Labor Relations Case 4 Surveillance of the Employee and Nonemployee Union Organizers 63 Case 4 Surveillance of the Employee and Nonemployee Union Organizers Company Department Store Division of Dayton Hudson Corporation, Detroit, Michigan, area Union United Automobile Workers BACKGROUND These unfair labor practice charges resulted from a meeting of employee and nonem- ployee union organizers met in the company's Westland store on November 24, 1992. Martha Singer, a Fairlane store employee and a union supporter who was on her day off, went with union organizer Vercille Sargent to the Westland store. The pair had planned a luncheon meeting with Marcia Groza, who was the chairperson of the union's employee organizing committee. Groza worked at the company's Westland store. Singer and Sargent met Jack Niles inside the Westland store. Niles, a union supporter, was on his day off from the company's Briarwood store, and he also had planned to meet with Groza for lunch. II- lana Korte, another union organizer, by prearrangement met Sargent, Singer, and Niles. As a group, these four individuals headed to the furniture department where Groza was work- ing. They then "toured" that department while waiting for Groza to take her lunchbreak. At about the same time, five of the store's managers had been following the group. One manager, Alia Suh, greeted Singer with a hug and some friendly words as the other managers observed this. A second manager, Christie Blumhof, called out to Jack Niles as he went down the escalator; she then spoke to him at the bottom of the escalator, inquiring about why he did not visit with her. As the group "meandered" within the furniture department, still another manager, Jason Cicci, asked them what they were doing. On being told that they were waiting for Marcia Groza for lunch, Ci- cci said that since the group had no packages, they were not shopping. Cicci then added that all of them should leave, and he would arrange for Groza to meet them. While this was transpiring, Ashley Ponte, the store's manager of human resources, ac- cused Illana Korte of "organizing" and told her to stop "harassing" the Westland em- ployees. Ponte also engaged Korte in a discussion about a Westland employee who previously had been active on behalf of the union but who was not promoted to a man- agement position. The names of all individuals are disguised. 2Vercille Sargent and Illana Korte were employed by the International Union as organizers. They frequently worked closely with employees of firms who were interested in forming a union and collective bargaining unit.Cases In Collective Bargaining & Industrial Relations, 10/e 64 Part One Legal Aspects of Collective Bargaining: National Labor Relations Board Cases When Marcia Groza was ready for lunch, the union group left for the nearby Coney Island restaurant. The managers followed Groza and her group from the store to the restaurant where both groups ate lunch. Although the managers were too far away to be able to hear the employees' conversation during lunch, the managers could clearly see where Groza and her party were seated. Not all of the managers remained for the ap- proximately 45-minute lunch. When the union group led by Marcia Groza left the restaurant and returned to the West- land store, they were followed by three of the managers, Blumhof, Cicci, and Ponte. Upon reentering the store, Jason Cicci asked Martha Singer if she "needed help." When she de- clined, he indicated that this was "no problem." Ashley Ponte engaged in some bantering with Illana Korte about "old ladies having nothing better to do than walk around the store." Shortly thereafter, the union filed unfair labor practice charges against the company, claiming that the company by its surveillance of the union's leading supporters had vio- lated Section 8(a) (1) of the Labor Management Relations Act. POSITION OF THE UNION went fort bluoye insmog The union contended that the company managers had engaged in a course of conduct that demonstrated their intent to monitor the union activities of the employee and non- employee union supporters. The managers did not simply follow the group. The man- agers' improper conduct commenced when the managers let the employees know that they were aware of the nonemployee union persons present, and that their associating with the organizers was unwelcome. The union pointed out that Martha Singer was greeted by a manager as soon as she entered the store, and a group of three or four other managers observed this encounter. Similarly, a manager hailed Jack Niles as he went down the escalator and then engaged him in conversation at the bottom of the escalator. The managers pursued the union group as they "toured" the furniture department and waited for Marcia Groza to com- mence her lunchbreak. The managers told the union group to leave because they had no packages and were not shopping. When the union group did leave for lunch, the man- agers followed them through the store and to the nearby Coney Island restaurant. This was no mere innocent observance of employees Singer, Niles, and Groza that was coincidental with the observance of nonemployees