Quik-Pik Food Stores, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quik-Pik Food Stores, Inc. and Olga Vincent. Case 7-CA- 16744 September 29, 1980 DECISION AND ORDER BY CHIAIRMAN FANNING AND ME:MBERS JENKINS AND PlNE.I.O On June 16, 1980, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Quik-Pik Food Stores, Inc., Warren, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. MclIlbc r JkillS .¢ulId ol pll tc Itlcrrest (,ri ithe backpa y III accord- ancc with his partial di',cil in Ompic Medical Corportiun. 25(0 Ni.RIB No. II ( IX)) \c hac mrodificd the AdmirliIr.itic I[.a' Judgc's Illicc Ito conlior wvilh is rcconmcndcd O(rder APPENDIX NOTICI To EMPLOYIE.ES POSTE) BY ORDER OF THE NATIONAI. LABOR RE.ATIONS BOARDI) An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice 252 NLRB No. 76 To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. W: WIl.L NOT discharge or in any other manner discriminate against our employees be- cause they have joined others in communicat- ing their complaints about conditions of work to management. Wt WILl. NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE wii.i. offer Olga Vincent immediate and full reinstatement to her former position or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed, and wtE wiI.l make her whole for any loss of pay she may have suf- fered by reason of our discrimination against her, with interest. QUIK-PIK FOOD STORES, INC. DECISION S I A\I M1ENI OF Hi. CASL Joli A. HARMA'I'z, Administrative Law Judge: This proceeding was heard in Detroit, Michigan, on April 16, 1980, upon an unfair labor practice charge filed on August 27, 1979, and a complaint issued on October 10, 1979, alleging that Respondent violated Section 8(a)(1) of the National abor Relations Act, as amended, by termi- nating the Charging Party, Olga Vincent, on February 27, 1979, because she participated in employee efforts to communicate job-related complaints to Respondent, and because of Respondent's belief that she had participated in a concerted work stoppage in support thereof. In its duly filed answer, Respondent denied that any unfair labor practices were committed. After close of the hear- ing, a brief was filed on behalf of Respondent. Upon the entire record in this proceeding, my personal opportunity to observe directly the witnesses while testi- fying and their demeanor, and consideration of the post- hearing brief, it is hereby found as follows: FINI)INGS OF FAC I I. JURISDIC IoN Respondent is a Michigan corporation engaged in the operation of multiple retail facilities, including Store 53 located at 5273 East Ten Mile Road, Warren, Michigan, the sole facility involved in this proceeding, from which it is engaged in the retail sale of groceries and related items. During the calendar year ending December 31, 1978, a representative period, Respondent realized rev- 506 QUIK-PIK FOOD STORES, INC enues from such operations in excess of $5(X),(XX), and purchased and caused to be transported and delivered di- rectly to its Detroit, Michigan, area stores goods valued in excess of $20,000 from points located outside the State of Michigan. The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all times materi- al herein, an employer engaged in commerce within the meant,., of Section 2(2), (6). and (7) of the Act. 11. [ti A 1 (tl) tUN FAIR AilABOR PRACTICIS A. Background This case is concerned with the limited question of whether the termination of Olga Vincent was in repisal for her involvement in concerted activity protected by Section 7 and hence in violation of Section 8(a)(1) of the Act. Respondent defends on grounds that Vincent was a supervisor and therefore unprotected by the Act and that, in any event, her termination was predicated upon legitimate cause. Respondent operates some 59 "convenience" stores in the metropolitan area of Detroit, Michigan. The instant issues concern Store 53 in Warren. Michigan. Olga Vin- cent was hired on September 15, 1975, and at the time of her discharge was the most senior employee assigned to that location. At one time Vincent served as store man- ager, but in October 1978, about 4 months prior to her termination on February 27, 1979,. she was demoted for cause to the position of assistant manager. Mike Loven replaced Vincent as manager of Store 53 upon her demo- tion. The store was operated from 7 a.m. to midnight on a 7-day-per-week basis. At times material the work sched- ule of Vinent was 4 p.m. to midnight on Monday, Tues- day, and Wednesday, and 7 a.m. to 4 p.m. on Saturday and Sunday. Her regular days off were Thursday and Friday. 2 Vincent last worked for Respondent on Wednesday, February 14. Her next scheduled workday was Saturday, February 17. Because she was ill, Vincent arranged with Alfreda Kapzynski, a cashier, to replace her on Saturday and Sunday. February 17 and 18, respectively. B. The Meeting of Febhruari 19 and the Discharge The complaint, considered in the light of the evidence adduced in support thereof, appears to be based on the theory that the discharge was motivated by Vincent's participation with other employees in a meeting with certain of Respondent's officials on Monday, February 19, at company headquarters. As for the developments leading to her involvement therein. Vincent testified that on February 17 Kapzynski telephoned her from the store at the outset of the latter's Saturday morning shift.' Kap- zynski had apparently discovered an overage of $70 in All dates refer il 1979 unless otherwise indicated The store manager as scheduled regularli to ork Monday through Friday. 