Associated Dry Goods Corp.Download PDFNational Labor Relations Board - Board DecisionsJan 7, 1976221 N.L.R.B. 1344 (N.L.R.B. 1976) Copy Citation 1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L. S. Ayres & Company , a Division of Associated Dry Goods Corporation and Furniture, Depart- ment Store Union Local No. 193, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Case 25-CA- 6691 January 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On July 14, 1975, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions to certain portions of the Decision together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein .3 Contrary to our dissenting colleague, we agree with the Administrative Law Judge that the Venneman speech, as written, violates Section 8(a)(1) of the Act. Respondent told its employees that if they signed cards for the Union they could be subpenaed and cross-examined by the Company with respect to, the signing of such cards and, inferentially, that the i Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 Based on the credited testimony, Chairman Murphy agrees that Superintendent Venneman's deviation from the prepared text of the July 12 speech to include the statement that "employees who signed union authorization cards would be branded as troublemakers" rendered the speech an unlawful threat in violation of Sec. 8(a)(1) of the Act However, Chairman Murphy is of the view that the speech, had it been given as written, would not have been unlawful. She sees nothing in the Administra- tive Law Judge's Decision which indicates that he held otherwise. In any event, she would not adopt any comments of the Adnumstrative Law Judge which could be construed as finding that the speech as written was unlawful. Respondent's written speech merely emphasized the seriousness of the card- signing act by detailing the ways in which the cards could be used The statement referred accurately to the possibility that the Union could seek recognition by means other than a secret ballot election There was nothing to indicate that Respondent would interfere with the holding of such an election. Nor is there any basis for the employees reasonably to infer that retaliatory action would be taken against those who signed authorization cards. 3 Chairman Murphy would dismiss the allegations that Respondent violated Sec. 8(a)(1) by unlawfully offering wage increases to employees Pannell and Cotton if they would abandon their proumon attitude. Pannell and Cotton were each given 15-cent pay raises by Manager Allen on or 221 NLRB No. 223 Company would then know that they were in favor of the Union. There would be no secret ballot election protecting ,their anonymity. As the employ- ees could see, the Respondent pointed out, "the signing of a card can be very serious." In view of Respondent's known antiunion policy and in the context of its unfair labor practices, the employees could reasonably infer from the above formal statement that their signing of union cards would inevitably come to the attention of Respondent and could lead to discrimination and reprisals against them. We also agree with the Administrative Law Judge that Manager Allen unlawfully offered wage increas- es to employees Cotton and Pannell if they would abandon their prounion "attitude." Unlike our dissenting colleague, we can only perceive of Allen's admonition to Cotton and Pannell as constituting a veiled reference and directive to abandon the Union. Surely, the allusion was not to their work perform- ances. For, Allen conceded that Pannell's work was "O.K." Also, Assistant Manager Quinn stated that Cotton was a good worker and should be a supervisor. In light of Respondent's avowed antiunion posi- tion, its knowledge of the union activities of Cotton and Pannell by virtue of Manager Allen's admission that she knew they wore union badges,, Respondent's almost identical pattern of conduct with respect to the wage increases in that each, employee was told that she was supposed to receive a 30-cent-per-hour raise , but was given 15 cents at the time and was told she could obtain the other 15 cents depending upon ,a change in her "attitude," and the existence of no about October 1, 1974, at which time each was told she would receive an additional increase of 15 cents if her "attitude" improved . About 30 days later, each was informed by Allen that she would not receive the additional 15 cents increase in pay because her "attitude" had not changed. There is nothing to indicate that Allen's admonition to employees Pannell and Cotton that they improve their "attitude" constituted a veiled reference and directive to abandon the Union. Indeed, Pannell's only union activity consisted of her signing a union authorization card in July 1974. She was not a member of the union organizing committee . She did not participate in any distribution of union literature, nor did she engage in any union activities prior to the events in question . There is thus no reason to believe that Respondent had any reason to single out Pannell because of her union sentiments True, Cotton as a member of the union organizing committee was active on behalf of the Union . Also, Cotton testified that when she accused Manager Allen of denying her the additional increase in pay "because I was for the Union," Allen retorted , "I thought that was what you'd say." The Chairman perceives Manager Allen's response as constituting nothing more than an acknowledgment that she was aware of Cotton's union activity, and also aware that Cotton might conclude that the action was taken because of those activities, and so assert However, that acknowledgment does not establish that Cotton's activities motivated Allen to make the pay raise offer. As there is nothing else to indicate that the offer was made because of Cotton's union activities, and inasmuch as Allen similarly denied a wage increase to Pannell , who concededly was not actively involved in the union organizing campaign , the Chairman finds an insufficient basis for inferring that Manager Allen's offer of an additional pay increase to these employees was conditioned on their withdrawal of support for the Union. L. S. AYRES & COMPANY 1345 other credible reason for relating the wage increases to their "attitude," we are led inexorably to the conclusion that Respondent was equating "attitude," with union sentiment and violated Section 8(a)(1) of the Act by its unlawful offer to Cotton and Pannel of additional wage increases dependent upon their withdrawal of support for the Union. The Administrative Law Judge concluded that employee Edith Tanner - was constructively dis- charged by Respondent in violation of Section 8(a)(3) and (1) of the Act on July 24, 1974, when Tanner quit after Respondent indicated that she would be discharged if she attended any union meetings . In reaching this conclusion, the Adminis- trative Law Judge determined that Tanner was not a supervisor. We find merit in Respondent's conten- tion that Tanner was a supervisor within the meaning of Section 2(11) of the Act .4 Since we do not find any special factors in this case which might support a conclusion that the discharge of Tanner was none- theless violative of Section 8(a)(1), we shall dismiss the complaint allegation pertaining to Tanner. Tanner was one of four checker-markers regularly employed in the cosmetic department of Respon- dent's warehouse. She was moved to cosmetics in 1968 or 1969 at which time she was then asked to be leadperson in cosmetics by her then supervisor David Baker . Tanner performed the same checking and marking functions as other checker-markers in the department. In addition, Tanner's responsibilities included: maintaining forms indicating daily pro- cessing of shipments through the cosmetics depart- ment ; checking invoices against merchandise and processing of invoices with the order room; training new employees; signing timecards of extra employees authorizing them to receive discounts on Respon- dent's merchandise; and rescheduling work assign- ments to meet priority shipments. Further, on at least one occasion, an employee in the cosmetics depart- ment was changed from part-time to full-time status based on Tanner's recommendation. If a need arose for overtime, Tanner would inform her supervisor who would in turn authorize the employees to stay. Tanner initialed employee time- cards for overtime, but her supervisor had to sign the cards at the end of each week-Tanner recommended transfer of employees to other departments when she had more help than she needed, although the actual reassignments had to be approved and effectuated by her supervisor. Tanner also attended supervisory meetings ; was rated on a supervisor evaluation form; was paid at a higher rate than other checker- 4 In so finding, we place no reliance on Resp . Exh 18 (the Tanner promotion notification slip of May 14 , 1974) since, as discussed by the Administrative Law Judge , there - is a substantial question as to the authenticity of this document. markers; 5 and had her own desk and intercompany telephone. In addition, Tanner testified that, upon requesting and receiving authorization to call in additional help to meet seasonal variations