at lunch in the employees' lounge in February, with
his supervisor, Shipping and Receiving head Jerry Severt
the latter remarked to him, "I'd hate for the union to come
in and put you out on the breadlines ... because [you don't]
have that much seniority." While Severt (no longer in Re-
spondent's employ) denies or is unable to recall any such
specific conversation and I credit Yospur, I do not view this
particular remark by Severt as being other than in the cate-
gory of a random expression of personal opinion or predic-
tive hyperbole, readily evaluatable by Yospur for what it
was as such and not rising to the level of a threat imputable
to the employer as a violation of the Act. I therefore find
this allegation of the complaint (Par. 5(1)(i)). to the effect
that Yospur was told in violation of the Act that he "could
be laid off if he chose to support the Union," not sustained.
2. Francine Harvey, Gregory Brown, et al.: February 26
(Complaint pars. 5(h)(i) & (ii))
The complaint alleges that on or about February 26
Store Manager Gary E. Molin told an assemblage of em-
ployees that they would lose their employee discounts and
other benefits and would be laid off in the event of union-
ization.
In support of this allegation, the composite credited testi-
mony of employees Francine Harvey and Melinda Longe-
necker establishes'" that at a regular Saturday morning em-
ployees' assemblage on the date in question, Molin. while
consulting a paper "occasionally" only, stated that "There
[is] an outside 3rd party knocking at the door which we
didn't need and the outside 3rd party was the union and
that if the union came into the store, that the hours would
be cut, extras would be laid off; we would lose our benefits.
our discount; no more store picnics. Kings Island days that
we had.... [about benefits that would be taken away, he]
mentioned our profit sharing.... He said that we would
lose our profit sharing." This was said to an assemblage of
75 to 100 employees and supervisors. apparently most em-
distribution rules to its own rank-and-file employees in an evenhanded. non-
discnminatory manner. in contrast to the situation here, where. notwith-
standing rules under which essentially all employee solicitation is proscribed.
antiunion solicitation by some rank-and-file employees was sanctioned while
at the same time prounion solicitation by other such employees was not
tolerated. Cf. Walton Manufacturing Company, 126 NI.RB 697, 698 (1960).
enfd. 289 F.2d 177 (5th Cir. 1961); The Wm. H Block Companv. 150 NLRB
341, 343, fn. 6 (1964): State Chemical Compans, 166 NLRB 455 (1967): The
Sardis Luggage Company, 170 NLRB 1649, 1654-55 1968).
J6 Although Molin testified that he did no more than read from a "Fact
Sheet" (Resp. Exh. 8a) without departing from its wording, I found him to be
a far less than satisfactory witness, at times given to evasion and even seem-
ing departure from or equivocation concerning his pretrial affidavit. as well
as to implausible and unpersuasivepostfacto rationalizations (e.g . his unper
suasive "explanations" for not stopping or interrupting employee ('outure's
antiunion speech, supra), and accordingly prefer and credit the employees'
described testimony indicating that as is not unusual in cases of this na-
ture-the "reader" departed from, added to, or embellished the precise
wording of the text before him. Cf., e.g.. Georgetown Dress (orpraitin. 201
NLRB 102. 113 114 (1973).
ployees (including Longenecker) being part-timers or "ex-
tras." The statements, aimed directly at all employees'
pocketbooks and beamed largely at its many part-timers or
"extras." were clearly coercive and in that category of
threats explicitly excepted from the Section 8(c) statutory
freedom of expression provision. As such, they ran afoul of
the Act and were plainly unlawful. Cf., e.g.. N.L.R.B. v.
Gissel Packing Co.. Itc(., 395 U.S. 575, 617 620 (1969);
N.I..R.B. v. Echange Parts Co., 375 U.S. 405. 409 410
(1964); Henry 1. Siegel (o.. Inc. v. N.L.R.B., 417 F.2d 1206,
1208, 1214 (6th Cir. 1969), cert. denied 398 U.S. 959 (1970);
N.L.R.B. v. Kings/ord, 313 F.2d 826, 832, and cases cited
(6th ('ir. 1963); .I..R.B %. ederbush Co., Inc., 121 F.2d
954, 957 (2d Cir. 1941 (Components, Inc., 197 NLRB 663
(1972); Wigvsnl Mills, Inc., 149 NL.RB 1601, 1611, 1618
(1964), enfd. 351 F.2d 591 (7th Cir. 1965). 1 accordingly
find these allegations of the complaint sustained by a fair
preponderance of substantial credible evidence upon the
record as a whole.
3. Gregory Brown: February 28 (complaint par. 5(i)i))
The complaint alleges that on or about February 28, '7
Respondent's Department Manager (Areas No. II, 31, and
32) Patrick A. O'Connell told employees that Respondent
"would take away existing benefits if the Union was voted
in."
Testif'ing in support of this allegation, Respondent's
sporting goods employee Gregory A. Brown stated that at
his departmental meeting on the date in question. Depart-
ment Manager O'(Connell appearing to read from a paper,
stated that Rike's employees had better wages than those at
unionized stores and that "there would be layoffs if the
union came in because the Company couldn't afford to pay
the higher wages and extra benefits." O'Connell denies say-
ing this. While I was well impressed by the testimonial de-
meanor of Brown. I was also favorably impressed by that of
O'Connell. and, in the face of O'Connell's flat denial, would
have no rationally persuasive basis, in regard to this par-
ticular incident, fr preferring Brown's assertion as clearly,
substantially, or airl preponderating over O'Connell's de-
nial. I accordingly find that General Counsel has failed to
sustain the burden of proof w hich is his in this regard, and
grant Respondent's motion to dismiss this allegation of the
complaint. (Cf. (Consolided Edison Co. v. N.L.R.B., 305
U.S. 197. 230 (1938): cf. Beaird-Poulan Division, Emerson
Electric C(., 233 NI.RB 736 (1977): AAA Lapco. Inc., 197
NLRB 274 (1972); Blue Flash Express, Inc., 109 NLRB
591. 592 (1954)
4. Francine lfarve: March I (complaint par. 5(a))
It is further alleged that on or about March I Respon-
dent's Cosmetics and Fine Jewelry Department Manager
Vickie S. Eib threatened employees with loss of existing
benefits in the event of unionization.
