Ritz Department Stores

RITZ DEPARTMENT STORES Ritz Department Stores and Milton Mitsunaga and Bruce E. Allen. Cases 37-CA-683-1 and 37-CA-683-2 November 7, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 17, 1972, Administrative Law Judge' Allen Sinsheimer, Jr., issued the attached Decision in this proceeding . Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed a supporting brief. 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. 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Trial Examiner: This proceeding was heard at Honolulu, Hawaii, on May 8 and 9, 1972. The consolidated complaint, issued March 20, 1972,1 alleges violation of Section 8(a)(1) of the Act. The issues are: (1) Whether Mitsunaga and Allen engaged in concerted activity; (2) whether at the time of termination Respondent possessed knowledge of any concerted activity; (3) whether they were terminated because of concerted activity; and (4) a possible issue of whether as management trainees they could legally be terminated for concerted activity. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs of the General Counsel and Respondent, I make the following: 2 1 The charge in Case 37-CA-683-1 was filed January 3, 1972, and the charge in 37-CA-683-2 was filed on January 3, 1972 2 During the course of the hearing the Respondent's answer was FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER 57 Respondent, a Hawaiian corporation, is engaged in the operation of retail stores on the island of Oahu, Hawaii. During the past year, it had gross revenues in excess of $500,000, and in the course and conduct of its business, purchased materials and supplies valued in excess of $50,000 directly from suppliers located outside the State of Hawaii. I find Respondent is, and at times material has been, an employer engaged in commerce and operations affecting commerce within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Preliminary Facts On September 18, 1971, Respondent employed Milton Mitsunaga and Bruce Allen as management trainees, with their work consisting largely of selling and also handling of stock. Although the General Counsel contends that their position was merely that of sales trainees, it appears that the Respondent hired them with the expectation that they might (or would) eventually become part of management. Sales training was an initial step, to be followed by systems training, including handling cash registers, changing tapes and learning matters about the sales floor; with the third step then being actual exposure to supervision. As management trainees, they were given overtime, expected to read the executive bulletin board, and treated as a part of the overall management structure. A number of such prior trainees have become part of management. Mitsuna- ga was a Japanese who graduated from college while Allen, who is Caucasian and younger, being 19 at the time of employment, was a high school graduate. Mitsunaga was told when employed there was a 3-month probationary period and a training period that would last about a year. B. The Alleged Concerted Activities On November 20, employees were informed of the death of Mrs. Kamuri, a cofounder of the Respondent, and notified of the time and place of the funeral. There was also a request made to contribute flowers to the funeral. Several days thereafter, Mitsunaga observed a notice posted on the bulletin board, which contained the names of 17 employees (including himself) who had not contributed for flowers. According to Mitsunaga, he complained about this to Allen and other employees to whom he said he stated he thought the contribution was supposed to be voluntary and this action was "arm twisting." Mitsunaga testified that he said to his supervisor, Taketa, "Well, I guess I'll have to pay the dollar now," to which Taketa responded, "Yes, if you want to." Mitsunaga did not attend the funeral because his relationship with the deceased was "strictly business." Mitsunaga gave Mrs. Nakamura, the store manager, a dollar without comment. Allen testified that after Mitsunaga spoke to him he saw the same list of names (including his) on the bulletin board. amended and it was also admitted that Alvin Taketa was a supervisor within the meaning of the Act. 200 NLRB No. 10 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He spoke to Mitsunaga and several other persons whom he named about this and said that Mitsunaga told him he thought it was "somewhat arm twisting." Allen felt it was somewhat voluntary but, if they didn't contribute, he was afraid of what the results might be. Thereafter, he went up to Mrs. Nakamura to talk to her about the funeral and the dollar donation. She told him it was good Japanese policy to go to funerals and the donation was part of it. He told her he personally didn't believe in funerals and the ceremony thereof. Allen asked if it would be better if he were to donate the dollar and Nakamura replied "Yeah, it would probably be better." Allen then gave her the dollar. Allen indicated that he felt it should be called a bill and taken out of their checks. Whether this may be viewed as a protest is a matter of argument but I do not consider it to have been concerted activity. About December 10, Respondent posted a notice informing employees of participation in a grab bag for Christmas gifts. Marsha Yoza, a supervisor, approached Bruce Allen and told him that she was there to remind him of the grab bag. He said he would rather not participate and that he didn't believe in getting or receiving gifts. Yoza explained