Filene's, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1994

314 N.L.R.B. 710 (N.L.R.B. 1994)

710
314 NLRB No. 119
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 The judge inadvertently failed to address specifically the com-
plaint allegation that the Respondent violated Sec. 8(a)(1) of the Act
by threatening employees with less favorable working conditions if
they selected the Union as their bargaining representative. Our re-
view of the record reveals that no evidence was adduced in support
of this allegation, and we shall accordingly dismiss it.
In addition, the judge inadvertently stated in the second paragraph
of the analysis and conclusions section of his decision that Hodgson
engaged in union activity at the Respondent’s Milford, Connecticut
store on April 29, 1993. The judge correctly noted in the statement
of the case section of his decision that that activity occurred on
April 30, 1993.
Filene’s, Inc., a division of the May Department
Stores Company and United Food and Com-
mercial Workers Union, Local 919, AFL–CIO.
Case 34–CA–6180
August 12, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On May 17, 1994, Administrative Law Judge How-
ard Edelman issued the attached decision. The Charg-
ing Party filed exceptions, and the Respondent filed a
brief opposing the Charging Party’s exceptions.
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
The Charging Party has specifically excepted to the
judge’s failure to credit the testimony of Betsy Hodg-
son that, approximately 10 days following her dis-
charge for suspected theft of store merchandise, she
contacted the Respondent and offered to produce a
store receipt assertedly documenting her purchase of
the merchandise. Although the judge did not specifi-
cally address this testimony, he discredited Hodgson’s
testimony in general and found that the ‘‘credible evi-
dence . . . established that Hodgson was unable to
provide Respondent with a receipt for the suspected
shoplifted merchandise.’’ We find that the judge’s
credibility resolutions are supported by the record. In
addition, even if accepted as true, Hodgson’s testimony
concerning her belated offer to produce the alleged re-
ceipt for the merchandise would not affect our conclu-
sion that Hodgson was lawfully discharged. The cred-
ible evidence establishes that the Respondent adhered
to its disciplinary procedures in its treatment of Hodg-
son. On its suspension of Hodgson for suspected theft,
the Respondent initially allowed her 24 hours to
produce a receipt for the merchandise. Hodgson was
actually given more than 1 week to do so. Hodgson
failed to produce a receipt within the allotted time pe-
riod, and was accordingly lawfully discharged on May
4, 1993.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Ursula L. Haerter Esq., for the General Counsel.
Stephen D. Shawe, Esq. (Shawe & Rosenthal), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on December 7 and 8, 1993, in Hartford,
Connecticut.
Based on charges filed by United Food and Commercial
Workers Union, Local 919 AFL–CIO (the Union), a com-
plaint issued against Filene’s Inc., A Division of the May
Department Store Company (Respondent), on August 20,
1993, alleging the discriminatory discharge of an individual
employed by Respondent, and several independent allega-
tions of Section 8(a)(1) of the Act.
On the entire record, including my observations of the de-
meanor of the witnesses and the briefs filed by counsel for
the General Counsel and counsel for Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with an office and
place of business in Meriden, Connecticut, where it is en-
gaged in the operation of a retail department store. Respond-
ent annually grosses in excess of $500,000 in the operation
of its business. Respondent also purchases goods and prod-
ucts valued at in excess of $5000 directly from States other
then the State of Connecticut. It is admitted, and I conclude
that Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted, and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Betsy Hodgson, the alleged discriminatee, in this case was
employed by Respondent as a salesperson for at least several
months prior to April 21, 1993. During the month of April,
the Union was engaged in an organizing campaign at Re-
spondent’s Meriden store. However, prior to April 23, 1993,
there is no evidence that Respondent had any knowledge of
any activity that Hodgson may have engaged in on behalf of
the Union.
According to Hodgson’s testimony, much of which I do
not credit, as set forth below, she returned a pair of shoes
711FILENE’S, INC.
on the evening of April 21, which she allegedly had pur-
chased some time ago. It is admitted that on such return the
salesperson handling the return, gives the person making
such return, whether such person is employed by Respond-
ent, or an outside customer, a receipt, so that when leaving
the store, such person can prove a valid purchase or ex-
change, if challenged by Respondent’s security personnel.
According to the testimony of Hodgson, the salesperson
making her exchange failed to do so.
According to the testimony of Hodgson, when she got
home that evening and tried on the shoes and they didn’t fit
her properly, she decided to return them the following day
to obtain the correct size.
Respondent has a company rule that employees returning
store merchandise must present the bag which contains the
merchandise to be returned on arriving at work to the store
security officer so that the bag, or box can be sealed with
security tape. This is a measure designed to prevent shop-
lifting.
