Modern Merchandising, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1987

284 N.L.R.B. 1377 (N.L.R.B. 1987)

MODERN MERCHANDISING 1377
Jafco, a Division of Modern Merchandising, Inc.
and Retail Store Employees Union Local 1001,
affiliated with the United Food and Commercial
Workers International Union, AFL-CIO. Cases
19-CA-13387 and 19-CA-13400
27 July 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
Upon a charge filed 25 March and 30 March
1981, the General Counsel of the National Labor
Relations Board issued a complaint on 11 May
1981. The complaint alleges that the Respondent
violated Section 8(a)(5), (2), and (1) by suggesting
to employees that they form a committee to deal
with the Respondent concerning wages and other
terms and conditions of employment and by by-
passing the Union and dealing directly with unit
employees in suggesting that employees form this
committee.
On 3 February 1982 the General Counsel, the
Union, and the Respondent filed a Motion to
Submit Case to the Board and Stipulation of Facts.
The parties waived a hearing and the issuance of a
decision by an administrative law judge and agreed
to submit the case directly to the Board for find-
ings of fact, conclusions of law, and a decision.
The parties also agreed that their formal stipulation
of facts and exhibits attached thereto would consti-
tute the entire record before the Board.
On 23 April 1982 the Board issued an Order
granting the parties' motion, approving the stipula-
tion, and transferring the proceeding to the Board.
Thereafter, the General Counsel and the Respond-
ent filed briefs. Additionally, the International As-
sociation of Quality Circles has filed an amicus
curiae brief and thereafter filed two motions to
amend its brief. The Board has considered the brief
and has granted the motions to amend.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the basis of the entire record, 1 the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a State of Washington corpo-
ration with offices and places of business in the
State of Oregon and Washington, where it is en-
The International Association of Quality Circles requested oral argu-
ment. The request is denied as the record, exceptions, and briefs ade-
quately present the issues and the positions of the parties.
gaged in the business of retail sales of general mer-
chandise. The Respondent, during the 12 months
preceding the stipulation, which is a representative
period, had gross sales of service and goods in
excess of $500,000. In addition, the Respondent,
during the 12 months preceding the stipulation,
purchased and caused to be transferred and deliv-
ered to its facilities within the State of Washington
goods and materials valued in excess of $50,000 di-
rectly from sources outside the State of Washing-
ton.
The Respondent admits, and we find, that it is,
and at all times material has been, an employer as
defined in Section 2(2) of the Act, engaged in com-
merce and operations affecting commerce as de-
fined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union has been at all times material herein a
labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
The Respondent operates retail outlets at 19 lo-
cations in the States of Oregon and Washington.
The Respondent and the Union have had a collec-
tive-bargaining relationship since 1959, and since
1979 the Union has been the exclusive representa-
tive of sales employees at three of the Respondent's
stores, located at 520 Westlake Avenue North and
17500 South Center Parkway, Seattle, Washington,
and at 888 116th N.E., Bellevue, Washington.2
There is no union representation at the Respond-
ent's other 16 stores.
On 6 March 1981 Bernard Gordon, the Respond-
ent's vice president and general manager, had the
following letter distributed to employees and
posted at each of Respondent's 19 stores, including
the 3 stores where the employees were represented
by the Union:
March 6, 1981
MY FELLOW EMPLOYEES:
As we as a region grow larger with more
stores, more employees and more opportunities
2 The bargaining unit is described as follows:
Included: All general sales employees (including cashiers), jewelry,
in store customer service, sound, camera and sporting goods employ-
ees, baggers, belt employees, general office employees, mail order
screener, mail clerk, customer service employees, (phone shopper),
tag printer, micro film employees, accounting clerks, accounts pay-
able, accounts receivable, billing, data control and purchasing em-
ployees, bookkeepers, computer, key punch and key pies employees
and tape and computer operators.
Excluded: All other employees, guards and supervisors as defined in
the Act.
284 NLRB No. 139
1378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for each of us, one area really becomes diffi-
cult: the area of communications! It used to be
that I could go to our few stores and generally
know everyone by name. Now I have a prob-
lem simply getting around to each store on a
timely basis.