in the workload, it was she who decided which of the extras should receive the work and would, in fact, call the extras in herself. Similarly, Manager David Hankins, Tanner's imme- diate supervisor from about March 1973 to March 1974, testified that, upon advice from Tanner that a slack in ' work necessitated 'a layoff, and after authorizing her to take the necessary action, it was Tanner who determined which employees would be put "on call" in accordance with her evaluation of their work performance. Tanner also filled out performance evaluation forms, rating employees on a nine-point scale with respect to their job performance and on which ' she included her personal comments as to needed improvement. According to Tanner, evaluations were utilized for the purpose of determining whether or not an employee received a wage increase. Following completion of the evaluation form, the employee rated would be called in for a review discussion at which Tanner was sometimes present. Upon completion of the review discussion, the employee was told how much of a raise she would receive. In light of the foregoing facts, we find that Tanner is a supervisor within the meaning of the Act. In so finding, we place particular reliance on the fact that Tanner evaluated employees and her admission that she independently determined which employees would be called to come in to work in case of an increased workload or would be laid off during a slow period. Accordingly, we shall dismiss this aspect of the complaint.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative' Law Judge as modified herein and hereby orders that the Respon- dent, L. S. Ayres & Company, a Division of Associated Dry Goods Corporation, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as modified below: 1. Delete paragraphs 1(e) and (f) and 2(a), (b), and (c), and reletter the following paragraphs accordingly- 5 Tanner received $3.10 per hour while the others received $2.45-$2.50. 6 Member Fanning does not agree . He would affirm the conclusions of the Administrative Law Judge and, accordingly, dissents from this dismissal. 1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Substitute the attached notice for that of the Administrative Law Judge. 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 having found, after a trial, that we violated the National Labor Relations Act, we hereby notify you that: WE WILL NOT coercively question you about or pry into your union activities or sentiments. WE WILL NOT create the impression that We are spying on or watching your union meetings, card signing, or other union activities. WE' WILL NOT threaten you with discharge, loss of benefits, harassment, or other reprisal in connection with your union activities. WE WILL NOT offer you wage increases to abandon your support of the Union. WE WILL NOT in any like or related manner restrain , interfere with, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. L. S. AYRES & COMPANY, A DIVISION OF ASSOCIATED DRY GOODS CORPORATION supervisor who voluntarily quit when told she could not attend union meetings . General Counsel contends that Tanner was a nonsupervisory employee whom Respondent forced,to resign when she refused to desist from engaging in union activities. The case was heard in Indianapolis, Indiana, February 25, 26, 27 and April 7 and 8, 1975. General Counsel and Respondent have filed briefs. Upon the entire record in the case, including my observation of - the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a ,Virginia corporation with its principal office and place of business in Indianapolis, Indiana, there and elsewhere engaged, in the retail department store business. Involved in this case is Respondent's Indianapo- lis warehouse that supplies merchandise for the Indianapo- lis and other stores in the region. In the 12 months preceding issuance of the complaint, a representative period, Respondent sold goods valued in excess of $500,000; and in that period shipped goods valued in excess of $50,000 from Indiana to places in other States, and received in Indiana, goods valued in excess of $50,000 from places outside Indiana. Respondent is, as the parties admit , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, as the parties also admit, a labor organization within the meaning of Section 2(5) of the Act. DECISION STATEMENT OF THE CASE HERZEL H.E. PLAINE, Administrative Law Judge: The question presented is whether Respondent engaged in conduct that violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act), while the Charging Party-(Union) sought to organize Respondent's warehouse employees, in the several month period that preceded the Board conducted election of November 7, 1974. The complaint, issued December 31, 1974 and amended February 25, 1975 (on, a charge by the Union filed November 14, 1974), alleged that Respondent threatened employees with reprisal for support of the Union, coercive- ly interrogated them regarding union activities, created the impression of surveillance, of employee union activities, and offered, promised, or granted wage increases' or other benefits if employees refrained from support of the Union, in violation of Section 8(a)(1). It was also alleged that Respondent violated Section 8(a)(3) and (1) by discharging employee Edith Tanner because she engaged in union activities. Respondent denied any wrongdoing, and, ^in-the case of employee Tanner, contended that she was a statutory H. THE UNFAIR LABOR PRACTICES A. Respondent 's Pertinent Business Operations Respondent maintains at Hillside Avenue in Indianapo- lis, a warehouse or service center, where it receives goods ,shipped from manufacturers and dealers , and unpacks, marks, and repacks or assembles the merchandise for shipment to and sale by its retail department stores in Indiana and Kentucky. The service center comprises three large connected buildings-the North Building, the South Building, and the 28000 Building which connects the other two. There is also an adjacent building, the Mobile Building, whichhouses the display production group. There are about 200 employees at the service center. In charge of the center is Superintendent Joseph Venneman. Under him are several managers , including Stock Handling Manager James Stumpf (of North Building and 28000 Building), Material Handling Manager Lon Dalton (of the South Building), Bulk Storage Manager David Hankins (of the North Building) formerly manager of receiving, transfer , semibulk , and cosmetic areas (of the South Building), Building Maintenance Manager or Supervisor L. S. AYRES & COMPANY 1347 Patrick (Pat) Burns, and Manager of Order Checking Jane Allen.' All of the above persons were admitted supervisors within the meaning of the Act (see complaint par. 4 and answer par. 1).2 In addition to the above recognized supervisory person- nel, spread among the various areas of the service center, Respondent has about 25 production or maintenance employees, more experienced or more skilled than their fellow employees, who it has designated "area supervi- sors." Initially, their status was in dispute in the representa- tion case, 25-RC-5763, Respondent, at first, contending that they were statutory supervisors excluded from the employee unit. ,The Regional Director ruled that they were not statutory supervisors and were included in the employee unit. Respondent then stipulated on December 5, 1974, after the election, that they were employees in the unit and that Respondent's challenges to their ballots should be overruled and the ballots opened and counted (see G.C. Exh. 1w,, Exh. 2, and attachment A).3 That general issue, concerning' the, status of the group of area supervisors, is not.in this case for decision, but did come in tangentially because Respondent contended, and claimed it was significant, that the alleged 8(a)(3) discriminatee, Edith Tanner, was an area supervisor at the time her employment was terminated, a fact which Tanner denied, quite apart from the significance Respondent or anyone attached to the title or classification. Also involved in aspects of manage nt of the affairs of the service- center are Respondent's//executive vice presi- dent, William (Bill) Stout, and Personnel Director Crocker Price. B. Union Activity The service center employees were not unionized when the Union began an organizing campaign in July 1974. According to Secretary-Treasurer Shirley Green of Local 193, another Teamsters local (No. 716) began the organiz- ing but it was quickly decided that Local 193, had department store warehouse jurisdiction and Local 193 took over the campaigning and organizing and was the union that appeared on the election ballot, and is the Charging Party in this case. The change accounted for a certain amount of duplicate signing of authorization cards by employees, said Green. I The Union established an organizing committee among the employees, including employees Louis Banholzer, Alfred Walker, Elma Lynch, Mamie Cotton, Eileen Marsh, and Carlis Smith (all of whom figured in certain events to which they testified), who participated at the service center in distributing union, literature, notifying employees of meetings , and distributing and