7 a m I 4 pm lie ustrked unaided Ihe night shift normally was mailined by a cress of three the asls lIl ln manager. a cash- ier, and t s k prs- n :1 Kapisnski uilt S1ll iempo! ed hb Respoilldenlt it Ihe tinlte If the hear- ing She .ts not clled is .i s Itnes the opening receipts, and sought Vincent's advice as to how this should be handled. Vincent advised Kapzynski to deposit the 70, but list that amount as an overage. However, later that same afternoon, according to Vin- cent, she received a second phone call from Kapzynski, who reported that Store Manager Loven arrived at the store during the shift. She reportedly also asked Loven what to do about the $70 overage, but, somewhat con- trary to the advice given by Vincent, was told by Loven not to check out her drawer at the end of the day, as he would come in and check over the funds and prepare the necessary paperwork. The next day, Sunday, February 18, according to Vincent, she received a third telephone call from Kapzynski, who reported that she followed Loven's instructions, but that at or about 10 p.m. on Feb- ruary 17 Loven called her at home, advising that she was not $70 over but $30 short. Kapzynski also told Vin- cent that she found a cash bag, which should have been deposited in the drop chute the night before, under a counter in the store. Later that day Kapzynski again called Vincent advising her that certain employees were going to headquarters to clear up the matter of shortages and overages. She invited Vincent to accompany them.4 On February 19, Vincent was scheduled to work the 4 p.m. to midnight shift. That morning she joined Harry Ardman, also a cashier, and Kapzynski at or about 10 a.m., and they continued on to the Company's headquar- ters. Upon their arrival, Ardman told the receptionist that the employees wished to speak with Donald Coch- ran, Respondent's district manager, to whom Area Su- perivisor Lennox reports." The employees were told that Cochran was not available, but Stanley Wilson, Re- spondent's director of vendors, came out of his office, greeted the employees, and asked if he could be of help. Ardman said "yes," indicating that there were matters the employees wished to discuss. The three employees were invited into Wilson's office. 6 Wilson requested the presence of Harold Mercer, Respondent's administrative assistant to the vice president, who, unlike Wilson, did have responsibilities which included the overseeing of personnel problems in the stores. The session was opened with Kapzynski stating that she wished to "clear herself' concerning the check out of the previous Saturday morning and the $70 overage. In this connection, Kap- zynski reported Loven's instructions to her and the fact that she was later told by Loven that she was $30 short and not $70 over. Wilson observed that this made it $100 short. Ardman then discussed certain conditions in the store; namely, work that had not been done on the previ- ous shift such as failure to eliminate unsanitary condi- 4 According to the testimony of Vincent. prior to February 17 short- ages uere a continuing prohlem in the store and had been discussed regu- larly ilh hboth Store Manager Loven and Maureen .ennox, the area u- per i,or Iennox,. though riot squarel) contradicting Vincenl on this point, did testify that she could only recall a single cash shortage at Store 53 Len uas not called. I Based on the credited. uncontradicted testimony of Ardman and Vin- centt The latter admittedly as aware that it as unlikely that Cochran would be present at the time. Lennox was n acation and Vincenrt knewr that Cochran sould havse to assume her responsibility fr collecting re- cords fromn each of Llennox's eight tores that morning '; 'ilson is rl nil called as a ilness The foregoing is based upon a Crntispeonl of the credited tesllmron) of Ardman and Vincent 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, cash shortages, and erasures and changes appearing in his nightly cash receipt tally. Vincent joined in ex- pressing her concern that the preceding shifts had not fulfilled their responsibility to leave the store in a clean, stocked, and presentable state and about cash and inven- tory shortages.7 Wilson assured the employees that someone from management would look into conditions at the store that very afternoon. Vincent, before leaving, mentioned that she had been ill, and that, while she had left home to come to the meeting, she would not be able to work her scheduled shift that afternoon because she had to see her doctor. 8 That same afternoon, Mercer, Wilson, and Cochran visited Store 53 apparently to look into the complaints registered by the employees.9 Cochran and Mercer testi- fied that they found no evidence substantiating the objec- tions of Ardman and Vincent concerning conditions in the store. After the February 19 meeting Vincent, due to illness supported by a Doctor's excuse, did not again report for work until 4 p.m. Monday, February 26. Upon reporting for work, she showed Loven a medical excuse dated February 19, which indicated that she was not to return to work until February 26.10 Loven allegedly glanced at the excuse, and informed Vincent that her shift was cov- ered that day and she was not needed, while directing her to contact Cochran because he wanted to talk to her. Vincent did so, arranging to meet with Cochran at the store at 10 a.m. on February 27. Pursuant thereto, Vincent met with Supervisor Lennox and District Manager Cochran on February 27. At that 7 It was the sense of Mercer's testimony that at the meeting Vincent spoke more than the other employees This impression might well have been held by Wilson as well, for, according to Vincent's uncontradicted, credible testimony, Wilson, at an unemployment insurance hearing in- volving her claim, informed the "hearing officer" that on February 19, Vincent entered his office "quite brasingly" and that she appeared to be the "principal ring leader . the instigator of the meeting." 