In support of this, Respondent's cosmetics saleslady
Francine Harve) testified that at her departmental meeting
on March 1. her department manager Vickie Eib. ad-
'D I)ate as mended a t the hearing.
247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dressed the department employees, extemporizing with or
from a paper in her hand, telling the assembled employees
that employees at a local discount store (Goldman's) were
not receiving the pay the Union had "promised," that union
dues were the only moneys a union could promise and these
would go for union officials' "trips to Hawaii," that under a
union employees could no longer go to the department
head,' that employee grievances could take a year to re-
solve, that under a union employees would "lose all of
[your] rights as an individual," that "[your] hours would be
cut and that the union couldn't protect you from being laid
off," and that "everything would be wiped out . . . [you]
would have to start from zero."
While Eib denies making at least some of these state-
ments, her testimony as Respondent's witness indicates that
she did indeed extemporize, utilizing the document or docu-
ments ("Fact Sheet[s]") before her merely as a guide, par-
tially, or only "basically" (Eib's expression), while "ex-
pounding on the facts" (also Eib's expression), and that she
did indeed range therefrom while addressing her employ-
ees'9 (26 or so) on paid company time, sometimes during
customer business hours, from 4 to 8 times per week. For
this and other reasons based upon testimonial demeanor
observations20 and her demonstrated zealous promanage-
ment bias, I received an adverse impression of her credibil-
ity, and I much prefer the testimonial tone and caliber of
Harvey. Accordingly crediting Harvey's described testi-
mony over that of Eib, I find the complaint allegations in
question established by a fair preponderance of substantial
credible evidence upon the record as a whole.
5. Lois Weist: March 7 (complaint par. 5(j)(i))
The complaint speaks of another instance of economic
threat, this one on March 7 by Respondent's Budget Men's,
Domestics, Children's, and Boy's Department Manager
Philip R. Parker.
In support of this, Respondent's budget draperies lead
saleslady Lois Weist, in its employ for over 20 years, testi-
fied that at a departmental assemblage of some 10 to 12
employees on March 7 Department Manager Parker, after
making some allegedly inaccurate, misleading, or critical
antiunion statements, told the assembled employees that in
the event of unionization the store would "have to take
away something like [your] store discount, employee dis-
count. [T]he newest people, the extras, would be laid off
because if Rike's gave something, they would have to take
away something and [you] could start out with zero....
IS This constitutes a misstatement of the law, there being an express statu-
tory provision to the contrary in Sec. 9(a) of the Act. Cf. Henry 1. Siegel Co.,
Inc v. N.L.R.B., 417 F.2d 1206, 1215 (6th Cir. 1969), cert. denied 398 U.S.
959 (1970); N L.R.B. v. Graber Manufacturing Company, 382 F.2d 990. 991
(7th Cir. 1967); Dixisteel Buildings, Inc., 186 NLRB 393, 395-396, fn. 6
(1970), enfd. 445 F.2d 1260 (8th Cir. 1971). At the hearing, Eib attempted
unpersuasively, during cross-examination, to alter, water down, or equivo-
cate concerning her pretrial sworn statement to the same effect, impairing
any favorable assessment of her credibility.
19 Cf. fn. 16, supra, and case cited. Eib conceded her average meetings
lasted 15 to 30 minutes, of which only 2 to 3 involved reading the "Fact
Sheet." Among other things, she testified that she is certain that she told
employees that "if the Union came in and we had a closed shop ... everyone
would be forced to join the Union." But cf. the Act 17 and 8(aX3). On cross-
examination she denied knowing the meaning of "checkoff."
° See, e.g., fn. 18, final sentence, supra.
Another thing he said was that if the union got in and ... if
we were written up a couple of times for something or we
were late, we could be fired. He also said that we could lose
our profit sharing.... He said that we'd have to pay union
dues, regardless of the number of hours we worked and we
would, if the union got in, we would have to join or or [sic]
quit."
While Parker's version of this episode is at odds with that
of Weist, Parker's version is interlaced with professed recol-
lective lapses and alleged inabilities to "recall"; and, al-
though he no longer works for Respondent, Respondent is
now one of his customers in his current capacity as a cos-
metics salesman, so that he may be regarded as having a
potential interest or bias favoring Respondent. Further-
more, while poorly impressed with Parker's testimonial per-
formance based upon my demeanor observations and his
seeming equivocations and professed patchy memory, I
was, by contrast, extremely favorably impressed by Weist,
who demonstrated herself to be a highly persuasive witness.
Under these circumstances, I credit Weist in preference to
Parker, whose statements not only presented to the employ-
ees an economically doleful prospect in the event of union-
ization, threatening to their jobs and livelihood, but without
demonstrated basis he also misleadingly portrayed the
Union as the seeming antagonist rather than the protago-
nist of the employees' interests. At any rate, his threats to
the employees' jobs and their existing economic benefits in
the event of unionization were beyond the pale of permissi-
ble fair comment, since they directly linked unionization
with consequent detriment to employees' existing economic
status and even with loss of their jobs.
Crediting Weist, as indicated, it is found that this allega-
tion of the complaint is established by a fair preponderance
of substantial credible evidence upon the record as a whole.
6. Henry Yospur: March (complaint par. 5(l)(ii))
Respondent's current Assistant Stock Supervisor Henry
Yospur, handling receipt and distribution of its merchan-
dise-a rank-and-file stockman at the time of the events to
be described-is said to have been involved in still another
instance of unlawful economic threat during the interreg-
num while awaiting the Board-conducted April election.
