Bullock's

BULLOCK'S 425 Bullock's and Robert J. Loew. Case 21-CA-16546 August 22, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMBERS PENEI.I.O AN) TRUFSDAI.E On June 2, 1980, Administrative Law Judge Gerald A. Wacknov issued the attached Supple- mental Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 briefs and has decided to affirm the rulings, find- ings,' 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 complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted t 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 re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing his findings. SUPPLEMENTAL DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge: A Decision was issued in this matter by me on December 22, 1978. Thereafter, on January 15, 1980, the Board issued a Decision and Order remanding Proceeding to the Administrative Law Judge' for certain additional findings and, should it be deemed necessary, for the re- opening of the record to take further evidence in con- nection therewith. On January 23, 1980, an order was issued directing the parties to submit to me a statement setting forth their po- sitions regarding whether the record should be reopened for the taking of further evidence and/or the filing of supplemental briefs. Thereafter, counsel for the General Counsel submitted a statement of position requesting that l 247 NLRB No 4() ( 198)) 251 NLRB No. 82 the record be reopened only for the filing of supplemen- tal briefs, and Respondent submitted an extensive state- ment of position opposing reopening of the record either for the taking of further evidence or the filing of supple- mental briefs. On February 15, 1980, an Order was issued reopening the record only for the submission of supple- mental briefs on the issues presented by the Board's remand, which Order also served as notification to Re- spondent that its statement of position would be treated as a supplemental brief, but that Respondent would be permitted to file an additional supplemental brief should it desire. Thereafter, counsel for the General Counsel, Carolyn M. Yee, 2 filed a supplemental brief. Upon the entire record, I make the following: FINDINGS OF FACT The Board stated that if Kathryn Barton, the alleged discriminatee herein, . . . had innocently obtained the information con- tained in the employees' evaluations and then dis- cussed them with her fellow employees, her con- duct would . . . be both concerted and protected and her discharge, even if based on an honest but mistaken belief that she had wrongfully obtained said evaluations, would be unlawful. However, if Barton had wrongfully obtained and copied the re- views herself, her activities would not be protected by the Act and her discharge for engaging in such misconduct would not be unlawful. The reasons for Barton's discharge were succinctly set forth in the "Personnel Interview Report" which was handed to Barton on her termination. The report states: SUBJECT OF DISCUSSION Demoralization of Dept. personnel, discussing personal job reviews with other associates, in possession of a copy of a job review of another associate, being a party to and covering up information leading to finding out who was responsible for taking reviews from man- ager's desk and making copies. Making other asso- ciates on the floor feel unwelcomed and not needed. Manager Recommendation Immediate Termination. It is undenied that Barton had in her possession a copy of a portion of the performance review of another sales- person or associate, Jane Graefen. When asked by Furni- ture Department Manager Dan Sparrow where she had obtained it, Barton replied that she had discovered it on top of the desk of another associate, Lorna Bodily. How- ever, at the hearing, Barton testified that in fact she had found the review in a drawer of her own desk. Barton also possessed a copy of her own performance review, testifying that employee George Davidson gave it to her. Davidson denied that he removed or copied any of the reviews from Sparrow's desk, and specifically denied that he gave Barton a copy of her own review. 2 Carkl!n Nt Yee h entered her appearani cc n hbhalf of the Gener.al t(surll l orls} for purposes of this rcnll d prcccding. and did not partlci- p;itc in the iriginal hetairing BL L LOCK S 425 426 DECISIONS OF NATIONAL LABOR REI.ATI)NS B()ARD Barton told employee Cecilia Burge that she had read Burge's review and the reviews of other employees, and that Burge's review was very bad in comparison, prompting Burge to confront Sparrow with this informa- tion. Further, Barton strongly suggested to Graefen that Barton maintained a relationship with higher manage- ment officials which enabled her to influence managerial decisions regarding the discharge of employees, and im- plied that she could cause Graefen's discharge. This con- duct of Barton caused Graefen to notify Sparrow that she intended to resign as a result of the emotional stress which Barton had caused her. I credit the aforementioned testimony of Burge and Graefen, both of whom appeared to have a vivid recol- lection of their respective conversations with Barton. It is significant, for purposes of determining credibility, that both employees immediately complained to Department Manager Sparrow about Barton's