8 Mercer testified that at the February 19 meeting Ardman and Vin- ceint stated that they would nt return to work until the conditions at Store 53 were corrected Mercer claims to have told Vincent, in re- sponse, that she should report to the store manager. This testimony was not believed and is rejected. As Wilson did not appear, Mercer was the only witness presented by Respondent who was in a position to afford direct primary evidence as to what transpired during that confrontation He did not impress me as possessed of a capacity for clear recollection and certain aspects of his testimony were considered unreliable In any event, Mercer did acknowledge on cross-examination that at the meeting "Olga said something about going to the doctor." My disbelief that an) form of walkout was threatened is furthered by the testimony of Coch- ran, who averred that he was in the company of Mercer for a substantial segment of that afternoon, and who added that his primary concern at the time vwas assuring that the store was properly staffed. It seems only likely in the circumstances that, had Ardman and Vincent indicated that they would protest their grievances by refusing to work, this fact would have been relayed by Mercer to Cochran. Although Mercer claims that he did so, Cochran denied ever receiving any such report. I also find it unlikely that Mercer would have told Vincent to report to the store man- ager if she had expressed a desire to participate in a work stoppage. 9 Cochran testified that this occurred at his suggestion after he was in- formed of the complaints registered by the employees. He indicates that he had been in the store that morning and had seen no evidence of the problems mentioned by the employees, and, accordingly, he suggested that Mercer and Wilson join him in visiting the premises. That said isit was prompted by Cochran was not expressly corroborated by Mercer "' See G.C Exh 5 I credit Vincent's testimony that after her medical appointment she telephoned Loven on February 19 reporting her Doc- tor's recommendation and the content of the written excuse. time, Cochran stated that he had " been very unhappy with . . . [Vincent's] . . . performances in the past few weeks, and for this reason I have to issue you this cita- tion." Three separate grounds were described orally and in writing as the basis for the discharge. Those grounds were also memorialized on a payroll clearance form which was retained in company files, and which set forth as follows: Exact reason for separation: Three written warnings in a period of 90 days. 1. Spreading malicious gossip. 2. Failure to call store by noon concerning ab- sence from second shift 2/20/79. 3. Ignoring chain of command. The document was signed by Lennox and Cochran. " It is noted that published company personnel policy sets forth the Procedure through which employees are subject to discipline. That policy recites as follows: An employee will be fired for any infraction of our rules for personnel according to the following pro- cedure. Infractions followed by a "D" indicate those infractions punishable by immediate dismissal. Infractions followed by "W" are written repri- mands. An employee accumulating a total of three "W's" for any infraction or combination of infrac- tions in any 90-day period will be immediately dis- missed. Also contained therein is a definition of the offenses which may lead to immediate dismissal and those lesser grounds which would warrant mere formal reprimand. 2 A fair construction of that document leads to the conclu- sion that none of the grounds assigned for the discharge of Vincent would individually warrant "immediate" dis- charge under the established policy. Therefore, since Vincent, prior to the events of February 1979, had re- ceived one formal warning which was issued in October 1978, well before the 90-day warning period set forth in Respondent's established policy, Lennox and Cochran in perfecting the discharge of Vincent sought to conform thereto by simultaneously consolidating three separate warnings in a single document. C. Concluding Findings 1. The supervisory issue Respondent claims that as assistant store manager Vin- cent possessed authority exempting her from the protec- tion of the Act. The facts show that the 7-day operation at the Warren store is maintained essentially by a pool of six to seven employees who regularly work at that location. Under the scheduling arrangement, Vincent and Store Manager Loven worked separate shifts with Loven covering day- light hours Monday through Friday with no weekend schedule and Vincent working evenings on Monday, " See Ci C Exh 2 12 See i C Exh 4. 508 QUIK-PIK FOOD STORES, INC Tuesday, and Wednesday and the day shift on weekends. During the day, the store was operated by a single indi- vidual. Thus, the store manager worked without assist- ance, leaving written or verbal instructions as to the work to be performed on the evening shift. Since in the evening the store 'was usually manned by three employ- ees and no less than two, Vincent would be responsible for direction of others. The assistant store manager, while on duty, would have immediate responsibility for store operations, which routinely would consist of sell- ing, stocking, cleaning, and the completion of paperwork at the end of the shift. As for Vincent in particular, during the week it would be her responsibility to pass on any instructions received from Store Manager Loven to other workers on her shift, and to, with the others, see to the proper maintenance of the store. However, since the store manager did not work evenings and Vincent only worked three evening shifts, it is only logical that discre- tion equal to that held by Vincent would be exercised by the one or more cashiers responsible for operation of the store on the other four evening shifts.' : Vincent unquestionably was a higher rated employee than the cashiers, was paid more, and possessed keys to the store. She also was in charge of closing the books at the end of the week. However, she had no authority to hire and fire, and it is not shown convincingly that she had authority effectively to recommend such action.' 