that it was a store policy and that as part of the management level they should try to perpetuate the Christmas spirit feeling in the store. Yoza talked to Store Manager Elaine Nakamura about Allen's response and was told not to push it, tojust let it be. Thereafter she told Allen she had crossed his name off the list. He responded "Thank you, I appreciate it." Allen did not participate in the grab bag and did not mention to Yoza that he had discussed the matter with Mitsunaga. Yoza was the only management representative Allen spoke to. Yoza testified she also spoke to Mitsunaga about participating in the Christmas potluck. Mitsunaga said he would rather not. Yoza told him she'd see what she could do about it. Later she returned and told him his name had been removed from the list and he did not have to participate, whereupon Mitsunaga said that he would participate. Mitsunaga then did participate. In his conver- sation with Yoza, Mitsunaga did not mention Allen. Allen and Mitsunaga discussed the matter among themselves indicating their disagreement with the program. They testified that they also mentioned it to other employees. Yoza reported the separate conversations with Mitsunaga and Allen to Miss Rose Kamuri (Shigemura), president of the Company, shortly after her discussions with Mitsunaga and Allen. Mitsunaga testified that he had but one conversation with Yoza about the potluck gifts. She asked him whether he would participate in a $5 grab bag. He said "no;" she appeared disappointed and asked him whether he wanted to participate; he said "no" and asked if it was mandatory. She told him that it was not but everybody would be participating Mitsunaga then said he would participate. Subsequently Mitsunaga was ap- proached by an employee to draw in a grab bag. He thought it was a $5 grab bag but, after he drew, found it was a $10 bag for management personnel. The next day Mrs. Nakamura brought a $5 grab bag from which he drew a name. Mitsunaga testified that after he drew a total of 3 Shigemura also testified as to meeting Allen's father and learning from him that Allen was a little headstrong, of a rebellious attitude, and learning $15 worth of grab bag vouchers he mentioned it to Taketa, saying that $15 was too much. Taketa simply told him he'd get something back, "so don't worry about it." The foregoing may be claimed to be concerted by the General Counsel but I do not so view it and conclude that there was no concerted action to this point. The General Counsel also relies on events at the time of the termina- tions of Allen and Mitsunaga on December 21 to be discussed hereafter. C. Terminations of Allen and Mitsunaga Thomas Shigemura, vice president of Respondent and husband of Rose Kamun, the president of Respondent, testified that the first 2 weeks of Allen's employment had been superb but that Allen started to change thereafter, became slow in reaching customers and seemed to have some difficulties in meeting and handling them. Shigemura said he also spoke to Allen about a "filthy habit of putting pins in his mouth" and apparently picking his teeth as he waited on customers. Shigemura testified Allen said he would stop this but had to be reminded again to discontinue it. Shigemura said he also criticized Allen for the length of conversation with customers having observed on numerous occasions "he chit chatted with single girls." Allen admitted the "pin picking." Shigemura said he did not give specifics to Miss Kamuri but discussed Allen's performance generally. In an evaluation prior to Thanks- giving according to Shigemura it was considered that Allen had3 the potential and desire for supervision but was somewhat immature. Shigemura testified that in discus- sions with Fontana, the operation's manager, Shigemura said that he liked Allen's enthusiasm but recognized Allen's immaturity. Shigemura considered Mitsunaga to be quiet, reserved, and withdrawn. According to Shigemura, Fontana thought Mitsunaga should be released but at that time Shigemura felt he should be kept on to about Christmas to see whether there was ability not yet manifested. Shigemura testified that in mid-December he concluded that Mitsunaga was neither salesman-minded nor fashion-minded in the sense of suggesting clothes or accessories for men. On December 21, Mitsunaga and Allen were informed that they were terminated by Miss Kamuri. There is dispute as to the sequence of events as testified to by Allen and Mitsunaga and Miss Kamun. According to Allen, on December 21, he had two conversations with Kamuri, the first at about 1 p.m. when she came up and told him, "Chris, I understand you do not believe in receiving gifts." Allen said he did not comment at that time. According to Allen, Kamuri then said he was a self-centered or selfish SOB and I said, "Well, I don't see how those words are justified." Allen said he did give to relatives but didn't believe in "giving and receiving" in this instance. Allen testified a second conversation occurred at about 10:15 p.m. when Kamun asked him to come in the back section of the store where Mitsunaga was present and also Shigemura, Mrs. Nakamura, the store manager, and Taketa, the men's department manager . According to of his leaving home RITZ DEPARTMENT STORES 59 Allen, Miss Kamun said that the men's department employees were not working as a group and would have to pull together to have good sales. She then turned to Allen and referred to his "not attending the funeral and not giving a dollar donation."4 Allen testified she then "mentioned as far as the grab bag, that it was store policy, that this was to be done." Allen said he didn't believe in giving and receiving and didn't believe in funerals. Discussion continued, with Allen saying the dollar dona- tion could have been taken out of his check. Allen testified Miss Kamun said "Well, I hope that your mother dies tomorrow." According to Allen, Kamun then talked to Mitsunaga about the funeral and wondered why he didn't attend. Mitsunaga replied his relationship was strictly business and that if his mother were to die he would not expect Miss Kamuri to come to the funeral, not knowing her. Miss Kamuri disagreed and called him a "haole [Caucasian] with a Jap face." Allen said Kamun then asked about whether Nakamura made him donate the dollar and he replied that she did not. However, Allen said he didn't want to do so. Kamuri asked Mitsunaga the same and then according to Allen stated "I'll give you your dollar back with interest." Kamuri left and then returned and gave Mitsunaga and Allen their dollars. She then said to Allen and Mitsunaga "I don't want to see either of you here again in the store after Friday." Kamun then left. Allen testified Mitsunaga asked how this would go down in the records and Shigemura said "Well, it would probably go down as a seasonal layoff." On Thursday morning, thereafter, Allen saw a notice on the bulletin board referring to his termination. Milton Mitsunaga testified that on December 21 about 10 o'clock at night Kamuri talked to him in the men's department. Present were Shigemura, Nakamura, Bruce Allen, and Alvin Taketa. Mitsunaga stated Kamun started out by stating she wanted the men's department employees to work more as a team and then "began going" after Bruce Allen because he had not participated in the grab bag. Kamuri asked Allen why he didn't. Allen replied he didn't believe in giving gifts to someone he didn't even know. Thereupon Kamuri called him an "egotistical bombastic" SOB. She then asked both of them why they had not contributed a dollar for funeral flowers. Bruce Allen stated he didn't believe in funerals. Mitsunaga added that Kamuri also said he (Mitsunaga) was reluctant to pay the dollar. Mitsunaga testified that, after Allen replied he didn't believe in the ceremony of funerals, Kamun said to Allen, "Well, I wish that your mother would die tomor- row." Kamuri then asked Mitsunaga why he didn't attend the funeral. Mitsunaga told her he had no personal relationship with her mother and his relationship with her was strictly business. She thereupon called him a "haole with a Japanese face." Kamuri then said "Well, I don't want to see either of you two at the store anymore after Friday." Kamun left and Mitsunaga asked how it would go on the record. Shigemura said, "Well it would probably be a seasonal layoff." Thereafter Kamun came back and said that she was paying them money while they were standing there and told Bruce Allen to leave. Kamuri told Mitsunaga to stay and said that she thought he was a better Japanese than that and that he was more prudent and again told him he was "just a haole with a Jap face." Mitsunaga said a day or two later he saw the notice on the bulletin board stating that he had been terminated. Miss Kamuri testified that on a Sunday in October, she spoke to Mitsunaga and asked him what was his interest in retailing; that he responded he wasn't sure and thought he preferred civil service; that she told him maybe he could give it a try for a little longer but if civil service was his interest she couldn't stop him. Thereafter she received a report in November about Mitsunaga from Fontana, the operation's manager, who said that he considered Mitsuna- ga "too mousey and too quiet an individual to consider for management." Fontana also said to her that "We'll have to get rid of him." Shigemura mentioned that Mitsunaga's sales aptitude was low and he was very introverted. According to Kamuri, Shigemura spoke to her from time to time about Allen's attitude, usually in a meeting. Shigemura stated Allen was hardheaded and contradicted orders and that there was always an argument to every issue that was brought up. Fontana told her in December in response to a question about Allen's disposition "Blow it, he's too immature; forget it." She asked Taketa in December about Bruce Allen going into management and Taketa responded "Absolutely not, he's too immature, too many problems." Kamun said she decided to terminate Allen about 2 weeks or so before Christmas when Miss Yoza told her that Bruce Allen did not believe in gift giving whatsoever. She felt that a "great majority of business is done in gift giving and therefore this is one of the most important essential things in business." She already had Allen's termination in mind. Kamuri testified it was her understanding from Yoza that Mitsunaga did participate reluctantly in the gift giving program. On December 21 according to Kamuri, after 9:30 p.m. when the store closed, she spoke to Allen with no one else present at the time. She told Allen "I don't think retailing is for you." Kamun further testified: Q. And what happened after that? A. And he said, "Why?" And I said, "Because you don't seem to cooperate in many of the things that we do," one of which, I stated, was the gift giving. To which he responded, "I don't believe"-in a very angry tone-"I don't believe in giving gifts to anyone nor receiving gifts." Q. What did you say then? A. And I said, "Well, this can't be in retailing. You've got to receive and give gifts because this is part of retailing." Kamuri then testified she said "Also as a management trainee why is it that you didn't attend my mother's services?" Kamun said Allen responded, "Because I don't believe in funeral services of my friends or anyone. And if my mother should die, I wonder if I would go." Kamun testified she became angry and said "If your mother died tomorrow, I hope that you would have some compassion to go. You're just a self-centered, ego-centric son-of-a-bitch." Kamuri then said "Well, for these reasons and attitudes, the objections you have to orders given to you, the decisions that I have heard around, so let's forget it. Friday 4 Which he had given to Nakamura reluctantly 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is your last day. It is time, anyway, and you'd better leave because I don't think you want retailing." According to Kamuri, Allen said "Yes, I don't think retailing is for me." There was a discussion about the dollar gift to the funeral fund in which Allen told her he didn't want to give it and she told him he didn't have to. Kamun testified at that time she was in the center of the men's department. She then proceeded to where Milton Mitsunaga was about 20 feet away and told him, "I think your time is up and I don't think retailing is for you, Kamura asked him "Why didn't you attend the services of my mother?" Mitsunaga responded, "I don't think I should attend a funeral of anyone I don't know." The discussion continued about him being from Okinawa and Japan. Mitsunaga said that didn't make any difference. Kamuri told him "Well, you're a Japanese with a haole mouth." She meant an Oriental is not normally very articulate as compared with a Caucasian. Kamun then said, "Well, all right, I think that there's too much in contradiction, [sic] besides you don't seem to like retailing. I think we'll consider the end of this week your last day which is the 24th." Kamuri testified Mitsunaga at that point didn't say anything about the dollar for the funeral fund. She left the department and called Mrs. Nakamura who was across the way and asked her if she still had the money they had collected. Kamun received $2 from Nakamura and walked over and gave one to Allen. She then walked over to give one to Mitsunaga. Mr. Shigemura then walked in. Kamuri said to him, "I want you to be in on this, I have just terminated the two boys." According to Kamuri, she handed a dollar to Mitsunaga. He responded in an angry tone and said "How about paying the interest." She said she didn't owe any interest.5 Kamuri testified she obtained information about Mitsu- naga from Shigemura, Fontana, and from looking at the overall. She said she was first aware that Mitsunaga had not gone to the funeral when she began to talk to him on December 21 and he didn't agree with some of the things that were going on. She then learned that he hadn't gone to her mother's funeral. Shigemura said he had just come from another store and encountered the situation while in process. Shigemura testified as to the use of strong language by Miss Kamuri during the time he was present and that, while he knew she gave the money back, he didn't see her give a dollar to Allen. Shigemura said there were present Allen, Mitsunaga, and Miss Kamuri. When Kamuri left, he spoke to Allen and Mitsunaga and mentioned that he thought it was best all around. Shigemura was asked as to the reasons for the termination. Although Shigemura did not actually effect the termination, he testified that a supervisor would have to be one who would lead and serve as a good example, that there was a matter of immaturity, that they had failed to be cooperative, and that there was a general feeling of rebellion which he felt was not good in supervision. The termination notice in the case of Mitsunaga reads as follows: "Conflicting philosophies with employer ... . Does not believe in receiving or giving gifts . . Lacks 5 There is also some testimony thereafter about a subsequent discussion with Allen in which he indicated his attitude may have been wrong and simple courtesies accorded to fellow human beings. Interest not in retailing ... . The termination notice in the case of Allen reads as follows: "Does not agree with philosophy of management ... Does not also believe in receiving gifts. Also does not believe in simple courtesies that are paid to fellow human beings or workers without feeling that a intimate relation- ship is needed, as a requisite. As an assistant or potential executive . . . we cannot accept this type of individualistic philosophy vs. company oriented philosophy which is needed." D. Conclusions First, I have noted Shigemura's testimony as to a discussion with Allen's father concerning rebellious aspects of Allen's leaving home, Allen's contradictory attitude on the job, and his immaturity, as well as that of Kamun to the same effect, and also Shigemura's and Kamuri's testimony relative to discussions with and comments by other supervisors, including Fontana and Taketa, as to both Mitsunaga and Allen. I also observed both Mitsunaga and Allen while they testified and were in the hearing room. I noticed that Mitsunaga was quiet, reserved, and did not appear to manifest a personality inclined toward saleswork. Allen was more outspoken and appeared to be more outgoing, but also manifested some indication of what might be described as a challenging attitude which could or might manifest itself in a form of opposition, possibly viewed as rebellious toward orders and conduct in a store. In the young, such is neither unusual nor