Brooks Fashion Stores, Inc.

BROOKS FASHION STORES, INC. Brooks Fashion Stores, Inc. and Retail Store Employ- ees Union Local 692. Case 5-CA-8415 January 20, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On October 3, 1977, Administrative Law Judge Gordon J. Myatt issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and the Respon- dent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE GORDON J. MYATT, Administrative Law Judge: This case arises out of a charge filed on February 10, 1977,' by Retail Store Employees Union, Local 692 (herein called the Charging Party) against Brooks Fashion Stores, Inc. (herein called the Respondent). On March 24, the Acting Regional Director for Region 5 issued a complaint and notice of hearing on behalf of the General Counsel alleging that the Respondent engaged in unfair labor practices in violation of Section 8(aX)() and (3) of the National Labor Relations Act, as amended (hereinafter called the Act), 29 U.S.C. § 151, et seq. The complaint alleges that the Respondent through the conduct of its store manager, Sherry Ridgeway, violated Section 8(a)(1) by threatening employees with discharge if they con:inued to assist the Union in its organizational efforts among the Respondent's employees. The complaint further alleges that the Respon- dent violated Section 8(a)(3) of the Act by terminating the employment of Linda Wescott and refusing to reinstate her because of her membership in, assistance to, and activities I Unless otherwise indicated, all dates herein refer to the year 1977. 234 NLRB No. 57 on behalf of the Union. The Respondent filed an answer denying the commission of any unfair labor practices. A hearing was held in Baltimore, Maryland, on May 25. All parties were represented by counsel and afforded full opportunity to examine and cross-examine witnesses, and to present material and relevant evidence on the issues. Briefs were submitted by the parties and have been duly considered. Upon the entire record2 in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINos OF FACT I. JURISDICTION The pleadings adrmit, and I find, that the Respondent is a New York corporation engaged in operating retail ladies clothing stores at various locations in the United States, including the Baltimore, Maryland, area. During the preceding 12 months, the Respondent had gross revenues in excess of $500,000 and purchased and received products and supplies valued in excess of S50,000 from points located outside the State of Maryland. Accordingly, the Respondent is, and has been at all times material herein, an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as de- fined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union, Local 692, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The Respondent operates a number of retail ladies clothing stores in 24 States. In the Baltimore, Maryland, area the Respondent has five stores at various locations. The only store involved in this dispute is the store located at the Security Square Mall designated as store 50 by the Respondent. At all times material to this case, the Security Square store was staffed by a manager (Sherry Ridgeway), a first assistant manager (Linda Wescott), a second assistant manager (Lisa Harbin), a full-time stockroom employee, and five to six part-time sales employees. All the Baltimore area stores constitute a district within the Respondent's organizational structure and are under the supervision of a district manager. The district manager in turn is responsible to a regional manager, who supervises the overall operation of all of the districts within his jurisdiction. Under the Respondent's staffing pattern, applicable to all of its stores, the store manager and the assistant managers are considered the "management team." The managers and assistant managers are salaried employees. The starting salary for a store manager is $155 a week plus a percentage of the store's volume for the prior year. In addition, store managers participate in a group life insur- 2 Certain errors in the transcript are hereby noted and corrected. 335 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance program fully contributed to by the Respondent and receive major medical insurance coverage. As a member of the "management team," store managers are given a 45- percent discount on all personal purchases of merchandise. The first assistant managers receive a salary ranging from $125 to $155 a week, and they are covered under the group life insurance program. As in the case of store managers, first assistant managers also have major medical insurance coverage under the Respondent's insurance program and are entitled to a 40 percent discount on personal purchases. Second assistant managers' salaries range from $105 to $125 a week. They are also entitled to the 40-percent discount on purchases. While second assis- tant managers are covered under the Respondent's major medical plan, they do not participate in the group life insurance program. As salaried employees, all managers and assistant managers receive their full weekly salaries even though they may have been off due to illness. Store managers are paid by checks issued from the Respondent's home office in New York, but assistant managers are paid directly from store earnings each week. Sales personnel in all the stores are part-time employees working from 15 to 25 hours per week. These employees are hourly paid, receiving $2.40 to $2.60 per hour. They are only paid for the actual hours they work. Similar to the pay arrangement for the assistant managers, salespersons are paid out of store receipts each week. They also receive a store discount of 20 percent on personal purchases. B. The Events Involving Linda Wescott Linda Wescott was hired in August 1976 by Joe Licari, the regional manager. She was hired as a second assistant manager assigned to the Security Square store with a starting salary of $100 per week. Prior to her employment with the Respondent, Wescott was the manager of a women's apparel store operated by another retail