4 With respect to discipline, Lennox testified that Vincent had no authority to issue formal reprimands, but that she could send a cashier or stock person home if they were not doing their job. '5 As for scheduling, it does not appear that the assistant manager has any input or responsibility with respect to the initial preparation thereof. However, in emergency situations, when someone indicates that they will not show up for an assigned shift, the assistant manager will seek a replacement among the pool of employees as- signed to the store, and, if unsuccessful, will contact the supervisor. 6 Respondent also asserts further that the assistant man- ager has the authority to pledge Respondent's credit in dealings with vendors. In considering this contention, it was my impression that any authority of the assistant store manager in this respect was narrowly circum- scribed and irregularly exercised. Thus, the identity of authorized vendors and the products which may be sold to the various stores are limited by higher management 13 Payroll records indicate that prior to February t6, 1979. the evening shifts on Wednesday through Sunday, inclusive, were covered primarily on a rotating basis by cashiers Harry Ardman, Jan Carreyn, and Alfreda Kapzynski. See Resp Exh. I On a regular basis, from week-to-week, one of these individuals would necessarily be responsible for store operations during such shifts. '4 Supervisor Lennox estified that she "believed" that Vincent had recommended the hire of stock person Steele. I was not my impression that this testimony was based upon direct knowledge While the fiorego- ing is regarded as unreliable, it is also noted that there is no showing as to how any such recommendation would differ from mere suggestion by any rank-and-file employee that an acquaintance friend, or relative in need of work be hired ' Lennox could not recall an instance in which any such authority was exercised by Vincent i' There is nothing in the record to suggest that an unscheduled em- ployee could be compelled by the assistant manager to replace an absent employee directives. Furthermore, on the question of quantity the convenience stores in question being small, covering some 2,500 square feet only, are conducive to competi- tion among vendors for shelf space. 7 Thus, it would seem that, with the exception of products inventoried on a storage basis, quantity would be controlled by the amount of shelf space allocated to a particular vendor. Finally, Vincent's opportunity to deal with vendors was limited to two occasions on which she substituted for Store Manager Loven,' 8 together with her dealings with the milk and bread supplier who operated on Saturday mornings during her shift. ' 9 With respect to the former, Vincent on those occasions dealt with a wine vendor. Thus, William Tesch, a salesman for a "Gallo" wine dis- tributor, testified that he regularly calls on Store 53 on Mondays during the day shift. Respondent's payroll re- cords confirm that Vincent substituted for Loven on Monday, November 27, and Monday, December 18. Tesch testified that his procedure on entering the store was to check the reserved stock, fill the shelves from it, then take an inventory of what the store was low on and report to Vincent or Loven what was needed. 20 Taking full account of Tesch's own description of how orders were filled, as well as the fact that quantities would be dictated by storage capacity and shelving allocation, I am not convinced that significant authority to affect em- ployer expenditure was exercised on these occasions by the store manager or the assistant store manager acting in his place. On balance, it is my view that Vincent functioned simply as an experienced employee with "lead" authori- ty. Her clerical responsibilities as well as her direction of others impressed me as being routine and derived from skill and experience gained as a relatively long-term em- ployee at the store. Beyond that, from the totality of the credible evidence, it was my impression that the mission ' Mercer conceded that the allocation thereof would be discussed be- tween the merchandising manager and the endors ]Y Though there was some reference in Mercer's testimony to venders of carbonated soda and related products. I am not convinced from his testimony that such deliveries were made during shifts worked by Vin- cent i9 Mercer conceded that at least with respect to the bread vendor the general practice on reordering is for the salesman to examine the area in which his products are stored, then fill out the order form himself, return to his vehicle, load up his cart, and bring the new products in the store At that point, the invoice is shown to the assistant store manager who checks the merchandise physically. Any variance in the order decided upon by the store manager or the assistant store manager would occur at that point Whether, as a matter of practice, such variations occur on a more than occasional basis is not disclosed In any event, the endors of bread and dairy products guarantee sale and retrieve old merchandise al- lowing the Company a credit therefore. Thus, the vendors having regular contact with Vincent would have an interest in assuring against overor- dering. minimizing the risk entailed in any discretion exercised by the as- sistant store manager in this regard. 