TVI, Inc. d/b/a Savers

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1039 (N.L.R.B. 2002)

SAVERS 1039
TVI, Inc. d/b/a Savers and General Sales Drivers,
Delivery Drivers & Helpers, Local 14, affiliated
with International Brotherhood of Teamsters,
AFL–CIO. Case 28–CA–16019–2
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN,
COWEN, AND BARTLETT
On September 18, 2000, Administrative Law Judge
Albert A. Metz issued the attached decision. The Ge n­
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed a brief in opposition to the General
Counsel’s exceptions.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
We agree with the judge that Supervisor Terri Foster’s
statement to employees at the Respondent’s Rancho store
did not violate Section 8(a)(1), but rather was a lawful
prediction of potential consequences of unionization un­
der the standard set forth in NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969). Under Gissel, when an employer
makes a prediction as to what effects unionization may
have on its company, such a prediction is lawful where it
is “carefully phrased on the basis of objective fact to
convey an employer’s belief as to demonstrably probable
consequences beyond his control or to convey a man­
agement decision already arrived at to close the plant in
case of unionization.” NLRB v. Gissel Packing Co., 395
U.S. at 618. Here, we find that under Gissel Foster’s
statement was both “carefully phrased” and based upon
“objective fact.”
In response to employee questions, Foster, who knew
that the store was losing money at the time, stated that “if
the union ever did come in, the store wasn’t making
enough money to . . . pay off higher wages, and it would
be a possibility that everybody would lose their job.”
Foster based her statement on what the store manager
told her. Foster also proceeded to back up her statement
by showing employees a document that illustrated what
the store was making per day. The fact that the document
was not introduced into evidence does not contradict the
fact that it was shown to employees as support for Fos-
1 The General Counsel has excepted to some of the judge’s credibil­
ity findings. The Board’s established policy is not to overrule an admin­
istrative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence 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 examined the record and find no
basis for reversing the findings.
ter’s prediction. Further, the Respondent’s financial re-
cords indicate that the Rancho store was not profitable at
the time.
Contrary to our dissenting colleague, Foster’s state­
ment was thus not mere speculation on her part. Further,
contrary to the dissent, the prediction was not based on
“after the fact evidence.”
The dissent says that Foster had no knowledge of the
Respondent’s overall financial situation. But that is ir­
relevant to Foster’s prediction, inasmuch as her predic­
tion was simply that the particular store might have to
close if wages were excessive.
In sum, employees would reasonably view Foster’s
remark as indicating that any store closure would be eco­
nomically driven rather than retaliatory.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER LIEBMAN, dissenting in part.
The evidence here shows that Supervisor Terri Foster’s
statement—that all employees could lose their jobs as a
result of unionization—was based solely on hearsay and
conjecture. This is precisely the type of speculation that
the Supreme Court found to be coercive in NLRB v. Gis­
sel Packing Co., 395 U.S. 575 (1969). Unlike my col­
leagues, then, I would find that Foster unlawfully threat­
ened job loss in violation of Section 8(a)(1) of the Act.
During the Union’s organizing campaign at the Re­
spondent’s Rancho store in August 1999, Foster told
employees that the store was not making enough money
to support higher wages, and that if the Union came in
there was a possibility that everyone would lose their
jobs. Foster testified that her prediction was based on a
single comment about the store’s profits made to her by
the store’s manager.1 There is no evidence that Foster, a
low-level supervisor who had been working at the Ran­
cho store for only a month, had any firsthand knowledge
of the store’s finances. Indeed, Foster conceded that she
“wasn’t real sure about . . . how much the store was mak­
ing at that point,” but that she “just [knew] that [her]
manager had stated once that [the store] had only profited
once at that point, so [she] knew the store wasn’t making
much money.”
Under Gissel, it is the Respondent’s burden to show
that Foster’s statement was justified by objective evi­
dence. See, e.g., Schaumburg Hyundai, 318 NLRB 449,
1 The judge credited the testimony of employee Diana Hernandez
over that of Foster concerning what Foster told employees, but credited
Foster’s testimony that whatever she told employees that day was based
on the prior remarks of the store manager. The store manager did not
testify.
337 NLRB No. 163
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
450 (1995); see also Zim’s Foodliner, Inc. v. NLRB, 495
F.2d 1131, 1137 (7th Cir. 1974) (finding that Gissel
places a “severe burden” on employers seeking to justify
predictions concerning the consequences of unioniza­
tion). Gissel requires more than a mere belief to make
such a prediction lawful, because “employees, who are
particularly sensitive to rumors of plant closings, take
such hints as coercive threats rather than honest fore-
casts.” Gissel, 395 U.S. at 619–620. See also Turner
Shoe Co., 249 NLRB 144, 146 (1980).