obtaining signatures to union authorization cards. In the campaign, the Union held general meetings at its hall for all employees, and Union- Agent Green met more frequently with the "Manager Allen indicated that while the others are part of the Operations and Merchandise Division, she reports to the'Control Division whose headquarters are in Respondent's main store in downtown Indianap- olis. 2 Manager Hankins was not named in the complaint but testified and left no doubt of his supervisory status, which was not in question, 3 The list of area supervisors , attachment A, supra, apparently erroneous- ly includes a P Burns, if that Burns is the Patrick (Pat) Burns, the building employee organizing committee near the warehouse, he said. The Union requested recognition of the employer on July 23, 1974, simultaneously filing a petition with the Board for an election (Case 25-RC-5763), The Respondent on July 26, 1974, refused recognition and,suggested that the Union abide by the results of an election. Hearings in the representation case were held for 4 days in August, where two employees, Banholzer and Walker, attended under union subpena. The Regional Director's Decision and Direction of Election issued on October 10, 1974, setting the election for November 7, 1974. In the course of the campaign the Union distributed Teamsters badges, and employees testified to wearing them or displaying them, up until the date of the election, and some supervisors acknowledged seeing them worn or displayed. The -Union lost the election by a vote of 78 in favor to 102 against, with 108 challenged ballots. Both parties filed objections to conduct of the election, and the Regional Director filed a report on February 21, 1975. At the time of hearing the matter was pending before the Board. C. Employer Counteraction Respondent openly opposed the Union in speeches that key company officers gave to meetings of employees assembled by Respondent. Texts prepared for use in giving seven of the speeches were preserved and produced by Respondent, namely, three on July 12, 1974, by Superin- tendent Venneman (G.C. Exh. 10a) and four by Vice President Stout on October 10, 23, 30 and November 5, 1974 (G.C. Exh. 10b, c, d, e). In addition, Personnel Manager Price testified to making a speech or speeches. 1. The, Stout speeches General Counsel does not charge any violations of law in regard to the four speeches by Vice President Stout, but claims, correctly, that they exhibit strong union anius that has a bearing on other conduct charged to be unlawful. A brief summary will suffice. Stout told the employees that the, Union would promise them anything to get their money. and couldn't deliver on the promises but would nevertheless collect costly, dues, assessments , fines, and fees, without limit under the union constitution, and compel the employees to go on strike'to force wage and, benefit demands from the company, meantime leaving the employees without wages or unem- ployment benefits and in jeopardy of being permanently replaced by the company. , Stout asked the employees to consider that, unless they voted no against, the Union, they would be, entrusting without control their affairs and money to a Union with a history of fraud and embezzlement of operating and maintenance manager or supervisor who appeared and testified in this case Respondent admitted rmits answer of January 7, 1975,' a month after the stipulation in the R case, that Burns was a statutory supervisor, and testimony by Respondent's personnel director, Crocker Price, as well as by Bums would appear to confirm that admission Part of the mixup may have been the misspelling of his name in some places as "Byrnes ," which was caught and noted during the hearing 1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pension funds and with links to the, Mafia, as allegedly reported in the press; that they would be bringing in an influence not interested in a team effort between company and employees or in pleasing customers, but interested only in employees' money from dues and other fees; and that the employees didn't have to pay Union dues to get group insurance and pension programs already in exist- ence. In one speech, Vice President Stout dwelt at length on the various ways in which, and reasons for which, the Union could assess fines against members, and invited a guessing contest (for a prize) on the largest individual fine levied by the Union. An analysis of the financial position of the Union was made, purporting to show bad financial conditions and performance and nothing for individual members. In another speech, Vice President Stout stressed the danger of violence in the Union's affairs and violence in keeping members in line, developing the earlier theme of the treup with the Mafia. He' also stressed the danger of strikes, and 'the Union's alleged strike record, as a threat to the job security of the warehouse employees that could lead the company to abandon the central warehouse and revert to the system of receiving and marking merchandise at the individual stores. All of the speeches; were larded with suggestions that` the employees vote No to the Union. 2. The Venneman speeches The three speeches by Superintendent Venneman on July 12, 1974, were another matter. General Counsel contends that as delivered and heard by the employees the speeches violated Section 8(a)(1) of the Act. Superintendent Venneman gave his speeches in three hastily called meetings of employees on July 12 in the late afternoon-one in the 28000 Building, one in the South Building, and one in the North Building. Elma Lynch testified to the speech given in the 28000 Building. She said there were about 40 to 50 employees present and Venneman spoke holding a sheet of paper in his hand Which he glanced at but did not look 'at constantly. According to Lynch, Venneman talked about union card 'signers, and said the company had ways of finding out who' signed union cards, and if employees signed they would be called to testify by the company attorney and would be branded as troublemakers. Employee`Alfred Walker" testified to the speech given at the meeting in the South Building of about 50 employees where Walker said Superintendent Venneman had a paper in his hands but didn't read it. According to Walker, Venneman said he had heard that union cards were being passed around and signed and expressed the hope that the employees had not signed, but if they had they would be dragged into court and be examined and cross-examined by company attorneys. Venneman said, according to Walker, that he was giving them something to think about over the weekend (it was Friday) and we'll label you as troublemakers after-we find that you signed.4 Employee Eileen Marsh testified to the third speech by Superintendent Vennemari in the North Building at the timeclock. Marsh said it was just before 5 p.m. and employees were lining up to clock out, when Venneman walked to the head of the line of about 12 to 15 employees and told them to wait, he wanted to talk to them, and spoke for about 5 minutes. Marsh 'said Venneman had some papers in his hand from which he appeared to read. According to Marsh, Vennemari told the employees it had come to his notice that union cards were being passed around, and the company would know who signed the cards. He did not refer to them as troublemakers, she said, but referred to some bad things about the Union, what the employees would have to pay, and that the Union people were rough people. Each of the employees testified that at the meeting he or she attended Venneman said there would be no questions, and there were none. Venneman agreed this was so. Superintendent Venneman testified that he gave the same speech at each of the three meetings from a text (G.C. Exh. 10a) prepared by legal staff, Personnel Manager Price, and himself; and while he claimed that he read it to the employees, he conceded that he included remarks that were not written out in the prepared speech. However, he denied saying that the card signers would be branded or labeled troublemakers. Looking at the written speech itself, while a careful, knowledgeable reader studying" the text might say that the text stays inside the line of the legally permissible, to expect that an audience of employees, not trained in Labor Board law and procedure, will retain in memory the fleeting phrase or two that purports to qualify what they hear and absorb as the bad things that can happen to them in pursuit-of union organizing, is a form of "brinkmanship" by the employer in which he risks being judged by the likely import of his words to the employees. Wassau Steel Corporation v. N.LR.B., 377 F.2d 369, 372 (C.A. 7, 1967). Examining the text in pertinent part, it said that the Union is trying to breed trouble here, and the employees should know the consequences to them of signing union 'cards. Not only does signing subject the employees to pay union dues and assessments and to obey strike orders and do picket duty, but the Union can do away with the election. The Union may request employer recognition and may send the employer photo copies of the signed cards it has. If the employer refuses the Union can call a