20 Tesch testified that, during the period when Vincent was store man- ager as well as assistant store manager, she would at times cut the order if she thought it was too much, or add to it if she thought it was not enough Tesch. who had called on Store 53 regularly for a period of about 5 months while Vincent was store manager, and only on 2 days while she was assistant store manager. did not impress me as having a sufficient capacity for recollection to enable him to accurately isolate what transpired during these diverse timeframes I regarded his testimony as unreliable to the extent that he implied that Viicent actually varied his recommended order on November 27 and December 18 509 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD of each of Respondent's stores is implemented through the development of guidelines designed by high level managers to facilitate absentee control by relegating the opportunity for independent judgment on the part of store personnel to the insignificant and sporadic. In sum. I am not persuaded that the record substantiates Re- spondent's contention that Vincent was a supervisor within the meaning of Section 2(11) of the Act. 2. The reasons assigned for the discharge a. Preliminary statement Under Respondent's established procedure the three infractions attributed to Vincent could not separately have justified her discharge. Independent assessment thereof, upon resolution of credibility conflicts, points to the fact that one was pretextual and two were inspired directly through Vincent's role in the meeting at head- quarters on February 19. The analysis of each of the sep- arate grounds is set forth below. b. Spreading malicious gossip This charge derives from conduct on the part of Vin- cent which took place in December 1978. Thus, William A. Tesch, the "Gallo" wine salesman, testified that fol- lowing Vincent's demotion she expressed to him that she felt that supervision was out to get her and that inven- tory and cash shortages were being "palmed off' on her. Tesch credibly testified that she also accused Lennox of carrying on an affair and sleeping with Store Manager Loven. Subsequently, Tesch mentioned the foregoing to an- other store manager, whereupon he received a call from Wilson, Respondent's merchandising manager. Tesch re- ported to Wilson that Vincent told him that Lennox was sleeping with Loven. However, Tesch placed the report to Wilson as occurring between the Christmas and New Year holidays in 1978. Until February 27 Vincent had received no discipline as a result of this matter. However, during the period contemporaneous with the February 19 meeting, accord- ing to Tesch he was contacted by Wilson a second time. Wilson in their conversation requested a "refresher" of what Tesch had previously reported, and Tesch simply reiterated what Vincent had told him. Although Cochran testified that he learned of the gossip no earlier than Tuesday, February 20, it is a fact that at least one high level company official, namely, Wilson, after verifying that the story had been circulat- ed, let the matter lie dormant until the period corre- sponding to the meeting of February 19.21 Although the conduct of Vincent in this regard is not condoned, Respondent's renewed interest in what had occurred some months earlier following Vincent's par- ticipation in the meeting of February 19 supports an in- ference that Vincent's involvement in the latter was the 2a Wilson did not testify and Cochran failed to disclose the source of his information. sole cause for Respondent's apparent revitalization of such misconduct as a basis for discipline. " 22 c. Failure to report absence General Counsel's Exhibit 2 indicates that the second ground for the termination of Vincent was her failure to call the store by noon concerning the absence from her scheduled shift on February 20. However, Cochran, though having signed that document, testified that he himself excused Vincent's absence that day, while shift- ing the date of the offense to February 19. This discrep- ancy provides the framework for a highly material cre- diblity clash as to developments during the interim be- tween February 19 and the discharge of Vincent on Feb- ruary 27. Thus, Vincent's testimony that at the meeting on Feb- ruary 19 she mentioned that she had been home ill and that she would not be able to work that evening because she had a medical appointment was believed. However, Vincent went on to testify that on the same afternoon, enroute to her doctor, she stopped by the store to pick up her check, where she was confronted by Cochran, who engaged her in conversation as to why she had gone to headquarters before communicating with him. Vincent reiterated her concerns again to Cochran. Ac- cording to Vincent, another meeting was arranged for 10 o'clock the following morning. She then went to the doctor, where, according to her testimony and a docu- ment in evidence, she received a medical excuse dated February 19, stating as follows: "Mrs. Vincent is under treatment and advised to remain at home until 2/26/70." The signature of R. W. Harkaway, M.D. appears there- on.23 Vincent related that, after receiving the same, she telephoned Loven indicating that pursuant to her physi- cian's advice she would not return to work until Febru- ary 26. It will be recalled that Mercer, Wilson, and Cochran visited Store 53 on the afternoon of February 19. Coch- ran testified that he was primarily concerned at that time with keeping the store open as he did not know whether the second shift would report for work. 24 Cochran, with : Evidently the decision to terminate Vincent involved a special case Thus, according to Mercer the decision to discharge Vincent was based on a "recommendation" from "subordinates" considered by no less than a group including himself and the president of the Company. Lennox had the authority herself, and without review from others, to effect a dis- charge 23 See G C. Exh. 5 24 A curious conflict in Respondent's own testimony exists in this regard Thus, Mercer testified that Ardman and Vincent reported at the earlier meeting that they would not return to work until the problems were resolved. Though Mercer and Wilson were in the store, Cochran denied that he was either advised of any such threat or that at the meet- ing Vincent had referred to her doctor's appointment