Here, the Respondent offered only a summary state­
ment of the store’s finances for the relevant period, but
failed to show that the summary was contemporaneously
available when Foster made her statements to the em­
ployees. Reliance on “after the fact” evidence produced
at trial is insufficient to sustain the Respondent’s burden.
See Yoshi’s Japanese Restaurant & Jazz House, 330
NLRB 1339, 1342 (2000).
Foster apparently did show employees a piece of paper
allegedly showing what the store was making per day. It
is impossible, however, to determine whether the paper
actually provided support for Foster’s statement, because
the Respondent failed to offer it into evidence. The only
evidence in the record concerning the paper was the tes­
timony of Diana Hernandez, a witness for the Ge neral
Counsel, who stated that after Foster made her predic­
tion, “she went upstairs and brought down a . . . piece of
paper showing how much the store was making a day.”
Significantly, when Foster was asked whether she shared
with employees any information about the store’s profits,
she made no mention of the paper, but referred only to
what she had heard from the store’s manager. Surely,
then, any simple display of this piece of paper, by itself,
hardly demonstrates that Foster’s prediction was based
upon objective facts.
Nor does the record show that Foster knew how to
properly interpret whatever information may have been
contained in the paper. The Rancho store is only one of
several operated by the Respondent in the Nevada area,
and there is no evidence that Foster had any knowledge
concerning the Respondent’s overall financial situation.
Further, there is no evidence that Foster knew what union
wage demands might be, or that she considered the give-
and-take of collective bargaining when she predicted the
impact of unionization on the Respondent. See Yoshi’s
Japanese Restaurant & Jazz House, 330 NLRB at 1341.
In short, the record evidence is that Foster’s prediction
rested entirely on her own speculation about what might
happen if the employees unionized.
Finally, I take issue with the judge’s suggestion that a
“single incident . . . by a minor supervisor” cannot be the
basis for finding a violation under Gissel. By dismissing
a threat of job loss on the basis that it was merely a “sin­
gle incident,” the majority ignores Gissel’s admonition
that employees are “particularly sensitive” to such hints
of plant closing. Likewise, that Foster might have been a
low-level supervisor does not lessen the impact of the
threat of store closure on employees. Particularly since
she attempted to use a “piece of paper” from “upstairs”
to back up her position, her comments would seem to
carry a weight of authority.
For all of these reasons, I would reverse the judge and
find that the Foster’s statements violated Section 8(a)(1)
as alleged.
Benjamin W. Green, Esq., for the General Counsel.
James T. Winkler, Esq., for the Respondent.
DECISION1
ALBERT A. METZ, Administrative Law Judge. This case in­
volves issues of whether the Respondent has violated Section
8(a)(1) of the National Labor Relations Act (Act).2 On the en-
tire record, including my observation of the demeanor of the
witnesses, and after consideration of the Government’s brief
and the Respondent’s oral argument, I make the following find­
ings of fact.
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Charging Party Union is a labor organiza­
tion within the meaning of Section 2(5) of the Act.
II. BACKGROUND
The Respondent operates four retail stores in the Las Vegas,
Nevada area. These stores are referred to as Charleston, Ran­
cho, Spring Mountain, and Tropicana. In the summer of 1999
the Union was engaged in an organizing campaign at the stores.
An election, based on the Union’s representation petition, was
held on October 1, 1999. The Union lost the election, and no
objections were filed.
III. UNFAIR LABOR PRACTICE ALLEGATIONS
A. August 25—Prediction of Job Loss
On approximately August 25, 1999, at the Rancho store, as­
sistant production supervisor, Terri Foster, and several employ­
ees were talking. Foster testified that she had difficulty recall­
ing what was said, but did remember employee Donna Wilson
saying the Respondent could afford to pay the employees more.
Foster testified that she responded:
Well, the store has been open for less than a year, and . . . I
think we’ve only profited once, if that.” Because I remember
my manager stating that I think we had profited once at that
time, and . . . where would the money come from? I mean, if
1 This case was heard at Las Vegas, Nevada, on June 13, 2000. All
dates in this decision refer to events occurring in 1999 unless otherwise
noted.
2 29 U.S.C. § 158 (a)(1).
SAVERS 1041
we haven’t profited, we wouldn’t have the kind of money to
give out raises, and that if we did, we might eventually go out
of business.
