Ernst Home Centers

National Labor Relations Board - Board Decisions

Sep 17, 1992

308 N.L.R.B. 848 (N.L.R.B. 1992)

848
308 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s findings that the Re-
spondent did not violate Sec. 8(a)(1) of the Act by circulating
memoranda promising benefits to employees if the Union was decer-
tified, by Store Manager Davidowitz’ promising employee Spaulding
that the Respondent would give raises based on merit if the Union
was voted out, by Store Manager Olsen’s circulating a petition seek-
ing decertification, and by Store Manager Carlsen’s asking an em-
ployee if he had signed the petition.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We find it unnecessary to pass on the judge’s finding that Store
Manager Davidowitz violated Sec. 8(a)(1) of the Act by asking em-
ployee Jovanavich for the names of employees who had not signed
the petition. This finding is cumulative of other findings in this case
and would not affect the remedy.
Ernst Home Centers, Inc. and United Food and
Commercial Workers Local 1001, affiliated
with United Food and Commercial Workers
International Union, AFL–CIO, CLC. Case 19–
CA–20543
September 17, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 29, 1991, Administrative Law Judge Rich-
ard J. Boyce issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, an an-
swering brief to the General Counsel’s limited excep-
tions, and an answering brief to the Charging Party’s
cross-exceptions. The General Counsel filed limited
exceptions and a supporting brief. The Charging Party
filed cross-exceptions, a brief in support of its cross-
exceptions, and a brief in opposition to the Respond-
ent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
1. The General Counsel and the Charging Party ex-
cept to the judge’s finding that the Respondent did not
violate Section 8(a)(1) of the Act by providing em-
ployee Jovanavich with language to be used in a decer-
tification petition. The judge found that the Respond-
ent’s compliance with Jovanavich’s request for petition
language did not amount to undue employer encour-
agement to file a decertification petition, but rather
amounted to mere ministerial aid to one who had de-
cided of her own volition to file a decertification peti-
tion. The General Counsel and the Union argue, inter
alia, that the Respondent’s actions amount to more
than mere ministerial aid because Jovanavich decided
to file a decertification petition only after it was sug-
gested by the Respondent. We agree with the judge
that the evidence does not establish that the Respond-
ent unlawfully encouraged Jovanavich to file a decerti-
fication petition.
The record establishes that Jovanavich, a new em-
ployee, spoke with Jennings and Norris, officials in the
Respondent’s human resources department, about how
to avoid joining the Union. Jovanavich testified that
Jennings and Norris said that ‘‘they could not help me
in any way, that I had to contact the NLRB for them
to outline how I should proceed, what kinds of things
I could do. They could answer questions for me if I
asked them but they wouldn’t assist me in any way.’’
Also during this conversation, Jovanavich asked Jen-
nings how she could get some ‘‘verbiage’’ for a peti-
tion. Jovanavich was told to contact her store manager,
John Philips, who on request provided Jovanavich with
language for a decertification petition.
The General Counsel and the Charging Party argue
that this evidence demonstrates that the decertification
petition would never have been filed but for the Re-
spondent’s suggesting to Jovanavich that she file a de-
certification petition. We disagree. We conclude that
the evidence does not answer the question of who, if
anyone, suggested or encouraged Jovanavich to file the
decertification petition. Thus, the evidence merely
proves that the Respondent replied to Jovanavich’s re-
quest for petition language. Such conduct, without
more, does not constitute a violation of Section 8(a)(1)
of the Act. Eastern States Optical Co., 275 NLRB 371
(1985).
2. The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally alter-
ing the established practice of permitting the Union’s
business representatives to have limited conversations
with the Respondent’s employees on the sales floor of
the Respondent’s stores. Specifically, the judge found
that the Respondent unilaterally prohibited the Union’s
business representatives from speaking with employees
in all areas except the breakroom or lunchroom. The
Respondent excepts to this finding and argues, inter
alia, that the change was not a material one and thus
the Respondent was not obligated to bargain with the
Union over the change.
In support of its argument that the change was not
material, the Respondent cites Peerless Food Products,
236 NLRB 161 (1978). In that case, the Board dis-
missed an allegation that the employer violated Section
8(a)(5) of the Act when it unilaterally imposed on the
union’s business representative limitations on non-
employee access to the production areas in the employ-
er’s packing plant. The union’s business representative
had previously enjoyed unlimited access to employees
849ERNST HOME CENTERS
3 Jovanavich also stated that in some stores she did not contact
employees on the sales floor.
in the production area in connection with his duties.
The employer unilaterally decided to limit access to
the production area to persons whose presence was
necessary or required. As a result of this new rule, the
union’s business representative was limited to meeting
with employees in the lunchroom during break and
lunch periods. The union’s business representative was
offered, at his request, the use of private facilities at
the plant to consult or converse with any aggrieved
employee, plus access to the plant at lunchtimes or
breaktimes to consult with them.
The Board found that the net effect of the change
in policy was to remove the business representative’s
right to engage employees in conversations on the pro-
duction floor when those conversations were unrelated
to contract matters. The Board concluded that this
change did not significantly reduce employee access to
the union’s business representative and consequently
dismissed the complaint.
We find—in balancing the competing rights in-
volved—that the unilateral change at issue in Peerless
is distinguishable from the unilateral change at issue in
the instant case. First, we note that Peerless involved
access to employees in the production area of a pack-
ing plant, and the instant case involves access to em-
ployees on the sales floor of a store. While the union
representative in Peerless enjoyed access to all em-
ployees during the plant’s lunchtimes or breaktimes,
there is no evidence that the Respondent’s employees
had a uniform breaktime or lunchtime when they all
could be accessible to the Union’s business representa-
tive. Thus, limited access to employees on the sales
floor afforded the Union’s business representative the
means to communicate with as many employees as
necessary during the representative’s visit to the store.
Second, we note that in Peerless, the union’s access
to employees in the production area was not necessary
in order to afford the union an opportunity to inves-
tigate grievances. When the employer implemented its
restriction of nonemployee access to the production
areas, the union representative was offered, on request,
the use of private facilities to meet with any aggrieved
employee.
In the instant case, the Union’s access to employees
on the sales floor afforded the Union’s business rep-
resentative the opportunity to communicate with each
employee in the store, to inquire if any employees had
matters to discuss with the representative, and, if nec-
essary, to arrange a time for the employee to have an
extended discussion with the representative in the
breakroom or lunchroom. The employer in Peerless of-
fered the union representative alternative access to em-
ployees when the new rule was instituted. The Re-
spondent in the instant case did not even acknowledge
the existence of a change in policy, and thus did not
offer the Union an alternative means of access to the
employees, as necessary, during visits to the Respond-
ent’s store.
We therefore find in balancing the competing rights
that the instant case is distinguishable from Peerless.
In agreement with the judge, we find that the Respond-
ent’s unilateral change in the practice concerning in-
store visitations by the Union’s representatives was a
material change about which the Respondent was obli-
gated to bargain.
3. The judge found that the Respondent violated
Section 8(a)(1) of the Act by granting Jovanavich
greater in-store access to employees to promote decer-
tification than it granted representatives of the Union.
In its exceptions, the Respondent argues, inter alia, that
this finding is based on an issue, disparate treatment,
that was not pleaded or litigated. Further, assuming
that this issue was pleaded and litigated, the Respond-
ent argues that there is no evidence that the Respond-
ent was aware that Jovanavich conducted any con-
versations with employees while on the sales floor of
the Respondent’s stores. We disagree with both of
these arguments.
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by permitting Jovanavich
‘‘to contact unit employees in the stores where they
were employed throughout the unit for purposes of dis-
cussing and distributing a decertification petition.’’ In
response to the Respondent’s motion for a bill of par-
ticulars, the General Counsel alleged that ‘‘Jovanavich
was either permitted in Respondent’s stores contrary to
a posted no-access rule for off-duty employees, or . . .
was permitted in Respondent’s stores while on duty as
a paid employee of Respondent.’’
Jovanavich testified that, on her own time, she vis-
ited several of the Respondent’s stores. When visiting
these stores, Jovanavich would contact a few employ-
ees on the sales floor, identify herself, and tell employ-
ees that she would be in the breakroom if they wished
to discuss the decertification petition.3
The judge did not find either that Jovanavich vio-
lated a posted no-access rule or that Jovanavich visited
other stores while on duty. The judge did find, how-
ever, that Jovanavich was given greater access to em-
ployees during visits to the Respondent’s stores to pro-
mote the decertification petition than that given to the
Union’s business representatives during their visits to
the Respondent’s stores. The judge concluded that by
granting Jovanavich access to employees on the sales
floor while denying the Union similar access, the Re-
spondent violated Section 8(a)(1) of the Act.
In its exceptions, the Respondent argues that, as the
General Counsel neither alleged nor argued to the
judge that Jovanavich was given greater access to em-
ployees than that enjoyed by the Union’s representa-
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 On several occasions, the Respondent threatened to have the
Union’s business representative arrested or escorted from the store
if the representative spoke with employees on the sales floor.
1 The parties agree, and I find, that this is an appropriate unit for
purposes of the Act.
tives, the Respondent had no notice that a disparate
treatment issue might exist. The Respondent argues
that had it known that disparate treatment was at issue,
it would have provided evidence of the precise nature
of Jovanavich’s visits and would have asked
Jovanavich for a detailed and exact description of her
store visits. We do not find this argument persuasive.
The judge’s finding is closely related to the 8(a)(5)
issue discussed above, which was pleaded and fully
litigated. Further, the finding is based on Jovanavich’s
own description of her visits to the Respondent’s
stores. The Respondent does not suggest how further
evidence regarding the nature of Jovanavich’s activities
on the sales floor would lead to a contrary result.
As noted above, the Respondent also argues that the
judge’s finding is in error because there is no evidence
that the Respondent was aware that Jovanavich en-
gaged in conversations with employees on the sales
floor of the Respondent’s stores. The record establishes
that the Respondent knew that Jovanavich was leading
a decertification drive, that she sent status reports on
the decertification effort to all store managers, that she
called each of the stores, that she discussed the petition
with store managers, that on several occasions she
spoke with employees on the sales floor of the Re-
spondent’s stores, and that she was never told not to
speak with employees on the sales floor. During the
same period the Respondent vigorously prohibited the
Union’s representatives from speaking with employees
on the sales floor.4 From these facts, we infer that the
Respondent, through its managers, closely monitored
those, other than customers, who contacted employees
on the sales floor, that it was aware that Jovanavich
was visiting other stores to promote decertification,
and that the Respondent permitted Jovanavich to con-
tact employees on the sales floor. We therefore agree
with the judge that the Respondent violated Section
8(a)(1) of the Act by granting Jovanavich greater ac-
cess to employees on the sales floor than that enjoyed
by the Union’s representatives.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Ernst Home Centers, Inc.,
Seattle, Washington, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
S. Nia Renai Cottrell, Esq, for the General Counsel.
Robert Pattison and Leslie M. Mitchell, Esqs., of San Fran-
cisco, California, for the Respondent.
Mark E. Brennan, Esq., of Seattle, Washington, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. I heard
this matter in Seattle, Washington, on March 12–16, 1990.
The complaint, later amended, issued on October 12, 1989.
It derives from a charge filed on September 14, 1989, by
United Food and Commercial Workers Local 1001, affiliated
with United Food and Commercial Workers International
Union, AFL–CIO, CLC (the Union).
The complaint as now constituted alleges that Ernst Home
Centers, Inc. (Respondent) violated Section 8(a)(1) of the
National Labor Relations Act (the Act) at certain of its great-
er Seattle stores in June, July, and August 1989 by specified
acts designed to promote the Union’s decertification as the
collective-bargaining agent of Respondent’s employees. The
complaint further alleges that Respondent violated Section
8(a)(5) and (1) of the Act in July and August 1989 by unilat-
erally and restrictively changing the practice concerning in-
store visitations by union officials.
II. JURISDICTION AND LABOR ORGANIZATION
Respondent, a Washington corporation, operates some 73
retail stores in several Western States. The pleadings estab-
lish and I find that it is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
The pleadings also establish and I find that the Union is
a labor organization within Section 2(5) of the Act.
III. THE ALLEGED MISCONDUCT
A. Background
Since 1969, the Union has represented Respondent’s em-
ployees in this bargaining unit:
All general sales clerks, cashiers, sales specialists, store
helpers, custodians, janitors, and mechanics employed
at [Respondent’s] retail establishments and the Distribu-
tion Center within King County and Snohomish County
within the jurisdiction of [the Union], but excluding all
other employees, guards, and supervisors as defined in
the Act.1
The unit at relevant times embraced approximately 600
employees at 24 locations—23 stores and the Distribution
Center. Those employees are covered by a collective-bargain-
ing agreement running from November 1, 1989, through Oc-
tober 31, 1992. They previously were covered by a 3-year
agreement that expired on October 31, 1989.
In mid-June 1989, Linda Horton, a nursery clerk in Re-
spondent’s downtown Bellevue store, prepared and posted a
petition seeking the Union’s ouster. On June 30, in reaction
to this development, Susan McNab, Respondent’s senior vice
president for human resources, conducted a training session
for the several store managers. The session dealt with issues
raised by decertification activities, and those attending re-
ceived a ‘‘packet of papers,’’ including a ‘‘sample’’ decerti-
fication petition.
851ERNST HOME CENTERS
2 In one of the fliers, Jovanovich referred to herself as ‘‘Petition
Central.’’
3 Docketed as Case 19–RD–2834. I am administratively advised
that the Regional Director dismissed the petition on October 17,
1989. His dismissal letter explaining that Respondent had ‘‘unlaw-
fully assisted and encouraged’’ the petition and citing the present
complaint. Respondent appealed the dismissal to the Board. The
Board denied the appeal by order dated December 28, 1989.
4 The fliers were dated July 1, 6, 10, and 29.
5 Norris’ formal job title: human resources generalist.
On about June 30, as well, Charmaine Jovanovich, a part-
time employee in Respondent’s Bear Creek Village store,
launched a decertification campaign apparently unrelated to
Horton’s. Hired the preceding month, she had recently re-
ceived a letter from the Union advising her of her obligation
under the union-security provision of the bargaining agree-
ment; and, when she called the Union for clarification, she
was told either to join or quit her job. This, Jovanovich testi-
fied, ‘‘prompted’’ her decertification activities.
Those activities included conferring with McNab and
Clark Jennings, director of human resources; discussing the
situation with store managers; mailing fliers to unit employ-
ees and store managers;2 promoting and overseeing the solic-
itation of employee signatures on petitions; personally visit-
ing various of the stores; and, on August 28, filing an ‘‘RD’’
petition—that is, a petition for a decertification election—
with the Board.3
Jovanovich testified that she assumed the expense of pre-
paring, duplicating, and mailing the fliers. The General
Counsel does not contend that Respondent hired her to spear-
head the decertification effort.
B. Respondent’s Allegedly Unlawful Promotion
of Decertification
1. Store Manager Phillips’ alleged misconduct
a. The pleadings
Paragraph 6(a) of the complaint alleges that on about June
30, 1989, John Phillips, the store manager at Respondent’s
Bear Creek Village store, ‘‘provided . . . Jovanovich with
language to be used in a decertification petition.’’ Paragraph
14 alleges that this conduct violated Section 8(a)(1).
The answer admits that Phillips engaged in the conduct al-
leged, but denies that it was improper.
b. The evidence
The afternoon of June 30, at the Bear Creek Village store,
Jovanovich initiated a conversation with Phillips in which
she asked ‘‘what wordage’’ she should use on an employee
petition seeking the Union’s decertification. Phillips re-
sponded, ‘‘Charmaine, are you asking me for some verbiage
to be used on the petition?’’ and she said, ‘‘Yes.’’ Telling
her to ‘‘wait just a minute,’’ Phillips retrieved the sample pe-
tition McNab had distributed at that morning’s training ses-
sion, and ‘‘read to Jovanovich the wordage’’ in it. She wrote
as he read.
The language:
We the undersigned employees of Ernst Home Cen-
ters, Inc., no longer wish to be represented by United
Food & Commercial Workers and its Local Union 1001
and wish to have the National Labor Board conduct an
election.
Jovanovich previously had asked Clark Jennings how to
get decertification ‘‘verbiage.’’ He told her to ‘‘contact’’
Phillips.
c. Conclusion
The Board has stated that ‘‘it is unlawful for an employer
to initiate a decertification petition,’’ but that the ‘‘rendering
of what has been termed ‘ministerial aid’ . . . in a ‘situa-
tional context free of coercive conduct’’’ is permissible; that
‘‘the essential inquiry is whether the ‘preparation . . . of the
petition constituted the free and uncoerced act of the employ-
ees concerned.’’’ Eastern States Optical, 275 NLRB 371,
372 (1985).
Although the circumstances surrounding the incident in
question raise a healthy suspicion of undue employer encour-
agement, the evidence indicates that Jovanovich had decided,
of her own volition, to seek the Union’s ouster before ap-
proaching Phillips, and that his compliance with her request
for petition language did not impart additional thrust to that
predetermined goal.
I therefore conclude that Respondent did not violate the
Act by this conduct. Eastern States Optical, supra at 372;
Washington Street Foundry, 268 NLRB 338, 339 (1983);
Cummins Component Plant, 259 NLRB 456, 461 (1981);
Poly Ultra Plastics, 231 NLRB 787, 790 (1977); KONO-TV,
163 NLRB 1005, 1006 (1967); WTVC, 126 NLRB 1054,
1058–1059 (1960); and Hazen & Jaeger Funeral Home, 95
NLRB 1034 (1951).
2. McNab’s alleged misconduct
a. The pleadings
Paragraph 6(b) of the complaint alleges that, on about July
6, 1989, McNab ‘‘provided . . . Jovanovich with the names
and home addresses of the 700-plus employees in the unit.’’
Paragraph 14 alleges that this conduct violated Section
8(a)(1).
The answer admits that McNab gave Jovanovich names
and addresses, but denies that she thereby violated the Act.
b. The evidence
Jovanovich testified that, in early July at the Bear Creek
Village store, McNab gave her a printout containing the
names, addresses, and hire dates of the several hundred unit
employees. Thus assisted, Jovanovich sent four
prodecertification fliers to the employees.4
McNab testified that she ‘‘met’’ with Jovanovich, knowing
that she was ‘‘interested in’’ decertifying the Union; that Jo-
vanovich ‘‘made a number of requests at that meeting’’; and
that McNab told her they ‘‘should be put in writing.’’ Jo-
vanovich then submitted a written request for employee
names and addresses to a McNab aide, Kathryn Norris,5 ac-
cording to McNab; and, after consulting with counsel,
McNab ‘‘gave the approval’’ to release the list.
c. Conclusion
Again, although one cannot help but suspect the contrary,
the evidence affords no objective basis for inferring that
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
management induced Jovanovich to request the list, or that
its accommodation of that request lent other than ‘‘ministe-
rial aid’’ to her self-inspired antiunion crusade. I thus con-
clude that Respondent did not violate the Act by this con-
duct. Eastern States Optical, supra, 372; Montgomery Ward
& Co., 187 NLRB 956, 960–961 (1971); and Consolidated
Rebuilders, 171 NLRB 1415, 1417 (1968).
3. Respondent’s allegedly unlawful memoranda
a. The pleadings
Paragraph 6(c) of the complaint alleges that, by memo-
randa dated July 14 and 25, 1989, Respondent ‘‘advised em-
ployees in the unit that Respondent would maintain contrac-
tual terms and conditions of employment if the Union were
voted out and promised job security if the Union were voted
out.’’ Paragraph 14 alleges that Respondent consequently
violated Section 8(a)(1).
The answer admits that memoranda of those dates were
circulated, and that they said the employees would not lose
jobs or benefits if the Union were decertified. The answer
denies that this was improper.
b. The evidence
The July 14 memorandum, signed by McNab, stated:
I wanted to write to you about what has come up
this week because many of you have raised questions
regarding your payment of dues, initiation fees, and
general representation by Local 1001. As you probably
know, several of your peers have begun an effort to
gather signatures requesting the National Labor Rela-
tions Board to hold a secret ballot election to determine
if you still wish to be represented by Local 1001. This
movement was begun by employees in our stores. Re-
garding the petition that they are circulating, you should
realize that all this represents is the request to hold an
election. This process is specifically authorized by law;
each of you is free to participate or to decline as you
see fit. Our position regarding this issue is that we, as
always, will respect the rights of each of you and will
heartily support your right to make a personal and inde-
pendent decision.
Not surprisingly, Local 1001 is disturbed by this call
for a democratic election conducted by the Labor
Board. If you choose to continue to pay dues and initi-
ation fees as a member of Local 1001, we will, of
course, support that decision. If, on the other hand, you
want to have an election to determine whether you wish
to continue to pay for the union, we will support that
decision, also.
Many of you have indicated that you have received
confusing information on this issue from Local 1001.
Specifically, Local 1001 is claiming that Ernst Manage-
ment hired an employee to instigate this effort. THIS
IS ABSOLUTELY FALSE. No one should believe a
tactic so often used by unions whenever their self-pres-
ervation and income is threatened by democratic, law-
fully sanctioned procedures.
In addition, we understand that you are being told
that if you sign the petition for an election that you are
signing your rights away. ONCE AGAIN, THIS IS AB-
SOLUTELY FALSE. By signing this petition, you are
giving away absolutely nothing. All you are doing is re-
questing that an election be held so that each of you
may make your own choice. At Ernst only 23 of our
73 stores have employees represented by a union. As
a matter of fact, two years ago, the hourly employees
at the Ernst Corporate Offices undertook the same pro-
cedure and determined that they did not wish to be rep-
resented by Local 1001. For over two years now, they
have not been paying any dues.
It is important for you to understand that your fellow
employees have started this process. Local 1001’s claim
that Ernst began the process is possibly defamatory. I
have indicated this in the attached letter to Joe Peter-
son, your union president, which was mailed today. In
that letter, I have asked him why Local 1001 is afraid
of an election. After all, even the President of the
United States has to run for office every four years. If
you so decide to put Local 1001 to the test of winning
an election, it is your right to do so and the Company
supports you in that decision, whatever it may be.
Please feel free to discuss this issue with me, anyone
else from the Human Resources Department, or your
store manager.
Ernst is a solid and successful Company, thanks to
the teamwork of its employees. We will continue to
strive to maintain an environment of respect and dignity
for every individual, employee and customer alike. We
support our employees’ right to choose and we will re-
spect your collective judgment on this important matter.
The July 25 memorandum, signed ‘‘Ernst Management,’’
stated:
The decertification campaign is heating up. Local
1001 is sending out fancy misleading memos. Business
agents, often for the first time in months, are visiting
stores. Meetings, supposedly to discuss negotiations, are
being held. All of this has one general theme—if you
get rid of the union terrible things will happen to you.
NOT TRUE!
Let’s get it straight. First, while Ernst cannot prom-
ise you anything if Local 1001 is voted out, we can as-
sure you that you will lose nothing if that does happen.
Second, terrible scary things won’t happen to any-
one. That didn’t happen when the office clerical staff
voted out the union. It doesn’t happen in our union-free
stores. It won’t happen because we try to be a fair and
professional employer.
What will change if Local 1001 is defeated? You
won’t have to pay dues and initiation fees to work here.
The union will not ask us to fire 40 people a month
under the union shop clause. We won’t have to worry
about the upcoming negotiations, which sometimes
break down as we’ve seen with the grocery workers,
the nurses and the shipbuilders.
For over 20 years, Ernst employees have paid mil-
lions of dollars in fees to Local 1001. Now it is time
to decide, in a democratic, secret ballot vote, if you still
want to do that. After all, a vote of choice is your
right—it’s very American, as are unions. By signing the
petition, you do no more than exercise your right to
choose—nothing more!
853ERNST HOME CENTERS
6 Quoting from a position letter from Respondent’s attorney to the
Board agent investigating the charge.
7 Kyle recounted a time she protested to Kathryn Norris Respond-
ent’s withholding a paycheck because the employee-payee had not
signed her timesheet. Kyle argued to Norris that she could not be-
lieve Respondent would ‘‘hold up’’ this check, inasmuch as ‘‘the
bookkeepers had been signing for years.’’
8 Although the unexplained disappearance of certain work sched-
ules is troubling, I decline to draw an inference adverse to Respond-
ent because of that. Other schedules, in evidence, raise a substantial
doubt that those missing would disclose Jovanovich’s whereabouts
at any given time. In addition, I credit Nicholls that the cabinet con-
taining them was accessible to anyone and that she could not ac-
count for their disappearance. Nor do I read anything sinister into
Nicholls’ signing a number of Jovanovich’s timesheets, given the
convincing evidence that this was a common practice.
c. Conclusions
The memoranda, particularly that of the July 25, left no
doubt that Respondent favored decertification. Neither, how-
ever, went beyond assuring the employees that Respondent
would respect their individual and collective decisions on the
decertification issue, and that they would ‘‘lose nothing’’
should decertification result. I conclude that Respondent did
not exceed ‘‘the permissible bounds of merely assuring re-
tention of the status quo’’ through these documents, and
therefore did not violate the Act by this conduct. Weather
Shield Mfg., 292 NLRB 1 (1988). See also Fabric Ware-
house, 294 NLRB 189 (1989); Viacom Cablevision, 267
NLRB 1141, 1141 (1983); and El Cid, 222 NLRB 1315,
1316 (1976).
4. Respondent’s allegedly improper support of
Jovanovich’s decertification activities in various stores
a. The pleadings
Paragraph 6(d) of the complaint alleges that, in July and
August 1989, Respondent permitted Jovanovich ‘‘to contact
unit employees in the stores where they were employed
throughout the unit for purposes of discussing and distribut-
ing a decertification petition.’’ Paragraph 14 alleges that Re-
spondent thereby violated Section 8(a)(1).
The answer admits the factual allegation, but denies the
legal conclusion.
b. The evidence
After obtaining petition language from Store Manager
Phillips, Jovanovich visited several of the stores to promote
the cause. She testified that she did this entirely on her own
time; that she called on perhaps ‘‘five stores more than
twice’’; and that her procedure was to contact employees on
the sales floor, identifying herself and her mission and telling
them she would be in the breakroom should they wish to dis-
cuss decertification with her. She added that the sales-floor
conversations were brief, lasting ‘‘a minute or two’’; and in-
volved ‘‘very few’’ employees—’’ in some stores, none; in
other stores, maybe one, maybe two, maybe three.’’
McNab testified that off-duty employees are ‘‘free to visit
stores,’’ and that in-store employee-to-employee solicitation
is ‘‘generally . . . permissible so long as it doesn’t occur
while they’re working on the floor’’ or does not interfere
with ‘‘the business of the company.’’ Phillips substantially
corroborated McNab in this regard, as did Dawn Wyland, a
customer service coordinator at Respondent’s Sea-Tac Vil-
lage store. By contrast, as I conclude later here, Respondent
violated Section 8(a)(5) and (1) during the decertification
drive by unilaterally imposing new limitations on in-store
visitations by union representatives—that they ‘‘meet with
employees in the breakrooms’’ and that ‘‘if they wished to
speak to specific employees, they would inform the store
manager and the employee would be released from work to
speak to the union agent.’’6
Phillips testified that he told Jovanovich, upon providing
her with petition language, that she could not ‘‘do any of this
on company time or anything.’’ He denied letting her leave
the store to solicit decertification signatures while on the
clock. He also denied any awareness that she solicited signa-
tures in his store ‘‘on working time.’’ Thomas Quinn, the as-
sistant manager of the Bear Creek Village store, testified that
he never permitted Jovanovich ‘‘to leave the store while she
was on the clock to work on the petition,’’ and that she did
not circulate a petition at Bear Creek Village ‘‘while she was
on working time.’’
Seeking evidence that Jovanovich visited the various stores
while on the clock, the General Counsel subpoenaed, but Re-
spondent did not produce, the Bear Creek Village store’s
work schedules for July 22 to August 20, 1989. Jane
Nicholls, the store’s office coordinator, testified that sched-
ules dating back to 1986 are in an unlocked file in her office,
but that those for July 22 to August 20—and only that pe-
riod—are unaccountably missing. She professedly discovered
this in September or October 1989 when Kathryn Norris,
McNab’s aide, asked for the June-through-August schedules.
Quinn, the assistant store manager, confirmed that the sched-
ules in question were ‘‘missing from the files,’’ and that he
had ‘‘no idea why’’; and Respondent’s counsel, Pattison,
represented on the record, ‘‘We cannot explain their ab-
sence.’’
Nicholls testified that, although the employees themselves
are supposed to sign their timesheets before being paid, she
signed for Jovanovich in seven of the eight biweekly pay pe-
riods from early June to mid-September 1989. Nicholls also
testified that this is not unusual, especially as concerns part-
time employees; and that she signed for ‘‘at least 10’’ of the
approximately 30 employees on the store payroll in a given
pay period, ‘‘so that they’d be paid.’’ Laurel Kyle, a busi-
ness representative for the Union, testified that she knew of
this practice.7
c. Conclusion
The record contains no persuasive evidence that Respond-
ent sponsored or endorsed Jovanovich’s visitations to the
several stores by allowing her to do so while on the clock.8
Nor does it establish that Respondent granted her off-duty
access to those on duty beyond that customarily permitted
off-duty employees when soliciting coworkers.
The weight of evidence does indicate, on the other hand,
that Jovanovich enjoyed greater visitational latitude when
promoting decertification than did representatives of the
Union under the limitations Respondent unlawfully imposed
during the decertification effort. I conclude that, by granting
Jovanovich this greater access, Respondent violated Section
8(a)(1). D’Alessandro’s, 292 NLRB 81, 83 (1988); Houston
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Whom she did not identify.
10 Spaulding expanded that, although Davidowitz ‘‘did not actually
say’’ he would get a merit increase should decertification occur, ‘‘it
seemed like he was insinuating that he would’’ inasmuch as
Davidowitz had ‘‘acknowledged’’ he was ‘‘a good employee.’’
Coca-Cola Bottling Co., 265 NLRB 766, 777 (1982); and
Cherokee Sportswear, 178 NLRB 233, 233 (1969).
5. Store Manager Davidowitz’ alleged misconduct
a. The pleadings
Paragraph 8 of the complaint alleges that, from July 8 to
August 28, 1989, Gadi Davidowitz, the store manager at Re-
spondent’s Totem Lake store, ‘‘supported, approved, and en-
couraged circulation of a petition seeking decertification,’’
‘‘urged and solicited employees to sign a petition seeking de-
certification,’’ and ‘‘interrogated employees as to whether the
employees had signed a petition seeking decertification.’’
Paragraph 8 also alleges that, on about July 12, 1989,
Davidowitz ‘‘told an employee that he could award raises
based upon merit, rather than hours worked, if the Union
were voted out.’’ Paragraph 14 alleges that Respondent vio-
lated Section 8(a)(1) in each instance. The answer denies
these allegations.
b. The evidence
Matt Reeves, an employee at the Totem Lake store, testi-
fied that he had ‘‘numerous’’ conversations with Davidowitz
about decertification. In the first conversation, Reeves elabo-
rated Davidowitz asked him if he had ‘‘heard about the peti-
tion,’’ if he knew ‘‘if there was one in the store,’’ and if he
was ‘‘carrying the petition.’’ Reeves by then had obtained a
petition from Jovanovich, but had not brought it to work. He
answered yes to each of Davidowitz’ questions, as he re-
called, prompting Davidowitz to ask if anyone had signed the
petition. Reeves answered no, that he had ‘‘forgotten it at
home’’; and Davidowitz rejoined, ‘‘Okay, just try and re-
member it tomorrow.’’
Reeves’ recital continued that he brought the petition to
work the next day, and thereafter had a number of conversa-
tions with Davidowitz, all ‘‘very brief,’’ in which
Davidowitz ‘‘ask[ed] how the petition was going, if people
were supporting it,’’ ‘‘who had signed it,’’ and ‘‘who hadn’t
signed it.’’ Reeves assertedly ‘‘gave him a few names’’ of
those who had and had not signed.
Reeves testified, as well, that he heard Davidowitz say to
employees ‘‘on a couple occasions’’: ‘‘I understand you
haven’t signed the petition. Do you have any questions about
the petition? Why haven’t you signed?’’
Reeves’ enthusiasm for the cause eventually waned, and
he stopped promoting the petition.
Davidowitz admittedly discussed the petition with Reeves
‘‘on numerous occasions.’’ He testified that, having heard
that Reeves had the petition, he told Reeves he was ‘‘there
to help him’’ if he wanted assistance or to have questions
answered. Davidowitz enlarged, with regard to one such con-
versation:
I just mentioned to him that if there was any ques-
tions that he’s not sure of or if any of his counterparts
need any help or assistance or any factual answers, that
I could phone Sue McNab or anybody at head office
to find out
Davidowitz denied that he asked Reeves to bring the peti-
tion to work, or to solicit employees to sign it, or who had
and had not signed.
Melissa Reynolds, a cashier at the Totem Lake store, testi-
fied that Davidowitz once asked her if she was going to or
had signed the petition. Davidowitz then stated, according to
Reynolds, that ‘‘people that were higher up would have to
work harder for their pay’’ if the Union were out, ‘‘and oth-
ers would get more hours and be able to move up quicker.’’
Reynolds placed this conversation in the breakroom, in mid-
July, in the presence of ‘‘a couple other people.’’9
Davidowitz testified that he could not recall ever talking
to Reynolds ‘‘one on one’’ about the petition, and denied
ever asking her if she was going to sign it. He also denied
that he ever spoke to her about how she might benefit from
the Union’s ouster.
Jerry Klep, a lumber salesperson at the Totem Lake store,
testified that Reeves told him, in Davidowitz’ presence, that
he had a decertification petition; and that, when Klep asked
to see it, Davidowitz interjected, ‘‘It would probably be to
your benefit to sign.’’ Klep added that this encounter took
place August 10, at the front desk, and that he signed the
petition that night. Klep further testified that he and
Davidowitz had had ‘‘prior conversations’’ about decertifica-
tion, during which Davidowitz ‘‘made it clear’’ that ‘‘there
would be a lot better wages for people in the store’’ if it suc-
ceeded.
Davidowitz concededly discussed the petition with Klep,
in Reeves’ presence. He testified that Klep asked him if he
should sign, and he replied, ‘‘It’s up to an individual to make
his own decision what is right and wrong.’’ Klep then asked,
per Davidowitz, if he would sign, and Davidowitz said he
would. Davidowitz denied telling Klep that he should sign,
that signing would be to Klep’s benefit, or that Klep’s pay
would improve without the Union. Davidowitz added:
I did mention, and I always used to say, that if they
want exact facts, since we are not allowed to say any-
thing about getting raises or anything, they should
phone a nonunion store. And I always refer to
Woodinville, because it’s close and they know people
there . . . and I ask them to phone friends of theirs and
find out facts of their salaries and what benefits they
have.
William Spaulding, another Totem Lake employee, testi-
fied that Davidowitz told him, ‘‘a short time after’’
Spaulding had signed Reeves’ petition, that ‘‘if we did vote
the Union to be out, he would give raises based on merit,
based on our own work performance.’’ Spaulding later clari-
fied that Davidowitz was ‘‘drawing comparisons’’ between
the practices in Respondent’s union and nonunion stores, and
that Davidowitz never told him he would get a merit increase
if the Union were voted out.10
Davidowitz acknowledged that he spoke with Spaulding,
but not ‘‘necessarily one on one.’’ Although not disclosing
what he said, he denied suggesting that Spaulding would get
a raise if the Union were gone.
Jovanovich testified that she called various of the store
managers about the petition, including Davidowitz, and that
855ERNST HOME CENTERS
11 I credit Reeves that Davidowitz engaged in the conduct attrib-
uted to him by Reeves. To the considerable extent their renditions
conflicted, Reeves evinced greater sincerity in terms both of de-
meanor and testimonial content.
12 To the extent her and Davidowitz’ accounts differ, I credit Rey-
nolds. She came across as eminently sincere, whereas Davidowitz’
delivery had an unseemly aura of calculation.
13 I credit Klep where his testimony disagreed with Davidowitz’.
He had the more persuasive demeanor, in my view, and was gen-
erally more convincing.
14 Shannon credibly testified that Olsen told her later that day that
he ‘‘would not belong to the Union,’’ that he ‘‘would not have any-
one telling him if he could not work or work if they went on
strike,’’ and that he did not like the Union because he could hire
two or three people for what he was paying Shannon if the store
were nonunion.
he asked her who had not signed. Davidowitz testified that
he knew Jovanovich ‘‘was behind the petition effort,’’ and
that he and she spoke about it by telephone ‘‘several times.’’
He did not divulge the content of those exchanges, however,
apart from Jovanovich’s telling him she had given a petition
to Reeves.
c. Conclusions
I conclude that Davidowitz violated Section 8(a)(1) in sev-
eral respects.
1. Based on the testimony of Matt Reeves:11
a. By initially asking Reeves if he had ‘‘heard about the
petition,’’ if he knew ‘‘if there was one in the store,’’ if he
was ‘‘carrying the petition,’’ and if anyone had signed it.
Under all the circumstances—in particular, that
Davidowitz was the ranking management person in the store,
that he broached the subject of the petition, that Reeves to
then had not openly disclosed his sentiments on that issue,
that the questions were progressively more pointed, that they
served no legitimate purpose, and that Davidowitz did not
accompany them with assurances against reprisal—this line
of interrogation reasonably tended to interfere with, restrain,
or coerce Reeves in the exercise of his Section 7 rights. See
generally Pennsy Supply, 295 NLRB 324 (1989); UARCO,
286 NLRB 55, 55–56 (1987); Meda-Care Ambulance, 285
NLRB 471, 472 (1987); United Artists Communications, 280
NLRB 1056, 1056–1057 (1986); Raytheon Co., 279 NLRB
245, 246 (1986); Sunnyvale Medical Clinic, 277 NLRB 1217,
1217 (1985); and Noral Color Corp., 276 NLRB 567, 571–
574 (1985).
b. By urging Reeves, in the same conversation, to ‘‘just
try and remember’’ to bring the petition to work ‘‘tomor-
row.’’ This adjuration perforce took on the coercive stigma
of the unlawful interrogation that immediately preceded it.
c. By recurrently asking Reeves, thereafter, how the peti-
tion ‘‘was going’’ and if people were ‘‘supporting it.’’ The
persistence of these questions, in combination with
Davidowitz’ earlier unlawful utterances to Reeves, deprived
them of all innocence.
d. By asking Reeves from time to time who had and had
not signed the petition. As the Board stated in Liquitane
Corp., 298 NLRB 292, 293 fn. 4 (1990):
[P]robing attempts by a supervisor to find out from em-
ployees about the specific union activities of other em-
ployees, who had not disclosed their attitudes toward
the union, had a reasonable tendency, under the cir-
cumstances, to interfere with, restrain, and coerce those
employees in the exercise of their rights.
See also Salvation Army Residence, 293 NLRB 944, 973 fn.
107 (1989); Hillhaven Corp., 290 NLRB 258 fn. 3 (1988);
Raytheon Co., supra at 246.
e. By asking employees, after commenting that he under-
stood they had not signed the petition, why they had not. As
part of Davidowitz’ demonstrably assiduous monitoring of
the petition’s progress, these instances of interrogation cannot
be separated from his other excesses in that regard.
2. Based on the testimony of Melissa Reynolds:12
a. By asking Reynolds if she was going to or had signed
a petition. Various of the considerations making his interro-
gation of Reeves improper apply in this instance, as well.
b. By his companion remark to Reynolds—that the em-
ployees ‘‘would get more hours and be able to move up
quicker’’ if the Union were gone—which at once imparted
additional taint to the interrogation just considered and com-
prised an unlawful inducement to support decertification.
3. Based on the testimony of Jerry Klep, by telling Klep
‘‘it would probably be to his benefit to sign’’ the petition.
This, in the context of prior Davidowitz’ comments to Klep
that ‘‘there would be a lot better wages’’ should decertifica-
tion succeed, likewise comprised an unlawful inducement.13
4. Based on the testimony of Jovanovich, by asking her
which employees had not signed the petition.
I conclude, finally, that Spaulding’s testimony, considered
in toto, was too imprecise in separating that which
Davidowitz said from that which Spaulding inferred to sup-
port a violation.
6. Store Manager Olsen’s alleged misconduct
a. The pleadings
Paragraph 9 of the complaint alleges that, on about July
14, 1989, Steve Olsen, the store manager at Respondent’s
Aurora Village store, ‘‘circulated among its employees a pe-
tition seeking decertification of the Union.’’ Paragraph 14 al-
leges that Respondent accordingly violated Section 8(a)(1).
The answer denies these allegations.
b. The evidence
Iris Shannon, an employee at the Aurora Village store, tes-
tified that on about July 22 she ‘‘personally saw’’ Olsen post
a decertification petition on the bulletin board in the employ-
ees’ lunchroom. She recalled that she had just arrived for
work, that ‘‘a couple of’’ unnamed coworkers were present,
and that she previously had seen the petition on a table in
the lunchroom.
Shannon testified that Olsen also posted some prounion lit-
erature that day—items Shannon had obtained at a union
meeting the night before—despite his professed opposition to
the Union.14
Bobbi Missey, another Aurora Village employee, testified
that she circulated a decertification petition at the store. She
expanded:
At first, I posted it in the breakroom, and that didn’t
work, so I did it by hand. I put it up numerous amount
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Shannon’s affidavit, in evidence, reveals that she ‘‘threw the pe-
tition Olsen posted in the garbage,’’ and that Missey ‘‘started cir-
culating the petition . . . a couple of days later.’’
16 Anthony approached Wilcox afterwards, reporting that
Farrington felt he had accused her, by implication, of taking the peti-
tion. He denied to Anthony that that was his intent.
of times and, when I did, it mysteriously disappeared
off the bulletin board.15
Missey averred that she is not aware that anyone else post-
ed or circulated a petition at the store.
Olsen did not testify.
c. Conclusion
I fail to see that Olsen’s posting the petition exceeded per-
missible ‘‘ministerial aid,’’ particularly because he did the
same with prounion literature.
7. Store Manager Carlsen’s alleged misconduct
a. The pleadings
Paragraph 10 of the complaint alleges that on about Au-
gust 17, 1989, Ken Carlsen, the store manager at Respond-
ent’s Ballard store, ‘‘interrogated its employees as to whether
employees had signed a petition seeking decertification of
the Union.’’ Paragraph 14 alleges that Respondent thereby
violated Section 8(a)(1). The answer denies these allegations.
b. The evidence
Peter Petelle, then a cashier at the Ballard store, testified
that he and Carlsen had a mid-August conversation in
Carlsen’s office in which he asked Carlsen ‘‘what was actu-
ally happening with’’ the decertification petition. Carlsen in
turn asked, according to Petelle, if he had ‘‘signed it’’ or had
‘‘looked at it,’’ and he replied that he had not.
Petelle testified that he and Carlsen are friends, that this
was ‘‘a casual conversation,’’ that he was in Carlsen’s office
‘‘much of the time’’ during his breaks, and that they dis-
cussed ‘‘many subjects’’ on those occasions.
Carlsen did not testify.
c. Conclusion
Given that Petelle and Carlsen were friends, that they
commonly engaged in casual conversation in Carlsen’s of-
fice, that the subject conversation was in that category, that
Petelle raised the matter of the petition, and that Carlsen ap-
parently did not ask other than the one question, I conclude
that this interrogation did not carry a coercive potential; con-
sequently, that Carlsen did not violate the Act as alleged. See
Churchill’s Supermarkets, 285 NLRB 138 (1987); Sunnyvale
Medical Clinic, supra at 1217.
8. Store Manager Wilcox’s alleged misconduct
a. The pleadings
Paragraph 11 of the complaint alleges that in late July
1989 Phil Wilcox, the store manager at Respondent’s Sea-
Tac Village store, ‘‘promised to maintain terms and condi-
tions of employment if the Union were voted out’’; and that,
in early August, Wilcox ‘‘supported, approved, and encour-
aged a petition seeking decertification of the Union.’’ Para-
graph 14 alleges that Respondent in each instance violated
Section 8(a)(1). The answer denies these allegations.
b. The evidence
On about July 21, Wilcox called two Sea-Tac Village em-
ployees, Linda Farrington and Terri Anthony, to his office,
using the store’s intercom. Farrington testified that this oc-
curred shortly after she had first seen a decertification peti-
tion in the breakroom, and that Wilcox began by saying a
‘‘piece of paper’’ was missing from the breakroom.
Farrington continued that either she or Anthony asked if he
was ‘‘talking about the petition’’; and that Wilcox said he
was, after which he lectured that it was illegal to do anything
with this petition’’ and ‘‘unfair to employees . . . not to be
able to see the petition.’’
Wilcox also stated, according to Farrington, that he had
summoned her and Anthony because he had seen their names
on a prounion flier and they were among ‘‘only a few people
down in the breakroom’’ about the time the petition dis-
appeared. Farrington testified that Wilcox ended the session
by saying the petition must be returned to the breakroom in
5 minutes. Farrington depicted him as progressively ‘‘more
angry’’ during this encounter.
Wilcox testified that two employees had informed him, be-
fore he paged Farrington and Anthony, that the petition was
missing from the breakroom and that they were ‘‘last seen
in the area.’’ Wilcox recounted that he called McNab, asking
if he could speak to Farrington and Anthony ‘‘and have them
spread the word to other employees and put it back up.’’
McNab replied, according to Wilcox, that ‘‘it was against the
law to remove the petition,’’ and that it would be ‘‘okay’’
for Wilcox to talk to them provided he did not ‘‘threaten and
intimidate.’’
Wilcox testified that he told Farrington and Anthony that
the petition was ‘‘missing,’’ that ‘‘some rights [consequently]
were just broken,’’ that its removal was ‘‘against the law,’’
and that he wanted them to ‘‘spread the word, find the peti-
tion, and put it back up.’’ Wilcox further commented, as he
recalled, that the complement appeared to be ‘‘breaking apart
all of a sudden’’ into pro and antiunion factions, and that
‘‘that can’t be’’; that ‘‘this has to be like a presidential elec-
tion,’’ with everyone continuing ‘‘to work together as a
team’’ regardless of the outcome.
Wilcox assertedly ‘‘didn’t have any idea who took’’ the
petition, and denied that he accused Farrington and Anthony
of being the culprits.16 He could not recall what, if anything,
Farrington or Anthony said during the encounter. He granted
that he ‘‘possibly’’ raised his voice.
Virginia Meador, the office coordinator at Sea-Tac Vil-
lage, testified that she overheard the exchange; that Wilcox
told the two employees the petition was missing, that the
‘‘main office’’ had told him ‘‘it was illegal for anybody to
remove the petition,’’ that ‘‘it was everybody’s right to make
their own decision,’’ and that he ‘‘wanted them to spread the
word that he wanted the petition returned.’’ Anthony asked,
per Meador, why she and Farrington had been singled out,
and Wilcox said ‘‘it was because they had signed a letter re-
questing people not to sign the petition.’’ Meador described
Wilcox’s ‘‘tone of voice’’ as being ‘‘stern, businesslike.’’
Anthony did not testify.
857ERNST HOME CENTERS
17 Crediting Farrington and Meador. Wilcox did not deny saying
this.
18 Crediting Farrington’s unchallenged testimony on the point.
19 Crediting Farrington’s uncontradicted testimony.
20 I credit Farrington that Wilcox evinced anger. She was a persua-
sive witness. Wilcox, admitting that he ‘‘possibly’’ raised his voice,
did not seriously contest the point; and Meador’s description of his
‘‘tone of voice’’ as ‘‘stern, businesslike’’ came across as magnani-
mous euphemism. Meador was Respondent’s witness.
21 Wells’ account of this conversation was persuasive, whereas
Wilcox’s rendition was tentative and hazy. I credit Wells to the ex-
tent their renditions are in conflict.
The petition did not resurface for some time. Dawn
Wyland, a customer service representative at the store, testi-
fied that she found it ‘‘a few weeks later . . . stuck back in
the paint department between some cans of paint.’’
A few days later, Farrington testified, Wilcox called the
employees to his office one by one, giving them the July 25
memorandum previously set forth. Wilcox ‘‘was trying to
convince me,’’ Farrington continued, that the memorandum
‘‘said nothing would change if we went nonunion.’’
Frances Wells, then a customer service coordinator at Sea-
Tac Village, testified that when Wilcox called her in he
asked if she ‘‘understood the petition and what was going
on,’’ and if she had ‘‘any questions.’’ Wilcox stated, by
Wells’ account, that ‘‘there would be no changes whatsoever
at the store’’ if the petition were ‘‘successful.’’ Wells shot
back that that was ‘‘the problem,’’ and detailed certain
changes she thought necessary to attract and retain quality
help—improved pay at the entry level, for seasoned new
hires, and for experienced incumbents of proven quality.
Wilcox countered, as Wells recalled, that he could do ‘‘those
things,’’ that he ‘‘could pay what he felt was necessary,’’ if
the petition were ‘‘successful’’; and that Respondent would
have ‘‘policy books’’ in lieu of a union contract.
Wells went on that, unmoved, she remarked that Respond-
ent could change policy books ‘‘at any time’’—that ‘‘there’s
binding contracts, and there’s policy books.’’ Wilcox offered
to call ‘‘downtown’’ on the point, and Wells said that would
not be necessary.
Wilcox testified that he circulated the July 25 memoran-
dum to employees not only in his office, but on the sales
floor before opening and in the breakroom. He recalled
Wells’ saying, when he gave her one, ‘‘As long as Hal Smith
has a contract, I’m going to have a contract.’’ Hal Smith is
Respondent’s president. Wilcox rejoined, as best he could re-
member, that ‘‘that’s probably not comparing apples for ap-
ples,’’ then ‘‘dropped the subject.’’
c. Conclusions
I conclude that Wilcox violated Section 8(a)(1) during the
encounter with Farrington and Anthony about the missing
petition. He called them to his office; he told them he did
so in part because he had seen their names on a prounion
flier;17 he impliedly accused them of a role in the petition’s
disappearance by saying they were among ‘‘only a few peo-
ple down in the breakroom’’ at about the time of the dis-
appearance and that that was another reason he called them
in,18 by lecturing them on the illegality and unfairness of
tampering with the petition, and by giving an ultimatum that
it be returned in 5 minutes;19 and he displayed growing
anger as the meeting progressed.20 This array of cir-
cumstances ineluctably tended to interfere with, restrain, or
coerce the two employees in the exercise of their Section 7
rights.
I conclude that Wilcox also violated Section 8(a)(1) by
telling Wells he ‘‘could pay what he felt was necessary’’ if
the petition were ‘‘successful’’—a bald promise of benefit
meant to induce her support of decertification.21
Having earlier concluded that Respondent’s July 25
memorandum was not improper, I further conclude that
Wilcox’s distribution of it was lawful.
9. Assistant Store Manager Quinn’s alleged misconduct
a. The pleadings
Paragraph 12 of the complaint alleges that, on a date un-
certain in August 1989, Thomas Quinn, assistant store man-
ager at Respondent’s Bear Creek Village store, ‘‘urged and
directed an employee to sign a petition seeking decertifica-
tion of the Union.’’ Paragraph 14 alleges that Respondent
consequently violated Section 8(a)(1). The answer denies
these allegations.
b. The evidence
David Leininger, then an employee at the Bear Creek Vil-
lage store, testified that Quinn overheard him express uncer-
tainty to coworkers about signing a decertification petition,
leading to this exchange:
Quinn: What’s your confusion about?
Leininger: Well, if I sign it, am I going to rule the
Union out?
Quinn: No, it’s just for a vote. Why? Are you going
to sign it?
Leininger: No.
Quinn: Well, your buddies that you associate with in
the store are on it.
Leininger: Well, that’s their decision. My decision in
not to sign it.
Quinn: Okay.
Addressing the same conversation, Quinn testified that
Leininger told him he had not signed the petition ‘‘because
it meant voting the Union out,’’ and he responded that
Leininger would not be ‘‘voting the Union out’’ by signing,
but simply ‘‘asking for the election.’’ With that, Quinn went
on, Leininger said he had not seen the petition ‘‘in a while
and did not know where one was.’’ Quinn admittedly then
walked Leininger some 30 to 40 feet to the bulletin board
in the breakroom, pointed to the petition posted there, and
said: ‘‘ That’s the petition . . . . By signing the petition, all
you are doing is asking for an election to be held. You are
not voting the Union out.’’
Although Leininger’s and Quinn’s versions did not cor-
respond in all significant particulars, neither contradicted the
other. Both placed the conversation sometime in August.
c. Conclusion
Amalgamating their uncontradicted testimony, Quinn in-
jected himself into a conversation involving Leininger and
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 True, Leininger seemingly invited Quinn to show him the peti-
tion by saying he did not know where it was. I do not see this as
exonerative, however, for Quinn’s prior remarks had begun to create
a climate of coercion.
23 Kyle testified that she ‘‘understood’’ Mack to mean, when he
said he would have her escorted out, ‘‘that he was either going to
grab her himself or he was going to call the police and throw her
out.’’ The record contains no evidence, however, that Mack men-
tioned the police.
his coworkers, asked Leininger if he was going to sign,
countered his negative answer with the prod that his ‘‘bud-
dies . . . in the store’’ had signed, and then walked him 30
to 40 feet to the posted petition and prodded him once more,
stating he would only be ‘‘asking for an election’’ if he
signed.
I conclude that this conduct, in totality, imparted pressures
reasonably tending to interfere with, restrain, or coerce
Leininger in the exercise of his Section 7 rights, and thus
violated Section 8(a)(1).22
C. Respondent’s Allegedly Unlawful Change
Concerning Union Visitations
1. The pleadings
Paragraph 7 of the complaint alleges that, ‘‘throughout’’
their bargaining relationship, Respondent and the Union
‘‘maintained a past practice of permitting the Union’s busi-
ness agents to contact unit employees in the stores, and . . .
of union visitation in the stores’’; that, on about July 29 and
August 8, 1989, Michael Mack, the store manager at Re-
spondent’s downtown Bellevue store, ‘‘threatened the
Union’s business agents with arrest, in the presence of em-
ployees, if the business agents continued to contact unit em-
ployees in the store’’; and that, on about August 7 and 12,
1989, Dan Stivers, the store manager at Respondent’s
Factoria store, did likewise. Paragraphs 13 and 14 allege that
Mack’s and Stivers’ actions constituted a unilateral change in
the visitation practice, violating Section 8(a)(5) and (1).
The answer alleges that the parties had ‘‘a past practice of
permitting the Union’s business agents to speak with Re-
spondent’s employees in the breakrooms of the stores, while
the employees were not on working time.’’ It denies the alle-
gations of the complaint.
2. The evidence
a. Background
Joseph Peterson, the Union’s president, testified that he
told McNab, on July 5 or 6, 1989, that the Union would be
undertaking ‘‘more intense visitation than usual’’ because of
the decertification threat. He assured McNab, however, that
the Union ‘‘would service’’ the stores ‘‘as it had always
serviced’’; that its agents ‘‘would not interfere with customer
service’’; and that ‘‘if they needed to have an extended dis-
cussion with employees, they would do so on the employee’s
break or before or after the employee’s work shift.’’
Peterson’s recital continued that he ‘‘made it very clear’’
to McNab, in this and later conversations, that the Union
would continue to service in the fashion that it had al-
ways serviced, that it had a general rule with business
agents and that is they were not to interfere with cus-
tomer service. . . . The business agents would continue
to introduce themselves to new employees, to tell em-
ployees that they would be in the store for a period of
time and be able to meet with them later in the lunch-
room to tell employees about the upcoming union meet-
ings or general membership meetings, or to explain to
people that they should attend a new-member meeting
so they could find out about their job rights and what’s
contained in their contract . . . . I made it very clear
that we would not change the way we were doing busi-
ness, especially at a time when we were looking at a
decertification.
McNab testified that Peterson said in the conversation of
July 5 or 6 that business agents ‘‘would be active in the Bear
Creek Village store’’ because of the decertification activity,
and that she responded ‘‘[T]hey will always be welcome in
the store and entitled to conduct their business in the
breakroom as they always have, and will play by the rules.’’
McNab testified that Peterson ‘‘didn’t disagree with’’ her.
She admittedly did not ‘‘elaborate’’ concerning her percep-
tion of ‘‘the rules.’’
McNab recounted that she and Peterson had a second con-
versation, on July 11, in which she
reiterated to him her understanding of the union busi-
ness agents’ access to the store; that . . . if they would
not interrupt customer service . . . they were welcome
in the store, that they should identify themselves to
management and make their way to the breakroom to
conduct their business.
Again, according to McNab, Peterson ‘‘didn’t disagree.’’ The
bargaining agreement was silent on the subject of union visi-
tations.
The bargaining agreement was silent on the subject of
union visitations.
b. The Mack incidents
1. Laurel Kyle
Laurel Kyle, a business representative whose territory in-
cluded the downtown Bellevue store, visited that store on
Saturday, July 29. She testified that she was checking the
work schedule posted in the employee lunchroom when Store
Manager Michael Mack told her that the store was ‘‘ex-
tremely busy’’ and that he consequently wanted her to ‘‘con-
fine’’ herself to the lunchroom rather than talk ‘‘to the peo-
ple on the floor.’’ This give-and-take ensued, according to
Kyle:
KYLE: Mike, I’m going to do just what I do
everytime I come in. I don’t see any reason to change
my practices, and that’s what I’ll continue to do.
MACK: You will stay in the lunchroom.
KYLE: I will continue to do exactly what I’ve always
done.
MACK: You will stay in the lunchroom . . . or I will
have you escorted out of the store.
Kyle described Mack’s voice as ‘‘close to a shout’’ and
his demeanor as ‘‘hostile.’’23 She added that his ‘‘body lan-
859ERNST HOME CENTERS
24 Asked his ‘‘tone of voice,’’ Mack testified, ‘‘I was annoyed,
trying to maintain my professionalism.’’
25 Kyle was on vacation. O’Donnell and others were covering the
store in her absence.
26 Funamori testified that she ‘‘ran’’ the night stocking crew, that
she was in the bargaining unit, and that she identified herself to
O’Donnell as a supervisor and as ‘‘in charge of’’ the employee with
whom he was talking.
27 The General Counsel states in its brief that these events hap-
pened on August 8. The weight of evidence leaves scant doubt, how-
ever, that they occurred on August 12.
28 Alluding to one of the Stivers incidents, described below.
29 Before becoming a contract administrator, Patterson had been a
business representative from 1981 to late 1987.
guage,’’ caused her to think ‘‘the man was going to grab’’
her. Two named employees were present, she testified.
Mack’s rendition, although more summary than Kyle’s
corresponded in major part. He denied, however, that he
raised his voice.24
2. Dan O’Donnell
Dan O’Donnell, an assistant to the Union’s president, Pe-
terson, was in the downtown Bellevue store ‘‘just before’’
closing the night of August 8 or 9, handing out fliers inform-
ing the employees of a union meeting later that night.25 He
testified that, as he was talking to an employee stocking
shelves on the sales floor, a woman who identified herself
as a supervisor approached and announced, ‘‘You can’t do
that, you’re not allowed to talk to employees on the floor,
he’s working for me.’’ O’Donnell introduced himself and ex-
plained his purpose, as he recalled, but the woman was
unmoved, repeating that he was ‘‘not to disrupt employees
in the store.’’ He defended that he was not ‘‘disrupting’’
anyone, because no customers were around, and she left to
‘‘get the manager.’’
Mack presently arrived, per O’Donnell, and told him he
was not to ‘‘approach employees on the floor’’ because it
was ‘‘disruptive of business.’’ O’Donnell protested that he
was not ‘‘disrupting’’ business; that he ‘‘had a right to talk
to employees on the floor’’ as long as ‘‘an employee was not
with a customer and [he] was not interfering with customer
services or sales’’; and that Mack ‘‘should check with Sue
McNab about that policy.’’ Mack countered, according to
O’Donnell, that O’Donnell was mistaken and that he would
have him ‘‘arrested’’ if he did not desist.
O’Donnell’s account went on that he ‘‘reiterated what [he]
thought were [his] visitation rights,’’ and said Mack ‘‘would
be sued’’ if he caused his arrest. Mack ‘‘insisted again that,
if [O’Donnell] didn’t leave the store, he would have [him]
thrown out’’; and, after a few more words in that vein,
O’Donnell proposed anew that Mack ‘‘check with’’ McNab.
Mack replied that he had, and that she had instructed him
‘‘specifically to tell [the union agents] that, if [they] at-
tempted to talk to employees while they were on the floor
. . . [they] were to be arrested or thrown out of the store.’’
With that, O’Donnell concluded, Mack escorted him out the
door.
O’Donnell testified that the employee with whom he had
been speaking was ‘‘right behind’’ him—within 5 or 10
feet’’—during much of this encounter. Mack testified, on the
other hand, that he and O’Donnell went to the backroom,
leaving the employee behind, before getting into the sub-
stance of their exchange. Mack’s version otherwise, although
more abbreviated, did not contradict O’Donnell’s in signifi-
cant detail. He concededly told O’Donnell he would have
him ‘‘escorted from the store’’ if he ‘‘wouldn’t conduct his
business in the breakroom.’’ He neither admitted nor denied
raising the prospect of arrest.
Jana Funamori, the ostensible supervisor who first con-
fronted O’Donnell,26 testified that she told him he could talk
to the employees on their ‘‘break time . . . in the backroom,
but . . . not on company time, not on the selling floor.’’
Funamori also testified that, while she did not hear the en-
tirety of Mack’s subsequent conversation with O’Donnell,
she heard Mack say he could talk to employees during their
breaks, ‘‘but take it to the backroom.’’ Funamori conceded
that ‘‘it wasn’t very busy’’ in the store at the time.
3. Jerry Patterson
Jerry Patterson, a contract administrator for the Union, and
Pamela Blauman, a business representative, visited the down-
town Bellevue store on Saturday, August 12. Respondent had
shown a prodecertification videotape at several of the stores
before opening that morning, and they were attempting to
‘‘assess the damage.’’27
Patterson testified that they had been there 10 to 15 min-
utes, talking to employees both on the sales floor and in the
breakroom, when Mack approached him in the breakroom
and exclaimed that he was ‘‘tired of making the same speech
to union representatives about access to the sales floor.’’ Pat-
terson shot back, he recalled, that he was ‘‘tired of hearing
the same speech’’; that he had just heard it at the Factoria
store;28 that the union agents ‘‘had access to the floor . . .
as far as he was concerned,’’ and had had for the 10-plus
years he had ‘‘been around’’;29 and that Mack could ‘‘go
ahead and arrest’’ him, he would ‘‘just sue.’’
Blauman testified that she entered the breakroom in time
to witness this. She gave this partial account:
The manager came storming in. He was very angry and
said that he was sick of us. ‘‘I’m sick of you guys, I’m
sick of telling you this. You don’t have the right to be
on the sales floor and talking to my employees.’’ And
he just kept going on that he was sick of us. And then
Jerry explained to him the long past practice of servic-
ing and talking to people on the sales floor and that we
had access to the sales floor, and . . . they engaged in
a conversation.
Blauman did not describe this additional conversation.
Blauman testified that, before entering the breakroom, she
had been
talking to the people on the sales floor, and [she] went
through the cashiers and handed out fliers on the sales
floor about the antiunion video, that particular flier,
[and] went back into the lumber department and was
talking to people on the sales floor there.
She added, ‘‘It was . . . busy that day, so I was kind of
dodging back and forth between customers.’’
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 O’Donnell testified that he had intended to stay longer, but left
rather than risk arrest.
31 Stivers did not identify O’Donnell by name in his testimony. He
testified that the union agent introduced himself at the outset of the
incident, but that he could not remember the agent’s name. I am sat-
isfied, despite the discrepancies between his and O’Donnell’s testi-
mony, that they were speaking to the same incident.
32 Stivers admitted so agreeing only after being faced with his affi-
davit during cross-examination.
Mack recounted telling Patterson he ‘‘would have him es-
corted from the store . . . if he wouldn’t conduct his busi-
ness . . . in the breakroom’’; and that Patterson threatened
to sue ‘‘not only the company, but [Mack] personally’’
should that happen.
McNab testified that Mack complained to her on August
12 that two union representatives ‘‘had been talking to’’ em-
ployees ‘‘while they were checking customers out . . . had
been walking up and down the aisles, [and had] refused to
go to the breakroom.’’ She admittedly told him he ‘‘could
have them arrested . . . if he didn’t like it.’’
c. The Stivers incidents
1. Dan O’Donnell
Dan O’Donnell, party to an early August confrontation
with Michael Mack, described earlier, had an early August
encounter with Dan Stivers, manager of the Factoria store, as
well. O’Donnell testified that he was talking to three employ-
ees at work in that store’s stockroom when Stivers ap-
proached and declared, ‘‘Stop that, I’ve told you not to do
that.’’ O’Donnell responded, as he recalled, that he had ‘‘the
right to do that,’’ prompting Stivers to state he would have
O’Donnell ‘‘arrested’’ if he continued.
The two presently returned to Stivers’ office, where the
exchange continued for ‘‘maybe five minutes.’’ O’Donnell
stated, so he testified, that he had ‘‘a right to speak to’’ the
three employees, that the store always ‘‘had been serviced’’
that way, and that he would sue both ‘‘the company’’ and
Stivers if Stivers ‘‘had [him] arrested.’’ Stivers came back,
per O’Donnell, that McNab had ‘‘instructed’’ him ‘‘not to
allow’’ union agents ‘‘to speak to people on the floor,’’ and
that, indeed, he would have O’Donnell arrested if he ‘‘per-
sisted in talking to employees except in the designated area,
which was the lunchroom.’’ Stivers then brought the incident
to a close, according to O’Donnell, by escorting him ‘‘out
of the front door.’’30
Stivers recalled the matter quite differently. He testified
that he first said to O’Donnell,31 ‘‘If you will go back to the
breakroom, [I will] send employees back for you so that you
can hold the discussion back there’’; and that he then ex-
plained that the employees with whom O’Donnell had been
talking were taking inventory and he ‘‘did not want
[O’Donnell] to disrupt the . . . inventory count.’’ Stivers
continued that after they moved to his office, O’Donnell
‘‘basically’’ claimed the ‘‘right to go anywhere he chose at
any given time,’’ and Stivers expressed his ‘‘understanding
. . . that any of the discussions should be conducted in the
breakroom as per Respondent’s previous policy.’’
O’Donnell also stated, according to Stivers, that Stivers
would ‘‘have to have him arrested and drug out in hand-
cuffs’’ before he would leave, and that he would ‘‘sue’’ Stiv-
ers and McNab should that happen. Stivers testified that he
‘‘didn’t say anything’’ in response; that he was ‘‘dumb-
founded.’’ He denied that he threatened O’Donnell with ar-
rest.
2. Pamela Blauman
Pamela Blauman, identified above in connection with one
of the Mack incidents, testified that she was talking to an
employee in the nursery department of the Factoria store on
August 12 when Stivers ‘‘stormed down the aisle’’ and pro-
claimed that she ‘‘had no right to be talking to people on
the sales floor and . . . would have to leave and go in the
breakroom.’’ Blauman assertedly responded that she was
‘‘not interrupting customer service’’ and that union agents
‘‘had always serviced on the sales floor’’ before. She added,
by her account, that she was not ‘‘going to go in the back-
room,’’ and suggested that Stivers call her boss, store secu-
rity, or the police if he did not like it. Stivers said he would
call the police, Blauman recounted, and left. Blauman re-
mained in the store for a time without further incident.
Stivers testified that the store was ‘‘extremely busy’’ when
he came on Blauman speaking with an employee, and that
he consequently asked that she ‘‘Go back to the breakroom,’’
saying he ‘‘would be happy to send the employee back.’’
Blauman declined, insisting that she ‘‘had the right to be
anywhere she chose,’’ Stivers recalled; and he, although
agreeing that she had the ‘‘right to be there,’’32 nevertheless
asked her to ‘‘please do it’’ in the breakroom. Stivers testi-
fied that he also said he would ‘‘get ahold of’’ McNab ‘‘and
get some clarification’’ because he understood that ‘‘these
discussions are to be done in the breakroom.’’
Stivers denied that he said anything to Blauman ‘‘about
having her arrested’’ or ‘‘about calling the police.’’ He testi-
fied that the conversation ‘‘was very quick.’’
3. Jerry Patterson
Jerry Patterson, who had words with Mack later on August
12 as previously described, accompanied Blauman to the
Factoria store. They ‘‘split up’’ on arriving, so he did not
witness the exchange between Stivers and Blauman. He
heard about it, however, whereupon he confronted Stivers in
Stivers’ office. Patterson testified that he told Stivers he had
been ‘‘servicing stores routinely for a long period of time,’’
had ‘‘always had access to the bargaining unit on the sales
floor,’’ and could not understand the reason for ‘‘a dispute
regarding whether or not we now have the right to service
them.’’
Stivers answered, according to Patterson, that McNab had
said at a managers’ meeting that union agents ‘‘weren’t al-
lowed on the floor’’; that she and the Union’s Peterson had
so agreed. Patterson said he knew nothing of such an agree-
ment, and that Peterson had said nothing ‘‘about not servic-
ing on the floor’’ when Patterson saw him that very day. Pat-
terson then tried to telephone Peterson. That was unsuccess-
ful, so he called Dave Schmitz, the Union’s organizing direc-
tor. After describing the situation to Schmitz, Patterson gave
the phone to Stivers. Patterson testified that, when he re-
turned to the line, Schmitz said he had told Stivers that the
Union had ‘‘access to the floor and . . . intended to exercise
its rights.’’
861ERNST HOME CENTERS
33 Stivers did not identify Patterson by name, but as ‘‘the guy that
was in the backroom’’ previously—an apparent allusion to
O’Donnell and the previously described encounter between them. I
am persuaded that Stivers thus misidentified Patterson.
34 McNab conceded that this did not involve ‘‘very many employ-
ees.’’
After this call, Patterson testified, he asked Stivers for
‘‘one small favor’’: ‘‘When you call the police and you have
us arrested, at least have the decency to pull us off the
floor.’’ Stivers did not respond, according to Patterson, and
he shortly rejoined Blauman. She reported that they had
talked ‘‘to everybody that’s available,’’ and they left.
Stivers’ version generally corresponded with Patterson’s.33
He testified that Patterson ‘‘basically’’ stated he ‘‘had the
right to go anywhere he chose and do anything he wanted,’’
and Stivers said his ‘‘understanding with [McNab] is that all
of those discussions with employees are to be done in the
breakroom so as not to disrupt customer service.’’
Stivers testified, as concerns the telephone conversation
with Schmitz, that Schmitz said union agents had ‘‘the
right’’ and would ‘‘exercise [their] rights’’ to go ‘‘where
they want to on the sales floor.’’ Stivers recalled that he dis-
agreed, saying his ‘‘understanding’’ from McNab ‘‘was that
all of these discussions were to be conducted in the
breakroom,’’ and that Respondent ‘‘would supply the person-
nel to go back there.’’ Schmitz dismissed that as ‘‘bullshit,’’
according to Stivers, and he gave the line back to Patterson.
Bridgette Dawley, a bookkeeper at the Factoria store, wit-
nessed the Stivers-Patterson conversation. She recalled Stiv-
ers’ saying he ‘‘didn’t have a problem with the [Union] talk-
ing to the employees so long as it’s conducted in the
breakroom and not out on the floor when they’re trying to
help people’’; that Patterson said ‘‘it was his right to talk to
the employees . . . whether they were in the breakroom or
not’’; and that Stivers rejoined that ‘‘the agreement was for
the union representative to be able to talk to the employees
in the breakroom only.’’
McNab testified that Stivers reported to her on August 12
that two union agents ‘‘had been talking to’’ employees
‘‘trying to wait on customers,’’ that the agents ‘‘had re-
fused’’ his request that they go to the breakroom, and that
they told him ‘‘to call the police and have them arrested . . .
if he didn’t like it.’’
d. Subsequent alleged conversations between McNab
and Peterson
McNab testified that after Mack’s and Stivers’ August 12
complaints to her about the conduct of the union agents at
their two stores she reported to the Union’s Peterson that
representatives had been
disrupting business on the floor, talking to employees
on the floor, that it was a busy Saturday, that it was
difficult for [Respondent] to conduct customer service
properly on the floor with the reps talking to employees
while they were working on the floor.
Peterson replied, according to McNab, that he ‘‘would dis-
cuss it with the reps on Monday and that it was never his
intention that the reps disrupt customer service.’’
Clark Jennings, earlier identified as director of human re-
sources, testified that he, too, was party to this conversation,
although he placed it ‘‘sometime in mid-July.’’ He recalled
that McNab ‘‘outlined to Joe the concerns about what had
occurred in the two stores,’’ and that Peterson ‘‘assured us’’
that he would ‘‘make sure that the union reps conducted
themselves by going back into the breakroom and having
conversations back there in the future.’’
McNab testified that she had another conversation with
Peterson, on August 14, in which he said ‘‘once again’’ that
the Union had no ‘‘intention to disrupt customer service.’’
Peterson denied, on rebuttal, that the August 12 conversa-
tion occurred. He remembered a conversation with McNab
‘‘shortly after’’ Respondent’s August 12 showing of the vid-
eotape, in which he voiced objections to the videotape and
McNab complained that Laurel Kyle ‘‘was spending too
much time talking to the employees’’ while ‘‘servicing in the
Bellevue area.’’ Peterson denied that he agreed, in this con-
versation, to restrict the Union’s in-store activities to the
breakrooms.
e. The Frank Shines incident
In August 1989, Peterson had a conference telephone con-
versation with McNab and Jennings regarding the activities
of a business representative, Frank Shines, at the Aurora Vil-
lage store. Shines had been distributing grievance-settlement
checks to employees on the sales floor,34 and refused a re-
quest by Store Manager Steve Olsen that he confine himself
to the breakroom.
Peterson testified that he asked McNab, ‘‘What’s going
on?’’ and she answered, ‘‘I thought we had an agreement
that the business agents would not talk to employees on the
floor.’’ Peterson assertedly rejoined:
Sue, we’ve never had that agreement. I would have
never agreed to it. I’m not agreeing to it now, and I’ll
never agree to it, and you know that. . . . I told you
before [that] we’re going to service the way we’ve al-
ways serviced before. Now, what’s the problem?
McNab repeated her earlier comment about an agreement,
according to Peterson, at which point Shines and Olsen en-
tered in. Shines said he was ‘‘not going to do anything dif-
ferently,’’ and Peterson declaimed:
Sue, what the hell is going on? . . . [Y]ou know
where we stand. We’re not agreeing to any changes in
the visitation. And if you arrest a business agent for
doing his normal servicing, you’re making a gigantic
mistake and I think you better cool it.
McNab said, per Peterson, ‘‘I guess there is a mis-
understanding.’’
McNab told a different story. She testified that she
said to Peterson:
Joe, there appears to be a problem. Frank Shines in-
sists that he needs to walk around the floor and conduct
his business with employees. You and I have agreed
that the reps will not interfere with customer service;
that they’ll conduct their business in the breakroom.
McNab would have it that Peterson directed his response
to Shines, stating:
Frank, you know that’s not our intention, to disrupt
customer service. I request that you not interfere with
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 Peterson was in San Francisco at the time.
the employees as they’re working. . . . [W]e’ll discuss
this further when I get back.35 . . . [I]f you have any
more problems, call Sue [McNab] directly.
Jennings offered yet another version: McNab told Peterson
a ‘‘problem’’ had arisen concerning the visitation ‘‘policy’’;
Peterson asked, ‘‘What policy?’’ McNab replied, ‘‘ [A]bout
going to the breakroom and talking to employees in the
breakroom’’; and Peterson said he ‘‘would talk to Frank.’’
Shines then entered the conversation, according to Jennings,
and Peterson asked him what he had been doing on the sales
floor. Shines said he had been handing out grievance checks.
Peterson asked if that took ‘‘very long,’’ Shines said it did
not, and Peterson stated, ‘‘Well, then, I suggest that you . . .
go ahead and finish your business’’—which Shines did.
Jennings testified that Peterson did not voice agreement
with McNab’s articulation of the visitation policy.
Jennings’ recital continued that Olsen had called him, be-
fore this exchange, to report that Shines ‘‘was in the store
and was refusing to go to the breakroom.’’ Jennings ‘‘asked
[Olsen] several questions, like was [Shines] interfering with
customer service,’’ and Olsen said he was. Olsen then put
Shines on the line, and Jennings ‘‘explained that [Respond-
ent’s] policy was that he go to the breakroom and conduct
his business back there and not interfere with customer serv-
ice.’’ Shines shot back that ‘‘that wasn’t his practice [and]
he wasn’t going to do it.’’
Jennings testified that he then tried to call Peterson and,
being unsuccessful, he spoke with Janet Boyd, the Union’s
secretary-treasurer. He complained to Boyd that Shines ‘‘was
refusing to go to the breakroom as per our policy.’’ Boyd
replied that ‘‘that can’t be our policy’’; that the Union did
not ‘‘have that policy with any of the retailers in the area.’’
Jennings rejoined that Peterson had ‘‘agreed to this’’; and
Boyd, declaring that Peterson ‘‘would never agree to that,’’
refused to ‘‘direct’’ Shines to ‘‘conduct his business in the
breakroom.’’
f. Other evidence of the past practice
1. As perceived by union officials
Asked to describe the Union’s ‘‘practice . . . for contact-
ing the employees in the stores,’’ Peterson testified that he
‘‘prefer[s] that the business agents be in the stores about
every six weeks,’’ but that they sometimes visit more or less
often depending on circumstances. He described the routine
visitation practice this way:
[I]n most circumstances, as a matter of courtesy, a busi-
ness agent will tell someone who is in charge, either a
manager or department manager or assistant manager,
that they’re going to be in the store doing routine serv-
icing. . . . And then they would go around and intro-
duce themselves to every person that’s working. They
would go back into the nursery, into lumber, into hard-
ware, into electrical. They would go [to] the cash reg-
isters. If they hadn’t met a cashier, a new cashier, they
would wait until the customers had . . . gone through
the line and introduce themselves, say that they’re
going to be around in the store for awhile.
They would go in and check schedules. So they’d
have to look at [the] employer’s payroll list or the ac-
tual schedule list or the sign-up sheet for people’s work
schedules and then they would have to check that list
of employees that the company has provided them
against the list that we have internally showing who is
a member and who is not a member.
Peterson added that the practice with regard to Respond-
ent’s stores has undergone ‘‘no change’’ since he began with
the Union, as a business representative, in 1977, and that:
[T]he message to our staff has always been very clear.
We don’t want [the representatives] disrupting customer
service, or getting between an employee and the cus-
tomer.
Pamela Blauman, a business representative for 6 years,
testified that her unvarying practice has been:
[W]hen I enter the store, I go to the customer-service
desk, which is on the sales floor. I go [to] the cash-
iers. . . . [I]f there is one or two customers in line,
then I would wait through the line and talk to the cash-
ier. If they’re extremely busy, I would go behind the
cashier and just leave my business card if I didn’t know
them, get their attention somehow, to let them know
I’m in the store.
And then I go to the nursery department and talk to
the employees on the sales floor there, and go outside
in the nursery. From there, I go to lumber and talk to
the people on the sales floor there, and then go outside
in lumber to see if anybody is unloading a truck or
moving pallets. And then I usually go through the hard-
ware, the plumbing, the electrical department, and then
go back to the receiving room and then, finally, the
breakroom.
Blauman testified that her visits ‘‘usually’’ last ‘‘an hour
or hour and 15 minutes.’’
Laurel Kyle, a business representative for 7 years, gave
this account of her visitation procedure:
I start back to the lunchrooms, which are usually in
the back of the store . . . . And I talk to whomever I
see on the way. If there are questions that anybody has,
I’ll answer them on the way back. . . . So I would
start back to the lunchroom and talk to people and let
them know that I’m going to be in the store for awhile.
I go back to the lunchroom and usually would pull ei-
ther the payroll slips or the schedule, or both, and pro-
ceed to check my route pages against who is currently
employed, who is on leave of absence, somebody that
needs a withdrawal card, and that kind of thing. I usu-
ally stay in the lunchroom and talk to people. . . .
[W]ho is there [determines] how long I’d be back there.
Kyle testified that she normally visits each store every 6
to 8 weeks, that her visits last from 30 minutes to 2 hours,
and that she has followed this procedure, with one exception,
‘‘since day one.’’ The exception:
863ERNST HOME CENTERS
It used to be that I would sort of work my way back
through the store. I still do that. But now I usually
stand out at the customer-service counter and check off,
because they have instituted a policy now where all the
payroll slips are out at the customer-service desk,
whereas before they were at the bulletin board at the
back.
Ellen Brown-Smith, a business representative for over 3
years, testified:
I go into the store. I will talk to the employees on
the floor, making sure I don’t disrupt customer service.
If there are people in the breakroom when I go back
there, I’ll talk to them . . . as well.
Brown-Smith related that her ‘‘contacts’’ with employees on
the sales floor are brief. She elaborated: ‘‘If it is going to
be lengthy, I’ll try and either meet with them at their con-
venience when they have a break, or try to arrange to meet
with them at a later date.’’ She further testified that, unlike
her practice in the stores, she does not ‘‘routinely’’ talk to
employees in working areas at the Distribution Center, which
is one of her assigned locations. She explained:
The Distribution Center is a high-security and safety-
factor area . . . . I have to sign in every time I’m
there. And I do wear a visitor’s badge and I am es-
corted up to the lunchroom. . . . There’s equipment
that’s being driven. There is forklift driving, pallet-
truck driving. It’s more for safety factors.
Brown-Smith testified that she visits each location every 4
to 6 weeks, and has never altered her practice.
Jerry Patterson, a business representative from 1981 to late
1987, testified that the practice throughout his time was this:
We were required or requested to get in every four
to six weeks and get out onto the sales floor and speak
with every individual that was a member of our bar-
gaining unit, and we were to do that in such a way as
to not unreasonably interrupt or interfere with the actual
waiting upon the customers. For instance, if there
would be a cashier with four or five individuals in line,
obviously that person was preoccupied [and] had no
business talking to us for anything, other than a hello
if they caught our eye on the way back to another area
of the store.
Patrick Stephenson, a business representative for about 18
months, testified:
I walk in the door and, more often than not if I see
the store manager, I will alert him to my presence . . .
just so they know I’m in the store. I then . . . walk
around the store and talk to employees about whatever,
if there are any specific topics that I have to address,
meetings coming up, that sort of thing, and just in gen-
eral ask if there are any problems with scheduling, with
hours, or any other problems with the contract, and that
sort of thing.
I’ll always go back in the back room, to the lunch-
room, and see if there are any employees in there, leave
any notices or copies of contracts, make sure there is
a copy of the contract posted, leave a few business
cards for anybody who I don’t see on the floor that
day.
Stephenson testified that he learned this procedure from
‘‘the person who had the job before’’ he did, and that he
‘‘was also given specific instructions by Joe Peterson.’’
Joseph Wert, a business representative for two years, testi-
fied that he ‘‘always talk[s] to members on the [sales] floor’’
when he visits Respondent’s stores, but that those conversa-
tions usually are ‘‘short and succinct.’’ He amplified: ‘‘[I]f
I think it’s going to be something involved, I’ll tell them that
I’ll call them at home that night or I’ll meet them outside
of work.’’ Wert added that, if an employee is conducting
‘‘business with a customer,’’ he ‘‘obviously [is] not going to
stand and talk to [the employee] for ten minutes,’’ but
sometimes, if they’re stocking shelves or something, I’ll
sit there and talk to them as they’re working . . . .
They’ll tell me what’s going on, what their manager
did, if they didn’t get lunch, tell me what’s going on
with other people, things like this.
Wert testified that this has been his practice throughout his
tenure as a business representative, and that he visits each
store ‘‘anywhere between once a month to once every couple
of months.’’
2. As perceived by management officials
McNab testified:
The practice has been that the union reps . . . enter
the store and identify themselves to the manager on
duty and proceed to walk to the back of the store,
greeting people on the way with common-courtesy
greetings, ‘‘hello, how are you,’’ and then conduct their
business in the breakroom or the lunchroom area, which
is at the back of the store.
There may be a business or grievance process that
needs to be handled. And that would be an appropriate
item of their business. . . . The managers have been
instructed that, if the business agent requests a time
with an employee who may not have a break coming
up or who is in the middle of dealing with a customer,
or whatever, it might be that they are to be relieved by
the manager or one of the other in the management
staff and allowed to proceed to the breakroom to have
a conversation with the union rep.
McNab testified that the practice ‘‘had never changed,’’
and that she learned about it ‘‘through one of the human re-
source staff’’ when she began with Respondent in 1987,
‘‘and also in conversation with Joe Peterson.’’ She did not
flesh out those experiences.
McNab also testified that the practice is ‘‘guide[d]’’ by a
1981 grievance disposition concerning the Factoria store.
That grievance, brought by Respondent’s then-parent, Pay n’
Save Corporation, alleged that a business representative
‘‘pulled three employees off the sales floor for approximately
20 minutes each . . . to interrogate them . . . .’’ A followup
letter from the Company to the Union asserted that ‘‘the
same business agent came into the store’’ a few days later
‘‘and again was talking to clerks and cashiers on the floor.’’
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 Which letter was dated September 28, 1989.
The form reflecting the disposition of the grievance states:
‘‘Fred [Rosenberry, the Union’s grievance director] indicates
‘new business rep’ to be assigned to that store. Not supposed
to disrupt customer service.’’
McNab additionally testified that her ‘‘perception of the
Union’s visitation rights is influenced and shaped in part by’’
the 1981 disposition of an unfair labor practice charge filed
by the Union. The charge, against the parent Pay-n’ Save, al-
leged that it had violated Section 8(a)(5) by
refusing to allow the Union’s business representative
access to the Distribution Center employees at their
work place for the purpose of policing the Union Con-
tract and inspecting working conditions.
The Union later withdrew the charge, based on this under-
standing between it and the Company:
The Union is willing to . . . limit [its] conversations
with employees while they are on duty to a brief greet-
ing and membership servicing in exchange for the Em-
ployer’s agreement to allow general access to the work
areas and cooperation in providing basic information at
the Distribution Center that is needed to routinely ad-
ministrate the Union contract. The Union will agree that
if an employee has an inquiry that requires more than
a brief response, the Union will defer the matter and
follow up with the employee when they are off duty
(i.e., lunch, breaks, after work, etc.).
Clark Jennings testified that the visitation practice was
‘‘ongoing and never changed,’’ and that he learned about it
during ‘‘a discussion’’ involving Peterson, McNab, Kathryn
Norris, and him about the procedure the Union should follow
when investigating a certain grievance. Peterson agreed, ac-
cording to Jennings, ‘‘that, if they needed to talk to particular
people, they could go to the breakroom and discuss it.’’
Michael Mack, the manger of the downtown Bellevue
store at relevant times, testified that he understood that ‘‘the
union rep could converse with his employees as long as it
was conducted off of the floor and away from customers.’’
Mack testified that he further understood that such conversa-
tions were to take place in the breakroom, and that he ar-
rived at this understanding by observing the practice in stores
where he worked.
John Phillips, Mack’s counterpart at the Bear Creek Vil-
lage store, testified that this has been the practice as it in-
volved him:
[W]hat I always try and do when I meet the union reps,
I let them know that, you know, hey, let’s work to-
gether and, you know, when you come in you’re very
welcome to go around and let the employees know that
you’re in the store. However, I don’t want you taking
a lot of their time on the clock while I’m paying them,
and you’re very welcome to talk with them in the
lunchroom on their breaks or lunches, if they in fact
want to talk with you.
3. The practice as seen by others
Iris Shannon, with Respondent some 23 years and now at
the Aurora Village store, testified that ‘‘the union rep, he
comes in and he talks to everyone, no matter where you’re
at, if I’d be working nursery or I happen to be working cash-
ier, and he’d always come and talk to you.’’ Shannon testi-
fied that this was always the practice—‘‘the union rep could
talk to [the] employees wherever’’—and that it occurred
‘‘once a month or maybe twice a month, whenever they
came to the store.’’
Dawn Wyland, a customer service coordinator at the Sea-
Tac Village store for 4 years, testified that the business rep-
resentative would ‘‘come in, let the employees know that
they were there, maybe let them know if they wanted to
speak with them, find out when their breaks were, ask them
to come to the back room.’’ That, Wyland averred, is ‘‘the
way it’s always been.’’
Linda Farrington, at the Sea-Tac Village store ‘‘a little
over three years,’’ testified that the representatives let the
employees know, as they are ‘‘cruising through the store,’’
that ‘‘they’ll be in the back room if you need to talk to
them.’’
Linda Horton, at the downtown Bellevue store for 14
years, testified that Laurel Kyle, the Union’s representative
servicing that store, ‘‘would usually just come in and say ‘hi’
and ‘how are you doing’ and walk into the back room.’’
Jane Funamori, with Respondent in various capacities for
12 years, testified that she had seen a union representative
in the store ‘‘once every six months’’ or so during that time,
she had never seen one ‘‘talking to employees on the floor.’’
3. Respondent’s and the Union’s stated positions
As noted above, Respondent alleges in its answer that the
parties had ‘‘a past practice of permitting the Union’s busi-
ness agents to speak with its employees in the breakrooms
of the stores, while the employees were not on working
time.’’
Respondent contends in its brief that ‘‘there was no
change in practice regarding access,’’ and that ‘‘the prac-
tice’’ as established by the weight of evidence ‘‘was for
union representatives to identify themselves to the manager,
speak briefly with employees on the floor, and conduct any
lengthy business in the lunchroom.’’
But then, contradicting these assertions, Respondent’s at-
torney stated in a position letter to the Board agent inves-
tigating the charge:36
There was no established pattern for visitation by
union representatives prior to the decertification drive,
since they had not visited many stores for several years.
However, once the petition drive started and union rep-
resentatives began appearing in the stores . . . McNab
and . . . Peterson reached an agreement that the union
representatives would meet with employees in the
breakrooms. If they wished to speak to specific employ-
ees, they would inform the store manager and the em-
ployee would be released from work to speak to the
union agent.
The Union states in its brief that it . . . does not dis-
pute that its BRs are not to interrupt customer service
when talking to employees on the sales floor or that it
has the authority to pull employees off the sales floor.
The Union agrees that lengthy discussions that interrupt
865ERNST HOME CENTERS
37 To the extent that this conflicts with McNab’s description of the
past practice, I do not credit her. Her testimony was frequently and
obviously self-serving. I am not impressed by the 1981 dispositions
of a grievance and of an unfair labor practice charge, said by McNab
to have influenced her perception of the practice. The former merely
affirmed the inarguable proposition that representatives are ‘‘not sup-
posed to disrupt customer service,’’ while the latter dealt with the
Distribution Center, which, as Ellen Brown-Smith testified, poses
considerations not applicable to the stores.
38 I credit O’Donnell that Mack threatened him with arrest during
the incident of August 8 or 9, and that Stivers similarly threatened
him during their early August encounter. I also credit Blauman that
Stivers told her, on August 12, that he was going to call the police.
Mack did not contradict O’Donnell, and while Stivers denied the
threats attributed to him, McNab lent plausibility to O’Donnell’s and
Blauman’s accounts by admittedly telling both Mack and Stivers to
have the representatives arrested if they ‘‘didn’t like’’ what they
were doing.
39 Crediting Patterson’s uncontradicted testimony.
40 The only arguable evidence of an agreement is McNab’s testi-
mony that she told Peterson on July 5 or 6 that the representatives
would be ‘‘entitled to conduct their business in the breakroom as
they always have, and will play by the rules,’’ and that Peterson
‘‘didn’t disagree with’’ her; and her added testimony that she ‘‘reit-
erated’’ to Peterson on July 11 her ‘‘understanding’’ that the rep-
resentatives ‘‘would not interrupt customer service’’ and ‘‘should
identify themselves to management and make their way to the
breakroom to conduct their business,’’ and that Peterson again
‘‘didn’t disagree.’’ Even if these conversations occurred exactly as
McNab described them, the first plainly contemplated adherence to
the past practice (‘‘as [they] always have’’), and the second would
hardly have put Peterson on notice that McNab was proposing
change. Moreover, that Peterson ‘‘didn’t disagree’’ cannot be equat-
ed with entering into an agreement having legal implications.
41 This is not to say that, in all the instances earlier described, the
Union’s representatives were in conformity with the past practice.
The record affords no reason to suppose, for instance, that
Blauman’s distribution of fliers on the sales floor on a busy Satur-
day, which entailed her ‘‘dodging back and forth between cus-
tomers,’’ enjoyed the sanction of past practice; and Respondent
properly could have stopped that. Instead of addressing specific in-
stances of union overreach, however, Respondent unilaterally im-
posed a general change in the practice, and that is where it went
wrong. Granite City Steel Co., supra at 316.
customer service should be held in the breakroom or
elsewhere while the employee is off duty.
4. Conclusion
Weighing and synthesizing the considerable body of evi-
dence on this issue, I find that:
1. A visitation practice existed before the onset of the de-
certification drive.
2. The practice evolved through practice and usage, never
had been defined or formalized, and seldom had occasioned
dispute between the parties.
3. As probably is inevitable given these circumstances,
small variations in the practice existed from location to loca-
tion depending on the experiences, styles, and perceptions of
the business representatives and managers involved.
4. Variations notwithstanding, the practice did not mandate
that the business representatives in all instances identify
themselves to management before contacting employees. Nor
did it preclude limited conversation between representative
and employee on the sales floor or in other work areas, pro-
vided the conversation did not interfere with customer serv-
ice or the employee’s work. Extended conversations, how-
ever, were to be conducted on the employee’s free time, or
after the employee had received management approval to
leave his/her assigned work, in the breakroom or some other
place removed from work areas.37
5. During the decertification drive, as revealed by the sev-
eral Mack and Stivers’ incidents and that involving Frank
Shines at the Aurora Village store, some of which included
threats of arrest,38 Respondent departed from the past prac-
tice by disallowing representatives from talking to employees
on the sales floor and in other work areas.
6. So doing, Respondent claimed reliance on an agreement
between McNab and Peterson supposedly providing
that the union representatives would meet with employ-
ees in the breakrooms. If they wished to speak to spe-
cific employees, they would inform the store manager
and the employee would be released from work to
speak to the union agent.
7. That Respondent was relying on this alleged agreement
is disclosed not only by the position letter, but by McNab’s
references to such an agreement in her conversation with Pe-
terson, and Jennings’ like references to the Union’s Janet
Boyd, in connection with the Shines incident; and by Stivers’
remark to Jerry Patterson that McNab had said she and Peter-
son had agreed to exclude representatives from the sales
floor.39
Turning to the law, I conclude that Respondent’s departure
from the past practice regarding visitation violated Section
8(a)(5) and (1) as alleged. The bases for this conclusion are
these:
1. Visitation is a mandatory subject of bargaining. Amer-
ican Commercial Lines, 291 NLRB 1066, 1072 (1988); Sac-
ramento Union, 291 NLRB 540, 550 (1988); and Granite
City Steel Co., 167 NLRB 310, 315 (1967). Any change in
the established practice thus ‘‘requires that the employer no-
tify the bargaining representative and submit the proposed
change to negotiation.’’ Id. at 315. That the practice ‘‘is not
expressly embodied in the governing collective-bargaining
agreement is immaterial.’’ Ibid.
2. The record fails to establish that McNab and Peterson
had reached agreement to restrict the visitation practice. In-
deed, as if seeing the infirmities in its earlier position, Re-
spondent asserts in its brief that ‘‘there was no change in the
practice’’; and McNab and Jennings, despite their professed
reliance on an agreement when arguing the Shines matter
with Peterson and Boyd, likewise shifted ground, testifying
that the practice had ‘‘never changed.’’40
3. Now disavowing its earlier position that it did effect a
change, Respondent perforce does not contend, nor does the
record establish, that the change was legitimized by a bar-
gaining impasse, waiver, or some other validating cir-
cumstance.41
CONCLUSIONS OF LAW
Respondent promoted the Union’s decertification in a
manner violating Section 8(a)(1) in these respects:
1. By granting Charmaine Jovanovich greater in-store ac-
cess to employees to promote decertification than it per-
mitted representatives of the Union.
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 All outstanding motions inconsistent with this recommended
Order are denied. If no exceptions are filed as provided by Sec.
102.46 of the Board’s Rules and Regulations, the findings, conclu-
sions, and recommended Order shall, as provided in Sec. 102.48 of
the Rules, be adopted by the Board and all objections to them shall
be deemed waived for all purposes.
43 As I have found, the past practice does not mandate that those
representatives in all instances identify themselves to management
before contacting employees, nor does it preclude limited conversa-
tion between representative and employee on the sales floor or in
other work areas, provided the conversation does not interfere with
customer service or the employee’s work. Extended conversations,
however, are to be conduced on the employee’s free time, or after
the employee has received management approval to leave his/her as-
signed work, in the breakroom or some other place removed from
work areas.
2. Through Gadi Davidowitz, by interrogating Matt Reeves
if he had ‘‘heard about the petition,’’ if he knew ‘‘if there
was one in the store,’’ if he was ‘‘carrying the petition,’’ and
if anyone had signed it; by urging Reeves to ‘‘just try and
remember’’ to bring the petition to work ‘‘tomorrow’’; by
recurrently asking Reeves how the petition ‘‘was going’’ and
if people were ‘‘supporting it’’; and by asking Reeves from
time to time who had and had not signed the petition.
3. Through Davidowitz, by asking employees, after com-
menting that he understood they had not signed the petition,
why they had not.
4. Through Davidowitz, by asking Melissa Reynolds if she
was going to or had signed the petition, and by remarking
to Reynolds in the same conversation that the employees
‘‘would get more hours and be able to move up quicker’’ if
the Union were gone.
5. Through Davidowitz, by telling Jerry Klep, in the con-
text of prior comments that ‘‘there would be a lot better
wages’’ should decertification succeed, that ‘‘it would prob-
ably be to his benefit to sign’’ the petition.
6. Through Davidowitz, by asking Jovanovich which em-
ployees had not signed the petition.
7. Through Phil Wilcox, by angrily lecturing Linda
Farrington and Terri Anthony about a missing petition, and
giving them an ultimatum that it be returned in 5 minutes,
after calling them to his office with the explanation that he
had seen their names on a prounion flier and they were
among ‘‘only a few people down in the breakroom’’ when
it disappeared.
8. Through Wilcox, in response to Frances Wells’ com-
plaint that Respondent needed to improve pay to attract and
retain quality help, by stating he ‘‘could pay what he felt
was necessary’’ if the petition were ‘‘successful.’’
9. Through Thomas Quinn, by urging David Leininger to
sign a petition by asking if he was going to sign, remarking
that his ‘‘buddies . . . in the store’’ had signed, and by then
walking him to the posted petition and stating he would only
be ‘‘asking for an election’’ if he signed.
Respondent violated Section 8(a)(5) and (1) by unilaterally
altering the established practice with regard to in-store visita-
tions by officials of the Union.
Respondent did not otherwise violate the Act as alleged.
REMEDY
Having concluded that Respondent engaged in certain un-
fair labor practices, I recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action to
effectuate the policies of the Act.
Inasmuch as Respondent sought to enforce its unlawful
unilateral change concerning visitation by threatening union
representatives with arrest, I further recommend that it be or-
dered to cease and desist from that conduct, even though the
complaint does not allege those threats as independent viola-
tions.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended42
ORDER
The Respondent, Ernst Home Centers, Inc., Seattle, Wash-
ington, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Granting greater in-store access to those promoting de-
certification of United Food and Commercial Workers Local
1001 as the collective-bargaining representative of Respond-
ent’s employees than it permits representatives of Local
1001.
(b) Interrogating employees about their activities and in-
tentions, and those of their coworkers, with regard to a cam-
paign to decertify Local 1001.
(c) Urging employees to bring to work and sign petitions
to decertify Local 1001.
(d) Promising better wages and greater opportunities for
promotion if Local 1001 were decertified.
(e) Singling out employees for discussion concerning a
missing decertification petition because, or with the expla-
nation to them that, their names were on a prounion flier.
(f) Refusing to bargain collectively with Local 1001, as
the exclusive representative of the employees in the appro-
priate unit described below, by unilaterally and restrictively
changing the practice concerning in-store visitations by rep-
resentatives of Local 1001. The appropriate unit is:
All general sales clerks, cashiers, sales specialists, store
helpers, custodians, janitors, and mechanics employed
at Respondent’s retail establishments and the Distribu-
tion Center within King County and Snohomish County
within the jurisdiction of Local 1001, but excluding all
other employees, guards, and supervisors as defined in
the Act.
(g) Threatening representatives of Local 1001 with arrest
to enforce its unlawful unilateral change in the practice con-
cerning in-store visitations by those representatives.
(h) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Restore the past practice concerning in-store visitations
by representatives of Local 1001, and give Local 1001 writ-
ten acknowledgement that this has been done.43
(b) Notify Local 1001, and, on its request, bargain in good
faith with it, before altering the established practice with re-
gard to in-store visitations by representatives of Local 1001.
(c) Post at each of its locations where employees in the
above bargaining unit work copies of the attached notice,
867ERNST HOME CENTERS
44 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor 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.’’
marked ‘‘Appendix.’’44 Copies of the notice, on forms pro-
vided by the Regional Director for Region 19, after being
signed by Respondent’s authorized representative, shall be
posted by Respondent immediately upon receipt, and main-
tained for 60 consecutive days, in conspicuous places, in-
cluding all places where notices to employees customarily
are posted. Respondent shall take reasonable steps 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, the steps Respondent has taken
to comply.
Those allegations I have concluded to be without merit are
dismissed.
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 vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT grant greater in-store access to those pro-
moting decertification of United Food and Commercial
Workers Local 1001 as the collective-bargaining representa-
tive of our employees than we permit representatives of
Local 1001.
WE WILL NOT coercively interrogate employees about their
activities and intentions, and those of their coworkers, with
regard to a campaign to decertify Local 1001.
WE WILL NOT urge employees to bring to work and sign
petitions to decertify Local 1001.
WE WILL NOT promise our employees better wages and
greater opportunities for promotion if Local 1001 was decer-
tified.
WE WILL NOT single out employees for discussion con-
cerning a missing decertification petition because, or with the
explanation to them that, their names were on a prounion
flier.
WE WILL NOT refuse to bargain collectively with Local
1001, as the exclusive representative of our employees in the
appropriate unit described below, by unilaterally and restric-
tively changing the practice concerning in-store visitations by
representatives of Local 1001. The appropriate unit is:
All general sales clerks, cashiers, sales specialists, store
helpers, custodians, janitors, and mechanics employed
at our retail establishments and the Distribution Center
within King County and Snohomish County within the
jurisdiction of Local 1001, but excluding all other em-
ployees, guards, and supervisors as defined in the Act.
WE WILL NOT threaten representatives of Local 1001 with
arrest to enforce our unlawful unilateral change in the prac-
tice concerning in-store visitations by those representatives.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
WE WILL restore the past practice concerning in-store visi-
tations by representatives of Local 1001, and WE WILL give
Local 1001 written acknowledgement that this has been
done.
WE WILL notify Local 1001 and, on its request, bargain in
good faith, before altering the established practice with re-
gard to in-store visitations by representatives of Local 1001.
ERNST HOME CENTERS, INC.