that afternoon Another consideration reflecting adversely upon Cochran's credulity stems from the fact that Supervisor Lennox began a vacation on Fehru- ary 26 Although it is apparent from her testimony that she was out of town during the latter stages of her vacation, ennox and Cochran testi- fied that they met on the morning of February 20. According to Lennox, the meeting was requested by Cochran to discuss "what had taken place at the office" the previous day Cochran, in downplaying his concern for the employees' action at headquarters on February 19, testified that he was primarily concerned with maintaining an adequate staff at the store It is noted that Lennox, in describing her meeting with Cochran on Feb- Continued 510 QUIK-PIK FOOD STORES. INC. some support from Mercer, denied that he had any con- tact with Vincent on February 19. He claims that he left the store at or about 4:45 p.m. on February 19, and that Vincent neither isited the store nor telephoned on that date. 2 According to Cochran, his first contact with Vincent was on February 20, when he telephoned to see if she would work the second shift that evening. According to Cochran, Vincent indicated that she was ill, that she was going to see the doctor that afternoon, and that she would contact him when she was capable of coming to work. Nothing else was discussed and Vincent, accord- ing to Cochran, failed to disclose that her doctor had told her not to return to work until February 26.26 Cochran went on to testify that it was also on February 20 that Vincent, enroute to the doctor, came by to pick up her check. Their conversation at that point, according to Cochran, was very "minor" and limited to Cochran's comments that it was nice that she could wait 4 days to pick up her check and his expressions that she should get well and be able to come back to work. 2 7 Contrary to General Counsel Exhibit 2, Cochran testified that he, personally, excused Vincent's absence on February 20.28 Cochran testified that to his knowledge after February 25 Vincent neither called the store nor contacted him until Thursday, February 22. He claimed, however, that Vincent on that date called him on his "beeper" number. In the conversation Vincent indicated that "she felt better," and a meeting was arranged for Friday morning, February 23, because Cochran "wanted to talk to her about her discussion at the office on Monday morning." Cochran related that the alleged meeting did not take place because Vincent was not available. Accordingly, she was allegedly told to call him on Monday, February 26.29 ruary 20, failed to mention that employees had not shown up for work on February 19 or that Cochran was confronted by any problem in that regard. Quite obviously, Cochran's concern for the fact that the employ- ees had gone to headquarters was of sufficient import to prompt him to alert Supervisor Lennox of this fact by telephone on February 19 and to meet with her on February 20, all during her vacation. 25 Mercer also testified that he remained in the store until after the commencement of the evening shift and that. while present. Vincent did not appear or to his knowledge call in. 26 Though Vincent's unexcused absence on February 19 was one of the citations for her termination, Cochran admitted that in this first con- versation with her he failed to express dissatisfaction in that regard When questioned by me as to why, Cochran. in a somewhat argumenta- tive vein, responded as follows: " believe I did . . the woman told me she was sick, that she was ill I am not in the position to argue with her at that point." 27 Here again the issue of the alleged unexcused absence on February 19 was not mentioned :" As for the events of February 20). Vincent testified that she tele- phoned Cochran at Store 53 on the morning of February 20 to advise him that she was oo ill to leave home and could not meet with him that morning, and that Cochran ads ised Vincent to report the illness to Loven before noon that day. Vincent. pursuant thereo, avers that she at- tempted for about an hour to reach the store before noon that day but was unable to get through, checking with the operator to see if the phone was out of order and then calling headquarters to report her abselce. Vincent acknowledges that, later in the afternoon of February 20, she had a telephone conversation with Cochran. However. she testified that thereafter she had no communication with any of Respondents officials until she reported for work on February 26. 29 Cochran acknowledged that he knew that Vincent would not work her scheduled shifts on Saturday and Sunday The source of that infor- To the extent in conflict, I credit Vincent over Mercer and Cochran. The testimony of the latter lacked consist- ency on a number of points and did not ring true when considered on the total record. Probability favors Vin- cent, who had been ill for several days prior to February 19, had mentioned a medical appointment at the Febru- ary 19 meeting at headquarters, and before that date had not picked up her check though apparently available at the store at least since the previous Friday. Furthermore, her account is substantiated by General Counsel's Exhibit 5.:t° On the other hand, particularly grave suspicion is cast, upon testimony of Cochran that he had no commu- nication with Vincent on February 19 when considered against the fact that a company document prepared only 9 days later to memorialize the grounds for the discharge signified that Vincent's unexcused absence was on Febru- ary 20, rather than February 19. This discrepancy lends added force to the credibility of Vincent. Based upon the foregoing, I am convinced that Re- spondent's assertion that during her illness Vincent vio- lated her responsibility to notify the Company was con- trived so as to enable a discharge in conformity with the three warnings required under Respondent's disciplinary policy. d. The chain of command The levels of authority within Respondent's operation starting from the lowest are as follows: Stockboy, cash- ier, assistant store manager, store manager, area supervi- sor, district manager, and assistant to the president. The employees, in going to headquarters and in first meeting with Wilson on February 19, bypassed the store man- ager, the area supervisor, and the district manager. Indeed, Wilson was not even in the line of authority which related to store personnel. At the same time, how- ever, the complaints registered by employees on that oc- casion in significant part reflected adversely upon the honesty of their store manager and the area supervisor was on vacation. As for the district manager, although Ardman first asked to speak with him, Vincent conceded that she knew at the time that Cochran would be un- available. In any event, it does not appear that Mercer or Wilson expressed concern with a possible bypass in allowing the employees to air their problems or that they even in- quired as to whether the complaints had been brought to the attention of lower management echelons. Indeed, on this record, it appears that the discharge notice issued Vincent on February 26 constituted the first formal noti- fication to any employee that failure to adhere to the chain of command could result in discipline. For it does not appear that any employee had ever before received any form of discipline on this ground. Assuming for purposes of argument that the Act does not impede employers from establishing reasonable pro- cedures for the communication of grievances to manage- ment, and from disciplining those who fail to comply, it mation is not evident from h testimony He denied that he had ever been showvn V'incent's medical .xcuse. "' N convincing evidence was presented questioning ihe authenticity of this document 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seems only reasonable that any such limitations be clear- ly communicated to employees before their rights under Section 7 might be compromised. Here, however, it does not appear that employees were ever placed on notice that a mandatory policy existed in this regard. The sole communication to employees pertaining to "lines of au- thority" appears in Respondent's procedure manual,: ' which recites as follows: Lines of Authority Any organization is strengthened when its people communicate their problems or questions through proper channels. Quik Pik is structured so that store personnel should take their questions and sugges- tions to their store manager who, when necessary, should communicate matters that were brought up, to his or her supervisor. The supervisors serve as the key link between the stores and the district managers and between the stores and the office. Normally, communication should flow from one level to the next. In this way problem-solving falls naturally to the person who is responsible at each level. A breakdown occurs, for instance, if a store manager communicates an in- quiry or a complaint to someone other than his su- pervisor on a matter concerning the store operation or personnel. In time certain relationships could be damaged and further communciation breakdowns would become more likely. Smooth operations with good companywide communication flow require the best effort on the part of every employee to bring matters to the at- tention of his or her immediate superior. By the same token, this will insure that the downward flow of information and instruction will follow the same communication channels, and your instructions and guidance will come from your immediate supervi- sor. On its face, said declaration is couched merely in lan- guage appealing to the good sense of employees and sug- gesting management's preference as to what they "should" do in communicating inquiries or complaints. It lacks the mandatory language usually found in an in- struction, directive, or firmly viewed requirement. This ambiguity is compounded by the fact that, under Re- spondent's published disciplinary policy, violation of lines of authority or chain of command is not listed as a basis for reprimand or termination. 3 2 In these circumstances, the issuance of discipline on this ground with respect to an employee engaged in a concerted effort to advance work-related complaints to management no more constitutes valid cause or a basis for privileged discipline under the Act than would be 1 See Resp. Exh. 2. This reference is part of a 50-page volume articu- lating various aspects of store policy. According to the testimony of Mercer, a cop) of the policy manual is to be maintained in each store with employees having access thereto. Although not necessarily material, it is noted that there is no direct evidence that such a document was available in Store 53 at times material to this proceeding 32 G.C Exh 4 lists some 41 different offenses subject to punishment either in the form of immediate dismissal or written reprimand, hut makes no reference to chain of command. true of discipline under a rule banning union solicitation applied to employees engaged in such activity on their own time. 3. The violation The intervention of statutory remedies in this case de- pends in the first instance upon whether the February 19 action by the employees constituted activity protected by Section 7 of the Act. It is well settled that employees enjoy a protected statutory right under Section 7 of the Act to engage in "concerted activities for the purpose of . . other mutual aid or protection," and that such guar- antees necessarily include the right to appeal to manage- ment concerning problems related to conditions of work. Here, employees Vincent, Ardman, and Kapzynski ap- peared at Respondent's offices to address management officials concerning practices relative to cash and inven- tory shortages in the store and adverse conditions they found in the store upon the commencement of their shifts. Said protestations related exclusively to the manner in which Store Manager Loven discharged his responsibility, and, since they were not addressed to his removal, did not constitute an attempt to interefere with Respondent's prerogative as to the composition of its management team.3 3 The conduct of Vincent, Ardman, and Kapezynski was confined to their assertion of com- plaints to management relative to their conditions of work, and as such was protected by Section 7 of the Act. Finally, the evidence overwhelmingly points to the fact that Vincent was discharged solely because of her involvement in the February 19 "grievance" meeting. There was no suggestion that discipline against Vincent was likely until the first occasion on which she became available for work following her involvement in the pro- tected grievance meeting. After her discharge, at an un- employment insurance hearing on her claim, Wilson de- scribed Vincent as the principal "ringleader" in that con- nection.3 4 Consistent with these factors, Respondent's as- signed grounds for the termination, rather than allaying, actually serve to enforce the claim of proscribed discrim- ination. In this latter respect, the charge that she by- passed lower level management, while not within any privilege cognizable under the Act, stemmed directly from and was linked inextricably with Vincent's involve- ment in protected activity. Similarly, the charge of "ma- licious gossip," though previously condoned by Re- spondent's managers, was assigned heightened impor- tance only after her participation in the February 19 meeting. And with respect to the third ground, I have ' I have not overlooked Vincent's adverse reaction to her demotion from the store manager position in October 1978, and I am also persuad- ed that she held an interest in returning to that position throughout, com- municating that desire to Mercer on February 19. Nonetheless Vincent obviously did not attend that meeting for the purpose of convincing man- agement to replace Loven, since at the time it had been established and she knew that L.oven was scheduled for promotion to another position in the Company. Cf Joanna Cotton Mills Co. v. NL.R.B, 176 F2d 749 (4th Cir. 1949). Furthermore, from the credible evidence on this record even if she was the most outspoken, rather than the instigator of the meeting, Vincent was simply invited by the others to join them if she wished "4 Based on Vincent's credited, uncontradicted testimony. 512 QUIK-PIK FOOD STORES, INC. heretofore concluded that it was pretextual, having been structured in its entirety upon unbelievable testimony. In the circumstances, and based on the entire record, I find that Respondent terminated Vincent in reprisal for her role in the advancement of employee complaints under circumstances protected by Section 7 of the Act, and that Respondent thereby violated Section 8(a)(1) of the Act.3 s CONCLUSIONS OFt LAW' 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent violated Section 8(a)(l) of the Act on February 27, 1979, by discharging and thereafter refusing to reinstate employee Olga Vincent in reprisal for her joining other employees in communicating their job-re- lated complaints to management. 3. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action found necessary to effectuate the pur- poses and policies of the Act. Having found that Respondent discriminatorily dis- charged Olga Vincent, it shall be recommended that Re- spondent be ordered to offer her immediate and full rein- statement to her former position or, if that position is not available, to a substantially equivalent position, without loss of seniority or other privileges and benefits. It shall be further recommended that Respondent make her whole for any loss of pay sustained by reason of the dis- crimination against her from February 27, 1979, to the date of a bona fide offer of reinstatement. Backpay shall be reduced by interim earnings and computed on a quar- terly basis as prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), with interest as authorized by Florida Steel Corporation, 231 NLRB 651 (1977).36 Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER 3 7 The Respondent, Quik-Pik Food Stores, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall: 3s Harry Ardman, who was discharged on February 20, did not im- press me as a reliable witness. His testimony has been accepted only where corroborated by other believable evidence ae See, generally, Iit, Plumbing & fleating Co.. 138 NLRB 716 (1962) 37 In the event no exceptions are filed as provided hby Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the 1. Cease and desist from: (a) Discharging or in any other manner discriminating against employees because they elect to communicate job-related complaints to management. (hb) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Olga Vincent immediate and full reinstate- ment to her former position or, if such position no longer exists, to a substantially equivalent position, without prej- udice to her seniority or other rights and privileges, and make her whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards. personnel records and reports, and all other re- cords necessary or appropriate to analyze the amounts due under the terms of this Order. (c) Post at Store 53 in Warren, Michigan, copies of the attached notice marked "Appendix." a 3 Copies of said notice, on forms provided by the Regional Director for Region 7 after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d)Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 :' In the event that this Order is enforced by a Judgment of a United Stales Court of Appeals, the words n the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nalional Labor Relations Board " 513