We've lost something with this growth,
something we need to put back into our busi-
ness, that is my being able to listen to each of
you and your ideas on how we can improve
our business. You are the best one to evaluate
how our job is done and we must ensure a
clear avenue for you to get that information to
a level of management so that it might benefit
all of our stores.
With this in mind, in the near future all fa-
cility managers will be instructed to set up a
committee of 5 non-management personnel in
each store elected by the store employees who
will represent all employees within the work
place as a screening place for suggestions from
all employees. This committee will be charged
with the responsibility of soliciting, evaluating
and communicating suggestions from all em-
ployees and passing those they feel have merit
on directly to me. I, in turn, will chair a com-
mittee made up of top regional management
who will evaluate all suggestions submitted.
Those which might impact all Modern Mer-
chandising showrooms will be submitted to
corporate. This concept will be tested for a 6-
month period to ascertain whether or not it
helps in the area of communication. Personally,
I feel it will, but it depends on each of you; I
earnestly solicit your suggestions on, but not
limited to, the following areas:
1. Working conditions.
2. Ideas for improvement in all areas of—
a. Management
b. Merchandising
c. Facilities
d. Productivity
3. Areas outside the store the company may
help out with.
4. Other ideas.
Your election will be the first week in April
so begin thinking of who will represent you
best in your store.
I have also instructed the Operations depart-
ment to work on improving our "Employee
Newsletter" which I think we should use more
to communicate ideas as well as some human
interest. I'd like your ideas on what you'd like
our newspaper to be. . . .
The first item of business for our Suggestion
Committee must be one of addressing the con-
sternation the orange smocks have caused.
What was felt to be a plus for our employ-
ees, an item which would keep our clothes
clean, an item which our name badges and
pins would adhere to without tearing our
clothing, and a color which although bright
goes with both black and brown tones, and is
clearly identifiable by our customers, apparent-
ly has created some ill will among you, our
employees.
Now if you were in management, what
would you do? There is a large expense in-
volved and all of us have an interest in the
profit the company makes. Constructively give
your ideas to your Suggestion Committee for
their first item of business.
I appreciate each of you and the job you're
doing. Together we can make Jafco a super
place to work.
Cordially yours
Bernard Gordon
Vice President General Manager
The Union was never notified or contacted by the
Respondent regarding the existence, content, pro-
mulgation, distribution, issuance, or posting of the
above letter. On 10 March 1981 while a union offi-
cial was at the Respondent's Bellevue store on
union business, the official discovered the above
letter posted on the Respondent's bulletin board.
The Union immediately telephoned the Respondent
and requested to meet and/or discuss the existence,
content, promulgation, distribution, issuance, post-
ing, and effects of the above letter on unit employ-
ees. However, the Respondent failed and refused to
withdraw, modify, or revoke the letter. Further-
more, the Respondent implemented the letter and
continues to give effect to the letter despite the
Union's timely demands that it be revoked or
modified.
B. Contentions of the Parties
In his brief, counsel for the General Counsel
contends that by its 6 March letter, the Respondent
in creating the suggestion committee at each store
has established an employer-dominated labor orga-
nization in violation of Section 8(a)(2). The Gener-
al Counsel also contends that in suggesting and es-
tablishing the suggestion committee, the Respond-
ent has acted to bypass the Union in violation of
Section 8(a)(5) and, further, has independently vio-
lated Section 8(a)(1). The Respondent contends
that the suggestion committee is not a labor organi-
MODERN MERCHANDISING 1379
zation. Alternatively, it contends that if the sugges-
tion committee is a labor organization, it is not em-
ployer dominated and it was not established for nor
has it engaged in collective bargaining in deroga-
tion of the Union's status-3
For the reasons set forth below, we shall dismiss
the allegation that the Respondent violated Section
8(a)(2). However, as discussed below, we find
merit to the General Counsel's contentions that the
Respondent has violated Section 8(a)(5) and inde-
pendently violated Section 8(a)(1).
C. Analysis and Conclusions
1. The initial question before us in this case is
whether the Respondent violated Section 8(a)(2) by
suggesting to employees that they form a sugges-
tion committee at each of its 19 stores. In examin-
ing this matter, we note that the complaint does
not expressly allege that the suggestion committees
outlined in the 6 March letter are labor organiza-
tions within the meaning of Section 2(5) of the Act
or state the way in which they are allegedly em-
ployer dominated. 4 We further note that the stipu-
lation of facts shows that the Respondent by posted
letter initiated the concept of the suggestion com-
mittee, suggested the means by which employee
representatives were to be selected, and designed
the topics to be addressed by the committees. The
stipulation, however, states only that the letter
(therein described as Exh. 5) was implemented.
The record is devoid of any evidence of circum-
stances attending the implementation of the letter,
including evidence of how the suggestion commit-
3 The amicus brief filed by the International Association of Quality
Circles addresses the concept of "quality circles" generally and, with re-
spect to the instant case, urges the Board not to find quality circles vio-
lated the Act and, alternatively, that the suggestion committee described
herein is not a "quality circle."
4 Pars. 8-10 of the complaint alleges the conduct of the Respondent to
be unlawful as follows:
8.
On or about March 6, 1981, Respondent acting through Bernard
Gordon, its general manager, at its Seattle, Washington, and other
facilities, suggested to employees that they form a shop committee to
deal with Respondent concerning wages, hours and other terms and
conditions of employment.
9.
On or about March 6, 1981, Respondent through Bernard Gordon,
its general manager at its Seattle, Washington facility, bypassed the
union arid dealt directly with its employees in the unit described
above in paragraph 5, by suggesting that unit employees form a shop
committee.
10.
By the acts described above in paragraphs 8 and 9 and by each of
said Acts, Respondent did engage in, and is engaging in, unfair labor
practices affecting commerce within the meaning of Section 8(aX1),
(2) and (5) and Section 2(6) and (7) of the Act.
tees were actually set up, which topics were dis-
cussed, and the degree to which the committees in-
teracted with management. In thus examining the
stipulation of facts and its attachments, which con-
stitute the full record before us, we find that the
General Counsel has failed to present sufficient
grounds on which to find that the Respondent has
actually established a labor organization and thus
has violated Section 8(a)(2). Accordingly, we shall
dismiss this portion of the complaint.5
2. As noted above, the Union is the exclusive
bargaining representative of certain of the Re-
spondent's employees at three of its stores. It is
well established that the Act requires an employer
to meet and bargain exclusively with the Union.
Further, an employer who chooses to deal directly
with its unionized employees or with a representa-
tive other than the designated bargaining represent-
ative regarding terms and conditions of employ-
ment risks violating Section 8(a)(5) of the Act.6
In its 6 March 1981 letter, the Respondent set
forth a plan creating employee committees respon-
sible for soliciting suggestions from employees on a
variety of topics, including working conditions.
The Respondent prepared and posted a letter and
later implemented the letter without notice to or
input from the Union. Further, the Respondent has
refused to revoke or modify the letter despite the
Union's request that it do so. It is clear from the
facts that the Respondent's conduct, both in sug-
gesting to employees that they set up employee
committees to solicit suggestions regarding work-
ing conditions and in bypassing the Union M for-
mulating and implementing the letter, has had the
effect of eroding the Union's position as exclusive
representative. Accordingly, we find the Respond-
ent has failed in its duty to bargain with the Union
and has violated Section 8(aX5) and (1) of the Act.
3. Finally, we turn to the contention the the Re-
spondent has violated Section 8(a)(1) in suggesting
to employees that they form committees to solicit
suggestions regarding working conditions. As
noted above, the Respondent posted a letter dated
6 March 1981 setting forth a plan instructing man-
agers at each store to set up a committee com-
prised of nonmanagement personnel elected by all
employees at each store to represent them. The
committees would then be given the responsibility
of soliciting suggestions from all employees for
presentation to management for its evaluation. Sec-
tion 7 of the Act, however, guarantees, inter alia,
to employees the right of self-organization. In pro-
5 In light of this dismissal, we find it unnecessary to determine if the
suggestion committee outlined in the Respondent's 6 March 1981 letter
are quality circles.
See, e.g., Medo Photo Supply Corp v. NLRB, 321 U.S. 618 (1944)
1380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posing to both union and nonunion employees that
they form these committees, the Respondent has
abrogated the right of employees to make their
own decisions regarding organizing activities. Ac-
cordingly, we find that the Respondent, in making
this suggestion, has interfered with employee rights
and has violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees at the Respondent's
two Seattle, Washington stores located at 520
Westlake Avenue North and 17500 South Center
Parkway and the Bellevue, Washington store locat-
ed at 888 116th N.E. constitute one unit and that
unit is appropriate for the purpose of collective
bargaining:
Included: All general sales employees (includ-
ing cashiers), jewelry, in store customer serv-
ice, sound, camera and sporting goods employ-
ees, baggers, belt employees, general office
employees, mail order screener, mail clerk,
customer service employees, (phone shopper),
tag printer, micro film employees, accounting
clerks, accounts payable, accounts receivable,
billing, data control and purchasing employees,
bookkeepers, computer, key punch and key
plex employees and tape and computer opera-
tors.
Excluded: All other employees, guards and su-
pervisors as defined in the Act.
4. By suggesting to employees that they form a
committee charged with responsibility of soliciting
suggestions from employees on working conditions,
the Respondent has interfered with employees'
Section 7 rights and has violated Section 8(a)(1).
5. By bypassing the Union and dealing directly
with its employees in the bargaining unit in sug-
gesting to employees that they form the committee
described above, the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act.
6. The above unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practice within the meaning of Sec-
tion 8(a)(1) and (5) of the Act, we shall order it to
cease and desist therefrom and to take certain af-
firmative action in order to effectuate the policies
of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Jafco, a Division of Modern Mer-
chandising, Inc., Seattle and Bellevue, Washington,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suggesting to employees that they form com-
mittees to solicit suggestions from employees con-
cerning working conditions.
(b) Unlawfully bypassing the Union as the exclu-
sive representative of its unit employees and deal-
ing directly with unit employees in suggesting that
they form the employee committees described
above.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the 6 March 1981 letter in which the
Respondent proposed the formation of employee
committees described above.
(b) On request, bargain collectively with the
Union as the exclusive bargaining representative of
all employees in the bargaining unit found appro-
priate with respect to wages, hours, and other
terms and conditions of employment. The appropri-
ate unit is described as follows:
Included: All general sales employees (includ-
ing cashiers), jewelry, in store customer serv-
ice, sound, camera and sporting goods employ-
ees, baggers, belt employees, general office
employees, mail order screener, mail clerk,
customer service employees, (phone shopper),
tag printer, micro film employees, accounting
clerks, accounts payable, accounts receivable,
billing, data control and purchasing employees,
bookkeepers, computer, key punch and key
plex employees and tape and computer opera-
tors at our locations at 520 Westlake Avenue
North, and 17500 South Center Parkway, Se-
attle, Washington, and 888-116th N.E., Belle-
vue, Washington.
Excluded: All other employees, guards and su-
pervisors as defined in the Act.
, (c) Post at all its facilities in the States of Wash-
ington and Oregon copies of the attached notice
marked "Appendix." 7 Copies of the notice, on
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
Continued
MODERN MERCHANDISING

1381
forms provided by the Regional Director for
Region 19, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
al 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."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL1 NOT suggest that our employees form a
committee to solicit employee suggestions concern-
ing working conditions.
WE WILL NOT bypass the Union as our employ-
ees' designated collective-bargaining agent and deal
directly with them in suggesting that they form a
committee to solicit employee suggestions concern-
ing working conditions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL rescind the 6 March 1981 letter in
which we suggested the formation of the employee
committee described above.
WE WILL, on request, bargain with the Union as
the exclusive bargaining representative of you, our
bargaining unit employees, with respect to wages,
hours, and other terms and conditions or employ-
ment. The appropriate unit is:
Included: All general sales employees (includ-
ing cashiers), jewelry, in store customer serv-
ice, sound, camera and sporting goods employ-
ees, baggers, belt employees, general office
employees, mail order screener, mail clerk,
customer service employees, (phone shopper),
tag printer, micro film employees, accounting
clerks, accounts payable, accounts receivable,
billing, data control and purchasing employees,
bookkeepers, computer, key punch and key
plex employees and tape and computer opera-
tors at our locations at 520 Westlake Avenue
North, and 17500 South Center Parkway, Se-
attle, Washington, and 888-116th N.E., Belle-
vue, Washington.
Excluded: All other employees, guards and su-
pervisors as defmed in the Act.
JAFCO, A DIVISION OF MODERN MER-
CHANDISING, INC.