Toys-R-Us, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1990

300 N.L.R.B. 188 (N.L.R.B. 1990)

188
300 NLRB No. 22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
Regarding the judge’s factual findings, we do not rely on any suggestion
at sec. II,A of his decision that the Respondent’s director of labor relations,
Richard Cudrin, encouraged employees at the July 1988 meeting to use the
‘‘let’s talk line’’ to express grievances, concerns, or complaints. In this regard,
the record indicates that employees were encouraged to use the hotline to ex-
press grievances when it was first established in the early 1980s, and that
Cudrin at the July 1988 meeting merely told employees that the hotline had
been underutilized.
2 The Board found that under the circumstances of the case, including a
prior statement by the respondent, it was clear that the respondent impliedly
referred to the union by its ‘‘hands tied’’ statement.
3 All dates are in 1988 unless otherwise indicated.
4 Moreover, although the judge did not credit Browne’s account of his con-
versation with Molette, we note that Browne’s testimony on this particular
point is not inconsistent with Molette’s. Thus, Browne testified that he assured
Toys-R-Us, Inc. and Production, Merchandising and
Distribution Employees Union, Local 210,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Cases 22–CA–15914 and
22–RC–9990
September 28, 1990
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 7, 1989, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief, and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.
1. The judge found that the Respondent violated
Section 8(a)(1) of the Act when its former shipping
manager, Hesketh Browne, told employee Martrovitz
Molette that he would have to wait until after the elec-
tion to receive a merit wage increase. In reaching this
conclusion the judge, citing Brunswick Food & Drug,
284 NLRB 663, 675 (1987), and Centre Engineering,
253 NLRB 419 (1980), found that the Respondent of-
fered Molette no evidence that he would receive the
increase regardless of the outcome of the election or
that the raise would be retroactive. For the following
reasons, we find merit in the Respondent’s contention
that Browne’s statement to Molette was not coercive.
In Centre Engineering, above, the Board noted that
it is unlawful for an employer to withhold wage in-
creases or accrued benefits because of union activities
and so advise employees, but that it is not unlawful for
an employer to inform employees that expected bene-
fits are to be deferred pending the outcome of the elec-
tion in order to avoid the appearance of election inter-
ference. Applying those principles to the facts before
it, the Board found that the respondent’s statement that
it could not implement a planned raise ‘‘because their
[sic] hands were tied’’ impressed on the employees
that a raise would have been received but for the union
campaign.2 In the absence of assurances that the raise
would be given after the campaign ended or that it
would be made retroactive, the Board concluded that
the respondent violated Section 8(a)(1) of the Act by
unlawfully attributing to the union its failure to grant
a wage increase. 253 NLRB at 421. In Brunswick
Food & Drug, above, the Board found that the re-
spondent violated Section 8(a)(3) and (1) by with-
holding a promised wage increase after telling the em-
ployee that his increase was frozen ‘‘because of the
union.’’ 284 NLRB at 681.
Turning to the facts of the instant case, the judge
found that the Respondent’s policy was to grant merit
wage increases to deserving employees each February
and on an individual basis throughout the year. The
judge credited Molette’s account of his conversation
with Browne. In this regard, Molette testified that after
the campaign began and prior to the September 22,
19883 election, he informed Browne that he had im-
proved his attendance and felt that he deserved a merit
increase. According to Molette, Browne, after discus-
sions with the warehouse manager, responded ‘‘that no
increases of merit would be given or considered until
after the union activity had subsided.’’ On cross-exam-
ination by the Respondent’s counsel, Molette answered
in the affirmative when asked whether Browne said he
would have to wait for a merit increase ‘‘until after the
election was over.’’ It was this latter testimony that the
judge set out as Molette’s description of what Browne
told him. Further, Molette admitted on cross-examina-
tion that Browne stated that regardless of the outcome
of the election, they would talk when the election was
over about Molette’s merit increase.
We find that Molette’s credited testimony does not
establish that the Respondent engaged in unlawful con-
duct. Specifically, we find that the judge erred in find-
ing that the Respondent offered Molette no evidence
that he would receive the increase regardless of the
outcome of the election. Unlike the situations in Cen-
tre Engineering and Brunswick Food & Drug, above,
Molette’s credited testimony establishes that Browne
stated that he would have to wait ‘‘until after the elec-
tion was over’’ for a merit increase. Molette also stat-
ed that Browne said that regardless of the outcome of
the election, they would talk when the election was
over about Molette’s increase.4 Thus, it would appear
189TOYS-R-US, INC.
Molette that all of the employees who deserved merit increases would get
them after the election, regardless of the outcome of the vote.