According to Yospur, a most impressive, uncross-exam-
ined witness who, because of his intervening promotion,
testified at potential risk to his improved status, if not his
job,2' swore that while on a company delivery truck with his
superior, Shipping and Receiving Supervisor Jerry Severt,
in March, Severt informed him that the Company had
asked him (Severt) to make out a scheduling for use in case
of unionization and that in that contingency Yospur would
have "zero hours" because of "[not] enough seniority."22
Although Severt, a somewhat unprepossessing witness
who is no longer employed by Respondent but whose
21 See fn. 12, supra, and cases cited.
22 Although it may well be that this remark, in March, throws a different
coloration upon Severt's arguably comparable observation to Yospur in Feb-
ruary, which I have already found, for reasons previously indicated, not to
have been violative of the Act, I tend to regard the earlier finding (supra, sec.
DI) as one that should nevertheless stand, since I have some difficulty in
relating the later remark back to the earlier one to add coloration to the
earlier remark for interpretative purposes.
248
RIKE'S, A DIV. OF FEDERATED DEPT. STORES
mother still is, claims that in the delivery truck it was Yos-
pur who first expressed concern over how many hours he
would be working under an "available hours clause," Severt
indicates that-for some reason unpersuasive to me-he
(Severt) happened to have with him a sample scheduling,
which he thereupon displayed to Yospur, and which he
(Severt) thereafter "probably threw ... away." On cross-
examination, Severt incredibly denied that he had ever
made up, at management's request, the scheduling he con-
cededly had on hand to show Yospur, claiming that man-
agement had shown him "a contract" containing an "avail-
able hours" provision, without, however, indicating that it
or any counterpart would necessarily be contained in any
collective agreement which might be negotiated with the
Union here; and Severt would say no more-repeatedly-
than "I don't believe so" or that he could not "recall" when
asked whether it was he (Severt) who brought up with Yos-
pur the "available hours" provision. Finally, Severt on
cross-examination acknowledged, seemingly watering down
his earlier denial on direct examination, that he merely does
not "believe" he told Yospur that he would get "zero
hours" under the indicated unionization-assumed schedul-
ing.
Clearly preferring and crediting the testimony of Yospur
over that of Severt, upon the bases described as well as on
testimonial demeanor comparisons, I find the complaint al-
legation in question, constituting an economic threat to
Yospur's job in the event of unionization, established by a
fair preponderance of substantial credible evidence upon
the record as a whole.
7. Gregory Brown: March (complaint par. 5(i)(ii))
An additional episode of alleged economic threat centers
around more alleged layoff remarks, tied to unionization,
by Department Manager Patrick A. O'Connell to sporting
goods salesman Gregory A. Brown in March.2
In support of this allegation, Sporting Goods employee
Brown testified that on March 31, at his departmental
meeting, Department Manager O'Connell, in the context of
describing consequences of unionization, after stating that
"61% of the regulars at Rike's Salem have been there for 5
years or more and that 35 had been there since the store
opened" and that "from that point on" names of employees
who worked for only "20 hours a week for X amount of
weeks" (i.e., part-time employees) "would be spit out of the
computer so that they would be eligible to become a regu-
lar" added that the employees "have it better or they had
more now than what the union could get them," since "by
Federal Law for negotiations, we would start at zero; we
would have nothing... the only thing union security would
be good for would be for layoffs.... We would have abso-
lutely nothing and we would have to try to get what we
could ... we would start from scratch and lose everything,
including our discount, vacations, etc.... some people be-
lieve that they can actually keep what they have already
and if that is true, they'd be living in Utopia."
Although Department Manager O'Connell, testifying as
Respondent's witness, first substantially disputed the fore-
going version, he later appeared to retreat from some of his
: Date as amended at the hearing.
earlier testimony by stating merely that "I do not recall it."
Although he at first testified he read his employer's "Fact
Sheets" (Resp. Exhs. 8a h) to his subordinates, he conceded
that he added as a "fair thing to tell the employees," even
though not contained in any of the "Fact Sheets," that
"while negotiating the contract it starts at base zero and the
benefits are added," but he claims he reassured the employ-
ees that "It]he benefits you now have will continue until the
contract is negotiated." O'Connell conceded that although
he informed the employees that "everything [would be] up
for negotiation," he nevertheless at the same time impressed
upon them as "a flat fact" certain "standard" features
which he "assume[d]" would be in any contract-adverse, it
is noted, to the employees, and seemingly constituting an
unwarranted "assumption" calculated to sour the employ-
ees on the Union, such as an assumed provision concerning
seniority and jobs-professing to be unable to "remember"
whether he informed the employees that these provisions
were likewise "up for negotiation." O'Connell concedes that
in all of his 30-odd meetings with subordinates on paid
company time while awaiting the holding of the Board elec-
tion, he did not merely read or read from the Company's
"Fact Sheets" but also extemporized. O'Connell's testimony
concerning these and related subjects (e.g., the Couture an-
tiunion speech, supra) is to a degree characterized by pro-
fessed recollective lapses. For this reason, in these aspects of
the case, and after comparing testimonial demeanor as
closely observed, to the extent of inconsistency I prefer and
credit the testimony of Brown and find that O'Connell did
indeed make the remarks here attributed to him, constitut-
ing substantially misleading as well as economically threat-
ening statements not privileged under the Act and accord-
ingly unlawful, considering their total content, tone, and
context. I do not credit O'Connell's testimony that he reas-
sured the employees that their existing benefits would be
continued while at the same time warning them that-ac-
cording to his own version-"while negotiating the contract
it starts at base zero and the benefits are added." Although
an employer may of course fairly inform his employees that
negotiations include the levels of salaries and benefits,2 ' the
expressions here utilized, as found, in their totality and con-
text and particularly in the framework of the surrounding
circumstantial congeries within which they must be as-
sessed, were not merely significantly misleading but also
constituted potent economic threats reasonably calculated
to induce trepidation and fear in the employees that contin-
ued adherence to the union and unionization would bring
serious economic detriment and even job insecurity and
loss-utterances plainly, in my view, unlawful under the
Act.2
8. Jane Rousseau. March (complaint par. 5(f))
Still another instance of alleged economic threat, along
the same lines, involves Respondent's Small Wares Depart-
24 Cf., eg., Computer Peripherals, Inc., 215 NLRB 293, 294 (1974).
21 Cf., e.g., ,.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964):
Plasironics, Inc., 233 NLRB 155 (1977); Coach and Equipment Sales Corp.,
228 NLRB 440(1977); Peterson Builders, Inc., 215 NLRB 161 (1974); Saun-
ders Leasing Svsrem, Inc., 204 NLRB 448, 454 455 (19731., enfd. in relevant
part 497 F.2d 453 (th Cir. 1974).