On April 22, Hodgson reported for work allegedly with
the shoes to be returned in a leather pouch. She did not
present the pouch, or in any other manner disclose to the se-
curity department that she had the shoes with her and in-
tended to replace them for a pair of the correct size.
Respondent’s procedure in making an exchange is to do so
through a salesperson in the appropriate department and re-
ceive a receipt indicating such exchange. Hodgson, by her
own admission failed to follow this procedure. Instead,
Hodgson, incredibly testified that she simply went over to
the rack where the shoes were displayed, removed the pair
she allegedly had exchanged of April 21 from her pouch, and
took from the rack a similar pair, but of the correct size.
Hodgson was observed by Respondent’s security officer,
Linda Cullen, over a closed circuit TV camera, taking the
shoes from the rack. She was not observed returning any
shoes which Cullen credibly testified she would have seen
had it happened. Cullen further credibly testified that since
the VCR was broken and she could not tape the action, she
called over area sales manager, David Schofeld, to observe
the television camera with her. According to the credible tes-
timony of Cullen after Hodgson selected the shoes, she
walked back to the counter where she worked, placed the
shoes underneath the counter, removed the store packaging,
took the sneakers she was wearing, which was not Respond-
ent’s authorized dress code, and placed the shoes on her feet.
Cullen continued to observe Hodgson through her lunch pe-
riod. At no time did she attempt to have the shoes rung up
on any cash register.
At 1:30 p.m., Hodgson still wearing the shoes, left the
store. Cullen followed her as she proceeded to walk out the
sidewalk. At this point in time, Cullen asked Hodgson to
stop and ask her whether she had a receipt for these shoes.
Both Hodgson and Cullen testified that Hodgson said she had
a receipt and began looking through her pockets. When she
couldn’t find one she admitted that she didn’t have one on
her person, but that it was in her bag in the stockroom.
Cullen and Hodgson went to the stockroom and Cullen fum-
bled through her bag but was unable to come up with any
receipt. Cullen then asked Hodgson when she purchased the
shoes. Hodgson stated that she purchased the shoes on April
21. This testimony by Hodgson contradicts her prior testi-
mony wherein she testified that she had purchased the shoes
some time ago, and had merely exchanged the shoes on
April 21. I find such contradiction seriously undermines her
credibility. In addition, during this part of her testimony,
Hodgson was visibly nervous and hesitant. I was adversely
affected by her demeanor during this portion of her testi-
mony.
During Cullens interview of Hodgson, she was asked by
Cullen if she was attempting to exchange the shoes why she
hadn’t had the bag containing the shoes to be sealed with se-
curity as required. Hodgson replied that she hadn’t done so
because she didn’t have a receipt with her. This is another
serious contradiction by Hodgson. When initially confronted
by Cullen outside, Hodgson looked for a receipt she knew
she didn’t have and then suggested that it was in her bag in
the locker room, when she knew that was not so either. In
this regard, Hodgson was clearly untruthful. When Hodgson
insisted that she either paid or exchanged her shoes on April
12, Cullen asked what register and what salesperson had han-
dled the transaction, Hodgson could not recall the salesgirl,
her description, or the location of the register. This, in my
view also seriously affects her general credibility.
I completely credit the testimony of Cullen. She testified
in a most candid, forthright, and detailed manner both on di-
rect and cross-examination. Moreover, her testimony was to-
tally corroborated by her detailed notes of the incident and
subsequent interview with Hodgson. Such notes were con-
temporaneous and part of her job duties.
During the interview between Cullen and Hodgson, Store
Human Resource Manager Hall entered Cullen’s office. Hall
was briefed on the facts of this incident. Hodgson insisted
that she could produce a receipt for the shoes that she had
purchased on April 21. At this point Hodgson was again
claiming that it was a purchase, rather then an exchange as
she had originally testified. After listening to Hogdson, Hall
told her that as of now, she was suspended, but indicated that
if she were able to produce a receipt for the shoes within 24
hours she would be permitted to return to work, and if not,
the suspension would become a discharge.
According to the incredible testimony of Hodgson, Hall
told her that she was suspended because she did not have the
bag containing the shoes she was allegedly returning security
taped, and that she was merely asked to look for the receipt
with no time limitation imposed.
Hodgson’s testimony in this regard is totally and conclu-
sively contradicted by Respondent’s official personnel
records dated April 22, 1993, which indicate as the reason
for interview, ‘‘Theft of Merchandise,’’ and under the head-
ing ‘‘Specifically note any Offense, Policy Violation, etc.’’
‘‘Theft of Merchandise.’’ Nowhere is there any mention in
Hodgson’s personnel file that she failed to have security tape
over a package of merchandise to be returned, or any other
reason for Hodgson’s suspension. In other words, the evi-
dence conclusively establishes that the sole reason for Hodg-
son’s suspension was her suspected theft of merchandise.
It is interesting to note that General Counsel does not con-
tend in the complaint, on the record, or in her brief that
Hodgson’s suspension was discriminatorily motivated. Gen-
eral Counsel’s contention is that subsequent to the suspen-
sion, Hodgson engaged in certain union activity, of which
Respondent became aware and because of such activity, the
suspension was converted into a discriminatory discharge.
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There is no management official at Respondent’s Meriden
store that has the authority to finalize a discharge of any em-
ployee. Such decisions are made in Respondent’s home of-
fice in Boston. On April 22, after Hall’s conversation with
Hodgson, Hall called Cathy Gentelosi, the chief director of
human resources in Boston. Hall briefed Gentelosi as to ev-
erything that had transpired in the Hodgson matter, including
her 24-hour notice to Hodgson to produce the receipt, if such
existed.
Sometime in the midmorning of April 23, Hall contacted
Hodgson at her home by telephone and asked her if she had
located her receipt. Hodgson stated that she had not. Hall
said nothing further, because the 24-hour period had not
elapsed. However later in the day, Hall contacted Gentelosi
and told her that Hodgson had not yet found the receipt.
Gentelosi told Hall to terminate Hodgson if Hodgson failed
to produce the receipt within the allotted 24-hour period con-
veyed to Hodgson.
Hall left the following day, April 24, for a 1-week vaca-
tion. Therefore she was unable to inform Hodgson of the de-
cision to terminate her. Hall returned on May 3, but was un-
able to contact Hodgson until May 4. During their May 4
telephone conversation Hodgson told Hall that she still was
unable to find the receipt required by Respondent in order
to avoid her termination. In view of Hall’s April 23 author-
ization from Gentelosi to terminate Hodgson if she were un-
able to produce the receipt, Hall at this time informed Hodg-
son of her termination.
The evidence conclusively establishes that Respondent re-
gards theft of merchandise as a most serious offense, Re-
spondent has always terminated any employee, in any of
their stores whom they believed engaged in theft of merchan-
dise. In the instant case I conclude that Respondent, based
on the credible and undisputed facts of this case had excel-
lent reason to believe that Hodgson had stolen merchandise.
On April 30, Hodgson engaged in her only union activity,
which activity General Counsel contends Respondent had
knowledge of, and which activity resulted in Respondent
converting its suspension of Hodgson into discharge.
On the morning of April 30, 1993, Hodgson was present
in Respondent’s Millford Connecticut store, some distance
from its Meriden store where Hodgson had been employed.
She was dressed in sweat pants, a sweat shirt, and a baseball
cap. This dress contrasted markedly with her usual store
dress where employees were required to wear a skirt or
dress. While present at the Millford lot, Hodgson was distrib-
uting union literature on the windshields of the automobiles
parked at the lot.
Milford Store Manager Marcello Allegre drove into the
Millford parking lot to park his car and go to work. As he
got out of his car he noticed a woman dressed in a sweat
shirt, sweat pants, and baseball cap placing some kind of
leaflet on the cars parked in the lot. Allegre credibly testified
he told the leafletter that such soliciting was not allowed and
he would appreciate it the leafletting stopped. Hodgson
stopped and turned facing Allegre and walked away. Allegro
credibly testified that he did not recognize Hodgson.
Hodgson incredibly testified that after Allegre parked his
car, he approached Hodgson and then stated, ‘‘Betsy, this is
against mall policy for you to solicit on mall property.’’
Allegre asked Hodgson to leave and walked into his store.
Allegre had previously worked at Respondent’s Meriden
store for about a year as a sales manager, where he super-
vised several departments. During his tenure at the Meriden
store, he spoke to Hodgson very infrequently, just to say
hello. He was able to address her by name, since all employ-
ees wore name tags. He had no direct responsibility over her.
He worked on the second floor while Hodgson worked on
the first floor. There were approximately 250 employees em-
ployed at the Meriden store. Allegre had transferred to the
Millford store some 9 months previously. Given these facts
I find no reason to believe that Allegre would recognize
Hodgson, especially dressed in the attire described above.
Moreover, I was impressed with Allegre’s demeanor. His an-
swer to questions put to him on both direct and cross-exam-
ination were forthright, and his testimony reflected a good
recollection of detail. On the other hand, as set forth and de-
scribed above, I was not impressed with the credibility of
Hodgson.
After Allegre entered the store, he reported to his superior
that he had observed a woman, he did not mention her name,
distributing leaflets and that he took one and saw it was a
union leaflet. The Millford store was one of Respondent’s
stores that the Union was attempting to organize. Allegre’s
superior reported the incident to the Boston office. The cred-
ible evidence established that the identity of the distributor
was unknown to any of Respondent’s agents.
Respondent held a series of employee meetings on or
about April 22, 1993, in groups of 10–12 employees. These
meetings were all conducted by Joseph Mahar, Respondent’s
store manager. During these meetings Mahar discussed a
number of store issues including customer relations, business
reports, sales, and the union campaign. During a meeting
held on April 22 where Hodgson was in attendance, Mahar
discussed the Union’s organizational campaign. This discus-
sion was guided by a text prepared in the home office in
Boston. At the conclusion of Mahar’s speech, he took ques-
tions from the employees in attendance.
General Counsel alleges that either during Mahar’s speech,
or some time during the question-and-answer period Mahar
discussed Respondent’s store no-solicitation policy. In this
connection, Hodgson testified that Mahar told the employees
assembled at this speech that if they felt harassed by union
officials, or saw anyone from the Union, they should report
it to him. Hodgson also testified that Mahar asked each em-
ployee whether they were for the Union.
Mahar testified that he asked no employee, in any manner,
how they felt about the Union. Mahar admits that he did dis-
cuss the store’s policy on no-solicitation and in this respect
told the employees that outsiders were not permitted on the
store’s premises if they were disruptive to business, and re-
quested that employees notify store security or management
in such cases.
I credit Mahar’s testimony. His testimony in connection
with questions put to him on cross and direct examination
were responsive and detailed. Moreover, I conclude that his
testimony was logical and had a ring of truth to it. Hodgson,
as set forth above, did not impress me as a credible witness.
Moreover, the General Counsel was unable to produce any
other witness to corroborate Hodgson’s testimony.
713FILENE’S, INC.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Analysis and Conclusions
In determining whether an employer discriminates against
an employee because of his membership in, or activity on
behalf of a labor organization, General Counsel has the bur-
den of proving that the employees membership in, or activi-
ties on behalf of, such labor organization was a motivating
factor in the discrimination alleged. Only when such factor
is established does the burden shift to the employer to estab-
lish that such action would have taken place in the absence
of the employees membership in, or activities of such labor
organization. NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983); Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (lst Cir. 1981), cert. denied 455 U.S. 989
(1982).
An essential element necessary to establish a discrimina-
tory discharge is knowledge of the employees’ union activity.
Bryant Cooper Steakhouse, 304 NLRB 750, 751 (1991). In
the instant case the credible evidence fails to establish that
Respondent was either expressly, or impliedly aware of
Hodgson’s sole instance of union activity, namely her April
29 handbilling of union literature on automobile windshields
in Respondent’s Millford store. Accordingly, I conclude that
in these circumstances, General Counsel has failed to estab-
lish her Wright Line burden. I therefore conclude Respond-
ents discharge of Hodgson did not violate Section 8(a)(1) and
(3) of the Act, as alleged.
Moreover, even if I were to conclude that General Counsel
had established a prima facie case, based on the evidence in
this case, I would conclude that Respondent would have dis-
charged Hodgson notwithstanding such prima facie case. In
this regard, General Counsel has admitted that the suspension
of Hodgson was not discriminatorily motivated. The credited
testimony, and incontrovertible documentation conclusively
establish that the reason for such suspension was Respond-
ent’s belief that Hodgson was guilty of shoplifting. The cred-
ible evidence further established that Hodgson was unable to
provide Respondent with a receipt for the suspected
shoplifted merchandise. The credible and unrebutted testi-
mony also conclusively established that in all such cases at
all of Respondent’s stores, employees suspected of shop-
lifting are uniformly terminated from Respondent’s employ.
Accordingly, I would also conclude in these circumstances
that Respondent’s discharge of Hodgson was consistent with
its established policy and was not discrininatorily motivated
and therefore not in violation of Section 8(a)(1) and (3) of
the Act.
Since I have concluded that there is simply no credible
evidence that Mahar, or any other Respondent representative,
ever asked any employee how they felt about the Union, or
to notify Respondent of union harassment or the identity of
union representatives or supporters, I conclude that Respond-
ent did not violate Section 8(a)(1) as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(1) and (3) of
the Act, as alleged.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The complaint is dismissed in its entirety.