Kohl's Food Co.

KOHL'S FOOD COMPANY 75 Kohl's Food Company and Rebecca Leving. Case 13-CA-18169 April 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On January 24, 1980, Administrative Law Judge Michael D. Stevenson issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Prod- ucrs Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge: This case was heard before me in Chicago, Illinois, on June 27 and 29, 1979,1 pursuant to a complaint issued by the Regional Director for Region 13 on March 22, 1979, and which is based on a charge filed by Rebecca Leving, an individual and mother of the alleged discriminatee (herein called Charging Party), on November 1, 1978. The complaint alleges that Respondent Kohl's Food Company (herein called Respondent), has engaged in certain violations of Section 8(a)(1) of the National Labor Relations Board Rules and Regulations, Series 8, as amended (herein called the Act). L All dates herein refer to 1978 unless otherwise indicated. 249 NLRB No. 13 ISSUES Whether at a meeting between Respondent's agents and employee Carol Leving: (I) The employee had a right under N.L.R.B.v. J. Weingarten, Inc., 420 U.S. 251 (1975), for a union representative to be present; (2) the employee requested that a union representative be pres- ent; and (3)if the employee did make the request, was it unlawfully denied. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel, Charging Party, and Re- spondent. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS2 Respondent admits that it is a corporation which oper- ates a business for the retail sale and distribution of food and related products with a retail store located in Lin- colnwood, Illinois. It further admits that during the past year, in the course and conduct of its business, that its gross volume exceeded $500,000 and that annually it pur- chases goods and materials valued in excess of $5,000 from sources outside Illinois. Accordingly it admits, and I find, that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Retail Clerks Union Local 1540, chartered by Retail Clerks Interna- tional Union, AFL-CIO, hereinafter referred to as the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICE A. Facts Carol Leving, daughter of the Charging Party, began working at Respondent in October 1975 at the age of 15 years. 3 From then until her termination on June 29, 1978, Leving was a satisfactory employee. She worked I In its "Answer" (.C. Exh. (e)), more properly characterized as a letter to the Regional Director. Respondent has specifically denied only par. V(A) of the complaint which is the central charging paragraph. Al- legations of the complaint not specifically denied are admitted Sec. 102.20 of the Board's Rules and Regulations. Based on Respondent's fail- ure to deny par. VI of the complaint, which in conclusionary terms al- leges a violation of the Act, General Counsel orally moved for summary judgment at the hearing. I took the matter under advisement and neither side has raised the matter in its brief. I will construe Respondent's letter as a bona fide answer. Further, I will construe Respondent's denial of par. V(A) of the complaint as a general denial which is a sufficient plead- ing. Granireville Company. Sibley Division, 96 NLRB 456, 461 (1951). Ac- cordingly, I deny General Counsel's oral Motion for Summary Judgment and will rule on the merits of this case. 3 In her application for employment Leving listed her date of birth as December 16, 1957, whereas the correct date was December 16, 1958 Kohl's Food Company and Rebecca Leving. Case KOHL'S FOOD COMPANY 75 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a cashier, on a part-time basis. As a part-time employ- ee, Leving worked between 8 to 32 hours per week with an average of about 20 hours per week. At different times she worked at several of Respondent's stores locat- ed in the northern suburbs of Chicago. While she was employed, Leving was also a student having completed 1-1/2 years of college at a local community college. At the time of the hearing, Leving was living at home with her mother, but there had been a period of a year within the past 3-4 years when she did not reside with her mother. Shortly after Leving was hired by Respondent she joined the Union. In March 1977, Leving filed a griev- ance with her union alleging that a store manager was sexually harassing female employees. Leving was familiar with the Union's role in processing grievances and other- wise assisting to resolve job-related problems. In November 1977, Leving was transferred from Re- spondent's Touhy Avenue store to its Lincolnwood store. The manager of the latter was Fran Seidell. The union business agent responsible for the Lincolnwood store was Wayne Wood. According to Leving, in April, Respondent began a bedsheet promotional campaign for the customers. In return for purchasing 300 worth of groceries and turn- ing in the appropriate cash register tapes customers were presented a bedsheet, worth about $10. Respondent's policy was that employees were permitted to participate on the same basis as customers. All of the above is undis- puted except that Raymond Hironimus, Respondent's Chicago area operations manager, and James Reik, Re- spondent's Chicago area personnel manager, both testi- fied that the bedsheet promotion did not begin until June. This conflict is important because Leving also testi- fied on direct examination that in April, she turned in $300 worth of register tapes at the Lincolnwood store where she was employed at the time for a free bedsheet. The redemption occurred after Leving allegedly collect- ed cash register tapes primarily from customers who dis- carded the tapes after checking out. A small percentage of the tapes allegedly came from Leving's own purchase of groceries. Because neither Frannie Melamed, the lady in the cashier's cage who accepted the tapes and gave Leving the bedsheet, nor anyone else ever questioned this redemption, Leving testified that a second redemp- tion occurred which led to her termination. I find that Leving could not have redeemed tapes in April for a bedsheet since the promotion did not begin until June. In discrediting Leving's testimony, I rely first of all on her testimony on cross-examination on this sub- ject: Q. [Mr. Janco] Now, I believe that you indicated you had twice turned in register receipts; is that correct? A. [Ms. Leving] Yes. Q. And the first was in April that you testified? A. Yes. Q. Of 78? A. Urn-hum Q. And was that for a sheet promotion? A. Yes. Q. Would it refresh your memory if I indicated that the sheet promotion wasn't started until June of '78? Do you recall that? A. I don't recall. This testimony was evasive and unconvincing. Next, it is incredible that Leving or anyone else could have accu- mulated $300 worth of tapes within a short time after the promotion began without arousing the suspicion of man- agement. Indeed, Reik testified that the majority of re- demptions come at the end of this type of promotion. Fi- nally, the testimony of Hironimus and Reik on this point was straightforward and persuasive.4 In early June, Leving accumulated $300 in tapes from her cash register. Of these about $50 represented her own grocery purchases and the remainder came from customers who discarded them. Leving gave these tapes to her cousin who redeemed them at Respondent's store located in Morton Grove, Illinois. This store was near the Lincolnwood store where Leving worked. Leving testified that at the time in question she was at an auto repair shop across the street from the Morton Grove store having her car repaired. 5 On or about June 28, Hironimus received a phone call from the manager of the Morton Grove store. On the basis of that phone call, Hironimus went to the Morton Grove store and picked up the tapes which Leving or her cousin had turned in. Hironimus gave the tapes to Reik for examination and analysis. They had been col- lected over a very short period of time, and in many cases, from the same register. Reik then compared the tapes to other business records and determined that they had all come from cash registers assigned to Leving. On the basis of this preliminary information, Hironimus di- rected Reik to call Leving in for questioning. Reik did call, but the contents of the conversation are disputed by the parties. According to Leving, she was at work on June 29 when she received a phone call from Reik whom she did not know. Reik introduced himself as the new personnel director and asked her to come to the personnel office the next day to meet with him at 9 a.m. She further testi- fied that he did not explain why he wanted to see her and she did not ask him. According to Reik, he called Leving at the store and either left a message with Sei- dell, the store manager, for Leving to call back, or Reik spoke to Leving directly when he called. In any event, Reik further testified that after he asked Leving to come to the personnel office on the next day, she asked, "What is this regarding?" He then explained that he wanted to discuss the redemption of sheets at another store with tapes which came from her register. Again, I cannot accept Leving's account. She testified that she never asked why the personnel director wanted to see her because she assumed it was with reference to some store grand openings which she had worked at 4 Under the circumstances, I do not regard Respondent's failure to call or otherwise explain the absence of Frannie Melamed, the person who allegedly made the April redemption, as leading to any inference that her testimony would be unfavorable to Respondent. It was sufficient to call Hironimus and Reik. I Leving's cousin did not testify. KOHL'S FOOD COMPANY 77 before, or possibly a promotion to head cashier. This tes- timony is inherently improbable and unbelievable. First, any special assignments or promotions could be indicated over the telephone rather than a nonroutine visit to the personnel office. Next, a natural sense of curiosity and self preservation would motivate most persons to ask why they were being asked to meet with the personnel manager. Finally, Leving had a particular reason to pro- ceed with caution. Leving testified that as a result of the grievance Leving filed in March 1977 she had become friendly with Reik's predecessor, Gil Graybull. Leving confided to him that she was fearful the Company would start transferring her around, "cutting her hours," and otherwise playing games with her as a result of her grievance against the store manager. After Graybull as- sured Leving that it wouldn't happen and not to worry about it, he was fired. 6 Thus, Leving had every reason to be curious and even concerned about the next day's meeting. I find that she asked and was told about the purpose of this meeting. On June 30, Leving went to Respondent's personnel office located in Niles, Illinois, which is still another northern suburb of Chicago. Leving arrived there about 9 a.m. She was alone. After waiting for what Leving described as an hour, she met with Reik in a conference room adjacent to his office. Only Reik and she were present for most of the meeting, although Leving spoke to Hironimus for a brief period while Reik was absent. There is a conflict as to what occurred at the meeting. According to Leving, when she entered the conference room, she observed cash register tapes strewn about. Reik told her that his attention had been directed to the tapes which she had collected and turned in to the Morton Grove store. Reik then accused her of stealing the tapes and asked whether she knew what she had done was against company policy. She replied that she did not steal anything. Then Leving explained that her cousin brought them in as the bedsheet was for her aunt. Reik