249
DFU( ISIONS OF NAIIONAL LABOR RELATIONS BOARD
ment Manager Mary Ellen Light and her subordinate, plant
saleslady Jane Rousseau, also in March while awaiting the
April oard-conducted election.
According to the testimony of Rousseau. Department
Manager l.ight told three of her subordinates on the occa-
sion in question that "i [the union] did come in, we would
start from n thing . . we would start with seniority if the
union came in. which meant that regulars would get the
most hours and that ... that wouldn't leave any hours left.
. . .The regulars . . . would get the hours and that there
probably wouldn't be any left for the extras." Light also
stated that "she couldn't understand why we would want to
pay nine dollars a month for union dues when she felt that
she saved three hundred dollars a year on her discount.""
l.ight's related testimony is merely to the effect that she is
unable to "recall" making the statements attributed to her,
while at the same time conceding that she did not restrict
her remarks to her subordinates to her employer's "Fact
Sheets" hut that she also extemporized, and that whatever
she might have said on these matters was "reference[d" by
her to what she assumed would occur if the store became
unionized, based at least in part upon her construction of
the contents of and her assumptions as to the applicability
of three collective agreements elsewhere, furnished to her
by management.
While generally well impressed by Light. in view of her
confessed memorial lacunae in substantial matters and
areas, and her vagueness in others, adding up to an unreli-
ably eclectic recall faculty. I prefer and credit the described
testimony of Rousseau, which was clearly and persuasively
delivered and in part undisputed by Light. Accordingly, it
is found that this allegation of the complaint is established.
9. Lisa McKay: Last week of March (complaint par. 5(k))
Yet another episode of alleged economic threat along the
same lines involves Respondent's Men's Department Man-
ager Michael G. Rothberg and his subordinate, saleslady
lisa McKay.
Paralleling testimony of other employees already re-
U. un i:i McK , testificd that on M rch 28 she and 4 other
n's )epartmnent emploCyees wi r assembled and ad-
.,cssed by Dcpartment Manager Rothberg, who had a pa-
pet in h is hand but also extetnporized stating that, in addi-
tion to pcnalties to which employees could be subjected at
lie ha nds of the Union, in the event of unionization the
e'nployees "would have absolutely nothing: that we would
:ltrt frolt I ro; that we would lose our 20%4 discount: that
the extras would be the first to go.... "
VWhile protessing inability to "recall" various statements
li itcd to hinm by McKay, Rothberg no longer in Re-
p. Qindent'. cimploy disputed other portions of her testi-
monny, while to a degree also ippearing to depart from the
contents of a pretrial affidavit furnished to a Board agent.
Ile also professed - rather incredibly, to my mind an al-
:* It would seem that this statement may fairly be construed to imply. and
that it as therefore calculated to suggest, to the employees hat unionia-
tion could ell cost them their existing store-purchase discounts. hus con-
,irliing the statement, hich is undisputed by ight, it clearly constituted an
x. 'ohmic threat .isthin the Ac's proscription. (. e.g., Daris Wholesale Co..
i,t, 165 NLRB 271 (1967) Buda Sychoelikopf Products, Inc.. 164 NI.RB
(th) ( l17).
most total lack of recall of the unusual and seemingly
memorable episode, at which he was present, involving the
Couture antiunion speech, recounted above.
While I was in certain respects not unfavorably im-
pressed by Rothberg, the choice between the weight of the
testimony of McKay-a highly impressive, forthright, and
uncross-examined witness and the patchy recollections of
Rothberg is clear, in the framework of their comparative
testimonial demeanor within the context of the case as a
whole. I credit McKay, and accordingly find this additional
instance of economic threat established.
10. Frieda Hensley, et al: April 9 1977 (complaint par.
5(h) (iii))
A 10th and final episode of alleged economic threat, akin
to those already considered, involves a speech by Store
Manager Gary E. Molin to assembled employees on April
9. 5 days prior to the Board-conducted election, at which
Molin is alleged to have threatened employees with loss of
existing benefits and layoff of "extras" if the Union suc-
ceeded in its organizational campaign.
No proof was submitted concerning any episode on April
9 of the nature described. In his post-trial brief (p.l 1), Gen-
eral Counsel concedes that this allegation is misdated and
subsumed within Complaint paragraphs 5(h)(i) and (ii)
dealing with February 26. The latter paragraphs have al-
ready been considered and disposed of supra, section D,2,
and paragraph 5(h)(iii) may therefore be regarded as sur-
plusage.
In view of the foregoing, I find that the violation thus
alleged to have occurred on April 9 has not been estab-
lished, and Respondent's motion to dismiss paragraph
5(h)(iii) of the complaint should be granted.
E. Offer To Adjust Employee Grievances in Case of
Emplovees' Abandonment of Union Support: March-April
(complaint pars. 5(b)(i) and 5(d))
The complaint further alleges two instances of offers by
Respondent to adjust employee grievances if employees
would abandon the Union or dissuade other employees
from voting for the Union.
I. James C. Gilroy: l.ast week of March (complaint par.
5(b)(i))
According to the complaint, during the last week of
March, Respondent's Dresses and Coats Department Man-
ager Margaret J. Ford offered to adjust employee griev-
ances if employees would abandon their support of the
Union. If true, this would be violative of the Act. Cf.
N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964):
N.L.R.B. v. The Brolqhill Company, 514 F.2d 655, 657 (8th
Cir. 1975); N.L.R.B. v. Crown Can Co., 138 F.2d 263, 267
(8th Cir. 1943), cert. denied 321 U.S. 769 (1944).