5 We shall amend the Conclusions of Law and the judge’s recommended
Order in accordance with this finding.
6 The record does not support the judge’s finding that the Respondent also
impliedly promised better benefits and working conditions. We shall modify
the recommended Order accordingly. We shall also add appropriate narrow in-
junctive language to the notice.
to employees that an expected benefit was merely
being deferred until after the election. Accordingly, we
reverse the judge and find that under the circumstances
here, the Respondent did not unlawfully attribute to the
Union its failure to grant merit increases.5
2. The judge found that the Respondent violated
Section 8(a)(1) of the Act by impliedly promising em-
ployees better wages, benefits, and working conditions
if they withdrew their support for the Union. In so
finding, the judge relied on Color Tech Corp., 286
NLRB 476 (1987), in which the Board found that the
respondent violated Section 8(a)(1) by urging employ-
ees to forgo their organizational activities while the re-
spondent investigated area wage rates, thereby
impliedly promising to adjust wages. We agree with
the judge that the Respondent made unlawful implied
promises of better wages.6 In so finding, we rely on
facts found by the judge and also established by the
uncontroverted testimony at the hearing.
After the filing of the petition, Richard Cudrin, the
Respondent’s director of labor relations at the time of
the election, held a series of meetings with employees
to discuss issues related to the election. Each meeting
was divided into sessions to accommodate various
groups of employees. At one of the sessions during the
fourth meeting, an employee asked whether there was
any way that the employees could vote again in less
than a year if they voted against representation. Cudrin
responded that if the employees could persuade the
Union to withdraw its petition for 6 months, they
would have the opportunity to see whether improve-
ments would be made at the facility and could vote in
6 months if they were not satisfied. Cudrin further ex-
plained that a 6-month delay would enable the employ-
ees to evaluate their February raises. According to
Cudrin, he discussed these issues at the two remaining
sessions held that day and instructed the Respondent’s
managers to provide the information to employees who
had attended the first sessions where it was not dis-
cussed. In this regard, Roger Stellatel, the Respond-
ent’s return-goods manager, testified that pursuant to
these instructions he told employees that in 6 months
‘‘they will better know what is going on and they
could see if they really wanted a union.’’ Stellatel fur-
ther stated that the employees were aware that the Feb-
ruary raises fell within the 6-month period.
Regarding the February wage increases, the Re-
spondent’s employees are eligible each February for
wage increases that are based partly on merit and part-
ly on area wage surveys. The Respondent conducts the
wage surveys during the fall and adjustments are made
in February for those locations that are not competitive
in their area. The subject of wages was discussed at
the fifth employee meeting, at which Cudrin distrib-
uted to the employees copies of the following state-
ment:
AT TOYS ‘‘R’’ US WE GUARANTEE THE
FOLLOWING:
On behalf of Toys ‘‘R’’ Us, WE CAN GUAR-
ANTEE you straight talk. We will give a wage
increase in February to all employees at our ware-
house, consistent with our past practice. There are
no strings attached.
Of course, if the Union won an election we
would negotiate with them in good faith over
wages as well as other terms of employment, but
no one can predict the outcome of negotiations.
Labor Board procedure offers another possi-
bility. If the union agrees, the board will permit
the union to withdraw its representation petition
before the election, and refile as early as six
months later. This procedure allows employees to
defer deciding on whether they want a union. It
gives people time to think. The decision is up to
you. We think the answer, now or later, is to vote
NO.
The statement was notarized and was signed by Cudrin
and by the Respondent’s regional general manager and
its distribution center manager. When questioned re-
garding the creation of the document, Cudrin testified
that he had used a ‘‘guarantee type of thing’’ before,
but that the idea of the Union withdrawing the petition
for 6 months came from an employee’s question at the
meeting 10 days earlier. According to Molette, Cudrin
introduced the document by stating that the Union
could guarantee employees only a fair hearing and fair
negotiations, but that the document reflected what the
Respondent could guarantee. Molette further stated that
Cudrin indicated that the employees could opt to have
a ‘‘feeling out period to see what the company . . .
could possibly do for us.’’
In the meantime, Cudrin instructed the Respondent’s
managers that the employees might circulate a petition
asking the Union to withdraw its representation peti-
tion, and told Stellatel not to permit the employees to
solicit signatures during working hours. According to
the credited testimony of employee Judy Ann Bell,
Stellatel told her that a petition would be coming
around ‘‘asking the employees to give the company six
months before they decide whether or not to bring in
a union.’’ Bell asked ‘‘why,’’ and Stellatel responded
that the Company thought the employees would like
their February raises. When Bell asked how the up-
coming raises would be different from other February
increases, Stellatel responded that ‘‘maybe’’ the Re-
spondent felt it had not been treating employees right
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Although Bell testified that she saw the employee petition, there is no fur-
ther information regarding the petition in the record.
