The May Department Stores Co.

National Labor Relations Board - Board Decisions

Aug 11, 1970

184 N.L.R.B. 878 (N.L.R.B. 1970)

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The May Department Stores Company and New
Furniture & Appliance Drivers, Warehousemen &
Helpers Local 196 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America . Cases 21-CA-8892 and
21-CA-8964
August 11, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS MCCULLOCH
AND BROWN
On May 6, 1970, Trial Examiner Eugene K. Ken-
nedy issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended that such allegations be dismissed.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief
and the General Counsel filed a reply 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
herein, and hereby orders that the Respondent, The
' In sec 111, B, 10th par , of his Decision, the Trial Examiner inadver-
tently states that the complaint alleges unlawful surveillance as occurring
on December 18, in contradiction of his correct observation in footnote 4
of the Decision that the complaint does not allege a violation of the Act on
that date He finds that unlawful surveillance did occur on December 18
Since the matter was fully litigated and since the record amply supports the
Trial Examiner's conclusion, we adopt the finding that Respondent en-
gaged in unlawful surveillance on the date in question
May Department Stores Company, Los Angeles,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order as modified below:
Insert the word "protected" before the words
"union activities" in the first paragraph of the
notice.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE K. KENNEDY, Trial Examiner: The issues
presented by this matter involve questions of al-
leged unlawful surveillance, unlawful interrogation
of employees, and unlawful reprimand of an em-
ployee in connection with activities protected by
the National Labor Relations Act, as amended,
herein the Act. This case was heard in Los Angeles,
California, on February 17, 18, 19, 24, 25, and 26,
1970.'
Upon the entire record, upon consideration of
the briefs filed by the General Counsel and Respon-
dent, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS AND JURISDICTION OF THE
BOARD
The May Department Stores Company, herein
Respondent, is a corporation with a place of busi-
ness and warehouse in Los Angeles, California, and
is engaged in the operation of a nationwide retail
department store enterprise. During the calendar
year 1968, which is a representative period, in the
course and conduct of its business operations,
Respondent sold products valued in excess of
$500,000 During the calendar year 1968, which is
a representative period, in the course and conduct .
of its business, Respondent purchased and received
goods and services valued in excess of $50,000
directly from outside the State of California.
Respondent is, and has been at all times material
herein, an employer engaged in commerce and in a
business affecting commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
New Furniture & Appliance Drivers,
Warehousemen & Helpers Local 196, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein the
Union, is a labor organization within the meaning
of the Act.
' The consolidated complaint was issued on January 27, 1970, the
charge in Case 21-CA-8892 was filed November 4, 1969, and the charge
in Case 21-CA-8964 was filed on December 24, 1969
184 NLRB No. 102
THE MAY DEPARTMENT STORES COMPANY 879
III. THE UNFAIR LABOR PRACTICES
A. Background and Prefatory Comments
The events relied on by the General Counsel to
establish unfair labor practices are: (a) A series of
episodes in which a group of Respondent's execu-
tives,' from a distance of about 10 feet, watched
Respondent's employees as they were being ten-
dered union literature by union organizers as the
employees were leaving work. In addition, on one
occasion, employees on the union organizing com-
mittee were observed in the same manner as they
were distributing union literature along with the
regular union organizers; (b) two incidents where
allegedly unlawful interrogation of employees about
union activities were made by Respondent's super-
visors; and (c) one instance where an employee
received a reprimand which was incorporated in his
personnel file for allegedly violating Respondent's
rule against soliciting during working hours.
In order to establish a violation under the first
category of incidents set forth above, characterized
as surveillance, the General Counsel offered the
testimony of union organizers and employees along
with photographs. Respondent, in connection with
the alleged unlawful surveillance, as part of its
defense offered the testimony of several of its ex-
ecutives and also relied, to some extent, on photo-
graphs. In this connection it is noted that, in addi-
tion to the physical stationing of the executives as
observers, the General Counsel includes in his in-
dictment of Respondent's surveillance a display of a
camera and an incident when an executive was
ostensibly making some inscriptions on a piece of
paper during the time the union organizers and em-
ployees of the union organizing committee were at-
tempting to distribute union literature as the em-
ployees were leaving Respondent's premises.
There were indications that Respondent's at-
titude toward its employees had some paternalistic
characteristics consistent with an atmosphere
wherein management representatives were to be re-
garded as friends by the employees and union or-
ganizers by implication were to be regarded as non-
friendly. This impression was gained from observing
the demeanor of the employee witnesses and
management witnesses during the course of their
testimony as well as from specific portions of
testimony in the record.
William Carroll, vice president and personnel
director for Respondent's California operations, of-
fered three reasons why he decided to station
Respondent's executives as observers of the hand-
billing on all occasions when union literature was
distributed. He stated that he stationed the execu-
tives and supervisors so that they would be present
on each distribution of union literature to em-
ployees because he wished to have present "faces
that would be familiar to all employees and perhaps
put them at ease " and "should there be any circum-
stances that might cause a disruption or any harass-
ment in view of the fact that the employees in the
building had in the past rejected the Union, we
would have someone there to be of whatever
assistance might be needed" and "thirdly, knowing
that in the past when there had been numbers of
Union representatives that close to the entrances,
grouped the way these people were grouped, that
the Courts had seen fit to give relief; and the only
way we could present the situation was through wit-
nesses and with some testimony as to what oc-
curred, and the representatives were there for those
purposes."