clothing company. Sherry Ridgeway was the store manager at Security Square and Linda Van Kirk was the first assistant manag- er. In November 1976, Wescott received a salary increase of $15 a week. Van Kirk was fired by Ridgeway, with Licari's approval, sometime the following month, and on December 20, 1976, Wescott was promoted to first assis- tant manager. She was given another $15-a-week salary increase with the promotion. During that same month, Wescott moved into a house where Ridgeway and a male friend were living. All three shared the rent and expenses under this arrangement. Prior to Wescott's promotion to first assistant manager there had been a continuous conflict between Ridgeway and the district manager, Katherine Bucenec, over the manner in which the Security Square store was being operated. Among other things, Bucenec was critical about the failure of Ridgeway to promptly comply with changes in floor displays directed by the home office. Bucenec also complained about Ridgeway's failure to follow company- directed procedures in handling credit card sales and reports, to promptly put new merchandise out on display, and the general uncleanliness of the store and the stock- room area. In addition, it is evident from the testimony of Bucenec and Ridgeway that a sharp personality conflict existed between them. From the manner in which Ridge- way testified when questioned about the problem with the district manager, it is apparent that she resented taking directions from Bucenec regarding the operation of the store. On January 5, Bucenec visited the Security Square store and found conditions which were not to her liking. She testified that Christmas returns were on racks in the front of the store, there were mistakes in markdowns of mer- chandise, the store manager had failed to keep a bad check register as required by company policy, and the store was "generally disorganized." While Bucenec was at the store, Ridgeway received a call from Wescott stating that she was not coming in that day. Ridgeway insisted that Wescott come to the store as she planned to be out that afternoon. During the course of this telephone conversation, Bucenec learned for the first time that Wescott was living with Ridgeway. Wescott came in and Ridgeway left the store at approximately I p.m., while Bucenec was still on the premises. Bucenec directed Wescott to clean up the store and correct all of the deficiencies she found earlier. Bucenec returned to the Security Square Mall store on January 7, accompanied by Licari. The conditions of the store had not improved and Bucenec and Licari held a conference with Ridgeway and Wescott. The undisputed testimony indicates that this conference lasted approxi- mately the entire day and was conducted in the store itself in the mall area. Licari attempted to resolve the differences between the district manager and Ridgeway. He also sought to get Ridgeway and Wescott to comply with company regulations and procedures in operating the store. After airing all of their differences, Licari placed Ridgeway and Wescott on probation with the understanding that they were going to improve the manner in which they were operating the store. During the course of this day-long discussion, Licari brought up the fact that Wescott was living with Ridgeway. He stated that it was against company policy because there was a strong possibility that Wescott was taking advantage of the personal relationship, and it would interfere with the operation of the store. He told Wescott that she should find other living quarters as soon as possible. He gave Wescott an additional $10-a- week raise partly to assist her in finding other living arrangements, and partly because they were hiring a new second assistant manager for the Security Square store at a salary of $125 a week. In order to maintain the proper differential in pay between the first and second assistant managers, Wescott's salary was increased to $140 a week. After the session with Ridgeway and Wescott, Licari reported the conditions at the Security Square Mall store to Harold Randall, executive vice president in charge of personnel for all of the Respondent's stores. Randall suggested that Licari fire the manager and the first assistant manager, but Licari protested that he did not have any replacements available. In mid-January, Licari placed advertisements in the local papers for managers and manager trainees. He and Bucenec also canvassed shops in the Baltimore area to see if they could hire suitable replacements for Ridgeway and Wescott. Licari and Bucenec returned to the Security Square store on January 21, and saw no improvements in its operation. 336 BROOKS FASHION STORES, INC. A "floor move" directed by the home office on January 14, to be completed by January 20, had not been started. The other conditions, including the cleanliness of the store, were the same as they had been prior to the conference on January 7. Licari continued his search for replacements for Ridgeway and Wescott. On January 26, he and Bucenec visited the store again. They observed that the "floor move" still had not been completed and there was no improvement in the manner in which the store was being operated. Ridgeway testified that sometime during one of Licari's visits after January 7, he complimented her on the improvement of the operation stating, "You little bitch, I knew you could do it." However, Licari testified that he observed an improvement in her attitude toward Bucenec and when he made the statement, he was only commenting on her change in attitude. During their visits in January, both Licari and Bucenec questioned Wescott concerning whether she had changed her living arrangements. When she informed them that she had not, they told her that she apparently "didn't realize the seriousness of the matter." They gave her an additional 2 weeks to find new living quarters. Because Bucenec and Licari continued to insist that she move, Wescott became quite disturbed over what she considered to be the unfairness of management's position. She felt