8 Our dissenting colleague argues (1) that the document simply guaranteed
employees that their February increases would be consistent with the Respond-
ent’s past practice, and (2) that it is ‘‘not disputed’’ that the Respondent had
a past practice of granting wage increases each February. Regarding a merit
increase, Cudrin did testify that each February employees received a wage in-
crease ‘‘based upon their performance.’’ It is not clear from the record, how-
ever, whether the Respondent’s consistent past practice was to give all em-
ployees a favorable evaluation that would result in a February merit wage in-
crease.
Moreover, we note that at the time the Respondent distributed the ‘‘guar-
antee,’’ it appears that the employees had not yet been evaluated for the Feb-
ruary increases and the area wage surveys had not been completed. Regarding
the latter, Cudrin testified that the Respondent’s practice is to commence gath-
ering information for the wage surveys in late summer or early fall, analyze
the data, and determine by the end of December whether adjustments in the
starting rates are necessary. Therefore, we find that the Respondent in the
summer of 1988 had no basis on which to determine that increases based on
area wage surveys would be given to all employees the following February.
9 Compare National Micronetics, 277 NLRB 993 (1985) (respondent’s state-
ments asking employees to give it more time or a second chance too vague
to rise to the level of illegal promises).
10 In view of our finding, we find it unnecessary to pass on the Union’s
objection to the election.
‘‘and they feel that they should do something to amend
for it.’’7
In view of the above, we find that the Respondent
engaged in a course of conduct that suggested to em-
ployees that if they delayed the election they would re-
ceive better wages in February and could thereafter re-
evaluate their need for organization. An employee
question at the fourth meeting established in Cudrin’s
mind the connection between delaying the election for
6 months and the occurrence during the 6-month pe-
riod of the February wage increases. Immediately
thereafter, this information was disseminated to other
employees by Cudrin and by the Respondent’s man-
agement. The foreseeable linkage in the employees’
minds between the wage increase and a 6-month delay
is reflected in Stellatel’s testimony that all the employ-
ees were aware that the February wage increases
would fall within the 6-month period.
The Respondent’s ‘‘wage guarantee’’ that was dis-
tributed 10 days later further solidified that link be-
tween the February wage increases and a delay in the
election. Thus, this document, which was signed by the
Respondent’s top management personnel, discussed the
February increases and then urged employees that a 6-
month delay would allow them ‘‘to defer deciding on
whether they want a union’’ and give them ‘‘time to
think.’’
In support of its view that management was merely
discussing a preexisting benefit, the Respondent con-
tends that the February increases were controlled by
market forces and not by the Respondent’s desire to
influence or reward employees. To the extent, how-
ever, that the increases were also based on employee
evaluations, which involved more subjective criteria,
the Respondent’s contention is not persuasive. More-
over, although the document refers to ‘‘past practice’’
with respect to the granting of wage increases, the fact
that it was presented as a ‘‘guarantee’’ suggests that
employees would receive increases regardless of their
individual qualifications or the result of the relevant
wage survey.8 Such an interpretation concerning the
suggestion of an improved benefit is consistent with
Stellatel’s comment to Bell insinuating that the Feb-
ruary increases would be different from those given in
previous years. Finally, consistent with this course of
conduct promoting an election delay, Cudrin told the
Respondent’s managers to expect an employee petition
to circulate requesting that the Union withdraw its rep-
resentation petition.
Viewed as a whole, the Respondent’s conduct went
beyond the bounds of acceptable campaign propa-
ganda. Despite its disclaimers that it could not make
promises, the Respondent’s message was clear and its
implied promise specific: the Respondent asked em-
ployees to give it another chance to improve wage
rates after which the employees could reevaluate their
need for union representation.9 Accordingly, we find
that under Color Tech Corp., above, the Respondent
violated Section 8(a)(1) by its unlawful implied prom-
ise of better wages.
3. The Respondent’s violation of Section 8(a)(1) was
sufficiently serious and widespread in its impact to
have interfered with the election process. The Board
has long held that unfair labor practices that have been
litigated in a consolidated unfair labor practice/-
representation proceeding can form the basis for set-
ting aside the election even though those matters were
not raised by the objections. White Plains Lincoln
Mercury, 288 NLRB 1133 (1988). Accordingly, we
shall order that the election be set aside on the basis
of the Respondent’s unlawful implied promise of better
wages.10
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. The Respondent violated Section 8(a)(1) of the
Act by impliedly promising employees better wages if
they would withdraw their support for the Union.’’
Substitute the following for Conclusion of Law 6.
‘‘6. The results of the election shall be set aside on
the basis of the Respondent’s violation of Section
8(a)(1), and a second election shall be held.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Toys-
R-Us, Inc., Port Newark, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 1(a) and reletter the following
paragraphs.
2. Substitute the following for new paragraph 1(a).
191TOYS-R-US, INC.
1 The majority, observing that the Respondent’s February wage increase pro-
gram included a discretionary aspect, finds that the Respondent could use em-
ployee evaluations to grant increases as a means of influencing employees.
The majority relies on the Stellatel comment as evidence that the Respondent’s
course of conduct implied the upcoming February increases would be better
than might otherwise be expected. Although I would find Stellatel’s comment
unlawful, as it could be interpreted by Bell as a promise that February in-
creases would be different from increases in the past, I would not (nor do my
colleagues) find that Stellatel’s comment was disseminated to other employees.
Absent evidence of dissemination of the Stellatel comment, I cannot treat the
Stellatel incident as part of the Respondent’s course of conduct. Consequently,
I am unable to agree with my colleagues that Cudrin’s remarks and the distrib-
uted document promising to continue past practice (as required by Board law)
support a finding that a reasonable person would believe the Respondent was
promising to grant increases in a manner different from increases in the past.
In addition, absent evidence of dissemination, I would not find that the
Stellatel comment interfered with the election.
2 My colleagues find it unnecessary to pass on the judge’s brief discussion
of the Union’s objection. The objection was based on the Respondent’s ref-
erences to past practice at other facilities. The record shows that the references
factually stated the results of the wage surveys. I see no basis for finding this
conduct objectionable.
‘‘(a) Promising employees better wages in order to
discourage them from supporting the Union.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
[Direction of Second Election omitted from publica-
tion.]
MEMBER CRACRAFT, dissenting in part.
My colleagues direct a second election on the basis
of finding that the Respondent engaged in a course of
conduct that impliedly promised better wages. I cannot
agree.
After the Union filed an RC petition in July 1988,
the Respondent’s director of labor relations, Cudrin,
held a series of employee meetings to discuss issues
relevant to the election. In one meeting an employee
asked why (if employees rejected the Union in an elec-
tion) employees would have to wait a year before an-
other election. Cudrin replied that if the Union with-
drew the petition, employees would be able to evaluate
their February increases and could have an opportunity
to vote in 6 months.
Cudrin instructed management to discuss this infor-
mation with employees who had not been present
when the question arose. Stellatel, a manager, informed
employee Bell that there was going to be a petition
asking for a 6-month delay ‘‘before they decide wheth-
er or not to bring in a union or not’’ and that the Re-
spondent thought that the employees would like the
February increases. There is no evidence that other
employees learned of Stellatel’s remarks.
Cudrin also distributed a document guaranteeing em-
ployees their February increases would be ‘‘consistent
with our past practice’’ and stating that a 6-month
delay in an election would give employees ‘‘time to
think.’’ That Respondent has a past practice of grant-
ing wage increases each February is not disputed. The
increases are based partly on merit and partly on the
results of an area wage survey Respondent conducts
during the preceding fall.
For the following reasons, I do not believe the facts
support the conclusion that the Respondent engaged in
an improper course of conduct.
First, the Board’s practice is that unless good cause
is shown, a union, which withdraws its petition after
hearing, is not permitted to file a petition to represent
the same employees for a period of 6 months after its
withdrawal. Sears, Roebuck & Co., 107 NLRB 716
(1954), cited in NLRB Casehandling Manual (Part
Two) Representation Proceedings, Section 11114.1a.
Thus, Cudrin’s statement that employees could obtain
an election in 6 months if the Union withdrew the
pending petition was a correct statement of law.
Second, as for linking a delay in the election and the
annual February wage increases, I see nothing unlaw-
ful about stating the obvious, i.e., that February would
be within the 6-month period in which the Union could
not file another petition. Even the majority acknowl-
edges that the employees were well aware February
would come within the 6 months.
Third, contrary to my colleagues’ finding, neither
Cudrin’s response nor the distributed document im-
plied that the Respondent would act different than in
the past. In fact, both Cudrin and the document stated
just the opposite, that the Respondent would follow its
past practice. Indeed, Board law would require that the
Respondent continue its past practice, so I see nothing
improper about so stating.1
My colleagues’ reliance on Color Tech Corp., 286
NLRB 476 (1987), is unconvincing. In Color Tech,
when the respondent asked employees to delay orga-
nizing to allow the respondent to investigate area
wages, the employees could reasonably expect a depar-
ture from past conduct because the respondent had no
past practice of surveying area wages before granting
increases. In contrast, given the existence of the Re-
spondent’s policy concerning wage increases, I believe
a reasonable person would interpret Cudrin’s statement
and the guarantee in the distributed document as a
promise not to depart from past practice.
In sum, I would not find the Respondent’s actions
constitute an unlawful course of conduct, and I would
not set aside the election.2
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act, and has or-
dered us to post and abide by this notice.
WE WILL NOT promise our employees that they will
be given better wages in order to discourage their sup-
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
port for Production, Merchandising and Distribution
Employees Union, Local 210, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO, or any other labor or-
ganization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
TOYS-R-US, INC.
William O’Connor., Esq., for the General Counsel.
Robert G. Brody, Esq. (Jackson. Lewis, Schnitzler &
Krupman), of New York, New York, for the Respondent.
Ronald Goldman, Esq. (Manning, Raab, Dealy & Storm), of
New York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The plead-
ings in Case 22–CA–15914, as amended at the hearing, put
in issue whether Toys-R-Us (Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act). In par-
ticular, Respondent is alleged to have (1) unlawfully sought
from its employees their reasons for supporting Production,
Merchandising and Distribution Employees Union, Local
210, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL–CIO (the
Union), (2) implied to its employees that they would receive
better wages and benefits if they did not support the Union,
and (3) informed them that they would not be given merit
increases if they supported the Union.
Objections were filed by the Union to an election held in
Case 22–RC–9990. Those of its objections which paralleled
the above allegations of unfair labor practices were consoli-
dated for hearing.
The hearing was held in these cases in Newark, New Jer-
sey, on March 15 and 16, 1989. On the entire record, includ-
ing my observation of the demeanor of the witnesses, and
after due consideration of the briefs filed by the General
Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent is engaged in the retail sale of toys and related
items. Its annual gross revenue and its receipt of goods
across state lines are sufficient to meet the Board’s jurisdic-
tional standard for retail concerns.
The pleadings establish that the Union is a labor organiza-
tion as defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Respondent operates about 350 retail stores and numerous
distribution centers throughout the United States. It has a
warehouse at Port Newark in New Jersey. Its approximately
150 employees there have not been represented for purposes
of collective bargaining since that facility opened in 1984.
On July 27, 1988 (all dates hereafter are for 1988 unless
stated otherwise), the Union filed a petition in Case 22–RC–
9990 to represent the employees at Port Newark. Richard
Cudrin was then Respondent’s director of labor relations and
has since been promoted to vice president. He testified that,
on the Union’s filing the petition, he visited Port Newark to
meet with employees there. Over the next few months, up
until the election on September 22, he held six meetings alto-
gether, each with a particular theme. The first, according to
Cudrin, consisted of a ‘‘general introduction’’; the second
was on the topic of the costs to employees of joining a
union; the third concerned the date of the election; the fourth
on negotiations; the fifth on strikes and contract comparison;
and the sixth, ‘‘just a wrap-up.’’
The first meeting Cudrin held was in late July. Rather than
shutdown operations in order to talk with all the employees
at once, Cudrin spoke separately with groups of about 25
employees each, in the conference room at Port Newark.
There were six such group sessions which comprised the first
meeting. Each session that day lasted about an hour and all
the sessions followed essentially the same format.
Cudrin had not held any such meetings with Port Newark
employees since 1986 when, as he testified, there ‘‘was a
[previous] union situation there.’’
Cudrin began the first meeting by mentioning the ‘‘let’s
talk line.’’ He was referring to an ‘‘800’’ telephone line that
Respondent set up in the early 1980s for the use of its em-
ployees nationwide in calling its corporate office in Paramus,
New Jersey. They were encouraged to use that line to ex-
press any grievance, concern, or complaint they had.
At the first meeting at Port Newark, Cudrin told the em-
ployees that no one has used the ‘‘let’s talk line’’ in 2 years
to contact him but instead have ‘‘chosen to go externally,’’
referring to the Union’s petition. Cudrin then went on to ex-
plain in general representation case election procedures. He
also told the employees that Respondent was not permitted
to, nor would it make, any promises to them in connection
with ‘‘the pros and cons of joining a union.’’ (Cudrin told
the employees at each of the six meetings during the
preelection campaign period that Respondent could make no
such promises). Cudrin then asked the employees to state
what kind of dissatisfaction would cause employees to go to
a union. He told them that he was not asking them why they
‘‘as individuals in this room are interested in a union’’ but
was asking ‘‘a general question.’’ A number of employees
answered and, as they did, he wrote the answers on a black-
board. The answers included references to better wages and
better hours. Notwithstanding Cudrin’s earlier statement that
he was not interested in asking why anyone of them wanted
a union, a number of employees expressed ‘‘actual griev-
ances.’’ The discussion at one of the group sessions on the
first meeting day became somewhat heated. In the course of
an exchange at that session, according to an employee, Henry
Gibson, Cudrin asked him what the Union wanted. Gibson
testified further that he responded to that question by telling
Cudrin that he was stating only what he wanted. Cudrin de-
nied that he asked Gibson what the Union wanted. I credit
Cudrin’s denial as it is unlikely that one as experienced in
labor relations as Cudrin would so abruptly depart from the
format he had planned.
193TOYS-R-US, INC.
1 One of General Counsel’s witnesses, during cross-examination, related that
Cudrin asked employees to raise their hands if they signed authorization cards
for the Union. Cudrin denied this. I credit Cudrin’s denial.
At the first meeting, Cudrin did not list any of the employ-
ees’ specific grievances on the blackboard he was using. He
listed ‘‘focal discussion points.’’1
Cudrin also walked about the Port Newark warehouse dur-
ing the day on which he first met with the employees in late
July. While in the warehouse that day, Cudrin asked em-
ployee Gibson, according to Gibson’s uncontroverted ac-
count, what ‘‘were the things about the Company that [he]
was dissatisfied with.’’
Cudrin testified that, at one of the group sessions during
the course of the fourth meeting he held among the Port
Newark employees, he was asked by an employee why the
employees would have to wait a year if they made an incor-
rect decision—a reference to the fact that, if they voted
against representation, no election could be held for a year.
Cudrin responded that if the employees could get the Union
to withdraw its petition for 6 months, they would have the
opportunity in that interval to see whether or not things were
better. Cudrin pointed out that annual wage increases are
given each February.
At the fifth meeting, held 10 days after the fourth, Cudrin
distributed copies of a document, sworn to and signed by
him and by other officials of Respondent before a notary on
August 30. It read:
AT TOYS ‘‘R’’ US WE GUARANTEE THE
FOLLOWING:
On behalf of Toys ‘‘R’’ US, WE CAN GUAR-
ANTEE you straight talk. We will give a wage increase
in February to all employees at our warehouse, con-
sistent with our past practice. There are no strings at-
tached.
Of course, if the Union won an election we would
negotiate with them in good faith over wages as well
as other terms of employment, but no one can predict
the outcome of negotiations.
Labor Board procedure offers another possibility. If
the union agrees, the board will permit the union to
withdraw its representation petition before the election,
and refile as early as six months later. This procedure
allows employees to defer deciding on whether they
want a union. It gives people time to think. The deci-
sion is up to you. We think the answer, now or later,
is to vote NO.
Respecting the subject of a wage increase referred to in
the above-quoted document, Respondent’s policy has been to
grant employees a merit increase each February and also a
further increment based on wage surveys it conducts in var-
ious geographic areas for all its employees, nationwide. Re-
spondent’s policy is also to grant merit increases to individ-
uals at other times, as it chooses.
At the fifth meeting, Cudrin told the Port Newark employ-
ees that, at its facility in Philadelphia, the employees had re-
ceived a 75-cent increase after they had voted against rep-
resentation by a union. He also told the employees that this
same situation occurs even where there is no union orga-
nizing going on, and used its Houston distribution center as
an example. There, he told the employees at Port Newark,
the starting rates had been raised by $1.
Cudrin had told the managers at Port Newark that a peti-
tion might be circulated among employees for their signa-
tures, asking the Union to withdraw its petition for an elec-
tion. Cudrin instructed the managers that they were not to
permit the employees to solicit signatures during working
time. The General Counsel developed testimony from one
witness, Judy Ann Bell, that the manager of her department,
Roger Stellatel, told her that there ‘‘was going to be a peti-
tion coming around asking’’ that Respondent be given ‘‘six
months before they decide whether or not to bring in a union
or not.’’ Bell further testified that Stellatel then said that Re-
spondent feels that [the employees] will like the raises [they]
get in February’’ and that ‘‘maybe’’ Respondent had not
been treating the employees right and ‘‘should do something
to [make amends] for it.’’
Stellatel testified that Bell initiated the conversation by
asking him if he had heard about the petition, which he re-
ferred to as a ‘‘hot item’’ then. He testified that he explained
to her the substance of the petition and that she then said that
she understood that Stellatel was in effect saying that the em-
ployees could expect ‘‘good raises’’ in February. Stellatel
testified also that he did not say that and that ‘‘[Respondent]
can’t promise you that.’’
I credit Bell’s account. She impressed me as candid; also,
it seems unlikely that she would have to ask about the con-
tents of such a ‘‘hot item’’ as the petition.
There is one other factual matter to discuss. The complaint
alleges that Respondent, by Shipping Department Manager
Hesketh Browne advised employees that Respondent would
not grant employees merit raises because they joined the
Union. Respondent’s policy according to its manual is to
grant merit increases each February as noted above, and also
on an individual basis throughout the year. General Coun-
sel’s witness as to that allegation was Martrovitz Molette. He
related that he told Browne that, as he had improved his at-
tendance, he felt that he was entitled to a merit increase. He
testified that Browne agreed with him, that Browne checked
the matter out with Warehouse Manager Kenny Koholik and
that Browne, a few days later, told him that he would have
to wait until the election was over. The election, as noted
below, was held on September 22. Browne, who is no longer
employed by Respondent, testified that Molette approached
him for a merit increase and that he told Molette then that
there was a freeze on merit raises until after the election be-
cause the Union would say that Respondent is trying to buy
votes by giving merit increases. I credit Molette’s detailed
account as it impressed me as one that was recounted by
Molette from a clear recollection of the event.
Respecting the first issue—that Respondent unlawfully so-
licited from its employees their reasons for supporting the
Union, most of the relevant evidence thereon bears more di-
rectly on the third issue, discussed below. Insofar as Gib-
son’s testimony, that Cudrin asked him on one occasion what
the Union wanted, pertains to the allegation of unlawful so-
liciting of employees’ reasons, that testimony was not cred-
ited. I note also that General Counsel’s brief does not
present, as a separate issue, the alleged unlawful soliciting of
employee reasons for their supporting the Union. Rather, that
brief treats the evidence thereon as pertinent, instead to Gen-
eral Counsel’s third contention, discussed in detail below.
That evidence relates directly to that third issue and is best
treated as part of the discussion thereon.
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The second issue for consideration pertains to the allega-
tion that Respondent unlawfully interfered with employees’
Section 7 rights by having advised that merit increases would
not be granted because of the Union. The credited evidence
thereon is that employee Molette was told that he would
have to wait until after the election. Respondent offered no
evidence that Molette would receive the increase regardless
of the outcome of the election or that the raise would be ret-
roactive. In these circumstances, I find merit to the complaint
allegation. Cf. Brunswick Food & Drug, 284 NLRB 661
(1978). See also Centre Engineering, 253 NLRB 419, 421
(1980).
The third and remaining issue arises from General Coun-
sel’s contention that Respondent impliedly promised employ-
ees improved wages, benefits, and working conditions to dis-
courage support for the Union and from Respondent’s denial
thereof and its reliance on its repeated statements to the em-
ployees that it could not and would not make any promises
to influence them as to their support for the Union.
In evaluating the evidence as to this issue, Respondent’s
‘‘entire course of conduct’’ must be analyzed. Mast Adver-
tising & Publishing, 286 NLRB 955 (1987). An employer’s
statements to employees that it could not make promises to
influence the outcome of an election is not dispositive of the
issue. See Angelica Corp., 276 NLRB 617 (1985), and cases
cited therein at 623.
Respondent set up a ‘‘Let’s talk line,’’ an ‘‘800’’ number,
in the early 1980s in order that its employees may bring to
the attention of its corporate office, for prompt resolution,
any grievances or problems they had. When Respondent
learned of the Union’s petition in July, its director of labor
relations then went to Port Newark and told the employees
there that they had not used the ‘‘Let’s talk line’’ to get his
attention but, instead, had signaled him by having gone to
the Union. That statement makes clear that Respondent’s di-
rector of labor relations was there to learn of, and resolve,
employee grievances and complaints, just as if they had used
the ‘‘800’’ number. His asking them to relate in general why
employees would go to a union was obviously not in further-
ance of a seminar discussion but in direct relation to his ex-
pressed concern over their failure to use the ‘‘Let’s talk
line.’’ That the employees understood this is evident from
some of their responses. They also identified other areas of
dissatisfaction, e.g., wages. Respondent, while professing that
it could make no promises, had no hesitancy in later issuing
a sworn guarantee to them, while urging them to ‘‘vote
NO,’’ that it will give them a wage increase in February
1989 while suggesting the ‘‘possibility’’ of their inducing the
Union to withdraw from the election schedule for September
22. As noted earlier, that February increase is based on a
combination of merit factors and studies of area wages.
It strikes me as quite clear that, where Respondent had, in
response to the Union’s petition for an election, asked its
employees what their concerns are with a view to allaying
those concerns and then guaranteed these employees that a
major concern they had would be resolved if they considered
having the Union go away, Respondent unequivocally made
implied promises to them that they would receive wage in-
creases and other benefits provided they withdrew their sup-
port from the Union. See Color Tech Corp., 286 NLRB 476
(1987). In Gary Mfg. Co., 242 NLRB 539 (1979), the Board
held that the creation of a ‘‘Hot Line,’’ set up identically as
was Respondent’s ‘‘Let’s talk line,’’ was the most significant
single violation of the Act for purposes of imposing the bar-
gaining order remedy issued in that case. Cudrin’s appear-
ance before the employees at the first meeting, as he came
there because they had signaled him by having gone to the
Union instead of through the ‘‘Let’s talk line’’ must simi-
larly be held to be a most significant violation.
The question remains is whether Respondent had negated
the import of that conduct by its having repeated, at each of
the six meetings, that it would not make any promises. In
Raley’s Inc., 236 NLRB 971 (1978), the Board addressed
such an issue and stated at 972:
Were we to conclude that Respondent, by merely recit-
ing a ‘‘no promises’’ formula, had clearly discharged
its duty to avoid giving the employees the impression
that their complaints would be remedied, we would be
forced to conclude that the parties at these meetings
were engaged in a largely meaningless exchange con-
cerning the employees’ grievances and complaints.
However, it is apparent that the reason for voicing such
complaints was the hope that they might be remedied.
Clearly, as reflected in the Administrative Law Judge’s
Decision, the adamancy with which the employees con-
tinued to express their grievances and Respondent con-
tinued to entertain them, despite such formalized
disavowals by Respondent that any changes would
ensue, sufficiently indicates that such disavowals were
not tendered or taken at face value. Thus, we conclude
that Respondent’s oft-repeated stock phrase of ‘‘no
promises’’ was a mere formality, serving only as an all-
too-transparent glows on what is otherwise a clearly
implied promise of benefit.
In the instant case, the circumstances under which Re-
spondent impliedly promised wage increases and other bene-
fits were so structured that it is unlikely that its employees
could be expected to place much weight on Respondent’s
statements that it was making no promises. I thus find that
Respondent unlawfully interfered with their right to freely
choose as to whether or not they desired representation by
the Union.
III. THE OBJECTIONS TO CONDUCT EFFECTING THE
RESULTS OF THE ELECTION
The Union did not receive a majority of the votes cast at
the election held in Case 22–RC–9990 on September 22.
Eighty-seven employees voted against representation, 58 for,
and 8 were challenged. The Union filed timely objections to
conduct affecting that result. It withdrew all of those objec-
tions but one, which read:
On various dates during the months of August and
September, 1988, the exact dates being presently un-
known, [Respondent] by its agents, officers and rep-
resentatives promised [its] employees a seventy-five
(75) cent per hour increase in the event that [the Union]
was defeated in the upcoming election.
That objection was consolidated for hearing with the hear-
ing in Case 22–CA–15914 as it overlapped with the allega-
tion that Respondent had unlawfully made implied promises
of wage increases.
195TOYS-R-US, INC.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
3 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
The 75-cent figure referred to in the objection was a figure
mentioned by Respondent’s director of labor relations when
he discussed the sizes of raises which had been given at dif-
ferent facilities of Respondent. In particular, he had men-
tioned that, at a Philadelphia facility, the employees there
had received a 75-cent-an-hour raise after a union election.
In any event, in view of my findings above as to the alle-
gations in Case 22–CA–15914, I shall sustain this objection.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. Respondent has committed unfair labor practices within
the meaning of Section 8(a)(1) of the Act by having told its
employees that merit raises could not be given until after the
election in Case 22–RC–9990 was held and by having
impliedly promised them better wages, benefits, and working
conditions if they withdrew their support of the Union.
4. The aforesaid unfair labor practices affect interstate
commerce within the meaning of Section 2(6) and (7) of the
Act.
5. Respondent did not commit any other unfair labor prac-
tices.
6. The Union’s timely objection to conduct affecting the
results of the election held in Case 22–RC–9990 having been
sustained, it is appropriate to set aside the results of the elec-
tion and to re-run the election.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Toys-R-Us, Port Newark, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that merit wage increases cannot be
given until after a Board election is held.
(b) Promising employees better wages, benefits, and work-
ing conditions in order to discourage them from supporting
Local 210, International Brotherhood of Teamsters, Chauf-
feurs Warehousemen and Helpers of America, AFL–CIO.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Port Newark, New Jersey facility copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the results of the elec-
tion held in Case 22–RC–9990 are set aside and a new elec-
tion is to be held at a date, time and place to be set by the
Regional Director.
IT IS ALSO FURTHER RECOMMENDED that the allegations of
unfair labor practices not found to have merit are dismissed.