In the absence of any probative evidence that the
employees were in any way harassed, intimidated,
or even annoyed by any union representative dur-
ing the entire course of the handbilling, Respon-
dent's assumption of the role as defender of its em-
ployees against the union representatives could
only be based on speculation as to the nature of fu-
ture conduct of the union organizers . The evidence
in the record relating to their conduct does not sug-
gest any latent or possible threat to the safety or
well-being of Respondent's employees. Con-
sequently, the probabilities flowing from the facts
in this record establish that the maintenance of
Respondent's executives on at least eight occasions
in proximity to the union handbilling manifested a
connotation of disapproval on the part of Respon-
dent to the employees with respect to the hand-
billing, since the stationing of the executives as ob-
servers had no apparent justification stemming
from the conduct of the union handbillers.
In connection with an incident of allegedly un-
lawful interrogation about which there were con-
flicting versions, Respondent's witness, William
Tyler, Jr., a supervisor who allegedly made the in-
terrogation, testified as follows:
0. Well what was the conversation?
A. It was just sorting out the merchandise
that had to be moved. It just started off as I re-
call, that he was to go to the sixth floor and
pick up various parts or load of merchandise to
move to a certain area. And at that point he
brought up the subject of the Union.
Q. Can you recall in words or substance
what he said about that subject?
A. He felt that he had-well, he said
directly that he thought he had cut his throat
last night. I asked him what did he mean. And
he said, "Well, I guess you saw what I did."
And I said, "No I didn't see it; but I understand
`The term "executive" appears somewhat more appropriate here than
the term "supervisor" although the terms as used here are not mutually ex-
clusive The group observing the distribution of union literature included
the top level of management personnel at the facility involved Among the
group at various times observing the distribution of union literature to em-
ployees were Andrew Briggs, superintendent of the entire facility, Dennis
McFarlane , his assistant , and Peter Sanchez , assistant manager in charge of
the workrooms Levi Ives, another executive who reported directly to
Briggs, was included among the observers The employees at the facility in-
volved numbered in excess of 300
880 DECISIONS OF NATIONAL
what happened "
And at that point the subject went back to
daily-what his daily activity would be on the
job. And then I walked away.
This conversation was with an employee, Richard
Arvizo, who had been designated by the Union as a
member of the employee organizing committee.
The conversation had reference either to Arvizo's
distribution of union literature on the previous
evening, or his observing it being distributed.
Tyler's version is consistent with the assumption of
guilt by an employee because he was witnessed by
his supervisor peacefully distributing, or observing
the distribution of, union literature and by clear im-
plication Respondent's supervisor acquiesced in
this assumption of guilt for such conduct by an em-
ployee.
Another incident in the record supporting the im-
pression that Respondent's posture manifested to
its employees was one that equated loyalty to
Respondent as necessarily including opposition to
the Union is found in an incident involving em-
ployee Charles Gannon. His credited and uncon-
tradicted testimony concerns a conversation he had
with Supervisor Charles Harkins:
Q. All right. Now, would you tell us, please,
what he said to you and what you said to him.
A. In his friendly way, he said, "Oh, I see
that your friends are out there again ." What he
meant was the Teamsters a couple of days be-
fore.
0. All right. What else did he say?
A. Then, he asked me whether Jason Mur-
ray was handing out leaflets; and I did not give
him an answer of yes or no to him.
Q. Did you say anything at all to him?
A. I had said, "Could you not see whether
he was out there, because you were across the
street."
On cross-examination in connection with the
conversation with Harkins, Gannon was asked if
Harkins said anything further, and Harkins replied:
"Well, he said that he could not understand why
Murray would do something like that." This com-
ment of Respondent's supervisor, by necessary im-
plication, made it evident to an employee that
handing out union literature or observing it being
handed out was regarded as something less than
proper by Respondent.
The photographs of the executives as they ob-
served the union handbilling reflect a group made
prominent by their attire. At one point in the
record the executives were characterized as the
men in suits and ties to distinguish them from the
rank-and-file employees on the occasions of the
union handbilling. This distinction in attire would
tend to arrest the attention of the employees
' There were two occasions when cameras were displayed by Respon-
dent's representatives during the course of the handbdhng McFarlane,
Respondent 's personnel manager, had a camera on display during the
handbilling on December 18, and Thomas Annable, a professional
LABOR RELATIONS BOARD
emerging from the building, and the stationing of
Respondent's top ranking executives only when
union organizers were present would likely tend to
inhibit employee response to the handbilling. This
was so because the foregoing points to an at-
mosphere were an employee would feel uncom-
fortable accepting union literature under the scru-
tiny of Respondent's executives.
B. The Surveillance
The dictionary definition of surveillance includes
both open and spying observation. Here the surveil-
lance is claimed to be unlawful in large part
because of the openness and prominence of the ex-
ecutives and supervisors observing the distribution
of the union literature, the open display of
cameras,3 and the prominent stationing of an ex-
ecutive making notes as employees were leaving the
building. The General Counsel claims unlawful in-
terference based on the camera display and
prominent note-taking , as well as the stationing of
the executives in the proximity of the employees
being tendered union literature . All of the conduct
and posture of Respondent 's representatives, which
is the subject of this dispute, occurred in plain view
and within approximately 10 feet of employees as
they were leaving work through what is charac-
terized in the record as the employees ' entrance.
The union handbilling occurred on September 23,
October 1 , 7, 16, 22, and 28 , November 5, and
December 18, 1969.4 The executive would be
present from about 4:20 p.m ., shortly before the
end of a shift at 4 . 30 p.m ., until shortly after 5 p m.
The number of Respondent 's representatives ob-
serving the union handbilling ranged from three to
seven. As previously stated , the handbilling was
generally carried out by nonemployee union
representatives . However , on November 5, em-
ployees from the organizing committee also joined
in distributing union literature.
The surveillance occurred at a portion of
Respondent 's building called the employees' en-
trance . The entrance way was 1 1-1 /3-feet wide and
was recessed from the sidewalk about 3 feet. The
sidewalk on which the people distributing union
literature positioned themselves was 12 -feet wide.
There were as many as five union organizers sta-
tioned approximately abreast of the entrance way
at one time during the handbilling , although they of
necessity had to move about as the employees
emerged from the building.
A declared purpose for the presence of Respon-
dent 's executives during all of the handbilling was
to gather evidence to be used in the event an appli-
cation for an injunction was indicated and in order
to call the police if a disturbance occurred . That no
freelance photographer , had one on display on October 7
' Unless otherwise indicated, all dates herein are 1969 The complaint
was issued on December 18 and does not allege a violation of the Act on
that date
THE MAY DEPARTMENT STORES COMPANY
application for an injunction was made nor the po-
lice called , although the entire sequence of the
handbilling was conducted under the close scrutiny
of Respondent 's executives , is a testimonial to the
appropriate conduct of those distributing union
literature.
At the close of the day shift approximately 300
employees would emerge from the building at 4:30
p.m. It would ordinarily take about 5 minutes for
them to leave the building. Probably some dif-
ference in the tempo of the employee departure
was caused by the handbilling. Pausing by em-
ployees to accept or glance at a handbill would ac-
count for some delay. It is problematical to what
extent the exiting of employees was slowed by
the physical presence of the persons distributing
handbills.'
The number of persons distributing handbills at
the employees' entrance ranged from less than five
to seven. The Union's aim was to make the hand-
bills available to anyone who wished to have one
within the brief time required for the approximately
300 employees to leave.
It seems reasonable to assume that any obstruc-
tion of the employees' entrance and the delay occa-
sioned was slight or otherwise Respondent would
have moved to take steps to correct the situation,
inasmuch as obtaining evidence for an application
for an injunction was a declared purpose of the
presence of the supervisors observing the hand-
billing.
Franklin O'Leary, one of the union organizers,
credibly described the scene consistent with the
description of Sanchez, "It wasn't really possible to
line directly in front of the door because the people
came out in a hurry.and we would more or less
have to stand behind each other. As the front guy
missed them the next one would hand them a hand-
bill and so on." O'Leary witnessed more than 50
employees refusing leaflets, and Taylor, another or-
ganizer , saw some " senior citizens" refusing them.
Dennis McFarlane, personnel manager of
Respondent for the facility involved in the dispute,
arranged for freelance photographer Tom Annable
to be present on October 7 for the purpose of tak-
ing photographs. Annable was present when people
were coming out of the employees' entrance and he
left the scene some time after 4:30 p.m. One of the
photographs introduced by the General Counsel
shows Annable pointing a camera in the direction
of the employees' entrance. The testimony of Per-
' Sanchez, one of Respondent 's executives , estimated the handbilling on
occasions caused a delay of 5 to 10 minutes in the departure of the em-
ployees Sanchez was an executive who commenced working for Respon-
dent on October 13 He made some notes relating to the November 5
handbdlmg which were incorporated in the record These notes reflect
some zeal on the part of Sanchez in gathering data presumably unfavorable
to the Union , and for this reason it seems likely that his estimate of the
delay is exaggerated , inasmuch as no other Respondent 's witness did more
than to characterize the handbilling as causing some backing up or slowing
down of employees
" Mihalow , the chief organizer, requested organizers O'Leary and Taylor
881
sonnel Manager McFarlane, as well as Annable,
places Annable in the vicinity of the employees' en-
trance, with his camera in plain view, at a time
when the employees were leaving work.
As previously indicated, the complaint alleges
unlawful surveillance as occurring on December
18. It was on that date McFarlane took pictures of
the handbilling and was present with his camera in
plain view of departing employees. This conduct is
consistent with Respondent's previous actions
designed to indicate that the employees were under
observation when in the presence of the union or-
ganizers.
Peter Sanchez, a recent addition to the executive
staff of Respondent, commenced working for
Respondent on October 13, 1969. He was present
about half an hour during the handbilling on
November 5, making "cryptic" notations on the
blank part of a union leaflet. This attracted the at-
tention of Joseph Mihalow, the union representa-
tive in charge of distributing the handbills. Pictures
in the record show Sanchez making notations at a
time when the employees on the union organizing
committee were also handing out union literature.