The Respondent introduced its exhibit 1 as evidence of the
poor financial condition of the Rancho store at the time.
Employee Diana Hernandez testified that on August 25 she
and several fellow employees were asking Foster questions
about wages. Hernandez recalled that Foster said, “if the union
ever did come in, the store wasn’t making enough money to . . .
pay off higher wages, and it would be a possibility that every-
body would lose their job. And then she went upstairs and
brought down a paper, a piece of paper showing how much the
store was making per day.” None of the other employees pre-
sent for this conversation testified at the hearing.
The Government alleges that Foster’s comments were an
unlawful threat of the probable closure of the store if the em­
ployees selected the Union to represent them. Whether a state­
ment constitutes a threat in violation of the Act is based on
whether the statement, in context, tends to coerce or intimidate
a reasonable employee. NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). However, a prediction based on objective fact that
conveys the employer’s belief as to the probable consequences
beyond the employer’s control, is not considered coercive. Id.
at 618; Metallite Corp., 308 NLRB 266 (1992).
Foster’s recollection of the conversation was admittedly
clouded. Considering the demeanor of the two witnesses, I find
that Hernandez’ recollection of what Foster said is the most
accurate recital of what the employees were told. According to
that testimony, Foster, in response to an employee’s inquiry
about receiving higher wages, told the employees that the store
was not making enough money to support higher wages. She
concluded that if the union came in demanding higher wages it
would be a “possibility” that employees would lose employ­
ment. Foster based her prediction upon what she had been told
by her manager about the store’s financial condition. Foster
backed up her prediction by showing employees what the store
was making a day. The Respondent’s financial records show
the store was not profitable at the time. I find that Foster’s
statement, in the context of the discussion, was her prediction,
based on objective fact, of her belief of demonstrably probable
consequences beyond the Respondent’s control. I find that this
single incident of an alleged unlawful prediction by a minor
supervisor was not of such a nature as to violate Section 8(a)(1)
of the Act. NLRB v. Gissel, supra; Reeves Bros., 320 NLRB
1082, 1083 (1996).
B. September 11—Tropicana Store Incident
On September 11 Patty Green, Diana Hernandez, Katie
McKinney, and Erin McAloon went to two of the Respondent’s
stores wearing union T-shirts. Green, Hernandez, and McKin­
ney are employees of the Respondent (although they were not
employed at either store they visited.) McAloon is McKinney’s
daughter and is not employed by the Respondent.
The four women first went to the Spring Mountain store
where they shopped briefly and then left. They next went to the
Respondent’s Tropicana store. They were observed when they
arrived by employee Rosalie Cummings. She went upstairs to
where production supervisor, Maria Luna, has her office and
reported the union supporter’s presence to her. Luna looked out
the window of her office and saw the union supporters on the
store floor. The union supporters stayed in the store for a short
while and then went to their car in the parking lot. Employees
Cummings and Tammi Jo Galagowitsch, along with Luna, went
outside and watched the women get in their car. When the un­
ion supporters exited the parking lot they drove by the front of
the store where Luna, Galagowitsch and Cummings were stand­
ing.
Luna testified that when the union supporters left the store
she and Galagowitsch decided to go outside, “because it was
kind of something—it was new for us. . . . So we decided to go
out and have a cigarette.” Luna observed the union supporters
drive by the front of the store. Luna saw one of the women,
who was seated in the back of the car, “flip her off.” She recog­
nized the woman as Diana Hernandez. The car windows were
down and she heard a loud comment from the car, “Fuck you.”
Galagowitsch said to her, “You saw what they did and you
heard what they said.” Luna then said they should all go back
inside the store.
Employee Tammi Jo Galagowitsch testified that as the
women drove by them, Luna said to her, “Oh, somebody just
flipped me off.” Galagowitsch turned around and saw one of
the women in the car had their middle finger up at them.
Rosalie Cummings testified that before the union supporters
left the store she saw two of them point up to the office win­
dow, and one of them said, “ ‘You know how she is’ and called
her a bitch.” (Presumably referring to Luna, whose office they
had pointed out.) Cummings then recalled the union supporters
exiting the store and driving away. As they drove by the store
she was standing just outside the store door and observed the
union supporters, “flip us the bird and yell out “bitch” again.”
One of the women in the back seat gave them the finger.
Green, Hernandez, McKinney, and McAloon all testified to
the effect that none of them made obscene gestures or profane
comments while at the Tropicana store. They conceded they did
wave goodbye to the people standing outside the store as they
left. Based on the demeanor of the witnesses I credit the testi­
mony of Luna, Galagowitsch and Cummings that some of the
union supporters did make profane comments and obscene
gestures directed at them as they described.