remarks. Moreover, I credit the testimony of Personnel Director Vickie Kar- mona and find that, during the discharge interview, Barton suggested that Graefen had misunderstood the import of Barton's remarks, thus acknowledging that a conversation between Graefen and her did occur. Barton did not, during the hearing, testify as to her version of this conversation, but rather only categorically denied that she threatened to cause the termination of Graefen. Under the circumstances, Barton's abbreviated testimony lends credence to the account of the conversation given by Graefen. In my initial decision I found that it was unnecessary to determine whether, in fact, Barton had surreptitiously obtained the various reviews from Sparrow's for the pur- pose of examination or copying. However, I specifically credited Davidson's testimony and found that although he advised Barton where he had discovered the reviews, he did not thereafter remove or copy any of them. 4 The further conclusion is thereby mandated that Barton's contrary testimony, namely, that Davidson furnished her a copy of her own review, should not be credited and, absent any attempt by the General Counsel to adduce any further evidence on this point, I specifically discredit Barton's testimony in this regard. The record does not suggest, nor has the General Counsel attempted to show, that Barton, who was indeed instrumental in seeking to challenge Respondent's evaluation policy, received either performance review in question herein from any other source. Moreover, it is not likely that Barton was simply reluctant to divulge the name of some other employee who may have obtained and copied the evaluations in order to protect that employee from certain discharge, as Barton did falsely accuse Davidson of such conduct at a time when he was still employed by Respondent. There- fore, no other conclusion appears tenable, and I am con- strained to find that Barton wrongfully obtained and copied her own review. Further, as a result of Barton's discredited disclaimer of such conduct, I also find that, ' Hturge. hocl er. ,id lot tell Sparroy Ihat arton was l Ithe source of her informatiolln. I)aid l . , ho appeared to he ia credible ,itnel,, had been dis- charged 'oni 6 monlths prior Io he hearing r engaging i his Iliscon- duct, and had nil apparent reason for fabricatinlg letlilllOnl) i I Ihe extct(l of his inolvemcent il his matter. similarly, Barton wrongfully obtained and copied Grae- fen's review. The credited testimony of employees Burge and Grae- fen provides further justification for Barton's termination. Indeed, Barton advised Burge that her supposedly confi- dential performance review had in fact been scrutinized by a coworker, and that it did not compare favorably with the reviews of other employees. Being made aware of one's deficiencies in this manner is obviously demoral- izing and is likely to have an adverse affect on future work performance. Similarly, Graefen was led to believe, as a result of Barton's remarks, that her job with Respon- dent could or would be in a precarious position should she not remain in Barton's good graces. Graefen's belief in this regerd was no doubt enforced upon learning from Burge that Barton had access to confidential perform- ance reviews. It therefore appears, and I find, that Barton's familiar- ity with the reviews, which I find she had surreptitiously obtained and copied, and her verbal dissemination of their contents to Burge support the reasons given in the personnel interview report for which, among others, Barton was discharged. Similarly, although not directly related to the matter of the performance reviews, Bar- ton's remarks to Graefen were sufficient to cause Grae- fen great consternation, and further support Respon- dent's conclusion that Barton's conduct had a disruptive and demoralizing effect on furniture department person- nel. As a result of the foregoing supplemental findings of fact, I reaffirm my original conclusion that the discharge of Barton was not violative of Section 8(a)( I) of the Act. 5 CONCLUSIONS OF LAW 1. Barton was discharged as a result of having wrong- fully obtained and copied confidential performance re- views, and divulging their contents to other employees, and for otherwise unjustifiably causing the demoraliza- tion of furniture department personnel. 2. Respondent has not violated the Act as alleged. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER6 It is recommended that the complaint be dismissed in its entirety. ' See tUntlrn Rental Scce,. In(,. 161 NLRH 187. 19) (19661, enfd 398 F2d 12 (h Cir 19t8I6; RidgIty alanujui(rurit Conpaun. 2()7 NLRB 193, 1 197 (19473), ;id cases cited thercil at fi X: Frlow Rubber Supplv, In, . 193 NIRB 570, 71 -75 (1971)1 IFirsl Data Rinrcer Incr 241 NRB 713 (197911 Sec also Ferar Insirurnn: Incorporated, 247 NLRB Ni) 37 1980X()) ` I1I tile vcr i.l 1o , excptiols ari filed a;s pr ided by Sec 102 46 f tihe Rules and Recgulations of the Natiinal Iabor Rlation' Board. the fintd- ilgs. conclusions, a nd recoitellcitled Order herein shall, as pro lded in Sec 112.48 of the Rules anid Regulations. he adlipted by tIhe Hoard and becIIIc its fitdinigs. coiIcltIs,ii. and Order. ad all oblectiols therertio shall hbe deeImedL v,.lixC fr ll ppUIels