This alleged episode involves Respondent's housekeeping
or maintenance employee James C. Gilroy, about whose
credibility I have already commented favorably. According
to Gilroy, around the end of March, in the course of his
conversation with Department Manager Ford, which has
250
RIKE'S, A DIV. OF FEDERATED DEPT. STORES
already been described (supra, sec. B,3). Ford "told me that
the housekeeping group can get many benefits from the
management if we went about it in the right way ... [and]
that the union cannot give you certain advantages that
management can.... AlII you have] to do [is] get yourself
together and know what you want[edl to do and present it
to them...." Gilroy's testimony was not cross-examined.
Concerning the foregoing. Ford professed to be able to
testify only that, although she did "recall something of a
conversation" with Gilroy in her office around the time in
question, "I really don't remember the whole conversation"
and, pressed further, that she allegedly had an extremely
shallow recollection of the conversation. although later she
denied telling Gilroy that employees could gain things from
management without the Union.
Considering Ford's concededly defective recollective
powers and my own comparisons of testimonial demeanor
of Ford in contrast to Gilroy, I credit the described testi-
mony of Gilroy and find the complaint allegation in ques-
tion established by a fair preponderance of substantial
credible evidence upon the record as a whole.
2. Frieda Hensley: Late March Early April (complaint
par. 5(d))
A second alleged instance of the same variety revolves
around Respondent's Operating Superintendent John A.
Johnson and its now cashier-clerk Frieda Hensley.
According to Hensley, around April 1-2 weeks before
the Board-conducted election while she was at work
straightening out shirts, Operating Superintendent Johnson
approached and asked her if she was happy. She answered
that she would be in about 2 weeks, after the employees had
their union vote.2 Johnson asked her. "Why do you want a
union?" She informed him that although she had worked
for Respondent for 19 years she still had no seniority, usu-
ally worked 2 nights a week, and had had her vacation
allowance reduced from 40 to 35 hours, and that on her
"review" some objectionable notation (apparently errone-
ous or offensive to her) continued to be carried thereon. She
reminded Johnson that he was new at the store, and told
him he did not know what had been going on there for
years. Johnson assured her that the objectionable notation
would be removed from her record and her night hours
reduced; both of these promises were kept. When Johnson
said he would "make everything all right." Hensley re-
sponded that it was "too late . . . the horse is out of the
barn]," to which Johnson seemingly implied there could be
a new or "another horse." Johnson also added that "if you
will work with me and talk to your coworkers about the
union, I promise you things will be honey." After a lengthy
appeal along these lines, Hensley declined to accept John-
son's invitation or to be the bearer of these tidings.
Johnson's version of the foregoing is, essentially, that it
was Hensley who really opened up the conversation and
that, although he does recall Hensley's mention of a "horse
being out of the barn," he scrupulously avoided all discus-
sion with her on these subjects and in no way asked or
27 Hensley. an early union card-signer. had been openly active in union
handbilling.
suggested to her that she work with him or carry any kind
of message such as described above to her coworkers.
Since I was extremely favorably impressed with the testi-
monial demeanor of Hensley, as she testified openly and
with evident sincerity, but not similarly impressed with
Johnson's demeanor as he testified concerning the episode
in question (which, even according to his recollection.
lasted 20 minutes, it being further noted that in his pretrial
affidavit Johnson failed to mention the conversation -his
explanation for this, at the hearing. being that he did not
consider it to be "relev ant' and that he was not "asked"). as
well as somewhat equivocatingl and evasively concerning
other matters. I credit Hensley's version and accordingl,
find the complaint allegation in question established hb a
fair preponderance of substantial credible evidence upon
the record as a whole.
F. (9f er o(' Prooiitiol o Fimpl Ovee if EmpIree W 3mld
Speak Out Agamist. Union: Ap.ril (ct'niplaiw par 5(jpii})
The complaint additionally alleges that on or around
April I Respondent's Department Manager Philip R.
Parker (Budget Men's, Domestics, ('hildren's. and Boys'
Department) also violated Section 8(a)( 1) by ofTering a pro-
motion to an employee if the employee V, ould speak out
against the Union.
In support of this allegation, the credited testimony2 oft
Respondent's budget store lead draperies saleslady Lois
Weist, an early union member as well as active union solici-
tor and Organizing Committee member, establishes that
around April I she was called to her Department Manager
Parker's office for her "review," :2 during the course of
which he indicated she had an undescribed "problem" with
some of' her coworkers, but that she was nevertheless slated
for a 17-1/2-cent hourly increase. When she expressed sur-
prise at the size of the raise, which exceeded the 15 cents
she thought was the maximum. Parker informed her that he
expected her "to talk out against the Union." When she
expostulated "what my friends would think . . . I was the
leader . .. I just couldn't do that," Parker told her that "it'
[you] did, [you] would get a promotion." Weist responded
that it was "a little late to do that since I was a union
organizer," to which Parker replied that "it was never too
late" and suggested she take a course or courses at a local
college. Weist declined to take any further courses, having
already completed II courses without advancement. Per-
sisting, Parker indicated that he "knew" that "ift [ou] said
2 Although Department Manager Parker substantially denied that he eser
asked Weist to speak out against the Union, based upon comnparatisc testi-
monial demeanor observations and because of other negative features OI
Parker's testimonial yield (see, e.g., fn. 29, in/ra), I have no hesitancy in
preferring and crediting the testimony of Weist. I flatly do not credit Parker's
testimony that it was Weist who expressed misgivings to him about the
Union, did not know what to do. and was apprehensive about what her
friends would think if she made an about-face. Impressed as I was with
Weist's testimonial sincerity I would have great difficult); in believing that
she would make the kind of remarks to Parker attributed to her by him.
29 Testifying as Respondent's witness, on cross-examination Department
Manager Parker conceded that this particular "review" of Weist occurred
long before the "Oct. 1977" (Resp. Exh I) when t was due and for the first
time in the history of the Company in less than 6 montihs but, instead. was
adsanced, fr an unexplained reason. to 2 weeks before the Board-conducted
election of April 14
251I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[you] would talk out against the union, that [you] would do
it .... [I know you have] the Budget Store in [your] hip
pocket and everybody in the store would listen to [you]
because anybody that had been at a job for 20 years would
have to know an awful lot of people."
Crediting Weist, as indicated, it is accordingly found that
this allegation of the complaint is established by a fair pre-
ponderance of substantial credible evidence upon the rec-
ord as a whole. Cf., e.g., Heck's, Inc., 166 NLRB 674, 678
(1967).
G(. Ofier of Financial Assistance to Employee To Dissuade
Other Employees From Voting /or Union: April I
(complaint par. 5(j)(ii))
General Counsel also takes the position that the forego-
ing conversation between Respondent's Department Man-
ager Parker and Lois Weist (supra, sec. II, F) constituted an
offer of financial assistance by Respondent to Weist to pay
her way at school for the course or courses Parker suggested
she take if Weist would dissuade fellow employees from
voting for the Union.
Accepting Weist's version of the conversation in ques-
tion, I cannot agree. To begin with, in this aspect of the
conversation, the possibility of promotion in the context of
an additional course was tied to successful completion of
that with other courses and therefore to acquisition of addi-
tional job-related educational qualifications. Furthermore,
Weist had previously completed I I other courses, at Re-
spondent's expense, and Parker had as early as October
1976 discussed further education and courses with Weist.
Moreover, with respect to the additional course or courses
suggested by Parker on the occasion in question, Weist con-
ceded that she was unable to recall any indication by
Parker that Respondent would pay for it. In view of these
admissions by Weist and the previous history of company-
defrayed, job-related tuition for Weist totally unrelated to
antiunion activity of any kind, I am unable to find or infer
from Parker's conduct on the occasion in question that Re-
spondent thereby offered Weist financial assistance in this
regard for voting against the Union, as alleged in the com-
plaint paragraph in question.
H. Physically Restraining and Attempting To Obtain
Personal Property of Employee Supposedly Relating to
Employees' Union Activities: April 5 (complaint para.
5(j)(iv))
The complaint further alleges that on April 5 Respon-
dent's Department Manager Parker physically restrained
and attempted to obtain personal property of an employee
supposedly related to employees' union activities. The em-
ployee involved was Respondent's cosmetics saleslady
Francine A. Harvey.
The incident in question has already been described (su-
pra, "II,C"). It involved the episode when Department
Manager Parker pursued Harvey around a clothes rack
when Harvey, on her breaktime, sought to solicit the signa-
tures, on an employees' concerted organizational document,
of two of Parker's subordinates during their working time.
While it is true that Parker did indeed question Harvey,
pursue her, and lay a restraintful hand or hands upon her in
order to obtain the document in question-which Harvey
thereupon released to Parker-it is also true that Harvey's
action was in violation of Respondent's concededly lawful
(although disparately applied, as found supra, "II,C") no-
solicitation rule, since (unlike Harvey) Parker's two subor-
dinates were not on nonworking time. Cf. Mason & Hanger-
Silas Mason Co., Inc. v. N.L.R.B., 167 NLRB 894 (1967),
enfd. in relevant part 405 F.2d I (5th Cir. 1968); Clear Lake
Hospital, 223 NLRB 1 (1976); Emerson Electric Company,
177 NLRB 75, 78 (1969); Threads-Incorporated, 124 NLRB
968, 976-977 (1959). Under the circumstances, Parker had
the right to inquire of Harvey what she was doing in his
department, as well as to ask her to show him the paper she
was soliciting or had solicited his subordinates to sign dur-
ing their working time. While Parker perhaps used ungen-
tlemanly measures, in taking hold of Harvey to accomplish
his purpose of viewing the document, it cannot be said that
these measures were under the circumstances violative of
the Act, inasmuch as Parker did not offend the Act in de-
manding to know what "business" Harvey was seeking to
transact with his subordinates during their working time,
and particularly since it appeared to be-as it indeed was-
in violation of Respondent's valid no-solicitation rule.
I find that Parker's action under the circumstances de-
scribed did not constitute a violation of Section 8(a)(1) of
the Act, and accordingly grant Respondent's motion to dis-
miss this allegation of the complaint.
I. Physical Assault on Employee To Coerce Employee To
Vote Against Union: AprilP0 (complaint par. 5(m)(iii))
The complaint finally alleges that in April Supervisor of
Security Billie M. Shortt physically assaulted an employee
while instructing her to vote against the Union. The em-
ployee in question was Respondent's former shipping, re-
ceiving, mailing, and relief security clerk Julia Anne Boo-
her.
Booher, a member of the union organizing committee
and a union handbiller over a 4-month period, testified
credibly that on April 13, the day before the Board-con-
ducted election, while going down a store hallway, Respon-
dent's supervisor of security, Billie Shortt-observed by me
at the trial to be a seemingly powerfully built woman-
firmly seized Booher by the arm, shook her fist in Booher's
face, and angrily warned Booher, "Julia, you'd better vote
no for the union because if you don't, just remember,
you've got to work with me in the back." The testimony of
Booher, an excellent witness who stood up extremely well
on lengthy, prodding cross-examination, was adequately
corroborated by employee Weist, who observed the de-
scribed incident.
Shortt's testimony concerning the incident, credibly re-
counted in detail by Booher and Weist, is, "I don't recall
that incident."
Crediting the described, corroborated, and uncontra-
dicted testimony of Booher, I find the incident in question,
constituting a coercive and restraintful interference and
threat against Booher to influence her to vote against the
Union, established by substantial credible evidence.
30 Date as amended at the hearing.
252
RIKE'S, A DIV. OF FEDERATED DEPT. STORES
Upon the foregoing findings3 and the entire record." I
state the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. Through its actions in coercively interrogating em-
ployees concerning their union views, sympathies, and ac-
tivities (II,B, supra), in disparately enforcing its no-solicita-
tion rule (II,C, supra), in making threats of loss of economic
benefits and of layoff in the event of employees' continued
adherence to the Union or of unionization (II,D, supra), in
offering to adjust employee grievances in case of employees'
abandonment of union support (II,E, supra). in offering
promotion to an employee if the employee would speak out
against the Union (II,F, supra), and in physically assaulting
an employee to coerce the employee to vote against the
Union in a Board-conducted election (11,I, supra), under the
circumstances described and found in II, supra, Respondent
has interfered with, restrained, and coerced employees in
the exercise of their rights under Section 7 and continues so
to do in violation of Section 8(a)( 1) of the Act.
3. The aforesaid unfair labor practices and each of them
have affected, are affecting, and, unless permanently re-
strained and enjoined, will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. It has not been established that Respondent violated
the Act in the respects set forth in paragraphs 5(m)(i) and
(ii) (11,A, supra, surveillance), 5(e) (11,B,I, supra, interroga-
tion as to February 1977 only), 5(l)(i), 5(i)(i), and 5(h)(iii)
(II,D,l; II,D,3; and II,D,10, supra, threats of loss of eco-
nomic benefits and of layoff), 5(j)(ii) (11,G, supra, offer of
financial assistance (schooling) to employee to dissuade
other employees from voting for the Union), and 5j)(iv)
(11,1, supra, physically restraining and attempting to obtain
personal property of employee supposedly relating to em-
ployees' union activities) of the complaint in Case 9-CA-
11287-1, and those allegations of said complaint should be
dismissed.
REMEDY
Having been found to have violated Section 8(a)(l) in
various respects, Respondent should, as is customary in
cases of this kind, be ordered to cease and desist from those
and similar violations of the Act and to post the usual infor-
mative Notice to Employees."
THE REPRESENTATION CASE
As already indicated, certain union objections to the Em-
ployer's conduct said to have affected the results of the
HI See Appendix A [omitted from publication] for tabular resume of find-
ings cross-referenced to complaint subparagraphs.
Respondent's proposed findings and conclusions are allowed only to the
extent not inconsistent with the findings and conclusions made and con-
tained in the within Decision.
t2 Including Resp Exh. 17-ldent., which, being conceded by the Charging
Party Union to be "essentially accurate" (November 17 union counsel letter
to the judge), is hereby received in evidence.
I No bargaining order is sought by the General Counsel (although sug-
gested by the Union) or would be appropriate, among other reasons because
there was no claim or proof of majority representative status of the Union at
any time.
April 14 Board-conducted representation election are,
through consolidation (Case 9 RC 11876), also here for de-
termination. In that election, as aforenoted,4 a majority of
votes was cast against union representation. In its objec-
tions, the Union claims the election outcome was attribut-
able to unlawful acts of the Employer, most of which have
been discussed supra, during the interval between the filing
of its election petition (January 20) and the election (April
14). The objections, timely filed (April 19), were preliminar-
ily considered by the Regional Director in his September 2
Supplemental Decision and order consolidating cases and
directing hearing, after his issuance (June 30) of the com-
plaint in the underlying unfair labor practices proceeding
(9-CA- 11287 I) dealt with supra.
Since of the objections interposed only 5, plus a catch-all
"other conduct," have been referred," only these
A need be
considered here.
The substance of all objections (3. the first one so num-
bered: disparate enforcement of no-solicitation rule: 3, the
second one so numbered: unlawful interrogation: 4: unlaw-
ful threats: 5: unlawful offer of economic benefits for rejec-
tion of Union), except for Objection 2, has already been
dealt with supra, in the underlying unfair labor practices
complaint case (9-CA 11287 1), and it is unnecessary to
redetail those matters here. Some additional, cumulative
proof-also unnecessary to detail here, in view of findings
already made-was also supplied by Petitioner/Union in
support of these objections. Objection 2 is to the effect that
the Employer conducted unlawful surveillance over the vot-
ing process, area, or its adnexae, by stationing supervisors
and security personnel in impermissible proximity to the
polling area.)' While this objection, if established, could
constitute an infraction of the Board's antielectioneering
standards sufficient to warrant setting aside of the election
(cf., e.g., Milchem, Inc., 170 NLRB 362 (1968), with which
cf. Mclndustries, Inc., 224 NLRB 1298, 1299-1300 (1976)
and Threads-Incorporated, 124 NLRB 968, 979-980 (1959)),
in view of the more than ample establishment of the re-
maining objections-mandated by the findings which have
been made supra in the underlying CA case." it would serve
no necessary or useful purpose here to engage in a review of
the extensive, highly detailed, and hotly contested minutiae
Fn. I, supra.
" It is to be noted that the Petitioner Union's six objections (dated April
19) contain two objections numbered "3" and that the Regional Director's
Supplemental Decision (September 2) seems to compound this error by re-
numbering those objections to be seven instead of six. Herein, for the sake of
clarity, we shall adhere to the numbenng in the original objections, distin-
guishing between the two objections there numbered "3" by refemng to the
first as "Objection 3 (the first one so numbered)" and to the second as "Ob-
jection 3(the second one so numbered)."
` Objections I and 6 (i.e., 6 in the Petitioner Union's numbering system
but 7 in the Regional Director's numbering system) have not been referred
here, having been overruled by the Regional Director.
"7 And also that the Employer appointed a confidential employee from its
personnel department as its election observer: but this aspect of Objection 2
was overruled and not referred here by the Regional Director.
1" Since the standards required by the Board for maintenance of the "labo-
ratory ... conditions" (General Shoe Corporation, 77 NLRB 124. 127 (1948))
it desires for its elections are less exacting than those required for proof of
unfair labor practices violations, proof of the latter, if the same or closely
related, aforriori establishes noncompliance with the election standards. Dal-
Ter Optical Co, 137 NLRB 1782, 1786-87 (1962). See also Super Thrift
Markets, Inc., 233 NLRB 409 (1977).
253
I)E.(ISIONS OF NATIONAL LABOR RELATIONS BOARD
of' prooft presented by each side with regard to Objection 2,
since, whether sustained or overruled, the remedy here
would be unaffected.
It is accordingly recommended that, for reasons already
explicated in detail in underlying ('ase 9 CA 11287- 1. su-
/r. Petitioner UJnion's Objections 3 (both so numbered). 4,
and 5' be sustained and that Objection 2 be dismissed as
moot. * Ihe sustaining of these objections of course requires
the inalidation of the April 14 election and the holding of
a new election at a time and under circumstances which are
appropriate, in accordance with the Board's standards and
practices in cases of this nature, and it will be accordingly
so recommended to the Board.
UIpon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this consolidated pro-
ceeding, and pursuant to Section 10(c) of the Act, there is
hereby issued the following recommended:
ORDER4'
It is hereby ordered that Rike's, a Division of Federated
Department Stores. Inc., Respondent herein, its officers.
agents, successors, and assigns, shall:
I. ('ease and desist from:
(a) Interrogating its employees concerning their or other
employees' union views, sympathies, activities, voting inten-
tions, or other protected concerted activities, in interference
with, or coercion or restraint of: their exercise of' any right
under the National abor Relations Act, as amended.
(b} IDiscriminatoril) or otherwise in violation of the Act
enforcing or applying, against any of its employees exercis-
ing or seeking to exercise any right under said Act, any rule,
requirement, policy, or practice forbidding, proscribing, or
limiting solicitation by employees on Respondent's business
premises.
(c) Threatening, expressly or impliedly. the cessation,
cancellation, withdrawal, removal, loss, or diminution of'
any existing job-related economic benefit (including but not
limited to employee discounts on purchases at Respon-
"V As well ias "other actions and conduct" of the mploser described and
found in the within unfair labor practices case to have comprised violations
hetween the date iof the petition and the election.
*' Respondent's molion to strike out and/or dismiss Objection "2- (as well
ais so much of coimnplain par. 5(ni)i) as ma relate to alleged election day
surveilllnace) is accordingly dismissed as moot-
While recommending. for the reasons indicated. that this particular objec-
tion be dismissed as m(oot. in good conscience and to avoid possible repeti-
tion I cannot let the occasion pass without commenting that. were I to have
considered this objection in all of its factual and legal ramifications and
complexities as ultimately tendered by the parties. I doubt that I would have
been receptive to Molin's explanation that he was where he claims he was. in
relation to the voting place, only because he was making his customary
rounds of the store t Such an "explanation" could also justiry" an Employ-
er's intrusion into the polling rsm itself.) Common sense (as distinguished
from "Mondav morning quarterbacklingl" Molin's disdainful phrase to
justify his failure to abort or intercept employee (outure's earlier described
antiunion speech itl the podium at the company business assemblage of em-
ployees on paid company time) would appear to dictate that, even if Molin's
usual roulte carried hiil to, past oir near the voting area. he should steer clear
)it ai election time.
J1 In the event ito exceptions are tiled as provided b Sec. 1024h of the
Rules and Regulalions of the National Labor Relations Board, the findings
and conclusions. s ell as the recommended Order which follows herein,
shall, as provided In Sec. 102.48 o those Rules and Regulations, be adopted
by the Board and become its indings. cnclusions. and Order, and all bjec-
tions thereto shall he deemied aised for all purposes.
dent's store), threatening layoff or discharge or adverse al-
teration of job status, or threatening any other form of re-
prisal for union adherence, support, or voting, selection of a
union as collective-bargaining representative, or in the
event of unionization.
(d) Offering to adjust job-related grievances of employ-
ees in return for employees' refraining from or abandoning
union support, dissuading other employees toward such
end, or voting for the Union in any Board-conducted elec-
tion, or for exercising or seeking to exercise any other right
under the Act.
(e) Offering, tendering, or holding out to any employee
the prospect of job promotion in the event the employee
would speak out against union or protected concerted ac-
tivity or cease his or her exercising or seeking to exercise
any right under the Act.
(f) Physically assaulting, restraining, coercing, or other-
wise unlawfully interfering with any employee in connec-
tion with the employee's free and untrammeled right to vote
in accordance with his or her conscience in any Board-
conducted election or otherwise to exercise or seek to exer-
cise any right under the Act.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to self-organization; to fborm, join, or assist any labor
organization; to bargain collectively through representa-
tives of their own choosing; to engage in concerted activi-
ties for the purposes of collective bargaining or other mu-
tual aid or protection: or to refrain from any and all such
activities.
2. Take the following affirmative actions, necessary to
effectuate the policies of the Act:
(a) Post at its Salem Mall store location (5200 Salem
Avenue, Dayton. Ohio, including leased department prem-
ises and locations there42), copies of the attached notice to
employees marked "Appendix B."4 Copies of said notice,
on forms provided by the Board's Regional Director for
Region 9. shall. after being duly signed by Respondent's
authorized representative, be posted by Respondent imme-
diatelv upon receipt thereof, and maintained by it fr 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. REasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notiffy said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
11 I t'RrIIER )ORI)ERED that the allegations of para-
graphs Se. 5h)(iii), 5i(i). 5j)ii), 5j)(iv), 5(1)(i), 5(m)(i), and
5(m)(ii) of' the complaint herein dated June 30, 1977, in
Case 9 CA 11287 1 be. and they hereby are, dismissed.
AND II IS lFREBIY R('OMMENDED that in Case 9-RC
11876 the Board issue an Order sustaining Petitioner
": See description of appropriate bargaining unit in Regional [)irector's
September 2, 1977. Supplemental Decision, fn. I.
° In the event that this Order is enforced by a judgment of a United States
('ourt of Appeals, the words in the notice "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board"
254
RIKE'S. A DIV. OF FEDERATED DEPT. STORES
Union's Objections 3 (both so numbered). 4, and 5 to em-
ployer conduct affecting the results of the statutory repre-
sentation election held on April 14, 1977, overruling Objec-
tions I and 6, and dismissing Objection 2 as moot; setting
aside said election and its outcome; and directing that a
new election be held as soon as feasible. under the supervi-
sion of the Regional Director for Region 9 and at such time
as the Regional Director deems that circumstances permit
free choice of bargaining representative."
I In the event Respondent refuses or fails to comply Alth the terms of the
Order in Case 9 CA 11287 I, I recommend that said Regional )irector also
he authorized to conduct the nes election herein recommended, upon nril-
ten request of Petitioner Union Ideal BakAin ( or..iam oi ! l7nncisee. I,
143 NL.RB 54. 554. In 9 (196h3
255