November 5 was the day employees joined the
regular union organizers in distributing literature,
and one photograph shows an employee member of
the handbilling group looking at Sanchez while
Sanchez was apparently making notes.'
C The Alleged Unlawful Interrogations
There were two incidents relied on by the
General Counsel as constituting unlawful interroga-
tion of employees with reference to union matters.
One involved employee Richard Arvizo, and the
other, employee Charles Gannon.
The alleged unlawful interrogation of Arvizo in-
volved a supervisor, Walter Tyler. In his testimony,
Arvizo claimed Tyler came up to him on the morn-
ing of October 2 and asked him if he was for the
Union or the Company, and that he replied he
would have to read the pamphlets to find out for
himself.
Tyler's version of a conversation with Arvizo was
set forth above in connection with an attempt to
depict the atmosphere in which the alleged unlaw-
ful surveillance occurred. Tyler testified that on
some occasion in the fall of 1969, on the morning
following the distribution of union literature, Ar-
to attempt to see what Sanchez was writing Both testified they glanced
over Sanchez' shoulder and saw a list of names Charles Gannon, a witness
for the General Counsel, described the nature of Sanchez ' writing con-
sistent with Sanchez ' description of his markings Since there is no indica-
tion in the record that Sanchez was writing on more than one union leaflet,
it seems likely that O'Leary and Taylor were in error Nevertheless, the fact
remains that the new executive , stationed in a prominent position, was ap-
parently making notes while observing employees emerging from the em-
ployees ' entrance and while employees were distributing handbills It is also
noteworthy that this was the first occasion employees were in the group dis-
tributing union literature
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vizo came up to him and said that he had thought
he had cut his throat the previous evening. When
Tyler asked him what he meant, Arvizo replied,
"Well I guess you saw what I did"; and Tyler re-
plied, "No, I didn't but I understand what hap-
pened."
Both Tyler and Arvizo are agreed only on the
fact that one conversation pertaining to the Union
occurred between them. Aside from their agree-
ment on this, their respective versions are con-
sistent with two conversations: one occurring on
October 2 and one on November 6, the morning
after Arvizo first distributed handbills, inasmuch as
Arvizo on October 1 did not do anything except
perhaps to observe handbills being distributed, but
on November 5 he "did" something; that is, he dis-
tributed handbills. Although this hypothesis seems
possible, the record does not warrant such an in-
terpretation in view of the clear indication by both
Tyler and Arvizo that only one conversation involv-
ing the Union occurred.
Accepting the premise that only one conversa-
tion with reference to the Union occurred, Tyler's
version is more credible as it does not appear likely
to have been a product of Tyler's imagination.
Although not free from doubt, the version of Ar-
vizo is rejected as not being supported by an
adequate measure of proof. Consequently, it is
found the General Counsel has not established that
interrogation of Arvizo relative to the Union oc-
curred on. or about October 2 or any other occa-
sion.
The alleged interrogation of Charles Gannon in-
volved his supervisor, Charles Harkins. Harkins did
not testify. Gannon appeared to be a trustworthy
and credible witness. On November 7, Gannon
went into Harkins' office to discuss some matters
relating to his work. Harkins, in a friendly manner,
referring to recent union handbilling, said, "Oh I
see that your friends were out there again." Then
Harkins asked Gannon if employee Jason Murray
was distributing leaflets, and Gannon did not
respond, but asked Harkins whether or not he
could see Murray since Harkins was across the
street. Harkins went on to say to Gannon that he
could not understand why Murray "would do
something like that." Murray was an employee
under Harkins' supervision and was one of the em-
ployees designated as being on the organizing com-
' The rule read
MANAGEMENT BULLETIN
TO ALL PERSONNEL
NOTICE
The Company Policy regarding solicitation is stated below
It is a violation of store rules for outsiders to come on Company
premises to solicit for any purpose which would interfere with the
work of storemembers or tend to irritate our customers Our invitation
to the public is to enter and to use certain areas of our premises for
shopping and purposes incidental thereto No solicitation by outsiders
mittee in a letter from the Union to Respondent
dated October 31, 1969. Gannon explained that
because of Harkins' position and the interposing
people, Harkins would have had difficulty in seeing
Murray distributing literature at a time when Gan-
non saw Harkins in front of the employees' en-
trance on November 5. Irrespective of whether or
not Harkins was in a position to see Murray, the in-
terrogation and comment addressed to Gannon are
clear interference, restraint, and coercion by a su-
pervisor with respect to protected activities.
D. The Menchaca Incident
Frank Menchaca had been an employee of
Respondent for about 7 years. He was a member of
the union organizing committee and had been
designated as such in the communication to
Respondent from the Union dated October 31.
