J. C. Penney Co., Inc.

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. C. Penney Company, Inc. and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO, Local 115. Case 4-CA-5472 October 12, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 6, 1971, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Therefore, the General Counsel filed exceptions and a support- ing brief, and the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The Trial Examiner's findings and conclusions are based , in large measure, upon credibility resolutions made by him. The General Counsel has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE J. BoTT, Trial Examiner: Upon a charge of unfair labor practices filed by the Union on January 29, 1971, against J. C. Penney Company, Inc., herein called Employer or Respondent, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing dated March 10, 1971, in which he alleged that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer denying the commis- sion of any unfair labor practices, and a hearing was held before me in Philadelphia, Pennsylvania, on April 15, 1971. Subsequent to the hearing, General Counsel and Respon- dent filed briefs which have been carefully considered. Upon the entire record in the case and from my observations of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent is a Delaware corporation operating retail stores in many States, including a retail department store in Audubon, New Jersey, the establishment involved in this proceeding. During the year prior to issuance of the complaint. Respondent had a total dollar volume in excess of $500,000 at its Audubon operation and, in the same period, purchased goods valued in excess of $5,000 from outside the State of New Jersey. Respondent concedes, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Suspension of Charles Radford 1. The evidence and some basic findings Charles Radford, employed for approximately 8 years at Respondent's Audubon store as a major appliance salesman, was the prime mover in the Union's attempt to organize the employees at that store, and he has since sometime in November 1970 been soliciting them to join the Union. On January 15, 1971, Radford was suspended for 3 days, because of his activities on behalf of the Union, according to General Counsel, but, according to Respondent, because he had solicited an employee on company time after having been warned not to engage in such activity while he or the person solicited were working. 193 NLRB No. 104 J. C. PENNEY COMPANY, INC. 685 Radford admitted that he has been soliciting employees for the Union in the store and that he has distributed to them, in some cases while they were at work,' a booklet entitled, "The Law and You," which contains a brief summary of certain basic employee organizational rights as well as a form for an employee to use to designate the Union to represent him. On January 14, 1971, Radford was called to Division Manager Wilson's office. There is no question but that in the meeting between the two, Wilson told Radford that the Company was aware of his union activities including his distribution of union booklets. It is also undisputed that Wilson told Radford not to solicit on company time and that Radford replied that he would solicit only during lunch and rest periods. On the following day, January 15, Radford was not scheduled to begin work until I p.m., but he visited the store in the morning to make a personal purchase. As Radford was leaving the store, Alma Copeland Lee, an employee whose supervisory status is in dispute, observed Radford and made a remark to him about his apparel. During their brief encounter, Radford admittedly handed Mrs. Lee a copy of the union brochure, "The Law and You" but there is a sharp dispute over whether he initiated a conversation about unions and gave Lee the booklet at her request or whether Lee first turned their conversation to union activity and requested Radford to supply her with additional information. General Counsel contends that Lee, a supervisor, started the talk about unions and entrapped Radford into an apparent violation of Respon- dent's instructions not to solicit employees while they were working. Before considering Radford's and Lee's conflicting versions of what occurred when they met, the question of her status will first be disposed of. Although Lee does some actual selling, her responsibilities and duties are broader and more management oriented than those of an ordinary salesperson, but nevertheless I find that she is not a supervisor within the meaning of the Act. Lee occupies the position of "selling supervisor" according to her job description which defines her "basic function" and "principal responsibilities and duties." Although the word "supervises" appears in the document in a number of places, thereby suggesting that the occupant of the job is a supervisor, further examination of it in the light of Lee's testimony reveals that the only area in which she might be considered to have statutory supervisor responsi- bility is in the assignment of employees. With respect to the use of the word "supervises" in her job description, this supervision seems to be sales supervision generally, not direction of employees as such. For example, her "basic function" is to "supervise the sales and training activities . . . to insure optimum customer service, maximum sales production and continuous super- i Employee Holiday testified without contradiction that he had been solicited by Radford three or four times while both were working Radford also gave him a number of copies of "The Law and You" and asked him to give them to other employees Holiday reported this incident to his supervisor Employee Messimer also testified credibly that he was solicited three times by Radford while at work and also received a copy of the union brochure from him According to him, he reported these facts to his supervisors when they asked him about it later Supervisor Dilmore vision of the selling effort." Similarly, although the employee "supervises and participates in the selling service," this responsibility more specifically includes watching customer traffic flow in order to observe whether customers need sales assistance ; observing sales and cash register procedures; exploiting credit programs in closing sales; and watching for shoplifters. In addition, according to the job description, Lee "handles customer complaints, exchanges, refunds and adjustment," and she also conducts credit interviews and issues charge cards, but although these responsibilities as they affect customers and sales are important, they are not supervisory as defined in the Act. The job description does, however, include the responsi- bility for "making temporary personnel assignments as required by work load fluctuations and customer traffic