K-Mart Enterprises, Inc.

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD K-Mart Enterprises, Inc. and Deborah A. Kalisz. Case 7-CA-9683 Upon the entire record in the case and from my observation of the witnesses, I make the following: March 13, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 12, 1972, Administrative Law Judge George J. Bott issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and 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 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, K-Mart Enterprises, Inc., Royal Oak, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent 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 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. DECISION STATEMENT OF THE CASE GEORGE J. BoTT, Administrative Law Judge: Upon a charge of unfair labor practices filed by Deborah A. Kalisz on July 13, 1972, against K-Mart Enterprises, Inc.,' herein called Respondent or Company, the General Counsel of the National Labor Relations Board issued a complaint against Respondent on August 22, 1972, alleging that it had engaged in unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer, and a hearing was held before me at Detroit, Michigan, on October 16 and 17, 1972. Subsequent to the hearing, Respondent filed a brief which has been carefully considered. FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent, a Michigan corporation, is engaged in the retail sale of automotive and sporting goods throughout the State of Michigan and various other States of the United States and maintains its main office in the city of Royal Oak, Michigan, which, is the only facility involved in this proceeding. During the year ending December 31, 1971, Respondent sold at retail at its various facilities within the State of Michigan merchandise valued in excess of $500,000, and during the same period it purchased and caused to be delivered to its Michigan facilities merchandise valued in excess of $500,000, which goods were shipped directly from outside the State of Michigan. Respondent concedes, and I find, that it is an employer engaged in commerce within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting and the Issues Several hundred office employees work in Respondent's headquarters building in Royal Oak, Michigan, but the only persons involved in this case are the employees working in Respondent's payroll department, which at all times material to this case consisted of approximately 25 payroll clerks working under the supervision of Mrs. Jeanne Plotzka. It is clear from the testimony that during January and early February 1972, there existed in the payroll department some sort of a personnel or morale problem, the depth, extent, and causes of which are somewhat unclear. Assertedly in an attempt to cure this problem on the ground that they were improperly and for personal reasons striking at Supervisor Plotzka, Respon- dent discharged payroll clerks Kalisz and Snyder during the week of February 6, an action which General Counsel contends was motivated by the fact that said employees had acted, as the complaint alleged, "as representatives for employees in the presentation of complaints and griev- ances . . . and had engaged in other concerted activities" protected by the Act. B. Basic Findings Respondent's payroll department computes wages earned and prepares checks for all employees working for wholly owned subsidiaries of Respondent in sporting goods departments and automotive departments in K-Mart stores throughout the United States. Timecards for each employee are received in the payroll department not later than Monday of each week. Wages are then computed and checks prepared not later than Wednesday of each week so that they can be mailed to the stores and given to individual employees not later than Friday of each week. It appears that because of these deadlines, employees in the 1 Respondent's name as amended at the hearing 202 NLRB No. 58 K-MART ENTERPRISES, INC. 359 payroll department are extremely busy writing checks from Monday to Wednesday afternoon, but much less busy and occupied with less essential tasks during the rest of the week. Payroll department employees work in four or five cubicles each containing four to six employees. All cubicles are close to Plotzka's office. Sporting goods and automo- tive departments for which payroll checks must be written are divided into a number of separate corporations, usually one corporation for each State. In order to distribute work fairly and because payroll clerks must be familiar with the varying local and state regulations affecting deductions from payroll checks, the workload is divided among the payroll employees by corporations. Employees work in teams of two each. Although there is no formal division within the payroll department, some employees worked primarily on sporting goods checks and others on automo- tive checks, but I also find that because it is essential that checks be mailed on time for payment to the employees in the many stores scattered throughout the United States, it is necessary for all employees to work cooperatively, and consequently all teams, whether in sporting goods or automotive check writing, are expected to volunteer to help other teams get the work done. This area of "voluntary" group effort as a possible and likely partial source of employees' discontent in January and February 1972 figures prominently in this case. Miss Kalisz and Mrs. Sandra Snyder, the dischargees, worked as a team in a cubicle with three other employees preparing sporting goods department checks primarily, but since, as Respondent concedes, they were the more proficient employees in the payroll department, they frequently assisted other teams in preparing their payrolls after they had completed their own assignments. Payroll clerk Deborah Kalisz worked from October 1, 1970, until February 14, 1972, when Respondent dis- charged her. Apart from the question of whether she and Snyder were "stirring things up" in the department in some manner to be treated later, Respondent conceded at the hearing that there is no issue about her proficiency and technical competency or other facets of her employee profile. Kalisz testified that she had always been an excellent and a willing worker, and I agree, for not only is her 2 Specifically I find on the basis of her testimony, that she was more productive than most other check writers, that she received merit increases, that she carried a double workload for a month and one half, that her attendance record was satisfactory; that she received no warnings or reprimands during her employment, and that when she finished her work she voluntarily helped other employees complete theirs Although she and Snyder complained to Plotzka about having to assist another employee who was not doing her share of the work, neither she nor Snyder actually failed or refused to assist other employees at any time 3 On cross-examination, Kalisz explained her comments to Schick, but, although more dramatic, her version remained essentially the same She said, for example, that Bailey's promotion raised the question of favoritism among the employees and that this caused "fighting" in the other cubicles and "too much commotion " With respect to Plotzka, she said she "screamed" at her, treated her like a "dog" and went "berserk" when she discovered mistakes In regard to "disorganization," she said she meant that Plotzka explodes when she discovers mistakes in check writing and can be heard all over the department 4 Employee Mary Rodgers said that Plotzka wanted to know what the statement essentially in accord with Respondent's conces- sion, but it is basically uncontradicted in in the record.2 On February 4, Kalisz met with John Schick, Respon- dent's personnel manager, in charge of overall personnel functions in Respondent's office, and asked him for a transfer to another department. On questioning by Schick as to what caused her to make this request, she volunteered that there was "too much disorganization" in the payroll department; that the work was getting done, but not as smoothly as it should be; that it was "upsetting" and employees were "fighting." She added that she had little to do on Thursdays and Fridays when she finished her work and was given only "piddly" unimportant tasks to keep her busy. She thought, therefore, that she could do a better job for the Company somewhere else. Schick pressed Kalisz for more detail, but she replied that she feared she would be fired if she said more. On his assurance that this would not happen, she told him that employee Bailey's recent promotion had caused a "lot of friction between" the employees doing automotive work, and she added that Supervisor Plotzka "was not treating the girls the way she should have . . . she was yelling at them all of the time and just making them feel like .. . they were idiots . . ." and incompetents. Kalisz was upset during the meeting and cried, she said.3 At that point Schick informed her that Plotzka was having a general meeting of all employees in the payroll department on the following Monday, and suggested that she wait and see what developed at the meeting. On Monday morning, February 7, Plotzka assembled all payroll department employees in her office and after asking each person to voice any complaint she had about the work in the department, called on them one at a time. On the basis of Kalisz' and Snyder's•testimony, corroborat- ed in part by the testimony of other employees,4 I find that the majority of the employees who had any problems to air questioned employee Bailey's recent promotion or the distribution of work among the employee teams; that Kalisz and Snyder mentioned work distribution, seniority, assignment of an additional employee to sporting goods to approve vacation or sick payments, and that both complained about the manner in which Plotzka instructed them in their work.5 On Wednesday afternoon, February 9, after the payroll for that week had been completed,, Plotzka called Snyder employees' "problems" were and that Kalisz and Snyder "spoke up the most" and complained that Plotzka yelled at them too much and made them afraid to tell her about any errors they had made because she made them "feel small." Seniority was also mentioned, she said Employee Anna MacArthur testified that Kalisz, Snyder, and two other employees were the most outspoken, Kalisz and Snyder complaining about Plotzka's temper and raising her voice. Diane Toolin recalled Kalisz and Snyder stating at the meeting that sporting goods should have a person like automotive had who could authorize vacation or other payments . She said someone else also voiced a complaint about Plotzka's manner of criticizing employees. 5 More colorfully and more specifically, Kalisz testified that when Plotzka questioned her, she told her that she did not like the way she yelled at employees and made them feel stupid, a habit she described as "treating us like dogs." This was in addition to her preliminary comments about work distribution and an additional employee She said that Plotzka responded that her bark was worse than her bite Snyder said that when Plotzka reached her in her canvass , in addition to mentioning certain other working problems, she told Plotzka that she treated employees like "jerks" by "storming" at them in connection with their work. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to her office and, in Schick's presence, discharged her, telling her she was sorry, but that it was "for the betterment of the department." Snyder asked for an explanation, and Plotzka added that since there was "too much conflict" in the department, she thought it better that Snyder be terminated. According to Snyder, and I credit her uncontradicted testimony, Plotzka also stated that the decision to terminate Snyder was not hers, but that "this is the way it is going to have to be." Snyder had been employed as a payroll clerk by Respondent in 1966, but she left voluntarily in 1969 and was reemployed in July 1971. It was stipulated that she was a competent employee and that her record was otherwise satisfactory. She also testified that she was an above average employee and got along well with other employees. Plotzka testified that she had "absolutely" no complaint about Snyder's work or dependability. Leaving aside for the moment the question of how Snyder got along with other employees, a point which is closely related to, if not at the heart of Respondent's defense, I find that she was an above average employee. I also find, contrary to Plotzka's denial, that during her first period of employment, she "assisted" Plotzka, although she did not carry that title. Kalisz was on sick leave the day Snyder was discharged and did not return to work until the following Monday, February 14. When she reported, she was terminated by Plotzka in Schick's presence "for the betterment of the company." Neither employee had been warned by anyone before termination that their conduct had fallen below acceptable standards of employment. On February 14, Plotzka held another meeting with payroll department employees at which she mentioned Kalisz' and Snyder's discharge. Employee Rodgers testified that Plotzka told them that there had been a "shake up," that she was "boss" and doing the best she could, and that the dischargees had "been kind of stirring things up and that we should try to cooperate with each other." Employee MacArthur remembered Plotzka indicating that Kalisz and Snyder had "created disturbances" in the department, and employee Toolm said that Plotzka indicated that they "were some type of troublemakers." Plotzka's recollection of whether she mentioned Kalisz and Snyder was very uncertain, and I credit the,testimony of the employees. Kalisz and Snyder had other discussions with Plotzka concerning work problems before the general meeting of employees on February 7 which have a bearing on the issues in this case. Three employees in the payroll department, namely, Plotzka, her assistant, and a third employee working on the automotive payroll, had authori- ty to approve timecards which indicated that an employee absent from work was nevertheless entitled to be paid because of vacation or sick leave. Kalisz and Snyder testified credibly that this practice inconvenienced them in writing checks because sometimes the employee in auto- motive could not handle their requests for approval and Plotzka and her assistant were unavailable. Employee Rodgers testified without contradiction that this problem had been discussed among employees and that Kalisz and Snyder were leaders in the discussion. It also appears that Kalisz and Snyder brought the matter to Plotzka's attention on at least one occasion and requested her to try and have one employee in sporting goods assigned to issue approval as needed at their request in order to expedite processing of checks. Plotzka considered the question and denied the request. This was also one of the subjects that the employees raised at Plotzka's February 7 meeting. Redistribution of work has also been mentioned as a subject raised by Kalisz and Snyder and other employees at the employee meeting. In the past, as the Company added new corporations, splitting of corporations and reassignment of employees had occurred. Snyder testified credibly that on the Friday before she was fired, she and Kalisz spoke with Plotzka about the need for splitting corporations again. Plotzka agreed, she said, but also wanted to split up certain partners because some were faster than others. Snyder and Kalisz assisted Plotzka in changing corporation assignments and suggesting teams, but it appears that the changes had not been made at the time they were terminated. Snyder testified that Plotzka wanted to break up the Snyder-Kalisz team and have them work with other employees and although she felt bad about it because she and Kalisz were friends, she agreed to it anyway. Whether or not Snyder agreed is in dispute, for Plotzka testified that she did not and that this entered into her decision to terminate Snyder and Kalisz. A resolution of that question may be postponed until Plotzka's testimony is examined, but at this point I find that there was nothing in Kalisz' and Snyder's participation in suggesting and preparing a redistribution of corporations which was in any way improper. I also find, however, that Kalisz' and Snyder's reaction to Plotzka's indication that they would be separated, whatever it might have been, was never brought to their attention by anyone as something which could lead to their discharge .6 There is some evidence in the record which Respondent contends reveals Snyder's and Kalisz' uncooperativeness in assisting fellow employees. Snyder testified that she resented having to help other payroll clerks in other cubicles, and even in her own, whom she thought were not carrying their "fair share of the load." She admitted speaking to Plotzka about the problem on occasion and recalled Plotzka telling her that she and Kalisz were fortunate to be so fast and proficient as to be able to do their own work and still help others. She conceded that she once "flipped her lid" and got into an argument with employee Birdsell, who worked in her cubicle, about Birdsell's not doing her part as a member of her team. She did not deny Plotzka's testimony that after she complained to her about Birdsell, Plotzka called all four employees who worked together into her office where a heated argument about cooperativeness took place among the employees. Snyder also testified, however, and Plotzka did not deny this, that other employees had. also complained about employee Birdsell's lack of effort and that, in any case, after the meeting in Plotzka's office, the employees 6 On the contrary, Plotzka testified that she told them that her proposals for team splits were "only a proposal" and "informational," when they indicated resistance to them K-MART ENTERPRISES, INC. 361 "straightened" the matter out, that all was "fine" and that thereafter they worked together "real good."7 Jeanne Plotzka, supervisor of the payroll department and Respondent's principal witness, described conditions in her department in December 1971 and January and February 1972, which she said caused her to decide to terminate Kalisz and Snyder. She testified that she noticed that one office was working overtime while all other employees had left on time.8 She also observed that the clerks in two cubicles were holding checks already written rather than balancing the payroll for a particular corporation as soon as that corporation was written and transmitting the checks to another employee for additional processing, thereby delaying the completion and mailing of the checks. She said her observations led her to believe that employees were not helping and assisting each other as they were expected to. As a result she spoke to the entire department, urging better cooperation among the employees, and she also advised the employees in two cubicles who were responsible for holding checks on their desks to change the practice. In neither case did she indicate that Snyder or Kalisz were at fault.9 Plotzka said that the clerks who worked in the automo- tive cubicles continued to run behind in completing their assignments. This she attributed to a large turnover of employees in those cubicles, the opening of new stores, and the increase in the size of payrolls in those stores. In addition, she said that the employees in automotive appeared to be afraid to complain about the situation and "there was a feeling that they did not want to help these girls, let them sit there and get the work done." She supplemented this statement with the admission that she did not "know," but she said her "investigation indicated that this was the fact." She also said that when she saw one department with clear desks and another (automotive) running behind she "had that feeling that there was something wrong, that they were not going to work as a team." Plotzka said that when the conditions she had described, which indicated a lack of employee cooperation, occurred "periodically," she would speak to the employees as a group about them. Plotzka stated that she never had any "occasion to discuss with Miss Kalisz or Mrs. Snyder, the cooperation situation," but that they had discussed the "work attitudes of other employees" with her many times. According to her, Snyder and Kalisz would complain to her "approxi- mately once or twice a month" about "the cooperation of the, girls," which she amplified as being complaints that they were "always having to help someone else," even though they needed some themselves. In January, Kalisz and Snyder complained to Plotzka about employee Birdsell, as set out earlier, and Plotzka met with the four girls in that cubicle. The four employees argued back and forth and "screamed" at one another. Plotzka chided them all for their unladylike outbursts and urged them to cooperate with one another. The employees agreed to work together, and Plotzka sent them back to their desks. Plotzka conceded that during the meeting, Charlene Sullens, Birdsell's partner, admitted that Birdsell was not doing her work. Plotzka testified that after the meeting in her office on Snyder's and Kalisz' complaint about Birdsell, there was .,more tension" in the entire department. Asked what she based this statement on, she said it "must bejust a feeling of people not wanting to work together," and she added that it "is human nature . . . (to) know that people are not getting along or not cooperating with one another." Plotzka also suggested that the "tension" might have been related to the fact that the other employees may have overheard what had transpired during the meeting in her office on Snyder's and Kalisz' complaint. Sometime after the Birdsell incident and about a week before she held a meeting of all employees on February 7, as described earlier, Plotzka said that she and her assistant made a list of new team assignments, splitting up certain teams in the hope of eliminating dissension. During the following week, Snyder observed the new listings on a board near Plotzka's desk, she said, and both Snyder and Kalisz subsequently told her they did not want to be parted as a team. She said she told them that the listing was "just a proposal," that she had not talked with anyone else about it, and that it was for her use only, but she added that there "was the feeling then that I was being told that they were not going to even listen to the proposal. I was not going to say well, you have to do this. Nobody has to do anything." On Friday, February 4, Plotzka spoke to Personnel Manager Schick about her office problems. She said she told him that she had "to do something," because she could not "run the department smoothly," since it seemed to be "separated" or "sectioned off." She told him, she said, that she had "to get to the bottom of it" and she had "to make up her mind what (she was) going to do." When Schick suggested that she hold a general meeting of employees, she agreed that this might clear the air and "bring out a lot of these things that are happening in the department." She said that during their conversation Schick did not mention that Kalisz had asked to be transferred for a number of reasons, including the way she said Plotzka criticized employees. Plotzka was visibly upset as she left the office Friday evening, she said. Wayne Stutzman, in charge of personnel for all of Respondent's stores, walked out with her and asked her why she was upset. She said she told him that "she had to do something," that she could not go on like this, that she had to make up her mind and "had to get this department back as a department," and that she was "going to make up (her) mind." She said Stutzman advised her to go home and relax, and that he would speak with her during the weekend. On Saturday, Plotzka visited her mother, she said, and told her that she was "having problems" with some of the employees in her department, "that they were complaining 7 Employee Rodgers testified about hearing "yelling" and "arguments" in Kalisz' and Snyder's cubicles and she indicated that she assumed that they were having a "hassle" about "not cooperating with each other." She said she "assumed" that the "hassle" was over Birdsell's failure to carry a fair share of the work, because she had worked with that employee in the past She also said she had complained to Plotzka about her own partner's uncooperahveness. 8 The words "office" and "cubicle" are used interchangeably to describe the enclosed space in which a group of 4 to 6 payroll clerks work 9 At one point she stated that she "would not venture to say any names in particular." 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about their fellow workers." She continued to think about the subject, and she said that she decided that night, without talking with anyone else and without anyone knowing what she contemplated doing, to terminate Kalisz and Snyder. Stutzman telephoned her at home on Sunday, Plotzka said, to ask her how she was feeling. She told him that she felt relieved because she had made a decision. Stutzman asked if he might ask what it was, and she said she told him that she had decided to let Kalisz and Snyder go. Plotzka did not tell Schick about her decision to fire the complainants until after the general employee meeting which she held on Monday, February 7. She said that only after she told him did he tell her about his meeting with Kalisz in which she requested a transfer. Schick and Plotzka agreed to keep the employees until Wednesday because that was the end of the payroll period and also because they needed to get out the Company's checks on time. Plotzka's version of her meeting with all employees on February 7 is not too unlike Kalisz' and Snyder's, but it is much narrower. She said she opened the meeting by telling the employees that she felt that there was dissension in the department and wanted to find out what was wrong. She asked everyone to speak up or forever after hold their peace, and she called upon each employee by name. She recalled comments "that a lot of girls were afraid of (her)," and that "the work load was too great." She said she assured the employees that the Company was trying to recruit more employees and that she was attempting to reshuffle corporations in order to achieve a better distribution of work. At the conclusion of the meeting, Plotzka said she told the employees that she was sorry if she had hurt anyone, that she would try to mend her ways if she had, and that they could come and talk with her if they had problems and she would try to resolve them, but she added that she would not want to hear anything that had not been aired at the meeting because she felt that the meeting had been "open and above board and everyone knew how each other felt." On February 14, Plotzka held another meeting of payroll department employees to assure them that Kalisz' and Snyder's discharge had no bearing on their tenure. She said that she did not discuss with them the reasons for the discharges and she had no recollection of referring to Kalisz or Snyder by name or commenting on what kind of employees they were. Personnel Manager Schick testified that Plotzka told him in a 5-minute conversation in late January or early February that her department was "falling apart," but she did not know what the problem was, although the department did not appear to be functioning as a unit and the employees were arguing with one another. Schick said he suggested that she have a meeting with the employees to find out what the problem was and then "let us get them straightened out and let us go on from there." Schick's version of his meeting with Kalisz a few days later is essentially like hers. He said that he did not tell Plotzka about Kalisz' complaints about her and the department or of her desire for a transfer because he did not want to influence Plotzka's judgment before she met with the employees on the following Monday. It was only after Plotzka told him on February 7 that she "realizes now what her problem is" that he told her about Kalisz' request for a transfer. He could not recall the time of this conversation. Schick participated in the separate meetings with Kalisz and Snyder at which they were informed of their discharges. He said he did not participate in the decision to discharge them, but they were fired for the "betterment of the department." Asked what that phrase meant in Snyder's case, he answered that "At this point, I would only have to assume," and he then conceded that he did not know. He said he informed Kalisz that she was discharged "in her best interest and the Company's best interest." He explained that as meaning that "with all of the friction being caused in the office that she was not getting along with the girls, the girls were not getting along with her, we were not getting our work done , she was unhappy in her job, the best thing to do . . . was to separate her." He said he based his opinion on whether she was "getting along with the other girls" on her statement to him that she was unhappy and wanted a transfer. That, he said, was all he knew. He also conceded that he did not know whether the work was being done or not. Stutzman, personnel director, with jurisdiction over field, but not home, office employees, testified that he entered Plotzka's office in late January or early February, but quickly withdrew because a heated discussion or argument was going on. He said he recognized Kalisz and Snyder and perhaps one other employee, but he could not hear anything that was being said. Later in the day, he said, he asked Plotzka what had been going on, and, although she did not go into any detail, she indicated that someone had complained about another employee not "doing their particular share of the work load or something like that." One evening as Stutzman left the office he noticed that Plotzka was emotionally upset, he said, and when he asked her what caused it, she replied that she was worried about her department and "the quality of the work that was getting out of it and the harmony in the department." Noticing the tears in her eyes, he tried to cheer her a little by telling her that everything would work out alright, and then he left the building. According to Stutzman, having thought about Plotzka's distress over the weekend because a smooth running payroll department is important to his field operations, he telephoned her on Sunday to find out how she was feeling. Plotzka told him she felt better because she had recognized that her problems of dissension were "caused by two people" whom she had decided to discharge. Stutzman said he told Plotzka that he was glad that she made up her mind about what she was going to do and that it would be good for everyone concerned, "especially the people in the field." That was the end of their conversation, he said, and although Plotzka did not identify the two employees she intended to discharge, Stutzman said he knew whom she was talking about "because of the thing that happened at the office," which we must assume was the heated discussion he had overheard when he entered Plotzka's office sometime before. K-MART ENTERPRISES, INC. C. Analysis, Additional Findings and Conclusions Respondent contends that the "tension," "problem," "disorganization," "separation," "friction," or whatever word a particular witness may have used to describe the atmosphere in the payroll department prior to February 7 was due to a "sub rosa" campaign by Kalisz and Snyder to create friction, tension, and upset in the department and to achieve personal ends unrelated to a general improvement of working conditions for the department as a whole or any legitimate individual working conditions for either Kalisz or Snyder. I do not believe that the record will support that contention, and I so find. First, every suggestion which Kalisz and Snyder made to management or to fellow employees and every act they performed in the context of those proposals was legitimate and proper, so far as the record in this case discloses, and it has been set out above in some detail. They urged upon Supervisor Plotzka the assignment of a knowledgeable person to sporting goods to approve vacation and sick leave payments without the intervention of other persons who were not always available to grant such approval, and even though Snyder described the lack of such a service as a "shafting" of sporting goods payroll clerks by the automotive department, there is no suggestion that her and Kalisz' suggestion was malicious, mischievous, or even unreasonable. Plotzka did not seem to view it in that light, for she gave it consideration and thought, and then turned it down.10 Kalisz' and- Snyder's complaint about employee Bird- sell's lack of cooperation was a legitimate grievance about working conditions. Plotzka conceded that there was some justification for it, and the record shows, as I have found, that the grievance was well founded. 11 Because, at Plotzka's request, Kalisz and Snyder aired their grievance in her presence with. vigor, did not make their conduct illegal or unprotected.12 As I have found, the employees settled their dispute at Plotzka's urging and appeared to have worked amicably thereafter, according to Snyder's credited testimony.13 Plotzka testified that Kalisz and Snyder indicated that they did not want to be separated when they discovered that she had made a tentative decision to break them and others up when she was making corporation reassignments, but I find that Snyder is to be credited in her testimony that they agreed to go along with the change even though 10 There is no cgntention that Kalisz' and Snyder's suggestion to Plotzka that it was time to redistribute the corporations assigned to each employee was in any way improper. I1 Birdsell's own partner agreed with Kalisz and Snyder , and employee Rodgers had a similar experience with Birdsell. 12 The argument between all four employees in Plotzka's office was heated, but there is no suggestion that anyone said anything out of line to Plotzka herself at that time. 11 Plotzka testified that Kalisz and Snyder had complained many times about having to help out slower employees or departments, but she was only able to pinpoint one employee, and she conceded that she had never had to discuss "the cooperation situation" with them. I have credited Kalisz' and Snyder's testimony that they assisted other employees after they finished their own tasks, even though Snyder admittedly resented helping others whom she thought were not doing their fair share. There is no evidence to contradict this finding . Their complaints, in these instances , certainly were not improper or evidence of a "sub rosa" attempt to undermine Plotzka and her department. 14 Asked on cross-examination if she blamed Kalisz and Snyder for 363 they, as friends, would have preferred to work as a team. In any case, even if the employees had voiced positive opposition to Plotzka's proposal-which she insisted was only a proposal-their actions would not have been unprotected and certainly were not designed to "split the department." 14 Second, what actions Kalisz and Snyder took were generally done in concert, and Respondent appears to concede it.15 They saw Plotzka together about Birdsell's lack of production, and they also talked with her together about the need for another employee in sporting goods to approve vacation and sick leave payments, as well as about redistribution of work. Third, their suggestions to management were designed to benefit others as well as themselves, and that is how they expressed them to employees and to the Company. Employee Rodgers, whose testimony clearly reveals that she was not biased in favor of Kalisz and Snyder, testified that prior to Plotzka's February meeting with employees, there had been discussions among the employees about a redistribution of corporations "so that they would be split more evenly" and also about the need for an additional employee to approve vacation and sick pay in order to "save us a little more time," because it "was taking up quite a bit of out time trying to hunt up" the persons who were authorized to authorize the payments. She said Snyder and Kalisz led these discussions.16 Admittedly, Kalisz and Snyder jointly brought these matters to Plotzka's attention, and the record is clear that they based their arguments for the adoption of their ideas on the general good of the employees in their group.17 With respect to other employ- ees doing their fair share of the work, they also jointly presented this complaint to Plotzka, and the record shows that other employees griped among themselves about their partners not carrying their share of the workload.18 Kalisz and Snyder were merely more outspoken than other employees in making their views known about something which was clearly a working condition affecting them and others. At the departmental meeting on Monday, February 7, Kalisz and Snyder were again more outspoken than anyone else when Plotzka solicited their opinions about what was wrong with the department. They listed disregard of seniority in making promotions, redistribution of work assignments, appointment of an employee to approve "splitting the payroll department into segments or groups," she said she did not. 15 Respondent in its brief states that they may "very well have worked in concert to create ferment and dissension in the payroll department , but such activity . . . is not protected by the Act. 16 Rodgers thought that the sporting goods check writers "needed" an employee with this authority, but she was not as stirred up about this and other matters as Snyder was, and she disagreed with Snyder s description of the existing situation as the sporting goods checkwriters being "shafted" by the automotive section. She said there were problems in the department, but she was more concerned about what she thought was a disregard of seniority in making promotions . To me, Rodgers' differences with Snyder seem to be differences over priorities. 17 Plotzka testified that Kalisz and Snyder told her that they needed a person to approve checks so that the employees would not "have to stand around and wait" for the employee in automotive to take care of them. Plotzka asked Kalisz and Snyder to suggest a person to do the work, but after they did she turned the entire idea down. 18 Rodgers' testimony. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vacation and other payments for time not worked, and, more daringly, they both told their supervisor that her "yelling" and "screaming" and her manner of addressing employees intimidated them and made them feel "igno- rant," "stupid" and like "jerks," to the point where they were afraid to seek her counsel. These utterances about working conditions, spoken on behalf of themselves and others, were a form of concerted activity, and if they materially influenced Plotzka's decision to terminate them, their discharges would be illegal,19 but as appears from Plotzka's and Stutzman's testimony, Respondent claims that the decision had been reached before the meeting. I do not believe it was. Plotzka's account of the events that preceded and allegedly moved her to discharge Kalisz and Snyder is confusing, illogical, inconsistent, and most unconvincing. After studying it and recalling her as a witness, one gets the definite impression that she does not know, or does not want to recall, why or when she really decided to sever the employees, if, indeed, it was her decision.20 On direct examination, Plotzka was painstakingly direct- ed to describe conditions existing and incidents occurring in her department from December 1971 to early February 1972, which caused her to believe that her department had fallen apart and to feel that she had lost control of it. This disturbing conclusion drove her to seek advice from Personnel Manager Schick and later, by chance, to confide in Stutzman, another of Respondent's personnel managers. The theory behind this presentation, of course, was that Kalisz and Snyder were at the center or connected in some way with the uneasy feelings Plotzka had about herself and her department which caused her to seek counsel and that when she suddenly discovered this on her own on Saturday, the solution to her "problem" was simple-elimi- nate Kalisz and Snyder and the department will come together again. This is illogical because Plotzka herself testified that she did not consider Kalisz and Snyder responsible for the "split" in her department or for its "falling apart," which, however, was the very condition which caused her to talk with Schick in the first place.21 Plotzka did not know what her "problem" really was when she spoke with Schick, and when he suggested that she hold an employee meeting to try to find out what was going on, she agreed and set the meeting for the following Monday. When Schick met with Kalisz on Friday to listen to her problems, he advised her to wait and see what developed in the Monday meeting. But without waiting for what she might learn from the employees on Monday, Plotzka said she decided on Saturday that Kalisz and Snyder were her "problems," and she did this without 19 The record is clear that the employees did complain about Plotzka's demeanor at the meeting, and there is no contention that the words they used gave Respondent cause to discharge them It is also unnecessary to decide whether, in testifying at the hearing, Kalisz and Snyder overstated Plotzka's abrasive or tactless manner of supervising them All that is necessary is a determination, which I make, that they honestly felt concerned about her manner and did not create the issue in order to undermine her Voices can easily be overheard in Respondent's payroll department Employee MacArthur said that Plotzka "has a temper," "gets mad," but forgets it quickly, and she "raises her voice " Toolm testified that "yelling" was mentioned at the meeting and that Plotzka does get "upset," but she can understand why she does Employee Rodgers thought Kalisz and Snyder got "carved away" on the "yelling" issue, but she, too, said that anyone's aid or advice. This on its face is illogical, for she had learned nothing new to help her solve her "problem" and her action ran counter to Schick's advice.22 But even more illogical, it seems to me, she went through with the Monday meeting designed to isolate or illuminate the problem even though she knew what it was and had decided to cure it by eliminating Kalisz and Snyder; and she had difficulty explaining this. Asked why she held the meeting despite her conclusions about Kalisz and Snyder, she replied that she "wanted to know why there was dissension in the department," that she knew there was "dissension," but she did not know "where it stemmed from," and that she "wanted to know why my department was falling apart . . . the girls were not working together any longer." Respondent contends that Kalisz and Snyder were discharged because they were fomenting "dissension" in the department, but Plotzka, who said she made the decision to fire them on Saturday, was still trying to find out where the dissension "stemmed from" on Monday. Her testimony makes a farce out of the employee meeting and makes her plea to employees at the beginning of the meeting to speak freely and her closing statement to them that the meeting had been "open and above board and everyone knew how each other felt," sound most hypocriti- cal. If Plotzka did not ask Stutzman for his opinion before she acted or tell Schick what she had decided to do before the Monday meeting, as she testified, it would seem to be a departure from normal practice. She had sought Schick's advice on a problem whose size was obscure but large enough to upset her emotionally. Nevertheless, having solved it to her own satisfaction, she ignored Schick, her adviser, and he permitted her to carry out her supposedly autonomous decision to discharge two experienced and competent persons without a discussion of the merits, a word of caution or even a casual inquiry about what she might have discovered at the employee meeting; and this is too much to believe.23 If Schick did not tell Plotzka about his meeting with Kalisz at which Kalisz complained about Plotzka's handling of employees before Plotzka made her final decision, then, it seems to me, she overreacted on the basis of the information she then had regarding Kalisz' and Snyder's conduct, because their suggestions that work be redistributed and an employee assigned to approve wage payments and even their complaints about less productive employees do not seem powerful enough to have triggered her reaction.24 Telling a supervisor, however, even when she asks for the truth about the problem in her department, that her style is the cause of it all is enough of a catalyst to Plotzka does "yell" sometimes Cf Joanna Cotton Mills Co v. N LR B, 176 F 2d 749, 753 (CA 4) 20 She did not deny Snyder's testimony that she told her when she announced her separation that the decision to terminate her was not hers 21 Fn 14, supra 22 Schick had advised her that after she held the meeting and found out what the problems were, they would "get them straightened out and go on from there" 23 Plotzka could not remember the last employee she discharged. 24 1 have found that the employees did not refuse to have their team divided and to take different partners, and Plotzka, it will be recalled, testified that her paper reassignment was only a "tentative proposal " K-MART ENTERPRISES, INC. explain her reaction, and this happened on the following Monday. Plotzka's entire account of her weekend decision making was unconvincing, and Stutzman's convenient observation of the process was too coincidental and pat to be believed. Plotzka said she told Stutzman when he called that she had decided that since Kalisz and Snyder were her problems, she must eliminate them. His laconic and low-keyed responses to this drastic proposal seems odd coming from the person in charge of personnel in the field, but what was particularly unconvincing was his testimony that, although Plotzka mentioned no names, he quickly assumed she had Kalisz and Snyder in mind because he immediately thought of the heated discussion among employees participated in by Kalisz and Snyder which he had briefly overheard some weeks before. Stutzman knew more than he told us, and I do not credit him or Plotzka.25 Having decided that no final decision was made to terminate the complainants before Monday, February 7, the thing which naturally suggests itself is that they were discharged on the basis of something connected with the meeting, for that is the only event of any significance that happened shortly before they were terminated. Although Plotzka admitted on cross-examination that she did not discharge the complainants because they were responsible for her department "falling apart," which, to repeat, was the basis for her seeking Schick's advice, when she was asked why she did decide to fire them, she replied that she did because of "the constant complaining and the friction that was caused in just these instances" that she had related and because she felt that they were telling her how to run her department when they informed her that they did not want to be separated as a team. I do not believe that Plotzka decided to discharge the employees for that reason either for a number of reasons. I have found in some detail above that Kalisz and Snyder had complained about other employees not doing a fair share of the work, but this question concerned one employee primarily and was resolved after a meeting with Plotzka. I have also found that the complainants helped other employees finish their tasks even though Snyder resented it, and I have also found that they did not refuse to be separated as a team. In addition, Plotzka stated that she never had had any complaints about them from other employees and had never seen them arguing with other employees. These facts alone would make Plotzka's final 25 Although, a`s found below, Schick's version of what he believed caused Kalisz' discharge was unimpressive , I find it unnecessary to decide whether or not he first told Plotzka about Kalisz' request for a transfer after Plotzka told him that she had decided to fire her and Snyder. If Plotzka did not know about Kalisz' "unhappiness" before she said she made her decision, then she had even less reason to discharge her than I have found. 26 As appears from my extensive quotations from Plotzka's testimony, she sometimes based her opinions of Kalisz' and Snyder's intentions or attitudes on something less than fact . In regard to the team assignments, she said she had the "feeling" that she was being told by them "that they were not going to even listen to the proposal ." She also said that her conclusion about "tension" was based on "just a feeling of people not wanting to work together." 27 Some employees were also unhappy about the promotion of a less senior employee, but although this was one of the areas of discontent mentioned at the February 7 employee meeting, it did not seem to concern Snyder or Kalisz seriously. 28 As found earlier, Snyder and Kalisz were not the only employees who 365 explanation for her actions suspect. When viewed in the light of Respondent's other conduct, the explanation appears pretextuous. I have alluded a number of times to Plotzka's own statements that her new team assignments were "tentative" and only a proposal. It would be difficult to believe that she would have reacted so severely without first advising Kalisz and Snyder that she intended to implement her proposals.26 It is even more difficult to believe that she would have decided to discharge these otherwise compe- tent and reliable employees without first warning them that she expected her decisions to be followed. She did not, of course, for they were not spoken to in that respect or about causing "friction" in the department 27 The reason Respondent gave the employees for discharg- ing them, namely, "betterment of the department," is vague and meaningless, and, as found above, Personnel Manager Schick could not explain what the phrase meant and, in Kalisz' case, he attempted to inflate whatever content it was supposed to have. Respondent's difficulty in explaining their discharges to the employees is not surprising for it had no legitimate or, prior to February 7, understandable reason for terminating them. Kalisz' and Snyder's comments at the February 7 meeting were also legitimate, but Respondent's reaction to them was more comprehensible, even if illegal. For the reasons stated, I find that Kalisz and Snyder were discharged, not for the reasons suggested by Respon- dent, but because, at a meeting called by their supervisor for the airing of complaints or grievances, they outspoken- ly criticized their supervisor's manner of supervising them.28 By such conduct, Respondent violated Section 8(a)(1) of the Act.29 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondent set forth in section II, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and • commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. mentioned Plotzka's tendency to raise her voice in dealing with employees, and, in that connection, I have carefully considered Respondent's arguments about Kalisz' and Snyder's animus to Plotzka . It was clear to me at the hearing that Kalisz and Snyder do not hold Plotzka in high regard, but it was also clear that their feelings about her are reciprocated. Most of this attitude, at least as far as the complainants are concerned, may most likely be attributed to their sudden terminations, which they very obviously felt were unjustifiable, because they seem to have gotten along with Plotzka reasonably well for some years. In any case, I have not lost sight of anyone's possible bias in making credibility resolutions. 29 Whether or not Kalisz and Snyder were chosen by employees to represent them in the presentation of grievances is unimportant, because they spoke at the meeting on their behalf as well as on their own. In any event, discharging them for expressing their solicited grievances is a violation of the Act. Cloverdale Plywood Company, 156 NLRB 819, 827. See also N. L. R. B. v. Phoenix Mutual Life Insurance Co., 167 F.2d 983, 988 (C.A. 7); N. L R. B. v. Halsey W. Taylor Co., 342 F.2d 406, 408 (C. A. 6). 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, it will be recommended that the Board issue the recommended Order set forth below requiring Respondent to cease and desist from said unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated the Act by discharging Deborah Kalisz and Sandra Snyder, I will recommend that Respondent offer them immediate and full reinstatement to their former jobs or, if they are not available, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, by payment to them of a sum of money equal to what each of them would normally have earned as wages from the date of discharge to the date of the Respondent's offer of reinstatement, less net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. 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 within the meaning of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Deborah Kalisz and Sandra Snyder because they had engaged in concerted activities, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 30 ORDER Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees , refusing to reinstate them, or otherwise discriminating against them because they engage in protected concerted activities. (b) In any other like or related manner interfering with, restraining, or coercing them in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Deborah Kalisz and Sandra Snyder immediate and full reinstatement to their former jobs or, if not available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings in the manner set forth in "The Remedy" section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to compute the backpay and reinstatement rights, as set forth in "The Remedy" section of this Decision. (c) Post at its Royal Oak, Michigan, office copies of the attached notice marked "Appendix." 31 Copies of said notice, on forms provided by the Regional Director for Region 7, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 30 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. 31 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce employees by discharging them, or in any other manner discriminating against them, for engaging in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Deborah Kalisz and Sandra Snyder reinstatement to their former jobs or , if they are not available, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and WE WILL make them whole for any loss of earnings they may have suffered. K-MART ENTERPRISES, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. K-MART ENTERPRISES , INC. 367 This notice must remain posted for 60 consecutive days directed to the Board's Office, 500 Book Building, 1249 from the date of posting and must not be altered, defaced, Washington Boulevard, Deiroit, Michigan 48226, Tele- or covered by any other material. Any questions concern- phone 313-226-3210. ing this notice or compliance with its provisions may be