interpreted this to mean that Leving did steal them. He then told her in a loud voice that $100 was a misdemeanor, and $200 was a felony and for S300 Kohl's could throw her in jail. Reik continued, "You won't have any friends and your repu- tation would be ruined." At this point, Leving became hysterical and asked for a "union rep" or for time to go home and think about the matter. Reik told her that the only matter for discussion was whether she would resign or be discharged. At this point Leving asked to speak to Hironimus and Reik agreed. Before Hironimus entered the conference room, Reik spoke privately with him. Then Hironimus walked in and Leving reminded him of the various assignments she had with Respondent over the years. She asked him if they could overlook the matter with the tapes. Hironimus an- swered that there was nothing he could do and he quick- ly left the room. 6 The testimony relative to Leving's relationship and conversation with Graybull came in by way of an offer of proof from Charging Party's at- torney, after I had first refused it. In retrospect, I believe it is relevant and material, although not for the same reason as Charging Party. In any event, I have reversed my ruling and now consider and weigh the testi- mony as though it had been allowed. Reik reentered the room and wrote out a "confession" for Leving to sign. He then wrote a "resignation" for her to sign. These statements read as follows: June 30, 1978 /s/ CL I, Carol Leving, do hereby state that I have, on occasion, given to my aunt register tapes which were left by other customers at my register for use on a sheet redemption program at the Kohl's Food Stores. I also state that this was a vio- lation of company policy. /s/ CL /s/ Carol Leving I, Carol Leving, do hereby resign my employ- ment with Kohl's Food Stores effective June 30, 1978 for reasons of conflicting work and school schedules. /s/ Carol Leving Leving again requested time to think the matter over and consult with her mother. Again Reik explained that when she left she was out of a job. She then signed the two statements and left the premises about 12:30 p.m. According to Leving, she drove home where she com- posed herself and called Wayne Wood, the union repre- sentative, about 12:50. He was not in and she left a mes- sage for him to call her. However, business records at the union office show that Leving's message ["Urgent. Call as soon as possible."] was received at 4:05 p.m. (Resp. Exh. 5.) The account of the meeting according to Reik and Hironimus differs from Leving's in several material as- pects. Reik testified that Leving first stated that she had obtained the tapes from her aunt and cousin who had shopped at Respondent's store. Then after a few minutes of additional conversation Leving admitted that she ob- tained the tapes either from other customers or from the floor where they had been discharged. A few minutes later, Leving admitted obtaining all the tapes from the registers assigned to her. She admitted knowing this was against company policy, but said that many other em- ployees do the same thing. However, she declined to identify any other persons, when asked to do so. Then Reik told her that she would have to lose her job be- cause of what she did. In response, Leving asked for a lesser penalty such as suspension or a fine. She asked to pay for the bedsheet. Reik again stated she would have to lose her job, but he did offer to let her resign. He also suggested that she speak with Hironimus about the matter and she did. According to Reik, the meeting with Leving lasted about 1 hour. She never asked to see a union representa- tive, nor to see anyone else. She did ask for time to think about the matter over the weekend. Reik denied men- tioning misdemeanors, felonies, or jail. Hironimus' account of his part in the meeting general- ly supported Reik's. After Reik told him that Leving had admitted obtaining the tapes from the registers assigned to her, Hironimus agreed with Reik that termination was in order. He also agreed to speak with Leving outside the presence of Reik. Leving asked him if some lesser penalty could be imposed. She told him that she realized KOHL'S FOOD COMPANY 77 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that what she had done was wrong. He responded that the decision to terminate her could not be changed. No request for a union representative was made to him. Hir- onimus concluded his testimony by stating that in the past other employees who did what Leving did had also been fired. All of the above occurred on a Friday. On the follow- ing Monday, Wood returned Leving's call. Leving testi- fied that she told Wood what had occurred and specifi- cally that she had requested a union representative to be present. In his testimony, Wood denied that Leving had told him that she had requested a union representative at the meeting with Reik. Wood also testified that he did not ask her whether she had requested a union repre- sentative. I find that Leving did not tell Wood that she had requested a union representative be present for the meeting. Wood had no interest in the proceedings and no motive to lie. Furthermore, his testimony was impressive and consistent and his demeanor was convincing. Leving and Wood both testified that Wood promised to look into the matter and call Leving back, which he did. Wood went to the Lincolnwood store and talked to the store manager. He also went to Respondent's personnel office where Reik gave him a copy of Leving's state- ment. 7 After examining the statement, Wood called Leving back and told her that she had made a mistake and that she had better learn from it. Wood did not be- lieve further union action was warranted. Discussion and Analysis On this record, I cannot find that Leving was de- prived of her right to have a union representative present at the meeting with