flow," but Lee testified without contradiction that her authority in this area is restricted to asking the manager of a department for permission to use one or more of his subordinates in another department which is busier at the moment. After the volume of customers subsides, she sends the employees back to their regular departments or they may return on their own. Lee testified without contradiction that she has no power to hire or fire or recommend such action; she does not schedule employees for work; she cannot recommend increases in pay, discipline employees, or grant time off; she has no authority to promote employees or adjust their grievances; employees do not report to her and that she is not responsible for a specific department; and she does not approve employees' timesheets and does not attend management meetings. Lee is also hourly paid, signs a timesheet like other employees, and is paid for overtime worked. I find that Lee does not exercise such independent judgment with respect to the movement of employees from one department to another based on the flow of customer traffic that she can be said to be able to effectively " assign" employees within the meaning of the statutory definition. In the absence of other supervisory indicia, I also find that the use of the word "supervisor" in her job title and her job description is not sufficient to establish her supervisory status.2 Returning to the Radford-Lee conversation on January 14, which took place in the presence of Bergeron, a cosmetic saleswoman, while both she and Lee were on company time chatting about matters not connected with their employer's business, Radford testified that after he jokingly responded to some facetious comment Lee made about the boots he was wearing, she introduced the subject of unions by asking him what was causing so much talk among the employees. He replied that "we are trying to get a union in here" and added that a union would benefit all,, employees including Lee and Bergeron. At that point, according to Radford, Lee asked him if he had any testified that employee Minnick told him that Radford had solicited her at work on more than one occasion and that he reported this information to Gill, the store manager. 2 Besides making temporary assignments, Lee also has other responsibilities in regard to employees, but it appears that these are only in connection with training of employees, as far as the job description discloses 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD additional "information" and he reacted by handing her the union brochure. Lee denied that she questioned Radford about unions or asked him for the booklet. She testified that after a few remarks about an unrelated subject, Radford handed her the booklet and asked her to read it. She said she gave it back to him and told him he could not do "that on company time," but he replied that he could. As soon as Radford left, Lee said she told District Manager Wilson, who was in the store at the time, that she would like to see Gill, the local store manager. When Wilson asked her why, she said she explained what had just happened between her and Radford. Later that afternoon Lee said she was called to the office to repeat to a group of management representatives what she had told Wilson earlier. Present were approximately seven company officials, including Wilson and Gill. After she reported what had occurred regarding union solicita- tion, she was dismissed, and the others remained in the room. Lee also testified that before Radford approached her with the union brochure, she had obtained copies of the brochure and given them to the company officials Virginia Bargeron, cosmetic saleslady, was present, at least most of the time, during the Radford-Lee conversa- tion. She testified that Lee did not start the conversation about unions or ask for the booklet which Radford handed her, but she conceded that she was absent for a "couple of minutes" waiting on a customer while Radford and Lee were talking. She said that as she left to make a sale the union was being discussed by Radford and Lee and that when she returned "they were still discussing the union as far as (she) could recall." It was after she returned to the scene that Radford gave Lee the booklet, she said. This occurred according to her, after "a couple of more minutes" conversation about the union. She also said she recalled that Lee indicated to Radford that she "just didn't understand about it and couldn't say for or against because she didn't know the full story on what was going on." She also said that when Radford left, Lee commented that he had been previously warned about "handing out booklets or anything on company time " District Manager Wilson testified that he told Radford on January 14 that the company did not "want (him) approaching (employees) on his working time or their working time" in connection with his union activities. Radford replied that he had been conducting his activities on nonworking time. According to Wilson, the next day Lee told him Radford "was bothering two of the girls on the main floor, in the cosmetic department." A management meeting was held to consider this information, and, after Lee made her report and left the meeting, the question of "keeping (Radford) in his department" was discussed and because Radford's offense followed so closely on his previous warning, Wilson decided to suspend him for three days. Robert Hickey, who manages a number of store departments and supervises Radford, testified credibly that on January 7 he observed Radford talking with a group of employees in the rug department. Radford told him that he was on his break, and Hickey said he accepted this explanation, but also warned Radford not to tie up the other employees who were not on their breaks but were on company time. Hickey did not know what the group was discussing and there is no direct evidence that the subject was unions. Hickey advised Radford of his suspension on Wilson's instructions . He interviewed Radford in the personnel office on January 15, 1971, and advised him that he had "been given the unpleasant task" of suspending him for 3 days because despite the warning that Wilson had given him the previous day "about conducting union activities on other people's time," Radford had continued the practice. Hickey said he asked Radford directly whether or not he had "solicit(ed) Mrs. Copeland (Lee) with union literature" that morning and that Radford stated that he had. Since this was an admitting violation of Wilson's previous directions, he imposed the suspension, he said. Radford's version of the talk he had with Hickey in which Hickey announced his suspension is not too unlike Hickey's. Hickey reminded him that Wilson had instructed him the day before not "to conduct union activity on company time" and asked him