strike for recognition, or request a Board election, or ask the Board to make the company bargain without an election by giving the signed cards to the Board and accusing the company of unfair' labor practices. "The Board will hold an open hearing. Employees who sign cards may be subpoe- naed by the Board or the company to testify oni the witness stand. These employees will' be shown their cards and asked to identify their, signatures. Each card signer can then be cross-examined by the company attorney concern- ing the circumstances under which the card was,'signed. Later the Board issues a decision. As you can see, the signing of a card can be very serious. Aside from the fact 4 I do not view employee Walker's statement, given to the Union on testify at an NLRB hearing and would be cross-examined by the company August 14, 1974, to be inconsistent with his testimony, as Respondent attorney. The statement also said, the company has ways of finding out who argues. The statement said, those who signed cards would be called to signed and those who signed would be branded troublemakers. L. S. AYRES & COMPANY 1349 that it can invoke legal proceedings , including testimony by company witnesses and employees , the result can be the loss of a secret ballot election. " Even if this portion of the speech was given as written, the emphasis on company knowledge of the card signers and the pressure that would be placed on each card signer by subpena and company examination and cross-exanuna- tion gives support to the testimony of the employee witnesses that Respondent was creating the impression of surveillance of, and threatening reprisal against, the union card signers . Hendrix Manufacturing Company Inc. v. N.L.RB., 321 F.2d 100, 104, footnote 7 (C.A. 5, 1963). I credit the testimony of these witnesses over the denials of Superintendent Venneman and his supporting witness Personnel Manager Price.5 with Assistant Manager Quinn present. Twyman,said she had been wearing a Union badge and "Yes" and "No" buttons and Manager Allen commented, according to Twyman, that Jo Ann evidently didn't know which way she wanted to go. Twyman asked what did Allen mean, to which Allen replied, said Twyman, that she had a yes and no and Allen wanted to know which way Twyman was going. Twyman answered, she thought that was her business. Allen said, according to Twyman, if she voted for the Union in this election it would be easy to replace her with someone else. Employees Pannell and McGill testified that they were sitting outside Manager Allen's office, which is only partly partitioned and not a complete enclosure, and heard Manager Allen tell employee Twyman that she could be replaced. Each,testified that this was said loudly enough to 3. Further conduct of Superintendent Venneman Employee Carlis Smith, who works on the south receiving dock, testified that Superintendent Venneman talked to him individually on July 17, 1974, just outside ' the office door, on the subject of the Union. Smith testified that Venneman told him that if the Union got in the employees would start at ground zero, explaining that ground zero meant nothing-no benefits, no insurance- everything would just flat start from ground zero. Employ- ee Smith said there was a union'meeting that night and he related this conversation the same day to his coworkers, employees Rainwater and Moore, and to their leadman Dave Lytle, and to Union Organizer Green at the meeting that night. Superintendent Venneman testified that he talked individually to employee Smith on July 17, because, said Venneman, he had not previously talked to Smith about the union campaign as he had to many of the employees regarding questions they might have. Venneman said he asked employee Smith if there was anything about the campaign he did not understand, and they talked about wages. Venneman claimed he said everything was negotia- ble and that both parties, especially the company, would have to agree on salaries and benefits. He denied any reference to starting at ground zero. Employee Smith denied that Superintendent Venneman or he discussed negotiations with the Union, and testified that he did not understand that this was what Venneman was discussing. I credit Smith's version of the discussion. See footnote 5, supra. Venneman's conduct was a threat of reprisal, that the employees would lose their benefits if they brought in the Union. 4. Conduct by Manager Allen Jane Allen was the manager of the order checking department, comprising 20 to 25 employees, and testified that Diane Quinn was the assistant manager, and that employees Mamie (Tina) Cotton, Janet Pannell, Evelyn McGill, and Jo Ann Twyman were among the employees in her department. Employee Jo Ann Twyman testified that about a week before the election Manager Allen called her into the office be heard , and Pannell testified that Twyman emerged from Allen's office looking hurt. Employee Pannell testified to a meeting, about October 1, 1974, with Manager Allen and Assistant Manager Quinn, in which she was told by Allen that she was supposed, to get a 30 -cent-per-hour raise but that Allen would give her only a raise of 15 cents per hour now and put her on trial for the other 15 cents because she didn't like Pannell 's attitude, conceding, however , that Pannell's work was o .k. About 30 days later Manager Allen informed employee Pannell that she was not going to get the other 15 cents per hour. Employee Mamie (Tina) Cotton testified to a similar meeting, about October 1, in Manager Allen's office with Assistant Manager Quinn present, where she was told by Allen that she could get a 30-cent-per-hour raise but would only get 15 cents now, and 15 cents 30 days later if her attitude changed . Cotton asked , why not the whole 30 cents now? According to Cotton , Quinn interposed that Cotton was a good worker and should be a supervisor, but, Allen said , Cotton could only get 15 cents now and when her attitude changed she could get the other 15 cents. About November 1, employee Cotton was again in Manager Allen 's office with Quinn present , and Allen told Cotton 'that she could not have the further 15-cent raise because her attitude hadn 't changed. Cotton commented, you mean because I was for the Union ; and, according to Cotton, Allen replied , I thought that was what you'd say. Employee Evelyn McGill testified that on the day before the election she was called into Manager Allen's office with Assistant Manager Quinn present , and Quinn commented that McGill had asked earlier about company benefits, and that the company cafeteria , was one and company half- payment of insurance was another . Employee McGill testified that she was wearing "Yes" and "No" buttons and was ' asked by Quinn what they were . McGill answered, what it , looks like. According to McGill both Allen and Quinn said to her, if the Company was called out on strike how would she, as the sole support of her family, make it without a job. Manager Allen denied any discussion of badges with employee Twyman or telling her she could easily be replaced if she voted for the Union. Allen described the 5 The employees were in the vulnerable position of current employees added support, Formed Tubes, Alabama, 211 NLRB 509 (1974), and cases testifying adversely to their employer and their credibility was entitled to cited 1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings with employees Pannell and Cotton as evaluation meetings, where she said ` she discussed alleged faults, indicating that each would get a 15-cent (job market) raise then and a further review 30 days thereafter with a possible 15-cent (merit) raise , but denied that she discussed either employee's sentiments about the Union. Indeed she denied on direct examination being aware of their union senti- ment. However, on cross-examination, Manager Allen admit- ted knowing that employees Cotton, Pannell, and McGill wore union ("vote Teamster") badges, that employee McGill wore a' plain ^"No" badge in addition to her Teamsters badge, and that employee Twyman had a Teamsters sticker on her desk and another on her purse. Also on cross-examination, Manager Allen agreed that in employee McGill's case there was the discussion McGill described (claiming another employee Stambro was also present), and that they discussed fringe benefits, but claimed that it was her Assistant Manager Quinn who told employee McGill that she had better be concerned because she was the sole:support of her family. Manager Allen was an evasive witness in material- areas and I credit the testimony of the four employees .6 In my view.Manager Allen, threatened reprisals against employees Twyman and McGill because of their prounioni sentiments and, offered,, wage increases to employees Cotton and Pannell if they would abandon their prounion attitude. 5. Conduct of Maintenance Supervisor Burns Employee Louis Banholzer, a transfer clerk who works at and from the transfer dock of the North Building, told of the handbilling for, and attending, the first union meeting, on the night of July 17, 1974. He testified that, next day, July 18, while on the east receiving dock, he was engaged in conversation by Maintenance Supervisor Pat Burns, who said he had heard of the first union meeting the night before, and -asked, how did it go? Banholzer replied, why are you asking? And Bums;-answered, according 1 to Banholzer, I want to know,- I'm involved. Banholzer retorted, you want to know so that you can tell the bosses what went on and who was there. Burns said be was not going to, tell the. bosses, but wondered how it went and how many people were there. Banholzer would not give an answer. Burns persisted, asking did you have 10, 20, 30, or just how many. Nevertheless, Banholzer would not'reply further and the conversation ended. Supervisor Burns denied having the conversation with Banholzer, on the ground that he was on vacation for the week in which, July 18'fell. However, he backed away from this assertion, conceding that his vacation was in a prior week, admitted, that he was at work July- 18 and had learned about the union meeting through the "grapevine," but denied talking,to Banholzer about it. I do not accept Burns', _denial, and credit' employee Banholzer's testimony.? Supervisor Burns' conduct was an 6 See also in 5, supra r See also fn 5, supra 8 Respondent sought to discredit employee Walker's testimony because his earlier Board affidavit (Resp Exh 13) said, in part, in describing this conversation : "He [Burns I said that he could guarantee me at least 15 cents per hour raise but he did not say that I would get it if I voted no, but that he act of unlawful interrogation of an, employee concerning union activities. Employee Alfred Walker is head porter in housekeeping under Maintenance Supervisor Burns. Walker testified that on the day before the election, November 6, 1974, Burns talked with him over coffee in the lunchroom 'somewhere between 4:30 and 5 p.m. According to Walker, Burns asked, Walker if he had made up his mind which way he was going to vote. Walker said his mind was made up. Burns said he wanted Walker to give it further thought, if he went into the booth and voted no, the company could do more for him than'the Union could, and the company would go along with what Burns said. Walker asked, what could 'Burns guarantee? Burns replied, said Walker, that he could guarantee at least 15 cents per hour.8 Supervisor Burns denied the conversation with employee Walker on the ground that it could not have happened, that he was busy all of the late afternoon of November 6 from 4:30 p.m. to 7 p.m. with Vice President Stout taking down posters and putting voting areas in order for the election. Vice President Stout was in the courtroom throughout the hearing, but was not called to corroborate Burns. More significantly, Personnel 'Manager Price's, testimony shed light yon Btizns' whereabouts and activities on the afternoon of November 6 that showed no inconsistency between them and the' occurrence of a, meeting and conversation between Burns and Walker somewhere between 4:30 and 5 p.m.' Price' testified that, at his direction, Burns with one, possibly more,' of his men cleaned up all of the campaign material by 3 p.m. There was a, brief preelection, conference at 4 p.m.,involving the board,agent, the union agent, Price and, Stout. It lasted but a few minutes, said Price, during which the union agent asked for the removal of an'item that had not been removed in the cleanup. Stout called Burns and they went to make sure that the union's request was complied with. Price did not know who of Burns' men assisted, either before or after the 4 p.m'. conference, in the actual removal of the material. I do not credit Supervisor Burns' denials,9 and find that he offered employee Walker a, pay raise to induce him to vote against,the Union. 6., Conduct of .Manager Stumpf, James Stumpf is Respondent's stockhandling'manager at the service center. He has his office in the North Building. Employee Eileen Marsh is employed' in the china area located in the North building. Employee Marsh testified, that a week prior to the election Manager Stumpf stopped by and talked to her individually. She had been weanng a union badge, and Stumpf asked her why she,.was interested in the Union. Marsh replied that she was interested in better benefits and a better paycheck. Stumpf replied, according to Marsh, that the union people were not very nice people and did want me to vote no " I do not regard this sentence, even lifted out of context, as inconsistent with employee Walker's testimony concerning the November 6 conversation, and, looked at in context, the affidavit and the testimony at the hearing come out at the same place, a promise of a• pay raise if the employee would vote against the Union 9 See also fn. 5, supra L. S. AYRES & COMPANY 1351 suggested she would not like finding her car burned up some night in the parking lot. This, said Marsh, was a reference (without their specifically discussing the paper reference) to company material theretofore distributed to employees comprising reprints of Readers Digest and newspaper articles on alleged Mafia relationships and car burning incidents in union organizing campaigns else- where. After talking along this line for a few minutes, according to Marsh, Manager Stumpf then said to Marsh wouldn't she want to give the company another chance and to think carefully before deciding to vote for the Union. Manager Stumpf's testimony was essentially in accord, including his acknowledgement that he talked to her because he noticed her wearing the union badge and couldn't understand why she was interested in the Umon. Respondent contends that Manager Stumpfs conversa- tion with employee Marsh was not coercive interrogation or threat of reprisal by Respondent but simply friendly conversation or debate of the merits of unionism in the shop. While the question may be close, it seems to me on balance that when, as here, a supervisor of an employer, who has made known its strong opposition to the Union, singles out an employee for individual inquiry of her reasons for adhering to the Union and admonishes her to think carefully before voting for the Union, without providing the employee with any reason for the individual inquiry or assurance against reprisal, that supervisor has, as representative of the employer, engaged in coercive interrogation of, and threat of reprisal against, the employee. Employee Banholzer testified to two- conversations with Manager Stumpf in July 1974, when Banholzer was working in appliances. One, identified as occurring on July 22, related to a bantering on-the-job comment by employee Banholzer that when the Union came in the bosses would no longer have to work. Manager Stumpf replied, if the Union comes in. Banholzer retorted, no, when it comes in. Stumpf then said, according to Banholzer, you must remember if the Union comes in, you start from zero, the Union can't back up any of its promises. Employee Banholzer conceded that there was no explanation of the "start from zero", and that while Manager Stumpf did not refer to negotations starting from zero, he also did not say that current wages would be -reduced or benefits taken away. Manager Stumpf claimed he said, if the Union got in everything would be negotiable and you may end up with zero. However, even assuming the accuracy of employee Banholzer's version of the conversation, Manager Stumpf's statements did not threaten a deprivation of existing benefits or a' reduction of wages and did not constitute a threat of reprisal by Respondent if the Union came in.'0 Accordingly, I would dismiss the allegation of paragraph 5(c)(1) of the the complaint charging Respondent with a violation of Section 8(a)(1), because of this conversation by Manager Stumpf with employee, Banholzer. The other Banholzer-Stumpf conversation, was identified as occurring on July 23, when employee Banholzer had helped Manager Stumpf locate a missing appliance. According to Banholzer, Stumpf thanked him, said he was doing a great job, and was going to see about getting him a raise. Next day, said Banholzer, he asked Stumpf when he could expect a raise, and Stumpf answered, that wage reviews were coming and Banholzer could get one then. Banholzer testified that prior to 1974, he had had one wage review per year and in 1974 had already had one review in June. Manager Stumpf denied promising to see that employee Banholzer would get more money, but again, even assuming the accuracy of Banholzer's testimony, there appears to have been no promise relating to union activity or refraining from union activity but rather a promise of more money for doing a good job. Such a promise is not a violation of the Act, and any allegation of the complaint grounded on this event should be dismissed.' 7. Conduct of Personnel Manager Price About 3 or 4 weeks before the election, at a night Umon meeting of 50 or more employees, employee Alfred Walker got up and spoke to the employees in a 3- or 4- minute impromptu speech aimed, he indicated, to rally them in succeeding to elect the Union as their bargaining repre- sentative. Among other things he spoke of company promises that had not materialized and that electing the Union was the employees' only chance of bettering themselves. The next day, at a meeting of about 20 employees in the North building recreation room of the service center, called by Personnel Manager Crocker Price to give some of the employer's views on the Union, employee Walker was among those present. Just before he opened the meeting to give his ' talk, Manager Price commented to employee Walker, in the presence of the other employees, that he had heard that Walker was quite a speaker. Walker said, if Price had asked him he could have told Price that, and Price retorted now it was his turn. Manager Price testified that he was referring, in his comment, to employee Walker's speech at the union meeting the night before. Price said he knew about Walker's speech, because on the following day everything that occurred at the unionmeeting_"was spread all over the service' center." Other than Price's self-serving statement, there was no evidence that this was so. In my view, Personnel Manager Price, by his statement to employee Walker in the presence and hearing of other employees, created the impression that Respondent had had the union meeting of the employees under surveillance. D. Termination of Employment of Edith Tanner 1. Her functions Edith Tanner started her employment with Respondent in 1960, as a merchandise clerk. In 1968 or 1969, she was 10 In contrast to Superintendent Venneman's ground zero discussion with employee Carlis Smith, discussed supra 11 It is not 'clear where this allegation appears in the complaint, nevertheless, Respondent and General Counsel treated it as a claimed violation in their briefs, 1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD moved into checking and marking of cosmetics and remained in that work until the termination of her employment on July 24, 1974. When employee Tanner started in the cosmetics work, David Baker was manager of the South building and told her, said Tanner, that he wanted her to be the lead person in cosmetics. He had her train briefly at Respondent's main store and she started the work with one other employee. When her employment was terminated on July 24, 1974, there were three other regular employees in addition to herself doing the work, which included checking and marking, certain "high value" items added (in May 1973) to the work of the cosmetics area. Employee Tanner testified that since 1968 or 1969, when Manager Baker had told her she was a lead person, no one in management had told her anything differently, or that she was a supervisor, until the day before her employment was terminated . Indeed , Respondent 's attempt to show the contrary, and that she had been promoted from checker- marker (classification No. 44-1c) to area supervisor (classification No. 59-1) on May 14, 1973, backfired. Employee Tanner's immediate supervisor from about March 1973 to March 1974, Manager David Hankins, testified that he had given Tanner a notice of her promotion and pay raise at or about May 14, 1973, and identified Respondent's Exhibit 18 as a copy of the document . Actually he gave employee Tanner General Counsel's Exhibit 11, the original of which she produced, which was nothing more than a straight pay raise within the same classification' viz, 44-1c (checker-marker). Han- kins changed his testimony and acknowledged that General Counsel's Exhibit 11 was the document he gave to Tanner. The two instruments are "look-alikes," but Respondent's Exhibit 18 has typed words added, particu- larly, "Reclassify," "Promotion," and a changed number "59-1" (meaning area supervisor) where the new pay rate is shown, in place of number "44-1C" (meaning checker- marker) shown with the new pay rate on the original document, General Counsel's Exhibit 11. No one for Respondent could account for these additions or changes made in the original document , and of course Respon- dent's entries in its records concerning Tanner (Resp. Exhs. lb and' 2b), corresponding to the altered document, Respondent's Exhibit 18, have no greater authenticity than that discredited document . Personnel Manager Crocker Price was unable to identify the maker or source of the entries. Manager Hankins , who testified that employee Edith Tanner was a truthful person , also acknowledged that he never told her she was a supervisor (although he thought she was, perhaps erroneously, he said). According to the testimony, Tanner did a combination of physical and clerical work. In this regard, the principal difference between her and her coworkers , with whom she worked side by side, was that she did more of the clerical work than they did. Tanner testified that she physically handled and counted the cartons of merchandise that came in on conveyors , pulled the packing slips, invoices, and other identifying paper from them and checked the merchandise against the paper , then took the invoices and other paper to the order room where an assigned person did certain paperwork and pulled the orders relating to the merchandise, then took the papers back to her area putting the invoices back on the merchandise and the merchandise on conveyors, where she and her coworkers would check the goods (against the orders), mark the retail prices on the goods, repack in canvas carriers , seal the carriers , and affix route tags, for delivery to different branches of the store. A towmotor would take the sealed carriers away. Each checker-marker , including employee Tanner, kept her own daily production record on a simple form sheet, showing how many cartons each had done in the day and how many pieces each had checked and marked. Tanner said she collected these but did not review them . Employee Tanner , in addition , kept a record of what came in and what went out of the cosmetics area on a so-called area production replan form , showing , daily, the cartons on hand, how many were processed, and how many there were left to be done. The form also listed the employees present and the number of hours they worked, but no productivity record other than the total units processed by the group that day. Tanner also kept a record of hours worked by employees of her group who might be assigned out to some other area, but no productivity record of this. Employee Tanner was an hourly paid employee and punched a timeclock . (This was also true of the employees called "area supervisors.") Her hourly pay was $3.10 per hour, 60 cents higher than the pay of the other three regular checker-markers. In addition to the extra clerical work employee Tanner performed she handled certain other duties not usually done by her co-workers. If a new employee came in , or extra people came in to assist in peak periods , employee Tanner usually gave whatever training or instructions they needed ., If there was a need for extra people, Tanner would inform her supervisor, who, would have to approve and who would obtain the extras or direct her to call in someone usually listed with Respondent for such work . If there was a need for overtime, Tanner would tell her supervisor who would tell the employees to stay. Tanner - could initial a timecard if there was overtime or some special ,problem about clock in, but Tanner's, supervisor had to sign the timecards at the end of each week. Employee Tanner assisted her supervisor with employee evaluations of her coworkers but did not do the total evaluations or rating . She in turn was evaluated by her supervisors . The evaluations were used by management, for, among other things, the giving of pay raises . However, Tanner had no authority to give a pay raise , or to hire, fire, or discipline an employee . Though her former supervisor, Manager Hankins , claimed that Tanner - had authority to settle grievances , Tanner disclaimed having had , such authority. In the one case they both , referred to, it appeared that Tanner went to Manager Hankins to settle the grievance of the complaining employee. Employee Tanner was authorized to sign discount purchase cards for the extra employees - in her area. The card was essentially an identification card that enabled the extra to purchase from Respondent's stores at a discount. Tanner distributed the paychecks in her area . She had a desk and intercompany phone but her coworkers also used L. S. AYRES & COMPANY 1353 both since she would leave her area from time to time to go to the order room. Prior to 1974, Tanner was more often on the telephone and rarely out of the area, because she had kept a file of orders at her desk and store buyers would call inquiring about orders needed. This practice ended when the keeping of all orders was centralized in the order room, and Tanner's use of the interphone became infrequent. Tanner testified that she was occasionally asked by her supervisor to attend meetings with other supervisory employees that included area supervisors. These meetings were concerned with safety and fire prevention. If damaged merchandise came into her area, her coworkers would let her know, and she would turn the matter over to the office for making a claim. 2. Her status Contrary to the General Counsel, Respondent contends that Edith Tanner was a supervisor within the meaning of Section 2(11) of the Act and excluded from the protection of the Act. It seems to me that employee Tanner's position was that of leadman, or lead person, the superior worker who exercised the control of a skilled worker over less capable employees, but who did not enjoy supervisory status in that capacity because she did not also share the power of management , N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 279 (C.A. 5, 1962). Congress intended to leave the leadman category of minor supervisory employees under the protection of the Act, N.L.R.B. v. Security Guard Service, Inc., 384 F.2d 143, 146-148 (C.A. 5, 1967). Employee Tanner daily performed the routine physical and clerical work of receiving, on conveyor belts, boxes of cosmetics and certain high value articles, unpacking them, checking them against the manufacturer's or dealer's attached invoice (for accuracy of count and to eliminate for return or claim, by another department, any damaged goods), marking the retail price on each item (from the papers provided), and repacking the marked merchandise for delivery to Respondent's retail departments (from written orders provided). She was assisted by three other women , each doing the same work, on separate conveyor belts, of receiving, unpacking, checking, marking, and repacking cosmetics and high value items. Once they had learned the fairly simple routine there was no need for instruction or directions to them by Tanner other than an occasional direction, such as giving priority to a certain order in accordance with a request transmitted through and from the order room. If there were a replacement employee, or in an extraordinary rush period when extra help was provided, Tanner would train or instruct the new employee or extras, if they were not persons who had already worked in the cosmetics area. While each of the coworkers in the cosmetics group, including employee ' Tanner, kept a record of her own daily production, Tanner in addition kept track of total production; i.e., boxes received and disposed of. She assisted her supervisors (Manager Hankins and his successors) in the annual evaluation of the work perfor- mance of her coworkers, for pay raises and related purposes, but she did not make the final ratings, or award pay increases, or have authority to hire or fire or discipline or settle grievances. Employee Tanner could ask for more help or suggest that she had more than was needed, but the transfers in and out had to be approved and provided by her supervisors. She could initial timecards to keep track of certain deviations, like overtime, but approving overtime and the signing of the timecards was the function of Tanner's supervisors. Like her coworkers, she punched a timeclock and was paid on an hourly basis, though at a higher rate, which would indicate recognition of her greater experience and skill and some of the added duties she performed. Employee Tanner spent some of her time away from the cosmetics area going to and from the order area at various times in the day. This was practically messenger work, since she simply delivered for processing by the order room, the invoices and related papers that come in with merchandise received, and took them back along with the orders for the merchandise from the store's retail depart- ments held on file by the order department. (She didn't even have to pull the orders from the file, as she had previously done earlier in her career in cosmetics when she kept the orders in a file of her own at her desk.) Also in the category of messenger work was her distribution to her coworkers of paychecks, and-turning over to the office the making of claims for damaged goods. It is true that some of the added responsibilities that devolved upon employee Tanner ^ were of a nature possessed by statutory supervisors-such as appraising performance of coworkers or training the new among them in their functions. They were also responsibilities typical of leadmen, but they involved technical; judgments based on experience and skill and not the managerial judgment which is the kind of independent judgment contemplated by Section 2(11). Graphics Typography, Inc., 217 NLRB No. 176, ALJD , sec. II , D,2 (1975). While it is settled that the list of supervisory powers in Section 2(11) is to be read in the disjunctive, the section also "states the requirement of independence of judgment in the conjunctive (i.e., in connection) with what goes before." Poultry Enterprises, Inc. v. N.L.R.B., 216 F.2d 798, 802 (C.A. 5, 1954). Moreover, the statutory words, "responsibly to direct," 12 "are not weak or jejune but import active vigor and potential vitality," N.L.R.B. v. Security Guard Services, Inc., supra, 384 F.2d at 147. The fact that employee Tanner occasionally gave instructions to helpers on how to help would not denote the exercise of supervisory discretion or independent judgment, but only the exercise of routine authority, N.LR.B. v. Whitin Machine Works, 204 F.2d 883, 886 (C A. 1, 1953); Precision Fabricators Inc. v. N.L.R.B., 204 F.2d 567, 568-569 (C.A. 2, 1953). Respondent's claim of having conferred the title or status of "area supervisor" on employee Tanner, which was not substantiated, even if it had been true, was of no moment, because actual duties and authority, rather than a formal title and theoretical power, control in determining whether 12 Under Sec 2(11), a supervisor is one having authonty ,'m the interest employees, if the exercise of such authority is "not merely of a routine or of the employer (among other things), "responsibly to direct" other clerical nature , but requires the use of independentjudgment." 1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employee was a statutory supervisor or not, N.L.R.B. v. Southern Bleachery and Print Works, 257 F.2d 235, 235-239 (C.A.4, 1958).i3 As I assess the facts, neither employee Tanner's position with Respondent nor her responsibilities in that position identified her with management, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO v. N.LR.B., 298 F.2d 297, 303 (C.A.D.C., 1961), cert. denied sub nom. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO v. N.L.R.B., 369 U.S. 843 (1961). She was in fact, as well as by designation, the lead person of the cosmetic and high value area of the service center, and as such was an employee within the meaning of Section 2(3) of the Act and not a supervisor within the meaning of Section 2(11). 3. The forced resignation Employee Tanner had signed two union authorization cards on July 18 and 19, 1974, respectively. The Union filed its petition for an election on July 23, 1974. On that same day Superintendent Venneman called a meeting of the area supervisors, which employee Tanner was asked to attend. There were about 20 to 25 persons in attendance, said Tanner, and Venneman told them that they were supervisors whom the employees in their areas or departments would probably be asking questions about the Union. He told them to explain the costs of the Union to the employees-dues, penalties, assessments, and things like that, said Tanner. That afternoon she was called individually to a meeting in the office of Material Handling Manager Lon Dalton, where she was introduced to Personnel Manager Crocker Price. Price testified that the meeting was for the purpose of making clear her responsibilities in connection with the union campaign. Price and Dalton inquired of employee Tanner if she had any questions on the matter of the Union, and she told them that she had heard for the first time from Superinten- dent Venneman that morning that she was considered a supervisor and had'always thought she was a lead person, since the time she came into the cosmetics area. Price said she had been upgraded since then, about the time Dalton came to the South building as manager. Tanner said that wasn't so. Price proceeded to read the definition of supervisor from the National Labor Relations Act, telling her that if she did any one of the things listed in the definition she was considered to be a supervisor. Tanner said she didn't agree with that, that she was not a supervisor and had the right to go, and intended to go, to union meetings . At this point, according to Tanner, both men told her that her attendance at union meetings would put the company in jeopardy for spying and her employ- ment would have to be terminated. 13 Moreover by stipulation, in the related representation case, see sec. II, A, supra, Respondent conceded in connection with the November 1974 election that its area supervisors were unit employees. Compare, N.L R.B. v. O'Conner Chevrolet-Buick-GMC Co., 512 F.2d 684 (C.A. 8, 1975). 14 1 have taken notice of the cited portions of this exhibit, Resp. Exh. 19, simply as evidence of the consistency of employee Tanner's position, Employee Tanner offered to relinquish her lead person position in cosmetics and take thejob,of ordinary checker- marker. Price and Dalton said they'd have to think about that, and would let her know. The following day, July 24, 1974, employee Tanner was called to meet with Managers Price and Dalton, again. They told her she could continue as a supervisor but not attend union meetings . She replied she didn't feel she could do that, that she thought she had the right to attend union meetings. Whereupon Personnel Manager Price told her, she said, we'll have to terminate you. She replied, "O.k. you'll just have to terminate me because that's the way I feel about it," Employee Tanner told them she had money in the company's thrift plan that she had to get, and Price sent her to the senior personnel representative for the service center, Craycraft. Personnel Manager Price's testimony on the exit inter- view (Manager Dalton did not testify), particularly the testimony given in response to Respondent counsel's questioning, is not essentially different from employee Tanner's testimony except in one respect (which, neverthe- less, in my opinion, does not alter the sense of what occurred). Price testified that, in the July 24 meeting, he and Dalton reviewed with Tanner their discussion of the previous day, and Tanner expressed the view that she would go to the union meeting. Price testified that he then said, if you are going to the union meeting you are going on your own, when you get there you will no longer be an employee of the company; to which, according to Price, Tanner replied, I can make it simpler than that I will quit. He then sent her to Craycraft for the incidental paperwork. According to employee Tanner, Personnel, Representa- tive Craycraft insisted that she had to sign a notice of voluntary separation, and she signed in protest by noting on the form "unable to attend union meetings `as a Supervisor.' " (G.C. Exh. 8.) Following July 24th, Tanner continued to insist that she had been terminated, or forced to quit rather than be discharged as an unsatisfactory employee, in her more or less contemporaneous application for (Indiana) unemploy- ment compensation initiated ' August 6, 1974 (see Resp. Exh. 19, pp. 3 and 7, and particularly her handwritten explanation p. 13, which described the choice given her by the employer, and Craycraft' s insistence on use of the voluntary quit form if she was to get her pay).14 In my view it is clear that Respondent forced employee Tanner to quit her job because ofher'union activity. Even accepting Personnel Manager Price's version of the choice offered to her, it was, give up your union meetings or if you persist you will no longer be an employee of the Respondent. Quitting under such an ultimatum ' of the employer, rather than await or risk discharge and 'the unpleasant implications of discharge, was a forced resigna- tion or constructive discharge. Kaiser Engineers, 213 NLRB 752 (1974). particularly in the period immediately following the termination of her employment. Respondent contested and obtained a reversal of the initial allowance of unemployment compensation to her, Resp. Exhs 19, p. 36, and 11, but I do not regard the decisions of intrinsic significance to the case at bar because the state agency decision went off on erroneous assumptions about Tanner's status under the National Labor Relations Act L. S. AYRES & COMPANY 1355 E. Section 8(a)(1) and (3) Findings As detailed under section 11,C,while the union organiz- ing and preelection campaigning was in progress, Respon- dent's management engaged in various acts of interroga- tion'or prying into the union activities and sentiments of its employees; created the impression of employer-surveil- lance of their meetings, card signing, and other union activities; threatened discharge, loss of benefits, harass- ment, and other reprisal in connection with their union activities; and offered wage increases to employees if they would abandon their support of the Union. These were violations of Section 8(a)(l) of the Act, N.LRB, v. Henry Colder Co., 416 F.2d 750, 753 (C.A. 7, 1969); N.L.R.B. v. Merchants Police, 313 F.2d 310, 312 (C.A. 7, 1963). Respondent also forced the resignation of employee Edith Tanner because she persisted in her right to take part in the meetings or other activities of the Union. Respon- dent's action was not only a violation of Section 8(a)(1) of the Act, as an infringement of the employee's right to engage in concerted activities under Section 7, but was also a violation of Section 8(a)(3), because that section's prohibition of discriminatory employment practices, calcu- lated to discourage membership in a labor organization, encompasses employer action which discourages participa- tion in concerted activities, N.L.R.B. v. Erie Resistor Corp., et a1373 U.S. 221, 233 (1963). Because the discrimination against employee Tanner was directly related to protected activity, and hence inherently destructive of employee rights, the intent requisite for an 8(a)(3) violation may be inferred, N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967); Signal Oil and Gas Co. v. N.L.R.B., 390 F.2d 338, 343-344 (C.A. 9, 1968). Nonetheless, there was affirmative evidence of Respon- dent's antiunion motivation, in its vehement opposition to the Union, N.L.R.B. v. Lipman Brothers Inc., et al, 355 F.2d 15, 21 (C.A. 1, 1966), its commission of contemporaneous independent 8(a)(1) violations, supra, and its declination of employee Tanner's offer to resolve any alleged difficulty for the company by taking a job without any of the leadman responsibilities. CONCLUSIONS OF LAW 1. By engaging in acts of coercive interrogation or prying into the union activities and sentiments of its employees, by creating the impression of surveillance of their union meetings, card signing, and other union activities, by threatening discharge, loss of benefits, harassment , and other reprisal in connection with their union activities, and by offering wage increases if they would abandon support of the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By forcing the resignation of employee Edith Tanner because she persisted in her right to take part in the meetings and other activities of the Union, and in order to discourage such activities and support of the Union among its employees, Respondent has engaged in unfair labor 15 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Order herein shall, as provided in Sec, practices within the meaning of Section 8(a)(1) and (3) of the Act. 3. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Allegations m .the complaint that, Manager Stumpf, in violation of Section 8(a)(1), threatened reprisal against employees in , conversation with employee Banholzer on July 22, 1974, and promised a pay increase in conversation with employee Banholzer on July 23," 1974,` should be dismissed. THE REMEDY' It will be recommended that the Respondent: 1. Cease and desist from its unfair labor practices. 2. Offer to reinstate employee 'Edith Tanner with backpay from the time of her forced resignation, backpay to be computed on a quarterly basis as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953), with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in The Philip Carey Manufacturing Co., Miami Cabinet Division v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S. 888 (1964). 3. Post the notices provided for herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER 15 Respondent, L.S. Ayres & Company, a Division of Associated Dry Goods Corporation, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercive interrogation or prying into the union activities and sentiments of its employees. (b) Creating the impression of surveillance of employees' union meetings, card signing, or other union activities. (c) Threatening discharge, loss of benefits, harassment, or other reprisal in connection with their union activities. (d) Offering wage increases if employees abandon support of the Union. (e) Discouraging employee attendance at union meet- ings. (f) Discouraging employees from support of or member- ship in the Union or other labor organization by forced resignation, discharge, or other discrimination affecting their tenure and conditions of employment. (g) In any like manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make employee Edith Tanner whole, in the manner set forth in the section of the decision entitled "The Remedy," for any loss of earnings incurred by her as a result of her forced resignation on July 24, 1974. 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. 1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer to employee Tanner immediate and full reinstatement to her former job or, if the job no longer exists , to a substantially equivalent position, without prejudice to her seniority or other rights and privileges. (c) Preserve and, upon request, make available 'to the Board and its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to 'ascertain the backpay due under the terms of this recommended Order. (d) Post in its service center at, Indianapolis, Indiana, copies of the attached notice arked "Appendix." 16 Immediately upon receipt of said notice, on forms to be provided by the Regional Director for Region 25 (Indianapolis, Indiana), the Respondent shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained for 60 consecutive days thereafter,-in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify, the Regional Director for Region 25, - in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 16 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 National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." * U.S. GOVERNMENT PRINTING OFFICE : 1976 0-206-341 Copy with citationCopy as parenthetical citation