necessarily undesirable. A certain amount of questioning or challenging attitude is, in my judgment, desirable. Further, Mitsunaga and Allen appear to be intelligent young men which is why they were selected by Respondent for the training program. At the same time, Mitsunaga, both from testimony and observation, appeared to mani- fest a certain reserve which may not be desirable in a sales force and Allen, an attitude reflecting immaturity. The matter of the funeral is one as to which people may differ both culturally and generation-wise. However it is clear from the testimony of both Shigemura and Kamun that it was important as both Japanese culture and store policy that supervisory personnel attend funerals of employees whenever time would permit. Accordingly such would be a necessary aspect of the training and development of supervisors. As for the gift giving, while the attitude of Mitsunaga and Allen as individuals is understandable, so also is the store policy where so much of its business is dependent thereon. Hence, the Respondent was entitled to expect adherence to its policy of both salespeople and management trainees. From the record as a whole and my observation of the witnesses, as set forth above, I am crediting Kamuri's (and Shigemura's) testimony as to the reasons for the termination of Allen and Mitsunaga. A first question is was any concerted activity involved. Except possibly for the evening of September 21, insofar as Mitsunaga and Allen were concerned, it appears that their actions were personal reactions, which may have coincid- Kamun offered part-time work if he wanted it while attending school RITZ DEPARTMENT STORES 61 ed, against the funeral, the dollar payment, and the gift giving policy, but that no concerted action as such was taken. The General Counsel's argument then is predicated on the action of termination on December 21, which he contends manifested an attitude or treatment by Respon- dent of Mitsunaga's and Allen's conduct as concerted action and a termination therefore. This in turn must be predicated on a contention that since the two were treated either together or at about the same time and the terminations involved two of the same matters which Allen and Mitsunaga had objected to, the terminations must have related to and been because of concerted activity. As part of such contention, it would be necessary to accept the versions of Allen and Mitsunaga that they were called together at the same time rather than that of Kamuri and Shigemura that they were spoken to separately. But even assuming, arguendo, these management trainees who had been employed at the same time were called together and terminated at the same time for reasons in part the same or similar, including matters which they had separately objected to, it does not follow that concerted activities were involved. More important, even assuming, arguendo, that their objections were concerted or that Respondent thought they were, it does not follow they were terminated because of concerted activity. The cause of termination appears quite clearly to have been the management's resolution that Mitsunaga did not have the personality for the job and that his views were contrary to Respondent's philosophy both as to attendance at funerals and gift giving which the latter, management believed, was essential to its sales. In Allen's case, it is evident that Respondent believed he was immature, somewhat rebellious, and also did not agree with its philosophy or approach as to either attendance at funerals or gift giving which it was entitled to expect both of its 6 That knowledge is a prerequisite See N L. R B v Burnup & Sims, Inc, 379 U.S 21 at 23. r See Continental Oil Co, 161 NLRB 1059, and cases cited 8 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, salespeople and persons training for a management position. First it is evident that the mere fact that persons take like positions doesn't make the action concerted. Nor does a termination for like positions necessarily make such a termination one for concerted activity. For example, if employees oppose individually or concertedly company rules as to absenteeism or tardiness, are either repeatedly tardy or repeatedly absent and thereupon are either individually terminated, or several persons are terminated at the same time for violations of these rules, such terminations, absent anything more, would be proper and valid. The situation herein does not appear to be any different. Respondent has certain policies as to what it expects of salespeople and management trainees. If these persons do not meet or conform to these requisites, a termination is in order therefore. Mitsunaga and Allen were accordingly properly so terminated. I conclude first there was no concerted activity on their part and since there was none, management could not have known6 of any, and in any case they were not terminated because of any concerted activity but for good cause.? This makes it unnecessary to consider the question of whether or not, as management trainees engaged in concerted activity, they could be terminated therefor. I accordingly find that the General Counsel has not established either concerted activity, knowledge of concert- ed activity, or that Mitsunaga and Allen were terminated because of any concerted activity. I shall accordingly recommend that the complaint herein be dismissed. RECOMMENDED ORDER8 It is accordingly recommended that the complaint herein be dismissed in its entirety. 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