Reik. Pursuant to the Court's deci- sion in N.L.R.B. v. Weingarten, 420 U.S. 251 (1975), the right to have assistance at an interview where discipline is reasonably feared is triggered only upon a request for such representation. s In this case I find, and all agree, that Respondent had not made a disciplinary decision re- garding Leving prior to the meeting.9 I also find that, at some point, either after the telephone notice of June 29, or shortly after entering the meeting of the next day, Leving reasonably feared that discipline would result. The central issue then is whether Leving made a request for a union representative and I find that she did not. This finding is based on a judgment as to the credibility of the witnesses-primarily Leving and Reik-who gave directly opposite testimony on the key point.'0 In evaluating the credibility of Leving, I note that she has been impeached on several important points: (1) She did not make a prior redemption in April; (2) she did have some advance knowledge of the purpose of the meeting; (3) she did not make a prompt complaint to the Union; and (4) perhaps most telling, she did not tell Wood that she had requested and been denied a union representative at the meeting. Her failure to so state is 7 Wood testified that Reik told him that Leving wrote her statement out He also testified that if he had known that Reik wrote the statement and L.eving signed it, this would have made no difference in his assess- ment of Leving's case. N Lennox Indusries, Inc., 244 NLRB No. 88 (1979). " See Baton Rouge Water Works Company, 246 NLRB No. 161 (1979). "' Inland Container Corporation, 240 NLRB 1298 (1979). impeaching to begin with since it must be assumed that this would be the primary focus of her complaint when Wood called her back on Monday. Moreover, the fact that she testified she did, when I find that she did not, further damages her credibility. Of course, the above is not to ignore the testimony of Reik and Hironimus about the meeting itself. However, were the evidence confined only to the participants at the meeting, the resolution of the credibility question would be far more difficult. The investigative procedures used by Respondent in this case were sloppy and uncon- vincing. t These circumstances, however, are outweighed by the repeated impeachment of Leving. In addition, as between Leving and Reik, the latter made a much more impressive witness at the hearing based on the demeanor of the witnesses. Leving appeared to be emotionally distraught at certain points and uncertain of her testimony on key points. Much of what she said was inherently implausible. For example, I cannot believe that Reik, newly appointed to his job as Respondent's personnel director, would loudly discuss misdemeanor and felonies and threaten Leving with jail. Reik's ac- count, while by no means free from doubt, see footnote 11, is more persuasive than Leving's in the context of this case. Furthermore, it is significant that Leving did not ask Hironimus for the assistance of a union repre- sentative. She knew him and had reason to think he might be more sympathetic to her position than Reik, whom she did not know. Yet no request was made. This failure reinforces my belief that she made no such re- quest of Reik either. In sum, I find that Leving reasonably feared that the June 30 interview with Personnel Director Reik might result in disciplinary action. I have found that, since Leving was told by Reik on June 29 why he wanted to see her the next day, she would have reasonably suspect- ed disciplinary action then. Clearly, she did on June 30 within a few moments of entering Reik's conference room. Consequently, she would have had every right to the presence of a union representative had she asked for one, but she did not. l 2 Consequently, I will recommend that this case be dismissed.'s II For example, there is no written record of the meeting. Reik, age 31, 6 feet tall and 225 pounds, met with Leving, age 19, 5 feet, 5 inches and of proportional weight, with no other witnesses present. The state- ment written by Reik for Leving to sign does not state that Leving knew that what she had done was a violation of company policy. Reik told Wood that Leving had written the statement when she had not. Finally, Leving's "confession" was by no means voluntary under the facts of this case iZ Had I found that Leving did request a union representative, her fail- ure to terminate the interview after denial raises a waiver issue which need not now be considered. Cf. United States Postal Service, 241 NLRB 141 (1979). Similarly, it is unnecessary to consider whether Leving would have been entitled to reinstatement had I found a violation. N.L.R.B. v. Potter Electrical Signal Company, 600 F.2d 120 (8th Cir. 1979). II If I had the power to do so, I would consider certain issues raised by this case: (1) whether Leving's termination was grossly disproportion- ate to the offense committed; (2) whether company policy which was al- leged to have been violated was published in such a way that employees could reasonably know what it was; (3) whether a violation of company policy actually occurred at all; (4) whether the Union had a duty to inform members of their rights under Weingarten and if so, whether such duty was violated in this case; and (5) whether the surrounding circum- stances of Leving's disciplinary interview were so fundamentally unfair Continued KOHL'S FOOD COMPANY 79 CONCLUSIONS OF LAW i. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in an industry affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. to her due process rights, irrespective of a Weingarren violation, as to call for some equitable remedy. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 It is hereby ordered that the complaint be dismissed in its entirety. '4 in the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes