W. T. Grant Co.

National Labor Relations Board - Board Decisions

Nov 3, 1967

168 N.L.R.B. 93 (N.L.R.B. 1967)

W. T. GRANT COMPANY
W. T. Grant Company and Retail Store Employees
Union , Local 876, Retail Clerks International As-
sociation , AFL-CIO. Case 7-CA-5841
November 3, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 28, 1967, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, W. T. Grant Company,
Madison Heights, Michigan, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete subparagraph (c) and reletter subpara-
graph (d) as subparagraph (c) in paragraph I of the
Trial Examiner's Recommended Order.
2. Delete the third indented paragraph of the
Appendix.
' We find merit in Respondent 's exception to the Trial Examiner's find-
ing that Respondent encouraged employees to "sign" a decertification
petition or that such a petition was being circulated after November 30,
1966, the date it was filed with the Board' s Regional Office The Respond-
ent's unlawful conduct occurred several weeks thereafter However, we
affirm the Trial Examiner 's conclusion that Respondent by its unlawful
conduct conveyed the message to its employees that they should associate
themselves with the pending decertification petition, a subject of heated
discussion during this period
TRIAL EXAMINER'S DECISION
93
SAMUEL M. SINGER, Trial Examiner: This proceeding,
with all parties represented, was heard before me in
Detroit, Michigan, on June 13, 1967, pursuant to charges
filed December 22, 1966, and February 27, 1967, and a
complaint issued April 14, 1967. The issue litigated was
whether or not Respondent, through certain conduct (in-
cluding interrogations and employee interviews), inter-
fered with, restrained, or coerced employees in violation
of Sectu_n 8(a)(1) of the National Labor Relations Act, as
amended.
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine witnesses.
A brief was received from Respondent.
Upon the entire record I and from my observation of
the witnesses, I make the following-
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT ; THE LABOR OR-
GANIZATION INVOLVED
Respondent, a Delaware corporation, is engaged in the
sale and distribution of merchandise through retail stores
throughout the United States, including its retail store in
Madison Heights, Michigan, store 681, the only facility
involved in this proceeding. During the year ending
December 31, 1966, Respondent's gross volume of busi-
ness at its Madison Heights store exceeded $500,000.
Within the same period it purchased and received at that
store products valued in excess of $100,000, of which
products valued in excess of $50,000 came directly from
points outside Michigan. I find that at all times material
herein Respondent has been and is an employer engaged
in commerce within the meaning of the Act.
The Charging Party, herein called the Union, is a labor
organization within the meaning of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Background
The Union was certified as the statutory bargaining
representative of Respondent's employees on November
28, 1964 On July 8, 1965, the parties signed a collective
agreement, to be effective from February 1, 1965, to
January 31, 1967. On November 9, 1966,2 in ac-
cordance with the terms of this agreement, the Union
mailed Respondent a notice of intention to reopen the
agreement in order to modify certain provisions. Negoti-
ations thereon continued to March 17, 1967. In the
meantime, on November 30, 1966, one of Respondent's
employees filed a petition for decertification of the
Union (Case 7-RD-688).3 The petition and Union's
July 1965 contract 4 thereafter became subjects of
discussion in the store.
' It is hereby ordered that the transcript be corrected as follows Page
55, line 10, "established from evidence, that" for "established that", and
page 55, line 11, "questioning and" for "question that there was "
z Unless otherwise noted, all subsequent dates refer to 1966
The petition was later withdrawn (April 14 or 15, 1967)
The Union had distributed copies of this agreement to employees 2 -or
3 days after the filing of the decertification petition
168 NLRB No. 16
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Store Manager Stainforth testified that "just about
everybody in the store asked [him] question[s] of some
sort or other " According to Stainforth and his assistant,
Demasi, the newer, part-time employees - young high
school students in their "teens" - were particularly
inquisitive and both of these company officials spoke to
them about company benefits.5 Subjects discussed in-
cluded sick pay, vacations, leave of absence, military
leave, funeral leave, and holidays. Stainforth and Demasi
would compare the benefits in the union contract with
those in the company manual before advent of the Union.
Stainforth would tell them (as he testified) "that the
manual was equal to the contract" as regards benefits.
B. The Testimony
General Counsel called five employees - all high
school students - to support the allegation in the com-
plaint that Stainforth and Demasi had uttered coercive re-
marks. A sixth (Rie Biehy, an older employee) testified
that she was questioned about a charge she allegedly had
filed with the Board.
1. Angeluski and Brueckman testified as to a conver-
sation with Stainforth and Demasi on a Sunday morning,
2 weeks before Christmas when the decertification peti-
tion was being circulated among the employees. Stain-
forth began the discussion in the hallway outside his of-
fice and then beckoned the employees to continue it in-
side. Producing the union contract and company manual
in his office, Stainforth proceeded to compare the benefits
for the employees to "see who was getting the better deal,
going by the contract or the store manual." Angeluski
quoted Stainforth that "the union contract and the com-
pany policy was just about the same ... and that we
hadn't gained anything in the first contract and we were
not about to gain anything in the second." The conversa-
tion lasted about 15 minutes.
While recalling the incident, Stainforth denied telling
the two employees that "the union hadn't gained anything
for them the first time and wouldn't get anything for them
the second time," explaining that the "reason why I didn't
[make that statement] was because I knew of the peti-
tion. I never thought we would negotiate another con-
tract." (He did not claim, however, that he said this to the
employees.) According to Stainforth, it was the em-
ployees who initiated the discussion on benefits as he
walked through the stockroom. He stated that the em-
ployees being "young ... were very excited about [the
contract recently distributed to them by the Union] ...
wanted questions answered"; and that he thereupon
showed them the manual and contract to prove they were
"basically the same." Demasi did not testify on the
specific incident, but in answer to a leading question on
direct examination made a blanket denial of "ever
hear[ing] any person" state that the Union "wouldn't
gain anything for them the second time" as testified by
Angeluski
2. Japowicz testified that in the same period, after
closing time (around 9 30 p.m.) on a Saturday, he had a
conversation with Stainforth and Demasi. Stainforth,
who had previously learned from other employees that
Japowicz was inquiring about store benefits, asked "if he
could straighten any of it out, if he could make anything
clear." Stainforth then spent an hour comparing for
5 Stainforth testified that Demasi , a management trainee, was "in
charge" of the sales floor and worked "very close" with him on personnel
matters He further testified that he had asked Demasi to talk to em-
Japowicz the benefits in the union contract with those in
the company manual . Among the subjects discussed were
funeral leave (in which Japowicz was then particularly in-
terested) and merit wage increases.
Stainforth's version of the incident is consistent with
Japowicz', except that Stainforth stated that the 1-hour
conversation also included personal matters.
3. Youngblood testified that Demasi called her into
the office during working hours just before Christmas and
said that she "probably heard that they were trying to get
the union out and he just wanted to talk to [her] about it,
not to persuade [her] one way or the other." Demasi "got
out" the store manual and the union contract and com-
pared various provisions, including vacations and funeral
benefits. Demasi asked her "whether [she] decided if
[she] was going to vote the union in or not." Youngblood
said she "didn't know." The conversation lasted a half
hour.
Demasi testified that Youngblood, recently hired,
merely inquired of him whether she was eligible to vote in
the election and that he replied he "believe[d] so." He
admitted discussing benefits with her, but insisted that he
only responded to questions she put to him. According to
Demasi, he first talked to Youngblood on the sales floor
and then in Stainforth's office. He indicated that the em-
ployee's inquiries followed her complaint that "she hadn't
been talked to by the union officials."
4. Grant testified that around the same time (Christ-
mas), also during working hours, Demasi asked her to
come to the office, where he handed her the union con-
tract and manual , had her "read one of them aloud," com-
pared the benefits in the two documents, and asked her
what she "thought" about them. Demasi pointed out that
"they were similar for [her] to see." The conversation
took 10 to 15 minutes. Grant could not recall whether she
had previously asked Demasi about the store benefits.
Demasi did not deny the statements attributed to him by
Grant, but indicated he called her into the office because
she had questioned him about benefits.
5. Finally, Rie Biehy testified that in a meeting with
employees on January 18, 1967, Manager Stainforth re-
marked that he "had been down to the Labor Relations
Board and spent 8 hours on the witness stand answering
questions to charges that had been filed against him. He
said there is no need to go any further into [it] some of
you girls know what some of the charges are. 116 Later in
the day, around quitting time, Stainforth came up to her
and said, "Rie, if I ask you a question will you tell me the
truth" and, before she could respond, added, "Knowing
you, I know you will.... Did you file complaint against
me?" Rie answered, "No, I didn't." Stainforth went on to
say, "Did I ever take you in my office alone and discuss
the union?" When Biehy replied "No, you didn't," Stain-
forth said, "You better get it straightened out because
your name is signed." Biehy thereupon responded that
she would get in touch with the Board "and have it
verified."
Stainforth conceded referring to "the charges filed
against the management of [the] store" in his meeting of
January 18, which he called to discuss inventory. He also
admitted questioning Biehy after the meeting, but denied
asking her if she had filed a "complaint" with the Board
or if she had been interviewed by a Board agent . Accord-
ing to Stainforth, he only asked Biehy "if at any time" he
ployees about company benefits, but not to be "derogatory to anybody."
Demasi specifically identified seven employees to whom he spoke
6 The original charge in this case was filed on December 22
W. T. GRANT COMPANY 95
or his district manager had promised her a wage raise "to
go against the Union," stating that he put this question to
her because the Board investigator had questioned him on
this matter. Stainforth testified, "I just asked the
question. It bothered me, because I had not done this."
C. Concluding Findings
1. Credibility of witnesses
Although most employee testimony concerning the
statements of Store Manager Stainforth and his assistant,
Demasi, is essentially undisputed, there is sharp conflict
as to significant portions thereof, including Stainforth's
alleged statement to employees that they stood to gain
nothing in a second union contract, Demasi's alleged
inquiry of Youngblood as to whether she had "decided if
[she] was going to vote the union in or out," and Stain-
forth's alleged interrogation of Biehy as to the charge she
had supposedly filed against Respondent. Based upon my
assessment of the comparative demeanor of the wit-
nesses, the surrounding circumstances, and the inherent
probabilities, I credit the employees' described versions
of the incidents rather than those of Stainforth and
Demasi. °
All six employees called by General Counsel testified
in a sincere and straightforward manner. None appear
directly interested in the case through potential gain by
imputing to Respondent's officials statements injurious to
Respondent. Angeluski, who testified as to Stainforth's
remarks about a second union contract, is no longer em-
ployed by Respondent, having quit its employ, and there
is no indication whatsoever that his leaving was accom-
panied by any ill feeling against the Company.' Nor is
there any reason to believe that the other employees, still
employed by Respondent, would jeopardize their em-
ployment by fabrication under oath concerning their em-
ployer. On the other hand, Stainforth and Demasi are
directly personally concerned in the case, in view of the
key issue as to the propriety of their behavior . Both im-
pressed me as loyal members of the managerial hierarchy
impelled to conform their testimony to what they re-
garded to be in the interest of their employer and them-
selves. Furthermore, Stainforth appeared less than can-
did, and was vague and evasive, on some matters such as
the number of employees he had questioned. His asser-
tion that he "never discussed the election" is, in the face
of the active circulation of the decertification petition and
his demonstrated interest in its outcome, and the total
surrounding circumstances, incredible.
I accordingly credit the described versions of the
events as given by General Counsel's witnesses.