Menchaca had also been an observer for the Union
in an election conducted by the National Labor
Relations Board
On December 2, Menchaca was called into the
office of Levi Ives, an assistant to Superintendent
Briggs. Menchaca's superior, Charles Harkins, was
present in the office with Ives. When Menchaca en-
tered the office, Harkins handed him a copy of
Respondent's no-solicitation rule 7 After Menchaca
had read the paper containing the no-solicitation
rule, Harkins told him he had been soliciting and
Menchaca replied that he didn't know what Har-
kins was talking about, and Harkins rejoined with
an admonition to Menchaca not to play games.
Harkins then asked Ives if he had anything to say,
and Ives replied that Harkins had come straight to
the point. Menchaca persisted in denying he had
done any solicitation during working time. Ives
refused to give Menchaca any indication as to the
nature of the solicitation, when it occurred, its du-
ration, or the person who was allegedly solicited by
Menchaca.
A "Personnel Comment Slip" was then prepared
and signed by Harkins and Ives to be incorporated
in Menchaca's personnel record. This personnel
comment slip stated:
Employee interviewed this date regarding
violation of the "no solicitation rule" during
working time. He was also given a copy of the
"no solicitation rule" to read at this meeting.
Employee was informed that any violation
of Company premises is permitted, and no outsiders are to be per-
mitted in any restricted area
It is also a violation of store rules for storemembers to solicit other
storemembers or to be solicited for any purpose during their working
time Working time is for work , and storemembers cannot perform
their work properly if interfered with solicitation
Any statement issued prior to this date on this subject is rescinded
Any solicitation in violation of this policy is improper solicitation
MAY COMPANY-CALIFORNIA
March 11, 1968
THE MAY DEPARTMENT STORES COMPANY
of this rule by him in the future would result in
severe disciplinary action.
The basis for this action by Respondent stemmed
from a report made to Ives by an employee of 17
years named Josephine Bojorquez. On November
19, Bojorquez asked to speak with Ives and on this
occasion told him about alleged events involving
Menchaca. At this time she did not tell Ives when
these alleged events occurred, but as the record un-
folded, it developed they were placed by her ap-
proximately 2 months earlier.'
There is considerable confusion reflected in the
testimony of both Bojorquez and Ives relating to
the occasion when she talked to Ives about
Menchaca. On direct examination, the testimony of
both Bojorquez and Ives has Bojorquez first com-
plaining to Ives about Menchaca asking her to sign
a union card at work. On cross-examination they
both conceded that Bojorquez first complained
about Menchaca's asking her to sign a union card
as he was driving her home from work. It was after
she had related this to Ives that he asked her if
there were any other incidents and it was then that
Bojorquez told Ives that Menchaca had asked her
to sign a union card at work.
On his direct examination, Ives said he specifi-
cally asked Bojorquez if Menchaca had asked her
to sigma union card at work. On cross-examination,
Ives denied that he had asked Bojorquez if
Menchaca had approached her on worktime.
Bojorquez also told Ives that Menchaca, about a
week after his alleged solicitation at worktime,
asked her if she didn't feel funny about being the
only one who had not signed a union card. Ives did
not make any inquiry from Bojorquez when these
alleged events occurred or how much worktime was
consumed. The testimony of Bojorquez estimated
that the comments of Menchaca during worktime
took from 2 to 3 seconds.
After receiving this report from Bojorquez, Ives
prepared a document for her signature as follows:
To Whom It May Concern:
This is to inform management of May Com-
pany that Frank Menchaca, a checker in the
67 building, 1st floor, approached me during
working hours and solicited my signature of
(sic) a application for membership on a
Teamster Union card.
Since my refusal to sign a card he has
periodically approached me during working
hours and asked if I don't feel funny working
and not having signed a card. My reply was
"No."
I give this statement of my own free will.
/s/ Josephine Bojorquez
Witnessed: Levi R. Ives and C. Harkins
On cross-examination, Bojorquez admitted she
did not know what "periodically" meant and was
sure she did not tell Ives that she was bothered by
"This timing of the events is determined since Bojorquez placed the first
event with Menchaca prior to September 27, when the first handbilling oc-
curred
883
Menchaca's comments which were the subject of
her complaint to Ives.
Based on the foregoing testimony of Ives and
Bojorquez and assuming, arguendo, it merits any
credence, it would appear the strongest case that
could be made against Menchaca for violating
Respondent's "no solicitation rule" is that about 2
months prior to the complaint of Bojorquez to Ives,
Menchaca had, on one occasion when he did not
have a card with him, asked Bojorquez to sign a
card during working hours. This request took about
2 or 3 seconds. About a week later during working
time he allegedly asked Bojorquez if she didn't feel
funny about being the only one who had not signed
for the Union. This latter alleged event does not
spell out a violation of the Respondent's "no sol-
icitation rule." In sum, the violation of the "no sol-
icitation rule" based on the evidence offered by
Respondent consists of an event occurring 2
months previous to its reporting which took 2 to 3
seconds and, according to the testimony of the per-
son allegedly being solicited, did not bother her.
Although the record supports a finding that
Bojorquez did make a complaint to Ives on or
about December 2, 1969, concerning Menchaca, it
does not support a finding that Menchaca, in fact,
solicited her signature during working hours.
Although the precise reason for Bojorquez' report-
ing Menchaca's solicitation of her signature while
driving her home from work is undisclosed by this
record, it must be found that she was motivated by
animosity toward Menchaca. Otherwise, no plausi-
ble reason is suggested for her reporting an episode
that occurred 2 months previously. Since she only
mentioned Menchaca's solicitation during working
time, it is probable that this did not play a signifi-
cant part, if any, in her motivation in complaining
about Menchaca to Ives. It may well have appeared
to Bojorquez at the time as an added complaint she
could make about Menchaca even though it was
not based on objective fact.
In any event, her testimony is so unreliable that it
cannot support a finding that Menchaca, in fact,
solicited her signature for a union authorization
card during working hours. With respect to
Respondent's reliance on this statement of
Bojorquez as a basis for issuing a reprimand to
Menchaca and incorporating it in his personnel file,
there are additional factors to be considered. Ives'
failure to inquire from Bojorquez when the alleged
solicitations occurred, his failure to make an
inquiry if it interfered with her work, his literary
license in using the term "periodically" although
Bojorquez at most. mentioned only two episodes
during working hours when she was approached by
Menchaca about the Union, and only one occasion
when she made a claim that she was being solicited
by Menchaca during working hours, all points to
the failure of Respondent to make an adequate in-
vestigation of Menchaca's alleged dereliction. In
addition, Menchaca's guilt was assumed, judging
from the conduct of Ives and Harkins, when
427-835 0 - 74 - 57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Menchaca was first confronted with his alleged
violation . He was handed the no-solicitation rule,
and, after he read it and denied he had broken it,
his denial was ignored and a reprimand incor-
porated in his personnel file. In short , the record
amply warrants a finding that there was no reasona-
ble basis for Respondent 's alleged belief that
Menchaca had violated the "no solicitation rule,"
in view of its failure to make a reasonable investiga-
tion and in distorting the information that it ob-
tained from Bojorquez.
Menchaca 's denial of talking to Bojorquez about
union matters during working hours or soliciting
her signature during working hours was straightfor-
ward and credible and consistent with his denials as
reported by Respondent 's witnesses . Therefore
Respondent did not have a reasonable basis for be-
lieving Menchaca had violated the "no solicitation
rule" while engaging in activities protected by the
Act.
E. Concluding Findings
With respect to the alleged unlawful surveillance
by Respondent 's executives and supervisors; three
to seven executives and supervisors , within approxi-
mately 10 feet of the employees' entrance, ob-
served the distribution of union literature for the
entire time that it was being distributed on at least
eight occasions. Since they were present during this
entire period, it follows that no employee would be
in a position to accept any union distribution unless
he wished to consider the probability of being ob-
served by one of Respondent's representatives. The
attitude of Respondent as being unsympathetic to
union organization was reflected above. The
presence of these executives and supervisors coin-
cided with the refusal of some employees to accept
union leaflets, including "senior citizens." This
noticeable refusal among this class of employees
suggests apprehension of economic reprisal if hand-
bills were accepted.
" Briggs did not testify with respect to any alleged incident McFarlane
testified as follows with respect to this subject of abusive language directed
to Briggs by a union organizer
Q What did Mr Young do and say9
A Well, he somewhat attempted to badger Mr Briggs, in my
opinion He was making remarks such as, "By the time we're through
with you, you will lose more hair " And I think Mr Briggs said
something to the point of, "Why don't you mind your own business "
And the other gentlemen then remarked , "Are you losing your cool,"
and so forth and carried on like this
Q Where was Mr Young carrying on in relation to where Mr
Briggs was standing9
A They were approximately a foot and a half, two feet apart
Q Were they facing each other9
A No They were at angles with each other
This testimony of McFarlane contains the only admissible evidence
in the record bearing on misconduct of the union organizers Since this
was the only testimony produced although there were many potential
witnesses to any other untoward action , it must be fairly assumed that
this was the strongest type of deviation from a norm of genteel conduct
that could be charged to the union organizers
10 The following were recitals in the application for an injunction
12 On or about September 13, 1968, between the hours of 5 00 o'-
clock p in and 10 00 p in defendants established, assembled and
congregated pickets around plaintiff's service building located at
Respondent's claim that the surveillance was in-
itiated and continued because of the anticipation of
unlawful conduct by Respondent's representatives
does not withstand scrutiny. No probative evidence
of any misconduct by any union representatives was
offered by Respondent despite the presence of ex-
ecutives at all distributions, who were there specifi-
cally to watch for such misconduct.
Any intracompany discussions at which alleged
misconduct of union representatives was charac-
terized by Respondent's officials can hardly serve
• as a substitute for the testimony of officials present
during all the distributions and at a time when such
characterized misconduct allegedly occurred.
For example, as an alleged basis for the continua-
tion of the stationing of the executives in a position
to observe the handbilling, comments at a con-
ference of Respondent's officials on October 2
were introduced into the record. William Carroll,
vice president and personnel director for May
Company of California, testified that McFarlane,
personnel manager , and Briggs, superintendent,
described the conduct of union organizers as using
abusive language with some personally directed to
Briggs, and described the reaction of female em-
ployees who felt intimidated. In view of the fact
that McFarlane and Briggs, who both testified,
failed to substantiate this intracompany conversa-
tion,9 it must be concluded that the version given to
Carroll was not warranted by actual occurrences.
It was Respondent's contention that a prior
episode, occurring about a year previously and in-
volvin a different union, when there was mass•
picketing at the same location and an injunction
was obtained by Respondent, warranted the
presence of the supervisors and executives as
evidence gatherers in the matter. The basis on which
the injunction in the prior episode was granted
reflects a major disparity in the type of conduct
carried on by pickets in the previous episode and
the organizers involved in this proceeding. 10
Jefferson and Grand, Los Angeles, California Said pickets were
there congregated in and on the sidewalks, driveways and pedestrian
walkways adjacent to plaintiff's service building, and in particular in
front of the two customer entrances of said service building which was,
on said occasion , open for a warehouse sale Said pickets carried and
wore picket signs, and walked following one another at a distance of
no more than two to three feet apart in a rapid manner , forming two
single file columns moving in opposite directions in front of said ser-
vice building and more particularly, the two customer entrances to
said service building and in all of the driveways to the parking lots to
said service building, in a manner calculated to impede pedestrian and
vehicle traffic and render it difficult, if not impossible , to enter plain-
tiff's service building and parking lots
13 At all times mentioned on September 13, 1968, in addition to
the picketers, said defendants, utilized bull horns operating simultane-
ously with messages directed at customers and prospective customers
of plaintiff, and in addition thereto defendants stationed directly in the
middle of the sidewalk leading into plaintiff's service building persons
distributing literature , which persons along with the bull horns and the
sheer number of the pickets intimidated , threatened , coerced, an-
noyed and harassed plaintiff's employees, customers , prospective
customers and others while such persons were seeking to enter or
leave plaintiff 's service building ( Resp Exh 15 (a) p 5, II 17-30 to p
6,11 1-24)
THE MAY DEPARTMENT STORES COMPANY
In view of the obvious dissimilarity in the events
described in the injunction proceeding from those
involved here, it is found that using the prior
episode as a basis for continuing the surveillance in
this matter was not warranted after September 23.
Respondent's alleged reasons in stationing execu-
tives to observe the handbilling on that date has at
least a surface plausibility, but this record offers no
basis for a finding that the surveillance after that
date had any reason other than to intimidate and
interfere with the union handbilling. Persistence in
the surveillance after September 23 without a law-
ful objective retrospectively establishes that the ob-
servation on that date was at least in part not
without an intent to unlawfully interfere with em-
ployees' organizational rights. It is unnecessary
therefore to determine whether Respondent's al-
leged reasons for surveillance would justify other-
wise unlawful interference with rights of employees
protected by Section 7 of the Act
The foregoing establishes there was no lawful
basis for the Respondent to continue having its su-
pervisors and executives stationed at the em-
ployees' entrance during every occasion the hand-
bills were being offered to the employees emerging
from the Respondent's building. In the context of
the events and circumstances presented by the
record, it is clear that the presence of Respondent's
executives and supervisors on September 23, Oc-
tober 1, 7, 16, 22, and 28, November 5, and
December 18, at the employees' entrance to its
warehouse facility, interfered with, and tended to
interfere with, restrain, and coerce, Respondent's
employees in the exercise of their right to self-or-
ganization. A finding from a recent Board Decision
is applicable to the facts presented by this record,
Tex Manufacturing Company, 180 NLRB 808:
We agree with the Trial Examiner's finding
that Respondent's stationing of supervisors at
the plant exit gate interfered with the distribu-
tion of union literature and constituted surveil-
lance of union activities within the meaning of
Section 8(a)(1) of the Act. Our finding is
based upon evidence that Respondent only
began stationing supervisors at the plant gate
after the Union commenced handbilling activi-
ties, at this location, and the absence of any
plausible reason for positioning supervisors at
the plant gate. In such circumstances, we can
only infer that Respondent's action was for the
purpose of discouraging and deterring em-
ployees from engaging in handbilling activities,
a right guaranteed them by Section 7 of the
Act.
Respondent's display of a camera at the em-
ployees' entrance during the handbilling activities,
irrespective of whether pictures of employees were
taken, would inevitably tend to have a coercive and
885
restraining effect upon the employees. The em-
ployees would have no knowledge why a camera
would be displayed except to gather evidence to be
used against them. Since the camera was displayed
where the employees would likely see it as they
were leaving work, it follows that in the context of
the events presented by this record, this display by
Respondent interfered with, restrained, and coerced
and tended to interfere with, restrain, and coerce
the employees in the exercise of their rights under
Section 7 of the Act. The same result flows from
the display of apparent note-taking by Sanchez on
November 5. On this date he was in a prominent
position to be seen by the employees leaving work,
and for about 45 minutes, at intervals, was making
notations, or appearing to do so, on a piece of
paper. November 5 was the first date that em-
ployees engaged in handbilling. One of the photo-
graphs in this record shows the employees standing
at the employees' entrance and a few feet away,
facing them, was Sanchez making notes on a piece
of paper.
For the reasons stated previously, it has been
found that the record does not adequately support
a finding that Tyler interrogated Arvizo on the oc-
casion claimed by the General Counsel and by the
testimony of Arvizo.
With respect to the interrogation of Gannon by
Supervisor Harkins, it has been found that such in-
terrogation did occur and that Gannon was inter-
rogated with respect to whether or not an em-
ployee-member of the union organizing committee
distributed handbills. It has been further found that
on this occasion Harkins made the comment "I
can't understand why Murray would do a thing like
that." It is noted that Gannon characterized Har-
kins' opening comments as friendly, wherein Har-
kins said, "Oh, I see your friends were out there last
night." This type of attitude, so far as this record
goes, may or may not have extended to the inter-
rogation concerning Murray and also the comment
of disapproval about Murray's engaging in hand-
billing activity. However, even if the friendly at-
titude persisted throughout all of Harkins' com-
ments, it would not immunize them from being
violations of the Act."
As has been previously found, this record does
not warrant a finding that Menchaca solicited a
signature for the Union during working hours even
for a period of 2 or 3 seconds. The record does sup-
port a finding that Respondent's investigation of the
supposed violation on the part of Menchaca was
practically nonexistent and evidenced a disposition
to seize upon any adverse report against Menchaca,
in part at least, because of his role as a union ad-
vocate. A statement in Arkansas Grain Corporation,
166 NLRB 1118, is an appropriate description of
the episode involving Menchaca:
" See Arkansas Grain Corporation, 160 NLRB 309, where the fact that
the interrogating supervisor was a personal friend of the employee did not
confer immunity against otherwise unlawful interrogation
886 DECISIONS OF NATIONAL
In our opinion, the dubious nature of the
warnings and the questionable circumstances
under which they were issued, when con-
sidered in the light of Respondent's opposition
to employee organization and its knowledge of
Edwards' role as a union adherent, adequately
establish that the warnings were issued as part
of a campaign of harassment against Edwards
because of his union activities. For these
reasons, we find, contrary to the Trial Ex-
aminer, that the Respondent violated 8(a)(3)
and (1) of the Act by issuing warnings to Ed-
wards which could be used to support a future
discharge.12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth in sec-
tion III, above, occurring in connection with its
operations described in section I, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein
has been, an employer within the meaning of the
Act.
2. The Union is, and at all times material herein
has been, a labor organization within the meaning
of the Act.
3. By interfering with, restraining, and coercing
its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act, as found above,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discriminating against Frank Menchaca, as
found above, Respondent has engaged in unfair
labor practices within the meaning of Section
8(a)(3) and 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section
12 Even assuming , arguendo , that Respondent had a basis for a reasonable
belief that Menchaca had violated the "no solicitation rule" where , in fact,
he had not , this would not immunize Respondent 's act from being in viola-
tion of Section 8(a)(I ) of the Act In such circumstances , good faith on the
part of the employer is not a defense if the employee had not, in fact,
broken a company rule in engaging in protected activities N L R B v Bur-
nup & Sims, Inc , 379 U S 21 However , as previously indicated, this
record does not provide a basis for a reasonable belief on the part of
Respondent that Menchaca had violated the "no solicitation rule," nor
probative evidence that the rule was broken
' 1 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
LABOR RELATIONS BOARD
8(a)(1) and (3) of the Act, it will be recommended
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act. In order to remedy the adverse ef-
fect of Respondent's action with respect to
Menchaca's alleged violation of a no-solicitation
rule, it, will be recommended that Respondent
delete and remove all reference to this incident
from Menchaca's personnel file and that it inform
Menchaca in writing that this has been accom-
plished.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this proceeding, it is recommended that Respon-
dent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Engaging in surveillance of employees' union
activities or interrogating employees with respect to
union activities.
(b) Discouraging membership of its employees
in the Union by incorporating in employees' per-
sonnel files warnings for engaging in protected ac-
tivity.
2. Take the following affirmative action which is
found will effectuate the policies of the Act:
(a) Delete from Frank Menchaca's personnel
file all references to an alleged violation of Respon-
dent's "no-solicitation" rule involving Josephine
Bojorquez. Notify him in writing that this has been
accomplished.
(b) Post at its facilities in Los Angeles, Califor-
nia, which were involved in this proceeding, copies
of the attached notice marked "Appendix. 1113 Co-
pies of said notice, on forms provided by the Re-
gional Director for Region 21, shall, after being
duly signed by an authorized representative, be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith. 14
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 21, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
THE MAY DEPARTMENT STORES COMPANY
IT IS FURTHER RECOMMENDED that , unless on or
before 20 days from the receipt of this Decision
and Recommended Order Respondent notifies the
aforesaid Regional Director in writing that it will
comply with the foregoing Recommended Order,
the National Labor Relations Board issue an order
requiring it to take such action.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
New Furniture & Appliance Drivers,
Warehousemen & Helpers Local 196, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, by giv-
ing adverse personnel comment slips to em-
ployees engaging in union activities.
WE WILL NOT engage in surveillance of our
employees ' union activities or interrogate them
887
with respect to such union activities.
WE WILL remove from Frank L. Menchaca's
personnel file a personnel comment slip repri-
manding him for allegedly violating a company
no-solicitation rule.
THE MAY DEPARTMENT
STORES COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 849 South Broadway, Los Angeles,
California, Telephone 213-688-5229.