that the Respondent had no right to dictate where and with whom she could live. In the latter part of January, Wescott mentioned to Ridgeway that she was going to consult with a friend who was employed by the Charging Party Union to see if he could assist her. Ridgeway told Wescott that the Respondent "was not and did not want to be unionized" and looked upon unions with disfavor. She said that, when any employees were contacted by the Union, it was assumed they would inform management or be fired. She told Wescott that if anything came out of the discussion with the union representatives, she had better not find out about it as she would fire Wescott. After this conversation with Ridgeway, Wescott never again brought up the matter of discussing her plight with representatives of the Union. On February 1, Wescott went to the union office and discussed her situation with several union officials. They suggested that the store might be organized so that the Union could protect the employees from arbitrary actions by management. Wescott signed a card and tentatively agreed to talk to the sales employees about the Union. She also agreed to provide the Union with a list of the Respondent's stores in the Baltimore area. The following morning Wescott was in charge of opening the store. By prior arrangement, a union representative met her at the store at the time of opening and she gave him a xerox copy of the list of the Respondent's stores. The only other employee in the store at that time was the full-time stockroom person. After the union representative left, Wescott briefly discussed with her the wisdom of having a union to protect employees from harassment by manage- ment. According to Wescott, the employee stated she felt it was a "good idea." She indicated that, if a campaign were started, she probably would sign a card. At no time did Wescott discuss her activities with any other employee or with Ridgeway. Ridgeway and Wescott testified that on February 7, Randall called the store and spoke to Ridgeway. According to the testimony, Randall asked Ridgeway about Linda, her former assistant manager. Ridgeway assumed he meant Van Kirk, who had been fired in November. She stated he corrected her and indicated he was referring to Wescott. Ridgeway testified that Randall said that he had heard through the "grapevine" that Wescott had some union dealings and wanted to know what Ridgeway knew about them. When Ridgeway replied that she knew nothing about it, Randall said he would be at the store the following day. On February 8, Randall came to the store accompanied by Bucenec. It was Wescott's day off, but Randall had Ridgeway call and instruct her to come to the store. While Randall was waiting for Wescott, he observed the same conditions which Bucenec and Licari had been complain- ing about for the past several months. Customer returns were lying on the floor in the stockroom, and merchandise which was to be returned to venders was in disarray and soiled. He also noticed filthy conditions in the stockroom and that current merchandise had not been marked and displayed as required by the Respondent. When Wescott arrived, Randall and Bucenec took her into the back room. Randall told Wescott that she was being terminated. He stated that she was not doing her job and that sales were down in the store. He indicated that she had been promoted too soon to first assistant manager. Wescott asked if she were being fired because of her activities on behalf of the Union. Randall told her that he knew nothing about her activities regarding any union and offered her a choice of receiving her check immediately or when the regular payroll was made up. Randall also fired Ridgeway that same afternoon after informing her that he was dissatisfied with the way she had managed the store. He also told her that he was disappointed over her failure to get along with the district manager. C. Wescott's Duties as First Assistant Manager As noted above, when Wescott was hired as a second assistant manager, she was on a straight salary basis as opposed to being hourly paid as were the sales personnel. She received a pay increase of $15 as second assistant manager and a similar pay increase when she was pro- moted to first assistant manager in December 1976. Only the managers had keys to the store and they rotated opening and closing the store during the week. The testimony indicates that, when Wescott was scheduled to open the store in the morning, she was required to go to the bank to get the cash for the day. In the event a sales employee was scheduled to work in the morning and did not show, Wescott had authority to contact another employee to see if she were available as a replacement. On occasion she did this on her own and on other occasions she contacted Ridgeway for instructions concerning a suitable replacement. As first assistant manager, Wescott had authority to and did direct salespersons to assist the stockroom employee in reticketing merchandise which came into the store. She also instructed salespersons to take merchandise from stock and put it on the floor. Wescott acknowledged that she could direct sales personnel to straighten out the store, but that 337 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the managers usually pitched in and helped the employees in this effort. When merchandise was paid for by personal check, the sales employees would get all of the information from the customer, but would have to bring the check to Wescott, Ridgeway, or the second assistant manager for approval before it could be accepted. The Respondent followed a policy that customers would only receive a store credit for merchandise returned later than 7 days after date of purchase. However, this policy could be varied at the discretion of any of the managers, including Wescott, if the customer had a plausible explanation for keeping the merchandise longer than 7 days, or if the person were a good steady customer. There is testimony that Wescott exercised her discretion in this regard on occasion and granted a cash refund when Ridgeway was absent from the store. Only the store manager or the first and second assistant managers could make bank deposits or pick up the store's cash from the bank. In addition, only Ridgeway, Wescott, and the second assistant manager could authorize any expenditures out of petty cash. Wescott testified that she or the second assistant manager prepared the weekly payroll for the store. This included their own paychecks since they were also paid from the store's weekly receipts. Since Ridgeway and the two assistant managers alternat- ed in opening and closing the store, Wescott was in complete charge of the store at least 3 to 4 hours a day for several days during each given week. As such, she exercised independent judgment in authorizing sales personnel to take breaks or to leave for personal reasons. She authorized expenditures out of petty cash and signed the expenditure vouchers. She also gave directions to sales personnel in handling customers and customer problems and the gener- al operation of the store. One of the Respondent's require- ments concerning sales personnel was that the managers or assistant managers counsel employees concerning their work performance and problems that interfered with their job duties. The record reflects that on one occasion Wescott counseled a salesperson regarding a problem the employee had working under Ridgeway's direction. This conference was memorialized on an employee conference card. Although Ridgeway was the manager and did the hiring and firing in the Security Square store, the record also indicates that Wescott would conduct a preliminary interview of the prospective employees and make a recom- mendation to Ridgeway. While Ridgeway relied solely on her own judgment, she testified that she gave weight to the recommendations made by Wescott. Concluding Findings The General Counsel argues that Wescott was an employee within the meaning of Section 2(3) and Section 8 of the Act. It is further argued that she was discharged because she engaged in activities on behalf of the Charging Party Union at the Respondent's Security Square store. In 3 The term "supervisor" is defined as follows in Sec. 2(11) of the Act: (I1) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or responsibily to direct them, or to adjust their grievances, or effectively my judgment, these contentions are neither established nor supported by the record in this case. Foremost, it is clear from both the record evidence and the testimony of the witnesses, including the testimony of Ridgeway and Wescott, that Wescott effectively exercised a number of the powers enumerated by the statute in defining supervisory status. 3 As stated by Administrative Law Judge Ricci in a decision adopted by the Board, "the characteristics which under the statutory language mark the supervisor are to be considered in the disjunctive" and "[I]t is sufficient for the disputed [person] clearly to exercise one of the enumerated duties to resolve the issue in favor of supervisory status." 4 In the instant case, the record shows that Wescott interviewed prospective employees and made effective recommendations to Ridgeway concerning the decision regarding the hire of such employees. Although Wescott claimed she never had authority to fire any employees, it is clear from her testimony and her affidavit that she was vested with the authority to effectively make such recom- mendation to Ridgeway if the occasion arose. In addition, she exercised the authority to grant employees breaktime, leave for personal reasons, and conferred with employees concerning personal problems which interfered with their performance at the store. Moreover, Wescott was not docked for sick leave, had additional insurance benefits not available to the sales employees, enjoyed a higher percent- age of discount reserved for managerial employees, and received a much higher wage. In Ridgeway's absence, Wescott exercised independent judgment in operating the store and thereby engaged in duties which were more than routine and clerical. She made independent judgments as to whether a customer should receive a merchandise credit or a cash refund on returned merchandise kept beyond the Respondent's 7-day time limit. She also exercised indepen- dent judgment in approving credit and personal checks for customers. In these circumstances, I find that Wescott was not an employee within the meaning of Sections 2(3) and 8 of the Act. Rather, she was part of the managerial team assigned to run the store. Food Marts, Inc., 200 NLRB 18 (1972); Dexter Foods, Inc., d/b/a Dexter IGA Food Liner, supra. As such, Wescott is not entitled to protection under the Act and her discharge does not violate the provisions of the statute. Having disposed of this issue regarding Wescott's em- ployment status, I find it unnecessary to go into the question of whether she was discharged for discriminatory reasons. Accordingly, there is no need here to resolve the credibility issues presented by this case in order to arrive at its ultimate disposition. CONCLUSIONS OF LAW 1. The Respondent, Brooks Fashion Stores, Inc., is an employer within the meaning of Section 2(2) of the Act to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Dexter Foods, Inc., d/b/a Dexter IGA Foodliner, 209 NLRB 369, 370 (1974). 338 BROOKS FASHION STORES, INC. engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 692, is a labor organization within the meaning of Section 2(5) of the Act. 3. The alleged discriminatee, Linda Wescott, is a supervisor within the meaning of Section 2(11) of the Act. 4. The statements made to Linda Wescott regarding the Respondent's attitude toward Unions and the discharge of Linda Wescott do not constitute violations of Section 8(aX)() and (3) of the Act because of her supervisory status. 5 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. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER5 The complaint herein be, and the same hereby is, dismissed in its entirety. 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. 339