The Government alleges that Luna’s observation of the un­
ion supporters was unlawful surveillance of their union activi­
ties under the Act. The Respondent argues that Luna was doing
no more than casually observing the women’s activity at one of
its own stores.
The four women went to the stores manifesting their en­
dorsement of the Union by wearing union T-shirts. Luna ob­
served them from her office window for some unknown period
of time. She, as well as two employees, then briefly watched
them drive away from the store. Luna did not take notes or
otherwise record her observations. The union supporters testi­
fied that they affably exchanged waves with Luna as they drove
away. I find that Luna’s relative casual observation of the union
supporters does not rise to unlawful surveillance of their union
activity as contemplated by the Act. The record does not reflect
that Luna continuously watched them while they were in the
store, nor did she record their activities. The record makes clear
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the union supporters were not in the store for the purpose
of concealing their advocacy on behalf of the Union. I find that
the Respondent did not violate Section 8(a)(1) of the Act by
Luna’s short observation of the union supporters while they
were at its public facility. Key Food Stores , 286 NLRB 1056
(1987).
C. September 14 - Employee Meetings
Employee Patty Green testified that on September 14 she
was working across the hall from the break room at her store.
Respondent’s agent, Lupe Cruz, a labor consultant, was holding
an employee meeting in the break room. Green testified that she
could hear what Cruz was saying in that meeting. She recalled
hearing him state that some employees from the Rancho and
the Charleston stores had gone to the Tropicana store and were
disruptive. When they were politely asked to leave, they were
yelling obscenities and flipping everybody off.
Kathryn McKinney testified that on September 14 she at-
tended an employee meeting at work held by Cruz. According
to McKinney, Cruz told the assemblage that, “To show you the
mentality of the people who are leading you in this attempt, a
group of them, one from this store and two from the Rancho
store, went shopping this weekend wearing hats and buttons
and T-shirts and approaching the people and cursing and using
obscene gestures and creating such a ruckus that they were
asked to leave.”
Employee Helen Hicks attended a meeting conducted by
Cruz at the Rancho store on September 14. She recalled that he
said during the meeting that certain individuals had gone into a
Tropicana store wearing their union T-shirts, causing a distur­
bance and uttering profanities and giving somebody an obscene
gesture. Cruz did not testify at the hearing.
The Government alleges that Cruz’ remarks concerning the
union supporters appearance at the Respondent’s stores unlaw­
fully created the impression of surveillance of their union activ­
ity. An employer creates an unlawful impression of surveillance
by remarks that would reasonably lead employees to assume
that their activities were under surveillance or that it has
sources of information about their activities. Fred’k Wallace &
Son, Inc., 331 NLRB 914 (2000); Lucky 7 Limousine, 312
NLRB 770, 771 (1993); Flexsteel Industries, 311 NLRB 257
(1993); United Charter Service, 306 NLRB 150, 151 (1992).
The test of whether an employer’s remarks or actions violated
Section 8(a)(1)’s prohibition against interference, restraint or
coercion is not whether it succeeds or fails, but, rather, the ob­
jective standard of whether it tends to interfere with the free
exercise of employee rights under the Act. Fieldcrest Cannon,
Inc., 318 NLRB 470, 490 (1995). Cruz’ remarks were focused
on the alleged misconduct of the union supporters. Two of the
witnesses recalled he only mentioned their appearance at the
Tropicana store. I do not find that Cruz’ comments regarding
the single incident at a public location reasonably conveyed to
employees that their union activities were somehow under
unlawful scrutiny. I find that the Respondent did not violate
Section 8(a)(1) of the Act by anything that Cruz said to em­
ployees on September 14. General Fabrications Corp., 328
NLRB 1114, 1124 (1999).
D. September 17 – Hemenway’s Discussion with Employees
Respondent’s District Manager, Russ Hemenway, testified
that he was made aware of what had occurred at the Tropicana
store later in the day on September 11. The following Monday
he talked to Galagowitsch and Luna about what had happened.
They reported to him what they observed, as set forth above.
On September 17 Hemenway went to the Charleston store
and discussed the matter with McKinney. Laura Sheldon, Re­
spondent’s Human Resources Regional Manager, was also
present during the conversation. McKinney testified that He­
menway said that he wanted to talk to her about what had hap­
pened at the Tropicana store the previous Saturday. McKinney
said, “What happened, Russ? …Nothing happened, Russ.