if he had spoken with Lee that morning. Radford admitted that he had, but he said that he denied Hickey's charge that he had solicited Lee for the Union and explained to him that "she asked me." Hickey conceded that at some point in their talk Radford claimed that Lee "asked him to come over and talk." He said he told Radford that Lee had reported that it "was the other way," and that in any case the decision to suspend him had been made and he was merely "performing a function" in effecting the suspension. Hickey also testified that during Lee's report to the management group about Radford's solicitation she did not mention that she had spoken to Radford first. The substance of what she did report, however, was that "she had been approached and solicited." B. Analysis, Additional Findings, and Conclusions Respondent was within its rights in warning Radford to restrict his union activities to times when he and other employees were not working, because a rule against union solicitation by employees during working hours is presump- tively valid both as to promulgation and enforcement.3 Indeed, since Respondent operates a retail establishment, it could have restricted all union activity on the selling floor if it wished.4 The presumption of validity of a no-solicitation rule may be overcome if it can be shown that it was adopted for a discriminatory purpose, and, of course, if it is unfairly applied, it will be no defense for discipline imposed under It.5 Radford had repeatedly engaged in union solicitation during working time before Respondent directed him to stop it. Although he was the Union's only solicitor and Respondent promulgated the rule after the Union began to 3 Republic Aviation Corp v N L R B, 324 US 793, 797-798, Walton denied 329 U S 725, Marshall Field & Company, 98 NLRB 88, 90 Manufacturing Company, 126 NLRB 697, The Wm H Block Company, 150 5 Republic Aviation Corp, supra, 324 US 793, 803, In 10 ; Walton NLRB 341 Manufacturing Company and Wm H Block Company, supra 4 N L R B v May Department Stores, 154 F 2d 533 (C A 8), cert J. C. PENNEY COMPANY, INC. 687 organize the store, these facts alone do not establish, and I do not understand General Counsel to so contend, that the rule was established for a discriminatory purpose and not to maintain order and discipline on the selling floor. General Counsel does contend, however, that the rule was unfairly applied against Radford, and he relies on certain considerations in an attempt to establish his position, but I find that certain elements necessary to support his argument do not appear in the record and that other factors relied on do not indicate discrimination. First, I find that Radford solicited Lee, as she said he did, and this finding is based on her version as partially corroborat- ed by employee Bergeron who testified that Lee did not start the conversation about unions. Although Bergeron left the scene for a very brief period, the union issue had already been injected into the conversation, and I credit her testimony that Lee had not done it. Since Radford solicited Lee without encouragement , the argument that he was entrapped is materially weakened, and in the light of the finding that Lee is not a supervisor, it is practically destroyed. Lee, however, could have begun a conversation with Radford and subtly introduced the union idea into the talk out of ordinary curiosity, but on the basis of Radford's known proclivity to engage in union activity during working hours for which he had been reprimanded only the day before, I find that this would not have excused his handing Lee a union booklet, which he admits, even if she asked him if he had any "information" on the union issue. If Radford was not actually flouting Respondent's rule in those circumstances, he would appear to have been somewhat indifferent about the consequences of disobeying it. General Counsel also argues that Lee was motivated by antiunion considerations in reporting Radford to manage- ment and that Respondent knew it. It appears from the credited testimony of Mildred Sack, an office employee, that a few days before Radford was suspended, Lee opened a conversation in which she was critical of Radford's role as the Union's protaganist. When Sack defended Radford, Lee became conciliatory and, after noting that the booklet, "The Law and You," was being circulated among employees, indicated that she, too, might be willing to join the Union if she were better informed. Sack asked her if she wanted to read the brochure, and Lee said she did, but Sack refused to give her one at the time at her request. Since Lee is alleged to have broached the union question with Radford, her conversation with Sack is pointed to as another example of entrapment or conduct of the same nature Lee engaged in with Radford in order to make more sustainable the inference that Lee asked Radford for a copy of the booklet so that she could report him to management. I find that Lee's views or attitude in regard to the Union or her conduct and conversation, as described by Sack, are insufficient to warrant a finding that Respondent used her to entice Radford into violating Wilson's recent rule against union solicitation during working hours. General Counsel also urges that Radford was treated discriminatorily because Respondent took no action against other "employees for misusing company time" and that therefore Respondent is actually "unconcerned with how Company time is used by employees for non-Company business, unless that business is related to the Union." On the basis of this "disparate" treatment, he concludes that Radford was suspended on a pretextual basis. It appears, however, that the activity that other on-duty employees engage in is ordinary conversation about everyday matters, but there is no evidence that Respondent allows solicitation for any cause during working hours. The meager evidence of normal employee talk at work which appears in the record clearly does not suffice to overcome the presump- tion that Respondent's rule is based on valid business considerations. If employers must stifle all communications between working employees in order to enforce a rule limiting union solicitation on company premises during working time, the presumption of validity which the Board, with court approval, has established becomes practically meaningless. Having found that Radford violated a valid rule which was not discriminatorily applied to him, I find and conclude that General Counsel has not established by a preponderance of the evidence that Respondent violated Section 8(a)(3) and (1) of the Act by suspending him for 3 days. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following conclusions of law: 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. Respondent has not violated Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety.