Nordstrom, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 347 NLRB No. 28 294 Nordstrom, Inc. and UNITE HERE, Local 71JT, Ho- tel Employees and Restaurant Employees Union. Case 19–CA–29729 May 31, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW On March 2, 2006, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The Charg- ing Party filed limited exceptions and a supporting brief pertaining only to the recommended remedy. The Re- spondent filed an answering brief and supporting affida- vit.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions2 and to adopt the recommended Order as modified and set forth in full below.3 We find it unnecessary to consider the Charging Party’s request that the Respondent explicitly be ordered to expunge from its electronic records and litigation files all references to the unlawful “opportunity checks” of three employees and the “unsatisfactory” evaluation of Yvonne Chung. The Respondent does not contest appli- cation of the Order to its electronic records, and any question as to the existence of, or the Order’s application to, litigation files may be addressed in compliance pro- ceedings. Because the General Counsel and the Charging Party presented no supporting evidence at the underlying un- fair labor practice hearing to indicate that the Respondent customarily communicates with its employees through an intranet, we deny the Charging Party’s further request for intranet posting of the Board’s notice to employees. See, 1 The Charging Party moved to strike the Respondent’s brief and af- fidavit on the ground that they contain new evidence not presented at the hearing. We find it unnecessary to rule on the motion to strike because we decide, below, to deny the Charging Party’s exceptions for reasons unrelated to the Respondent’s brief and affidavit. 2 No exceptions were filed to the judge’s findings that the Respon- dent violated Sec. 8(a)(3) and (1) by issuing disciplinary warnings to employees Yvonne Chung, Thomas Luis, and Jose Luciano and by issuing a low score on a component of Chung’s annual evaluation. 3 The judge inadvertently excluded from the recommended Order the Board’s traditional remedy for written notice to the affected employees that the Respondent has expunged all references to the unlawful disci- pline and the ‘unsatisfactory’ evaluation from its records. We shall modify the recommended Order to correct this inadvertent error. We also shall substitute a new notice in accordance with our decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). International Business Machines Corp., 339 NLRB 966 (2003) (observing that the Board’s standard Order, which requires a respondent to post notices “in conspicuous places including all places where notices to employees are customarily posted,” has never been interpreted and applied to require electronic posting, and declining to do so where the issue was not raised in the underlying pro- ceeding). Our colleague says that there is no need for evidence on this matter. She would modify the standard notice- posting language to require intranet posting when a re- spondent customarily communicates to employees via an intranet. She would make this modification based on general considerations. She would leave for compliance the issue of whether the Respondent customarily com- municates to its employees via an intranet. We disagree with her approach. We would like the benefit of a con- crete fact pattern before deciding whether to depart from our standard notice-posting remedy and take the un- precedented step of requiring intranet or other electronic posting. There may be material differences among em- ployers’ intranet systems, and we are reluctant to pro- claim a “one-size-fits-all” approach. In addition, a fac- tual context would sharpen the issues, raise pragmatic considerations, and ensure that we hear the best possible arguments from parties who have a stake in the out- come.4 In our view, such a record should be made before we enter such an order, not afterward in the compliance stage. For the above reasons, we leave for another day the is- sue of whether to modify our standard notice-posting language.5 4 For example, an NLRB Compliance Officer would police compli- ance, and we do not have a position statement from the General Coun- sel. 5 We are open to considering the merits of a proposed modification to the Board’s standard notice-posting language in a particular case, if the General Counsel or a charging party (1) adduces evidence at an unfair labor practice hearing demonstrating that a respondent customar- ily communicates with its employees electronically; and (2) proposes such a modification to the judge in the unfair labor practice proceeding. In accord with Member Walsh’s dissent in International Business Machines Corp., supra, 339 NLRB at 967–968, Member Liebman would hold that the Board’s current notice-posting language, which unequivocally references all places where notices to employees cus- tomarily are posted, is sufficiently broad to encompass new communi- cation formats, including electronic posting which is now the norm in many workplaces. See Human Resources: Most Employers Use Intra- nets to Deliver HR Services, Watson Wyatt Study Finds, Daily Labor Report No. 42, at A-5 March 2, 2000. Indeed, the Board and most other Government agencies routinely rely on electronic posting to com- municate information to their employees. Nor is there any need to require an evidentiary hearing before the Board rules, as a matter of general policy, that the current posting language encompasses elec- tronic posting where appropriate. Cf. Bryant & Stratton Business Insti- tute, 327 NLRB 1135, 1135 fn. 3 (1999) (finding electronic records to NORDSTROM, INC. 295 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Nord- strom, Inc., Bellevue, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 2(a) and (b). “(a) Within 14 days from the date of this Order, re- move from its files the January 19 and January 22 oppor- tunity checks of Yvonne Chung, Thomas Luis, and Jose Luciano, and any reference thereto, and within 3 days thereafter notify the individual employees in writing that this has been done and that the unlawful opportunity checks will not be used against them in any way. “(b) Within 14 days from the date of this Order, re- move from Yvonne Chung’s annual performance evalua- tion the unlawful “unsatisfactory” evaluation in building positive team relationships throughout the store and com- pany and replace this with the notation “needs improve- ment,” remove from its files any reference to the “unsat- isfactory” evaluation, and within 3 days thereafter notify the employee in writing that this has been done and that the “unsatisfactory” evaluation will not be used against her in any way.” 2. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union be encompassed by the Board’s traditional records preservation lan- guage); Ferguson Electric Co., 335 NLRB 142, 142 fn. 3 (2001) (same). The subsequent determination as to whether electronic posting is necessary in a given case is a matter for compliance proceedings. See Endicott Interconnect Technologies, Inc., 345 NLRB 448 fn. 2 (2005). Alternatively, Member Liebman would modify the Board’s current notice-posting language to explicitly clarify its application to electronic posting. Cf. Bryant & Stratton Business Institute, supra (modifying standard order to “clarify any ambiguity” about application of records preservation provision to electronic records). Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discipline you, by issuing “opportunity checks” or otherwise, or issue a low score on a compo- nent of your annual evaluation, because you jointly re- fuse to speak to an employee who testifies on our behalf at an NLRB hearing. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful opportunity checks given to Yvonne Chung, Jose Luciano, and Thomas Luis and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the unlawful opportunity checks will not be used against them in any way. WE WILL, within 14 days from the date of the Board's Order, remove from Yvonne Chung’s annual evaluation and from our files any reference to the unlawful “unsatis- factory” evaluation for “building positive team relation- ships” and the accompanying narrative and replace this with “needs improvement,” and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the unlawful evaluation will not be used against her in any way. NORDSTROM, INC. Susannah Merritt, Atty. and Ann Marie Cummins, Atty., for the General Counsel. J. Markham Marshall, Atty. and Karin E. Valaas, Atty., of Seattle, Washington, for the Respondent. David Rosenfeld, Atty., of Oakland, California, for the Charging Party, Barbara Mejia, Unite Here, Western States Regional Joint Board (Secretary/Treasurer), Elizabeth Freeman, UNITE HERE, Local 71JT.1 DECISION I. STATEMENT OF THE CASE MARY MILLER CRACRAFT, Administrative Law Judge. Pur- suant to a complaint and notice of hearing2 issued on August 30, 2005,3 the General Counsel alleges that Nordstrom, Inc. (Respondent), issued disciplinary warnings to three employees, Yvonne Chung, Thomas Luis, and Jose Luciano, and issued a 1 The name of the Union appears as stipulated by the parties at trial. 2 The complaint was based on a charge and amended charge filed by United Here, Local 71JT, Hotel Employees and Restaurant Employees Union (the Union) on April 12 and June 29, 2005, respectively. Trial took place on November 15, 2005, in Seattle, Washington. 3 All dates are in 2005 unless otherwise referenced. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 296 low score on a component of Chung’s annual evaluation, in violation of Section 8(a)(1) and (3) of the National Labor Rela- tions Act.4 Respondent timely denied the General Counsel claims. On the entire record, including my observation of the de- meanor of the witnesses,5 and after considering the briefs filed by counsel for the General Counsel and counsel for the Re- spondent, I make the following II. FINDINGS OF FACT The relevant facts are not in dispute. 1. Respondent is a State of Washington corporation with a place of business in Bellevue, Washington, where it is en- gaged in the retail sale of a wide range of apparel, shoes, and accessories for women, men, and children. 2. Maryam Aghdassi, a Fitter/Tailor at Respondent’s Bellevue Square Store, testified on behalf of Respondent at an NLRB hearing on December 17, 2004, regarding Respondent’s Ob- jections to Conduct Affecting a Decertification Election. 3. Thereafter, for a period of, at most, 2 weeks, Bellevue Square Fitters/Tailors Yvonne Chung, Thomas Luis, and Jose Luciano did not speak to Aghdassi. Their supervisor explained, “when Maryam Aghdassi would have walk in nobody would say hi to her . . . if somebody was at work and they would say hi, how are you doin’, but they were not talking to Maryam, as she is in the room. They were ignoring her.” 4. Chung, Luis, and Luciano were disciplined with “opportu- nity checks” because Respondent believed they concertedly stopped talking with Maryam Aghdassi due to her testimony on behalf of Respondent at the NLRB objections hearing. The parties agree that an “opportunity check” is a form of discipline. The parties’ collective-bargaining agreement refers to an opportunity check as a written warning. Yvonne Chung received an opportunity check dated January 19 as follows: Yvonne, this is an opportunity check for your recent unpro- fessional behavior in failing to positively and effectively com- municate with coworkers. It was recently brought to my atten- 4 Sec. 8(a)(1) provides that it is an unfair labor practice for an em- ployer to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Sec. 7 of the Act; to wit, as relevant here, to act together in concert regarding wages, hours, and terms and condi- tions of employment; self-organize; to form, join, or assist labor or- ganizations; to bargain collectively; and to refrain from any or all such activities. Sec. 8(a)(3) provides that it shall be an unfair labor practice for an employer to discriminate in regard to hire or tenure of employ- ment or any term or condition of employment to encourage or discour- age membership in any labor organization. 5 Credibility resolutions have been made based on witness de- meanor, the weight of respective evidence, established or omitted facts, apparent probability, and reasonable inferences drawn from the record as a whole. Testimony contrary to my findings has been discredited on some occasions because it was in conflict with credited testimony or documents or because it was inherently incredible and unworthy of belief. tion that you instructed your fellow employees to stop talking to Maryam Aghdassi because of her participation in a recent NLRB hearing. I spoke with several employees and was able to corroborate those allegations. This behavior shows a serious lack of teamwork and a disre- spect for your fellow employees. It has also negatively im- pacted the morale of the department It is my expectation that you behave in a professional manner and that you treat people with respect in all situations. I must see immediate and consistent improvement in your teamwork and professional behavior or further disciplinary action will take place up to and including termination. There is no evidence that Chung actually instructed other employees not to speak to Aghdassi. I credit the testimony of Chung, Luciano, and Luis in this respect. However, Respon- dent perceived that the Employees were acting together in sup- port of the Union. Jose Luciano and Thomas Luis were the subjects of identical opportunity checks dated January 22, as follows: This opportunity check is for Jose’s [Thomas’] recent unpro- fessional behavior in failing to positively and effectively com- municate with a fellow employee. Jose [Thomas] admitted that he had stopped talking to his coworker, Maryam Agh- dassi, because of her participation in a recent NLRB hearing. This behavior was not only unprofessional but it negatively affected the department’s morale. I want to acknowledge that Jose [Thomas] has since apologized to Maryam for his behav- ior. It is my expectation that he behaves in a professional manner and that he treats people with respect in all situations. I must see immediate and consistent improvement in his teamwork and professional behavior or further disciplinary action will take place up to and including termination. 5. There is no dispute that these opportunity checks remain in the employees’ personnel files. 6. On March 9, Chung received her annual performance evaluation which contained an unsatisfactory evaluation in “build[ing] positive team relationships throughout the store and the company.” All other employees in the department re- ceived the next higher rating. Chung’s score was due to the incident involving Aghdassi. The narrative portion of the teamwork component of Chung’s annual performance evaluation states, in part: Yvonne needs to focus on professional communication. She has excluded co-workers in conversation which created a negative environment. She received an opportunity check on Jan. 19, 2005 regarding this issue. I have noticed some im- provement and I need to see this improvement to continue. I need Yvonne to speak respectfully about her team mates and store employees. She needs to understand that communication is the only key to have a great team work that if there is no such communication there would be no teamwork. NORDSTROM, INC. 297 7. There is no dispute that this annual performance evaluation remains in Chung’s personnel file. 8. None of these disciplinary actions state that failure to timely perform alterations contributed to the discipline. 