Sargent and Korte on the com- pany's premises. Rather, the group of managers, by their actions and words beginning in- side the Westland store and continuing with the return to the store's premises, made it plain that they intended to monitor the union activities of the company's employees. This conduct violated Section 8(a) (1) of the Act. The union stressed that there was no legitimacy to the company's surveillance when Singer, Sargent, Niles, Korte, and Groza left the Westland store and went to the Coney The union previously had filed unfair labor practice charges against the company for allegedly prohibiting prounion employees from wearing union buttons, having guests in the employee lunchroom, and talking with co-workers.Labor Relations e - y | 65 Case 4 Surweillance of the Employee and Nonemployee Union Organizers Island restaurant, The group of employee and nonemployee union organizers no Ionlger were on the store's premises, nor were the employees on working time. Groza was on ;}ei lunchbreak, und Singer and Niles were on (heir days off from other company stores. ? five managers followed the group to the restaurant, watched them throughout their meal, and then followed them back to the Westland store, Even though the restaurant was _Of- ten frequented by managers and employees simultaneouslyand even acknowledgmg that the managers could not hear the union group in the restaurantwhat was' obvxo_us was that the managers followed and watched employees who chose to a.ssomate with union organizers on their free time away from the company's premises. Thlslconduct_rcf- vealed the company's intention to observe at close range the protected Secuqn 7 activi- ties of Groza, Singer, and Niles; it was intended to be coercive and intimidating, The union claimed that the employer's unlawful surveillance was an intrusion on the employees' statutory rights and violated Section 8(a) (1) of the Act, The union urged the NLRB to sustain the unfair labor practice charges, to direct the company to cease and desist in these unlawful practices, and to inform employees throughout its area sto.res that management would not interfere with the employees' protected rights to organize free of the company's unlawful interference. POSITION OF THE COMPANY The company vigorously denied that by their actions the managers had engaged in un- lawful surveillance and interference with their emp loyees' protected rights. Ashley Ponte, the Westland store's human resources manager, testified that it was the company's long-term policy to give nonemployee union organizers \"the utmost customer service and stick right with them and make sure that they do not harass any employees.\" In the company's view, the union on November 24, 1992, was engaged in a \"show of strength and effort to enlist the support of employees at work by parading through the store during store hours.\" It was no mere coincidence or happenstance that brought to- gether nonem -_')'\"' union organizers and employee union supporters inside the West- land store. The any managers addressed most of their remarks to the nonemployee d not the employees. The company lawfully was privileged to engage in mployee union organizers inside the store, The managers' obser- ) 'ho joined these nonemployee organizers was merely coincidental purpose. The company had the right to observe what this group might ct the store's other employees and customers from harassment. irther contended that the company managers did not intend to monitor of its employees, either inside or outside of the Westland store. The man- union group into the nearby restaurant pursuant to the company's policy fi'g'nonemployee union organizers. This was certainly not intimidating or co- ercive, especially since managers and employees frequented this restaurant regularly and they often were there together. Further, the managers seated themselves at some distance from Marcia Groza and her party, who were aware that the managers could not hear them, The company argued that the union's unfair labor practice charges were without merit and were based only upon inference and innuendo, not substantive proof. The company urged that the NLRB should dismiss the union complaint, 0 Cases in Collective Bargaining & Industrial Relations, 10/e 66 Part One Legal Aspects of Collective Bargaining: National Labor Relations Board Cases QUESTIONS 1. In general, the NLRB has held that an employer does not violate LMRA by prohibit- ing nonemployee union organizers from attempting to organize employees on com- pany facilities (i.e., in working areas during working hours.) Was the company policy in this regard (as stated by its human resources manager) lawful? Explain. 2. Was the managers' "surveillance" of the union group inside the Westland store law- ful? Explain. 3. Was the managers' "surveillance" of the union group outside the Westland store (i.e., the restaurant) lawful? Why, or why not? 4. Why is it sometimes difficult for the NLRB to determine the "dividing line" between lawful and unlawful employer "surveillance" (or monitoring) of union organizing ef- forts when such efforts involve both employee and nonemployee organizers? Explain