Absolutely nothing happened.” (McKinney testified she had
heard “fictitious” stories of what allegedly had happened at the
Tropicana store before this conversation.) Hemenway said that
he knew she had been at the store and he was referring to what
happened, “[O]utside the store.” McKinney testified she stated,
“ ‘What happened outside the store?’ I said, . . . ‘Nothing hap­
pened. We got in the car, we drove past the main entrance, and
Maria was out there with employees. They waved, we waved.
That was it.’” Hemenway told her that he understood there
were some obscene gestures. McKinney denied this and said
there was no foul language either. Hemenway said that he just
wanted to make sure there was “not a repeat performance.”
McKinney questioned, “Repeat performance? You mean I
can’t shop at the Savers store?” She recalled he replied, “No,
no. You’re allowed to shop at the Savers store, but until this
thing is settled, I’d just as soon that you didn’t.”
Hemenway testified that he specifically told McKinney that
it was all right to shop at the stores. He testified that he had
previously been coached by Respondent’s human relations
person that it was okay for the union supporters to come into
the stores with any of their union material. Hemenway denied
that he told McKinney he would rather she delay shopping at
the stores until the union matter was resolved. He recalled
McKinney’s denial of any incident at the Tropicana store and
he replied, “Okay. Well, if nothing happened, we really don’t
have a problem. But all I’m saying is, I don’t want any alterca­
tions, you know, outside the stores.” Sheldon’s testimony cor­
roborated Hemenway’s version of what was said. Considering
the demeanor of the respective witnesses and the record as a
whole, I find that Hemenway did not tell McKinney that she
should not shop at Respondent’s stores. I further find that noth­
ing Hemenway said to McKinney “threatened employees with
unspecified reprisals” as alleged in the complaint.
Hemenway and Sheldon also went to the Rancho store and
spoke with Green and Hernandez. Green testified that Hemen­
way said that, “he did not want to hear any more incidents like
the one that happened at the Tropicana store the previous
weekend.” Green said, “Oh, we can’t smile and wave?” He­
menway replied that he thought it was more than that. Green
told him, “No. We went in, we shopped, we left. We smiled
and waved, they smiled and waved back, and that was it.”
Diana Hernandez recalled that Hemenway said he did not want
a repeat of what happened at the Tropicana store. She told him
that nothing had really happened for there to be a repeat and
that ended the conversation.
SAVERS 1043
Hemenway testified similarly as to what was said. He re-
called telling the two women that they were, “more than wel­
come to come in the stores, but I didn’t want another episode
like had happened out in front of the Tropicana store.” Both
women denied that anything untoward had occurred. Hemen­
way then told them that if nothing happened then there was no
problem. Laura Sheldon testified likewise about what was said.
She recalled that the discussion centered on the fact that it was
not an issue about shopping as the employees were free to shop
at the stores. Rather, based on the reports of misbehavior as the
employees were leaving the store, the Respondent did not want
such conduct to occur. None of the employees involved in the
Tropicana store incident were disciplined or otherwise suffered
any repercussions because of the incident. To the extent that
there is any discrepancy between the witnesses as to what He­
menway said in this second encounter, I credit Hemenway’s
testimony, based on demeanor, of what he told the employees.
The Government alleges that Hemenway statements to
McKinney, Hernandez and Green violated the Act because he
prohibited employees from shopping at Respondent’s stores
and because he threatened employees with unspecified repri­
sals. Hemenway’s remarks to the union supporters were based
on his concern that they had abused fellow employees by their
conduct on September 11 at the Tropicana store. He did not
address the employees’ union activity or their visit to the
Spring Mountain store. His statements concerned what they
allegedly said and did outside the Tropicana store in relation to
Luna and the employees working there. Hemenway communi­
cated the Respondent’s concern that nothing abusive should
take place regarding the store’s employees and supervision. The
women involved denied anything had happened, Hemenway
said that in that case there was no problem and that ended the
matter. I find that Hemenway’s statements to the union sup-
porters did not reasonably tend to threaten, restrain or coerce
them in the conduct of their union activities and that nothing he
said to the three women violated Section 8(a)(1) of the Act. St.
Luke’s Episcopal-Presbyterian Hospital, 331 NLRB 761, 761–
762 (2000).
CONCLUSIONS OF LAW
1. TVI, Inc. d/b/a Savers, is an employer engaged in com­
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The General Sales Drivers, Delivery Drivers & Helpers,
Local 14, affiliated with International Brotherhood of Team­
sters, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has not violated Section 8(a)(1) of the Act.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended3
ORDER
IT IS ORDERED that the complaint be dismissed in its entirety.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommend
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur­
poses.