2. Interference, restraint, and coercion
As the Board and courts have frequently observed,
"Any determination of the exact nature and effect of
[employer] statements can be made only with due regard
for the context of the statements, the characters and
economic positions of those who heard it, and the rela-
tionships existing between a company and its em-
ployees." N.L.R.B. v. Morris Fishman & Sons, Inc., 278
F.2d 792, 796 (C.A. 3). "Words innocuous in themselves
can take on a sinister meaning in the context in which
they are uttered." Local 901, Teamsters v. Compton, 291
F.2d 793, 797 (C.A. 1). "The test is whether the em-
ployer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of employee
rights under the Act." N.L.R.B. v. Illinois Tool Works,
153 F.2d 811, 814 (C.A. 7).
Here, on the heels of a union demand for contract
reopening and negotiation and the filing of a petition,
Respondent's key managerial officials in charge of the
store summoned employees into the store office, the
locus of authority, compared at length the benefits pro-
vided in the union contract with those allowed by the
Company in its nonunion stores, and sought to convince
employees that they were not better served by the Union
than without it. To drive this message home, the store
manager also pointed out to employees that they "hadn't
gained anything in the first contract and ... were not
about to gain anything in the second." The fair intend-
ment of such statements could only have been to make
plain to the employees the sterility and utter futility of
continued exercise by them of their statutory right to bar-
gain collectively. By emphasizing that the Union had
been unable in the past and would be unable in the future
to gain for them tangible benefits over and above what
their employer had seen fit to grant without collective
bargaining, Respondent conveyed the unmistakable
message that adherence to the Union was a losing cause,
that the employees would be better off abandoning it, and
that they should associate themselves with the decertifi-
cation petition contemporaneously being circulated in the
store. "There is no more effective way to dissuade em-
ployees from voting for a collective-bargaining represen-
tative than to tell them that their votes for such a
representative will avail them nothing." Cf. The Trane
Company (Clarksville Manufacturing Division), 137
NLRB 1506, 1510. In the arena of industrial relations
which the Board daily administers, there is a well-un-
derstood distinction between pressure of this type and
simple innocent intellectual persuasion.8
Also coercive was Demasi's inquiry of Youngblood
"whether she had decided ... to vote the union in or
not." This was no mere inquiry as to whether she in-
tended to cast a vote in the decertification election, but an
inquiry as to how she intended to vote -a matter of her
own private concern, statutorily protected from employer
intrusion.9
I further find that Stainforth's inquiry of Biehy as to
whether she had filed a "complaint" or an unfair labor
practice charge also was unlawful. It is unnecessary to
consider whether such an inquiry might be innocuous
under circumstances other than those presented. Here it
was coercive because of Stainforth's prior expressed in-
dignation to the employee at the filing of the charge, his
failure to assure the employee that her filing of the charge
7 In crediting Angeluski's testimony 1 have not overlooked the fact that
Brueckman , who testified on the same incident, did not mention Stain-
forth 's remarks about a second contract Brueckman 's attention was
not specifically called to this matter Furthermore, his failure to testify on
this point may well have been due to lapse of memory, a condition not un-
common among honest witnesses
8 In making the above findings and conclusions, 1 "place[d] no reliance
on words of the respondent disassociated from its conduct " See Sec-
tion 8 (c) of the Act (Harlan , J , in N L R B v Exchange Parts Company,
375 U S 405,fn 3 ),
" Respondent 's request in its brief to reopen the record in order to
receive testimony as to "the question whether Youngblood or Demasi
first raised the question of voting" is denied Contrary to Respondent's
contentions, (1) Respondent had ample opportunity to elicit evidence on
this simple point , and (2) the question of who initiated the matter is not (as
Respondent now claims) "pivotal to the conclusion of violation "
96 DECISIONS OF NATIONAL
(as well as her response to his question) would not result
in reprisals, and his directing the employee (when the em-
ployee denied filing the charge) to "get it straightened
out." Under these circumstances, Stainforth's action was
tantamount to a request that the employee withdraw a
charge she had officially filed with the Board. It goes
without saying that the right of access to the Board's
processes for vindication of a statutory violation is funda-
mental and is to be kept open without roadblocks or hin-
drance. Neither employer nor union may restrain, coerce,
or interfere with that right, whether or not it deems the
charge meritorious - a question for the Board, not a
charged party, to decide. See Local 138, International
Union of Operating Engineers, AFL-CIO (Charles S.
Skura), 148 NLRB 679, 681 Indeed, not even the em-
ployee who has filed a charge has the unconditional right
to withdraw it, since a public and not private offense is in-
volved. See N.L.R.B. v. Edwin D Wemyss, d/b/a Coca-
Cola Bottling Company of Stockton, 212 F.2d 465, 468
(C.A. 9). io
It is accordingly found that Respondent interfered
with, restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act, by coercive questioning con-
cerning union activities and concerning the filing of an un-
fair labor practice charge, by emphasizing the futility of
employee adherence to and representation by the Union,
and by encouraging employees to sign a decertification
petition."
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning
union activity and filing of charges with the Board, by
emphasizing the futility of continued employee adherence
to and representation by the Union, and by encouraging
employees to sign a decertification petition, Respondent
has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7, in viola-
tion of Section 8(a)(1), of the Act.
2. The aforesaid violations are unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
3. It has not been established that Respondent has vio-
lated Section 8(a)(1) by promises of benefits as alleged in
the complaint.
10 While the General Counsel adduced evidence as to only five specific
incidents , these cannot be regarded as "isolated " so as to warrant
withholding of a remedial order Cf International Woodworkers ofAmer-
ica, Local 3-10, AFL-CIO (Long Lake Lumber Co) v N L R B , 380
F 2d 628 (C A D C.) Although perhaps a few in number , they are neither
trifling nor minimal Attempted interference with the Board 's prosecutory
process its itself, without more , substantial and senous , striking at the
Board 's capability to "keep [s] open the channels created by Congress for
the administration of a public law and policy " H B. Roberts of Local
925, Operating Engineers v N L R B , 350 F.2d 427, 429 (C.A.D.C )
Furthermore , of Respondent 's no more than 30 employees , at least 7 were
involved in these incidents It is also reasonable to assume that Respond-
ent's coercive remarks in the active decertification election campaign
were communicated to others See Frankel Associates, Inc , 146 NLRB
1556, 1557, Eldo-Craft Boat Co., Inc , 166 NLRB 280
LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend the customary cease-
and-desist order in cases of this nature, designed to effec-
tuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and pur-
suant to Section 10(c) of the Act, I hereby make the fol-
lowing:
RECOMMENDED ORDER
W. T. Grant Company, Madison Heights, Michigan, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning employees concerning
union activity or concerning their filing of unfair labor
practice charges with the Board.
(b) Through coercive pressures emphasizing the futili-
ty of continued employee adherence to and representa-
tion by the statutory representative of its employees.
(c) Inducing or encouraging employees , in violation of
the Act, to sign a decertification petition.
(d) In any other like or related manner interfering
with, restraining, or coercing employees in the exercise of
any of their rights under Section 7 of the Act.
2. Post in its store 681, in Madison Heights, Michigan,
copies of the attached notice marked "Appendix. " 12
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
3. Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps have been
taken to comply therewith.13
IT IS FURTHER ORDERED that the complaint be
dismissed in all other respects.
i I At the conclusion of General Counsel's case , I dismissed the com-
plaint allegation that Respondent also violated Section 8 (a)(1) by promis-
ing increased benefits if they "voted out" the Union, General Counsel
having failed to make out a prima facie showing of such violation
II In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Tnal Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing. within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
W. T. GRANT COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT coercively question our employees
concerning union activity or concerning their filing
of unfair labor practice charges.
WE WILL NOT through coercive pressures
emphasize the futility of continued adherence of our
employees to and representation by their Union.
WE WILL NOT induce or encourage employees, in
violation of the Act, to sign a decertification petition.
97
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
cerise of any of their rights under the Act.
W. T. GRANT COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.