9. There is no evidence that Chung, Luis, or Luciano refused to speak to Aghdassi about work-related matters. It is undisputed that no specific tailoring work was delayed or impacted by anyone’s failure to talk to Aghdassi. Chung agreed that she stopped speaking to Aghdassi socially after the NLRB objections hearing because after Aghdassi testified at the hearing, Chung knew Aghdassi sided with management and Chung did not want to say anything to Aghdassi that might create problems for Chung with management. Moreover, in Chung’s experience, Aghdassi did not confer with other fit- ter/tailors about markings. Chung observed that Aghdassi rou- tinely consulted management for answers to her questions about tailoring. Supervisor Marita Jones testified that, in one instance, a garment was not completed sufficiently ahead of schedule due to Chung’s lack of communication with Aghdassi. This inci- dent, however, was not cited in either Chung’s opportunity check or annual performance review. Indeed, no drop in pro- ductivity or work product delay was ever cited by management in any of Chung’s, Luciano’s, or Luis’ opportunity checks. Further, it is unclear from Jones’ testimony that Chung’s re- fusal to speak to Aghdassi was actually the cause of the gar- ment’s delay. As a result, this testimony is not convincing on the issue of whether Chung’s perceived concerted activity re- sulted in any work product delay. III. THE ALLEGED UNFAIR LABOR PRACTICES By issuing disciplinary warnings to three employees, Yvonne Chung, Thomas Luis, and Jose Luciano, and issuing a low score on a component of Chung’s annual evaluation be- cause it believed that these employees concertedly refused to speak to coworker Maryam Aghdassi due to her testimony on behalf of Respondent in an NLRB objections hearing, General Counsel alleges that the Respondent violated Section 8(a)(1) and (3) of the Act . IV. ANALYSIS There are two questions at issue: (1) Does a concerted effort to refuse to speak with a coworker who sided with management in a decertification election constitute activity done for the pur- pose of collective bargaining or other mutual aid or protection? (2) If so, does the concerted activity nevertheless forfeit the protection of the Act. I answer affirmatively to the first ques- tion and negatively to the second. Respondent argues that employees who concertedly refuse to speak to a coworker because the coworker sided with manage- ment in a decertification election are not furthering a protected activity “for the purpose of collective bargaining or other mu- tual aid or protection” and that the concerted refusal to speak to a coworker because of the coworker’s support for Respondent in a decertification election does not involve wages, hours and/or terms or conditions of employment. I reject this argu- ment. An employee show of solidarity for the Union may involve verbal and nonverbal activity. Complaints involving non- verbal “cold shoulder” or “silent treatment” strategies between union supporters and nonsupporting coworkers tend to arise during the course of representation elections, or, like in this case, following a decertification attempt. The Board has recog- nized that “in a hotly contested election, ‘a certain measure of bad feeling and even hostile behavior is probably inevitable.’” Corner Furniture Discount Center, 339 NLRB 1122 fn. 6 (2003), citing Cal West Periodicals, Inc., 330 NLRB 599, 600 (2000). Such behavior is “no more than the human activities of employees involved in a campaign, on a personal basis. . . . [I]t expresses the natural desire for people to associate with others of like mind.” United Builders Supply Co., 287 NLRB 1364, 1370 (1988) (dismissing a postelection complaint involving prounion employees who had “voted” not to talk to an unsym- pathetic co-worker). The refusal to speak to employees who are antiunion is simi- lar to verbal outbursts toward antiunion employees. Such non- verbal solidarity clearly embraces the right to representation by a labor organization and, perforce, relates to wages, hours, and terms and conditions of employment. Moreover, the fact that an employee, such as Aghdassi, may find the show of solidarity distasteful does not privilege Respondent’s discipline. Because the opportunity checks and the performance evalua- tion set forth a causal connection between the employee show of solidarity and the discipline received by the employees, the only issue left to be determined is whether the concerted refusal to speak to an employee who sided with management in the decertification election loses the protection of the Act. Neff- Perkins Co., 315 NLRB 1229 fn. 2 (1994); Mast Advertising & Publishing, 304 NLRB 819, 820 (1991). This analysis recog- nizes that employee concerted activity must be balanced against the employer’s right to maintain order and respect. Piper Re- alty, 313 NLRB 1289, 1290 (1994). In order to determine whether employee activity loses the protection of the Act, the Board typically balances four factors to determine the egregiousness of the conduct: (1) the place of the discussion between the employee and the employer, (2) the subject matter of the discussion, (3) the nature of the employee outburst, and (4) whether the outburst was in any way provoked by an employer’s unfair labor practice. See Atlantic Steel Co., 245 NLRB 814 (1979). Balancing these factors, I find that the employees’ concerted refusal to speak to their coworker who testified against the Union did not cause them to lose the pro- tection of the Act. They simply did not speak to Aghdassi. Thus, there was no discussion and there was no outburst. There is no evidence of abusive or indefensible conduct on the part of Chung, Luciano, or Luis. Further, there is no showing that concerted failure to talk to Aghdassi affected Respondent’s right to maintain order. In Southwestern Bell Telephone Co., 276 NLRB 1053, 1053 fn. 2 (1985), the Board cited a lack of a “serious threat to discipline” in permitting the posting of Jack London’s “Definintion of a Scab” on a Union bulletin board, despite evidence that it caused employees to “[mill] around” or “[talk] in hudles” instead of “working independently at their stations as they normally did.” Here, there is no evidence of a similar type of disruption, there DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 298 is only the suggestion that one employee was offeneded by her coworkers’ concerted decision not to speak with her socially. Like in United Builders Supply Co, above at 1370, or Corner Furniture Discount Center, above at fn. 6, the silent treatment used here does not rise to the level of objectionable conduct. As to Respondent’s right to maintain respect, there is a simi- lar lack of evidence. See, e.g., Nor-Cal Beverage Co., 330 NLRB 610, 611 (2000) (while attempting to engender support among coworkers for union strike, use of word “scab” did not remove protection of Act); Leasco, Inc. 289 NLRB 549, 550 (1998) (an employee threatening a supervisor with “If you take my truck, I’m kicking your ass right now” in the course of en- gaging in concerted activity was not so offensive as to remove the protection of the Act). V. CONCLUSIONS OF LAW Jurisdiction During the past 12 months, Respondent has derived gross revenues in excess of $500,000 and purchased and received goods within the State of Washington valued in excess of $5000 directly from sources outside the State of Washington. Respondent admits and I find that it has been at all relevant times an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Labor Organization Status Respondent admits and I find that the Union is and has been at all relevant times a labor organization within the meaning of Section 2(5) of the Act. Unfair Labor Practices Affecting Commerce By issuing disciplinary warnings to three employees, Yvonne Chung, Thomas Luis, and Jose Luciano, and issuing a low score on a component of Chung’s annual evaluation be- cause it believed that these employees concertedly refused to speak to coworker Maryam Aghdassi due to her testimony on behalf of Respondent in an NLRB objections hearing, Respon- dent violated Section 8(a)(1) and (3) of the Act. These unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Specifically, I shall recommend that Respondent remove the opportunity checks from the employ- ees’ personnel files and expunge the violative portion of Chung’s annual appraisal. I shall also recommend that Respon- dent be ordered to post a notice setting forth its obligations. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the ORDER The Respondent, Nordstrom, Inc., Seattle, Washington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Disciplining employees and issuing a low score on a component of an employee’s annual evaluation because it be- lieves these employees concertedly refused to speak to another employee because she testified on behalf of Respondent at an NLRB objections hearing. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Respondent shall take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, remove from its files the January 19 and January 22 opportunity checks of Chung, Luciano, and Luis and remove any references in its files to these opportunity checks. (b) Within 14 days from the date of this Order, remove from Yvonne Chung’s annual performance evaluation the “unsatis- factory” evaluation in building positive team relationships throughout the store and company and replace this with “needs improvement” and remove any references in its files to the “unsatisfactory” evaluation. (c) Within 14 days after service by the Region, post at its Bellevue Square facility in Seattle, Washington, copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respon- dent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since January 19, 2006. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses. 7 If this 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 read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”