K-Mart Enterprises, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1973

202 N.L.R.B. 358 (N.L.R.B. 1973)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K-Mart Enterprises , Inc. and Deborah A. Kalisz. Case
7-CA-9683
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
March 13, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 12, 1972, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, K-Mart Enterprises,
Inc., Royal Oak, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect. Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
GEORGE J. BoTT, Administrative Law Judge: Upon a
charge of unfair labor practices filed by Deborah A. Kalisz
on July 13, 1972, against K-Mart Enterprises, Inc.,' herein
called Respondent or Company, the General Counsel of
the National Labor Relations Board issued a complaint
against Respondent on August 22, 1972, alleging that it
had engaged in unfair labor practices in violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended, herein called the Act. Respondent filed an
answer, and a hearing was held before me at Detroit,
Michigan, on October 16 and 17, 1972. Subsequent to the
hearing, Respondent filed a brief which has been carefully
considered.
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent, a Michigan corporation, is engaged in the
retail sale of automotive and sporting goods throughout the
State of Michigan and various other States of the United
States and maintains its main office in the city of Royal
Oak, Michigan, which, is the only facility involved in this
proceeding.
During the year ending December 31, 1971, Respondent
sold at retail at its various facilities within the State of
Michigan merchandise valued in excess of $500,000, and
during the same period it purchased and caused to be
delivered to its Michigan facilities merchandise valued in
excess of $500,000, which goods were shipped directly from
outside the State of Michigan.
Respondent concedes, and I find, that it is an employer
engaged in commerce within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting and the Issues
Several hundred office employees work in Respondent's
headquarters building in Royal Oak, Michigan, but the
only persons involved in this case are the employees
working in Respondent's payroll department, which at all
times material to this case consisted of approximately 25
payroll clerks working under the supervision of Mrs.
Jeanne Plotzka. It is clear from the testimony that during
January and early February 1972, there existed in the
payroll department some sort of a personnel or morale
problem, the depth, extent, and causes of which are
somewhat unclear. Assertedly in an attempt to cure this
problem on the ground that they were improperly and for
personal reasons striking at Supervisor Plotzka, Respon-
dent discharged payroll clerks Kalisz and Snyder during
the week of February 6, an action which General Counsel
contends was motivated by the fact that said employees
had acted, as the complaint alleged, "as representatives for
employees in the presentation of complaints and griev-
ances . . . and had engaged in other concerted activities"
protected by the Act.
B. Basic Findings
Respondent's payroll department computes wages
earned and prepares checks for all employees working for
wholly owned subsidiaries of Respondent in sporting
goods departments and automotive departments in K-Mart
stores throughout the United States. Timecards for each
employee are received in the payroll department not later
than Monday of each week. Wages are then computed and
checks prepared not later than Wednesday of each week so
that they can be mailed to the stores and given to
individual employees not later than Friday of each week. It
appears that because of these deadlines, employees in the
1 Respondent 's name as amended at the hearing
202 NLRB No. 58
K-MART ENTERPRISES, INC. 359
payroll department are extremely busy writing checks from
Monday to Wednesday afternoon, but much less busy and
occupied with less essential tasks during the rest of the
week.
Payroll department employees work in four or five
cubicles each containing four to six employees. All cubicles
are close to Plotzka's office. Sporting goods and automo-
tive departments for which payroll checks must be written
are divided into a number of separate corporations, usually
one corporation for each State. In order to distribute work
fairly and because payroll clerks must be familiar with the
varying local and state regulations affecting deductions
from payroll checks, the workload is divided among the
payroll employees by corporations. Employees work in
teams of two each. Although there is no formal division
within the payroll department, some employees worked
primarily on sporting goods checks and others on automo-
tive checks, but I also find that because it is essential that
checks be mailed on time for payment to the employees in
the many stores scattered throughout the United States, it
is necessary for all employees to work cooperatively, and
consequently all teams, whether in sporting goods or
automotive check writing, are expected to volunteer to help
other teams get the work done. This area of "voluntary"
group effort as a possible and likely partial source of
employees' discontent in January and February 1972
figures prominently in this case.
Miss Kalisz and Mrs. Sandra Snyder, the dischargees,
worked as a team in a cubicle with three other employees
preparing sporting goods department checks primarily, but
since, as Respondent concedes, they were the more
proficient employees in the payroll department, they
frequently assisted other teams in preparing their payrolls
after they had completed their own assignments.
Payroll clerk Deborah Kalisz worked from October 1,
1970, until February 14, 1972, when Respondent dis-
charged her. Apart from the question of whether she and
Snyder were "stirring things up" in the department in some
manner to be treated later, Respondent conceded at the
hearing that there is no issue about her proficiency and
technical competency or other facets of her employee
profile.
Kalisz testified that she had always been an excellent
and a willing worker, and I agree, for not only is her
2 Specifically I find on the basis of her testimony, that she was more
productive than most other check writers, that she received merit increases,
that she carried a double workload for a month and one half, that her
attendance record was satisfactory; that she received no warnings or
reprimands during her employment, and that when she finished her work
she voluntarily helped other employees complete theirs Although she and
Snyder complained to Plotzka about having to assist another employee who
was not doing her share of the work, neither she nor Snyder actually failed
or refused to assist other employees at any time
3 On cross-examination, Kalisz explained her comments to Schick, but,
although more dramatic, her version remained essentially the same She
said, for example, that Bailey's promotion raised the question of favoritism
among the employees and that this caused "fighting" in the other cubicles
and "too much commotion " With respect to Plotzka, she said she
"screamed" at her, treated her like a "dog" and went "berserk" when she
discovered mistakes In regard to "disorganization," she said she meant that
Plotzka explodes when she discovers mistakes in check writing and can be
heard all over the department
4 Employee Mary Rodgers said that Plotzka wanted to know what the
statement essentially in accord with Respondent's conces-
sion, but it is basically uncontradicted in in the record.2
On February 4, Kalisz met with John Schick, Respon-
dent's personnel manager, in charge of overall personnel
functions in Respondent's office, and asked him for a
transfer to another department. On questioning by Schick
as to what caused her to make this request, she volunteered
that there was "too much disorganization" in the payroll
department; that the work was getting done, but not as
smoothly as it should be; that it was "upsetting" and
employees were "fighting." She added that she had little to
do on Thursdays and Fridays when she finished her work
and was given only "piddly" unimportant tasks to keep her
busy. She thought, therefore, that she could do a better job
for the Company somewhere else.
Schick pressed Kalisz for more detail, but she replied
that she feared she would be fired if she said more. On his
assurance that this would not happen, she told him that
employee Bailey's recent promotion had caused a "lot of
friction between" the employees doing automotive work,
and she added that Supervisor Plotzka "was not treating
the girls the way she should have . . . she was yelling at
them all of the time and just making them feel like .. .
they were idiots . . ." and incompetents. Kalisz was upset
during the meeting and cried, she said.3 At that point
Schick informed her that Plotzka was having a general
meeting of all employees in the payroll department on the
following Monday, and suggested that she wait and see
what developed at the meeting.
On Monday morning, February 7, Plotzka assembled all
payroll department employees in her office and after
asking each person to voice any complaint she had about
the work in the department, called on them one at a time.
On the basis of Kalisz' and Snyder's•testimony, corroborat-
ed in part by the testimony of other employees,4 I find that
the majority of the employees who had any problems to air
questioned employee Bailey's recent promotion or the
distribution of work among the employee teams; that
Kalisz and Snyder mentioned work distribution, seniority,
assignment of an additional employee to sporting goods to
approve vacation or sick payments, and that both
complained about the manner in which Plotzka instructed
them in their work.5
On Wednesday afternoon, February 9, after the payroll
for that week had been completed,, Plotzka called Snyder
employees ' "problems" were and that Kalisz and Snyder "spoke up the
most" and complained that Plotzka yelled at them too much and made
them afraid to tell her about any errors they had made because she made
them "feel small ." Seniority was also mentioned , she said Employee Anna
MacArthur testified that Kalisz, Snyder, and two other employees were the
most outspoken , Kalisz and Snyder complaining about Plotzka 's temper
and raising her voice . Diane Toolin recalled Kalisz and Snyder stating at the
meeting that sporting goods should have a person like automotive had who
could authorize vacation or other payments . She said someone else also
voiced a complaint about Plotzka's manner of criticizing employees.
5 More colorfully and more specifically, Kalisz testified that when
Plotzka questioned her, she told her that she did not like the way she yelled
at employees and made them feel stupid, a habit she described as "treating
us like dogs." This was in addition to her preliminary comments about work
distribution and an additional employee She said that Plotzka responded
that her bark was worse than her bite Snyder said that when Plotzka
reached her in her canvass , in addition to mentioning certain other working
problems, she told Plotzka that she treated employees like "jerks" by
"storming" at them in connection with their work.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to her office and, in Schick's presence, discharged her,
telling her she was sorry, but that it was "for the
betterment of the department." Snyder asked for an
explanation, and Plotzka added that since there was "too
much conflict" in the department, she thought it better that
Snyder be terminated. According to Snyder, and I credit
her uncontradicted testimony, Plotzka also stated that the
decision to terminate Snyder was not hers, but that "this is
the way it is going to have to be."
Snyder had been employed as a payroll clerk by
Respondent in 1966, but she left voluntarily in 1969 and
was reemployed in July 1971. It was stipulated that she was
a competent employee and that her record was otherwise
satisfactory. She also testified that she was an above
average employee and got along well with other employees.
Plotzka testified that she had "absolutely" no complaint
about Snyder's work or dependability. Leaving aside for
the moment the question of how Snyder got along with
other employees, a point which is closely related to, if not
at the heart of Respondent's defense, I find that she was an
above average employee. I also find, contrary to Plotzka's
denial, that during her first period of employment, she
"assisted" Plotzka, although she did not carry that title.
Kalisz was on sick leave the day Snyder was discharged
and did not return to work until the following Monday,
February 14. When she reported, she was terminated by
Plotzka in Schick's presence "for the betterment of the
company."
Neither employee had been warned by anyone before
termination that their conduct had fallen below acceptable
standards of employment.
On February 14, Plotzka held another meeting with
payroll department employees at which she mentioned
Kalisz' and Snyder's discharge. Employee Rodgers testified
that Plotzka told them that there had been a "shake up,"
that she was "boss" and doing the best she could, and that
the dischargees had "been kind of stirring things up and
that we should try to cooperate with each other."
Employee MacArthur remembered Plotzka indicating that
Kalisz and Snyder had "created disturbances" in the
department, and employee Toolm said that Plotzka
indicated that they "were some type of troublemakers."
Plotzka's recollection of whether she mentioned Kalisz and
Snyder was very uncertain, and I credit the,testimony of
the employees.
Kalisz and Snyder had other discussions with Plotzka
concerning work problems before the general meeting of
employees on February 7 which have a bearing on the
issues in this case. Three employees in the payroll
department, namely, Plotzka, her assistant, and a third
employee working on the automotive payroll, had authori-
ty to approve timecards which indicated that an employee
absent from work was nevertheless entitled to be paid
because of vacation or sick leave. Kalisz and Snyder
testified credibly that this practice inconvenienced them in
writing checks because sometimes the employee in auto-
motive could not handle their requests for approval and
Plotzka and her assistant were unavailable. Employee
Rodgers testified without contradiction that this problem
had been discussed among employees and that Kalisz and
Snyder were leaders in the discussion. It also appears that
Kalisz and Snyder brought the matter to Plotzka's
attention on at least one occasion and requested her to try
and have one employee in sporting goods assigned to issue
approval as needed at their request in order to expedite
processing of checks. Plotzka considered the question and
denied the request. This was also one of the subjects that
the employees raised at Plotzka's February 7 meeting.
Redistribution of work has also been mentioned as a
subject raised by Kalisz and Snyder and other employees
at the employee meeting. In the past, as the Company
added new corporations, splitting of corporations and
reassignment of employees had occurred. Snyder testified
credibly that on the Friday before she was fired, she and
Kalisz spoke with Plotzka about the need for splitting
corporations again. Plotzka agreed, she said, but also
wanted to split up certain partners because some were
faster than others. Snyder and Kalisz assisted Plotzka in
changing corporation assignments and suggesting teams,
but it appears that the changes had not been made at the
time they were terminated. Snyder testified that Plotzka
wanted to break up the Snyder-Kalisz team and have them
work with other employees and although she felt bad about
it because she and Kalisz were friends, she agreed to it
anyway. Whether or not Snyder agreed is in dispute, for
Plotzka testified that she did not and that this entered into
her decision to terminate Snyder and Kalisz. A resolution
of that question may be postponed until Plotzka's
testimony is examined, but at this point I find that there
was nothing in Kalisz' and Snyder's participation in
suggesting and preparing a redistribution of corporations
which was in any way improper. I also find, however, that
Kalisz' and Snyder's reaction to Plotzka's indication that
they would be separated, whatever it might have been, was
never brought to their attention by anyone as something
which could lead to their discharge .6
There is some evidence in the record which Respondent
contends reveals Snyder's and Kalisz' uncooperativeness in
assisting fellow employees. Snyder testified that she
resented having to help other payroll clerks in other
cubicles, and even in her own, whom she thought were not
carrying their "fair share of the load." She admitted
speaking to Plotzka about the problem on occasion and
recalled Plotzka telling her that she and Kalisz were
fortunate to be so fast and proficient as to be able to do
their own work and still help others. She conceded that she
once "flipped her lid" and got into an argument with
employee Birdsell, who worked in her cubicle, about
Birdsell's not doing her part as a member of her team. She
did not deny Plotzka's testimony that after she complained
to her about Birdsell, Plotzka called all four employees
who worked together into her office where a heated
argument about cooperativeness took place among the
employees. Snyder also testified, however, and Plotzka did
not deny this, that other employees had. also complained
about employee Birdsell's lack of effort and that, in any
case, after the meeting in Plotzka's office, the employees
6 On the contrary, Plotzka testified that she told them that her proposals
for team splits were "only a proposal" and "informational," when they
indicated resistance to them
K-MART ENTERPRISES, INC. 361
"straightened" the matter out, that all was "fine" and that
thereafter they worked together "real good."7
Jeanne Plotzka, supervisor of the payroll department and
Respondent's principal witness, described conditions in her
department in December 1971 and January and February
1972, which she said caused her to decide to terminate
Kalisz and Snyder. She testified that she noticed that one
office was working overtime while all other employees had
left on time.8 She also observed that the clerks in two
cubicles were holding checks already written rather than
balancing the payroll for a particular corporation as soon
as that corporation was written and transmitting the checks
to another employee for additional processing, thereby
delaying the completion and mailing of the checks. She
said her observations led her to believe that employees
were not helping and assisting each other as they were
expected to. As a result she spoke to the entire department,
urging better cooperation among the employees, and she
also advised the employees in two cubicles who were
responsible for holding checks on their desks to change the
practice. In neither case did she indicate that Snyder or
Kalisz were at fault.9
Plotzka said that the clerks who worked in the automo-
tive cubicles continued to run behind in completing their
assignments. This she attributed to a large turnover of
employees in those cubicles, the opening of new stores, and
the increase in the size of payrolls in those stores. In
addition, she said that the employees in automotive
appeared to be afraid to complain about the situation and
"there was a feeling that they did not want to help these
girls, let them sit there and get the work done." She
supplemented this statement with the admission that she
did not "know," but she said her "investigation indicated
that this was the fact." She also said that when she saw one
department with clear desks and another (automotive)
running behind she "had that feeling that there was
something wrong, that they were not going to work as a
team." Plotzka said that when the conditions she had
described, which indicated a lack of employee cooperation,
occurred "periodically," she would speak to the employees
as a group about them.
Plotzka stated that she never had any "occasion to
discuss with Miss Kalisz or Mrs. Snyder, the cooperation
situation," but that they had discussed the "work attitudes
of other employees" with her many times. According to
her, Snyder and Kalisz would complain to her "approxi-
mately once or twice a month" about "the cooperation of
the, girls," which she amplified as being complaints that
they were "always having to help someone else," even
though they needed some themselves.
In January, Kalisz and Snyder complained to Plotzka
about employee Birdsell, as set out earlier, and Plotzka met
with the four girls in that cubicle. The four employees
argued back and forth and "screamed" at one another.
Plotzka chided them all for their unladylike outbursts and
urged them to cooperate with one another. The employees
agreed to work together, and Plotzka sent them back to
their desks. Plotzka conceded that during the meeting,
Charlene Sullens, Birdsell's partner, admitted that Birdsell
was not doing her work.
Plotzka testified that after the meeting in her office on
Snyder's and Kalisz' complaint about Birdsell, there was
.,more tension" in the entire department. Asked what she
based this statement on, she said it "must bejust a feeling
of people not wanting to work together," and she added
that it "is human nature . . . (to) know that people are not
getting along or not cooperating with one another."
Plotzka also suggested that the "tension" might have been
related to the fact that the other employees may have
overheard what had transpired during the meeting in her
office on Snyder's and Kalisz' complaint.
Sometime after the Birdsell incident and about a week
before she held a meeting of all employees on February 7,
as described earlier, Plotzka said that she and her assistant
made a list of new team assignments, splitting up certain
teams in the hope of eliminating dissension. During the
following week, Snyder observed the new listings on a
board near Plotzka's desk, she said, and both Snyder and
Kalisz subsequently told her they did not want to be parted
as a team. She said she told them that the listing was "just a
proposal," that she had not talked with anyone else about
it, and that it was for her use only, but she added that there
"was the feeling then that I was being told that they were
not going to even listen to the proposal. I was not going to
say well, you have to do this. Nobody has to do anything."
On Friday, February 4, Plotzka spoke to Personnel
Manager Schick about her office problems. She said she
told him that she had "to do something," because she
could not "run the department smoothly," since it seemed
to be "separated" or "sectioned off." She told him, she
said, that she had "to get to the bottom of it" and she had
"to make up her mind what (she was) going to do." When
Schick suggested that she hold a general meeting of
employees, she agreed that this might clear the air and
"bring out a lot of these things that are happening in the
department." She said that during their conversation
Schick did not mention that Kalisz had asked to be
transferred for a number of reasons, including the way she
said Plotzka criticized employees.
Plotzka was visibly upset as she left the office Friday
evening, she said. Wayne Stutzman, in charge of personnel
for all of Respondent's stores, walked out with her and
asked her why she was upset. She said she told him that
"she had to do something," that she could not go on like
this, that she had to make up her mind and "had to get this
department back as a department," and that she was
"going to make up (her) mind." She said Stutzman advised
her to go home and relax, and that he would speak with her
during the weekend.
On Saturday, Plotzka visited her mother, she said, and
told her that she was "having problems" with some of the
employees in her department, "that they were complaining
7 Employee Rodgers testified about hearing "yelling" and "arguments"
in Kalisz' and Snyder's cubicles and she indicated that she assumed that
they were having a "hassle" about "not cooperating with each other." She
said she "assumed" that the "hassle" was over Birdsell's failure to carry a
fair share of the work, because she had worked with that employee in the
past She also said she had complained to Plotzka about her own partner's
uncooperahveness.
8 The words "office" and "cubicle" are used interchangeably to describe
the enclosed space in which a group of 4 to 6 payroll clerks work
9 At one point she stated that she "would not venture to say any names
in particular."
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about their fellow workers." She continued to think about
the subject, and she said that she decided that night,
without talking with anyone else and without anyone
knowing what she contemplated doing, to terminate Kalisz
and Snyder.
Stutzman telephoned her at home on Sunday, Plotzka
said, to ask her how she was feeling. She told him that she
felt relieved because she had made a decision. Stutzman
asked if he might ask what it was, and she said she told him
that she had decided to let Kalisz and Snyder go.
Plotzka did not tell Schick about her decision to fire the
complainants until after the general employee meeting
which she held on Monday, February 7. She said that only
after she told him did he tell her about his meeting with
Kalisz in which she requested a transfer.
Schick and Plotzka agreed to keep the employees until
Wednesday because that was the end of the payroll period
and also because they needed to get out the Company's
checks on time.
Plotzka's version of her meeting with all employees on
February 7 is not too unlike Kalisz' and Snyder's, but it is
much narrower. She said she opened the meeting by telling
the employees that she felt that there was dissension in the
department and wanted to find out what was wrong. She
asked everyone to speak up or forever after hold their
peace, and she called upon each employee by name. She
recalled comments "that a lot of girls were afraid of (her),"
and that "the work load was too great." She said she
assured the employees that the Company was trying to
recruit more employees and that she was attempting to
reshuffle corporations in order to achieve a better
distribution of work. At the conclusion of the meeting,
Plotzka said she told the employees that she was sorry if
she had hurt anyone, that she would try to mend her ways
if she had, and that they could come and talk with her if
they had problems and she would try to resolve them, but
she added that she would not want to hear anything that
had not been aired at the meeting because she felt that the
meeting had been "open and above board and everyone
knew how each other felt."
On February 14, Plotzka held another meeting of payroll
department employees to assure them that Kalisz' and
Snyder's discharge had no bearing on their tenure. She said
that she did not discuss with them the reasons for the
discharges and she had no recollection of referring to
Kalisz or Snyder by name or commenting on what kind of
employees they were.
Personnel Manager Schick testified that Plotzka told him
in a 5-minute conversation in late January or early
February that her department was "falling apart," but she
did not know what the problem was, although the
department did not appear to be functioning as a unit and
the employees were arguing with one another. Schick said
he suggested that she have a meeting with the employees to
find out what the problem was and then "let us get them
straightened out and let us go on from there."
Schick's version of his meeting with Kalisz a few days
later is essentially like hers. He said that he did not tell
Plotzka about Kalisz' complaints about her and the
department or of her desire for a transfer because he did
not want to influence Plotzka's judgment before she met
with the employees on the following Monday. It was only
after Plotzka told him on February 7 that she "realizes now
what her problem is" that he told her about Kalisz' request
for a transfer . He could not recall the time of this
conversation.
Schick participated in the separate meetings with Kalisz
and Snyder at which they were informed of their
discharges . He said he did not participate in the decision to
discharge them, but they were fired for the "betterment of
the department." Asked what that phrase meant in
Snyder's case, he answered that "At this point, I would
only have to assume ," and he then conceded that he did
not know . He said he informed Kalisz that she was
discharged "in her best interest and the Company's best
interest ." He explained that as meaning that "with all of
the friction being caused in the office that she was not
getting along with the girls , the girls were not getting along
with her , we were not getting our work done , she was
unhappy in her job, the best thing to do . . . was to
separate her." He said he based his opinion on whether she
was "getting along with the other girls" on her statement to
him that she was unhappy and wanted a transfer. That, he
said, was all he knew. He also conceded that he did not
know whether the work was being done or not.
Stutzman , personnel director , with jurisdiction over field,
but not home , office employees , testified that he entered
Plotzka's office in late January or early February, but
quickly withdrew because a heated discussion or argument
was going on. He said he recognized Kalisz and Snyder
and perhaps one other employee, but he could not hear
anything that was being said. Later in the day, he said, he
asked Plotzka what had been going on , and, although she
did not go into any detail, she indicated that someone had
complained about another employee not "doing their
particular share of the work load or something like that."
One evening as Stutzman left the office he noticed that
Plotzka was emotionally upset , he said , and when he asked
her what caused it, she replied that she was worried about
her department and "the quality of the work that was
getting out of it and the harmony in the department."
Noticing the tears in her eyes, he tried to cheer her a little
by telling her that everything would work out alright, and
then he left the building.
According to Stutzman, having thought about Plotzka's
distress over the weekend because a smooth running
payroll department is important to his field operations, he
telephoned her on Sunday to find out how she was feeling.
Plotzka told him she felt better because she had recognized
that her problems of dissension were "caused by two
people" whom she had decided to discharge.
Stutzman said he told Plotzka that he was glad that she
made up her mind about what she was going to do and that
it would be good for everyone concerned, "especially the
people in the field." That was the end of their conversation,
he said, and although Plotzka did not identify the two
employees she intended to discharge, Stutzman said he
knew whom she was talking about "because of the thing
that happened at the office," which we must assume was
the heated discussion he had overheard when he entered
Plotzka's office sometime before.
K-MART ENTERPRISES, INC.
C. Analysis, Additional Findings and Conclusions
Respondent contends that the "tension," "problem,"
"disorganization," "separation," "friction," or whatever
word a particular witness may have used to describe the
atmosphere in the payroll department prior to February 7
was due to a "sub rosa" campaign by Kalisz and Snyder to
create friction, tension, and upset in the department and to
achieve personal ends unrelated to a general improvement
of working conditions for the department as a whole or any
legitimate individual working conditions for either Kalisz
or Snyder. I do not believe that the record will support that
contention, and I so find.
First, every suggestion which Kalisz and Snyder made to
management or to fellow employees and every act they
performed in the context of those proposals was legitimate
and proper, so far as the record in this case discloses, and it
has been set out above in some detail. They urged upon
Supervisor Plotzka the assignment of a knowledgeable
person to sporting goods to approve vacation and sick
leave payments without the intervention of other persons
who were not always available to grant such approval, and
even though Snyder described the lack of such a service as
a "shafting" of sporting goods payroll clerks by the
automotive department, there is no suggestion that her and
Kalisz' suggestion was malicious, mischievous, or even
unreasonable. Plotzka did not seem to view it in that light,
for she gave it consideration and thought, and then turned
it down.10
Kalisz' and- Snyder's complaint about employee Bird-
sell's lack of cooperation was a legitimate grievance about
working conditions. Plotzka conceded that there was some
justification for it, and the record shows, as I have found,
that the grievance was well founded. 11 Because, at
Plotzka's request, Kalisz and Snyder aired their grievance
in her presence with. vigor, did not make their conduct
illegal or unprotected.12 As I have found, the employees
settled their dispute at Plotzka's urging and appeared to
have worked amicably thereafter, according to Snyder's
credited testimony.13
Plotzka testified that Kalisz and Snyder indicated that
they did not want to be separated when they discovered
that she had made a tentative decision to break them and
others up when she was making corporation reassignments,
but I find that Snyder is to be credited in her testimony
that they agreed to go along with the change even though
10 There is no cgntention that Kalisz' and Snyder's suggestion to Plotzka
that it was time to redistribute the corporations assigned to each employee
was in any way improper.
I1 Birdsell's own partner agreed with Kalisz and Snyder , and employee
Rodgers had a similar experience with Birdsell.
12 The argument between all four employees in Plotzka's office was
heated , but there is no suggestion that anyone said anything out of line to
Plotzka herself at that time.
11 Plotzka testified that Kalisz and Snyder had complained many times
about having to help out slower employees or departments, but she was only
able to pinpoint one employee, and she conceded that she had never had to
discuss "the cooperation situation" with them. I have credited Kalisz' and
Snyder's testimony that they assisted other employees after they finished
their own tasks, even though Snyder admittedly resented helping others
whom she thought were not doing their fair share. There is no evidence to
contradict this finding . Their complaints , in these instances , certainly were
not improper or evidence of a "sub rosa" attempt to undermine Plotzka and
her department.
14 Asked on cross-examination if she blamed Kalisz and Snyder for
363
they, as friends, would have preferred to work as a team. In
any case, even if the employees had voiced positive
opposition to Plotzka's proposal-which she insisted was
only a proposal-their actions would not have been
unprotected and certainly were not designed to "split the
department." 14
Second, what actions Kalisz and Snyder took were
generally done in concert, and Respondent appears to
concede it.15 They saw Plotzka together about Birdsell's
lack of production, and they also talked with her together
about the need for another employee in sporting goods to
approve vacation and sick leave payments, as well as about
redistribution of work.
Third, their suggestions to management were designed to
benefit others as well as themselves, and that is how they
expressed them to employees and to the Company.
Employee Rodgers, whose testimony clearly reveals that
she was not biased in favor of Kalisz and Snyder, testified
that prior to Plotzka's February meeting with employees,
there had been discussions among the employees about a
redistribution of corporations "so that they would be split
more evenly" and also about the need for an additional
employee to approve vacation and sick pay in order to
"save us a little more time," because it "was taking up quite
a bit of out time trying to hunt up" the persons who were
authorized to authorize the payments. She said Snyder and
Kalisz led these discussions.16 Admittedly, Kalisz and
Snyder jointly brought these matters to Plotzka's attention,
and the record is clear that they based their arguments for
the adoption of their ideas on the general good of the
employees in their group.17 With respect to other employ-
ees doing their fair share of the work, they also jointly
presented this complaint to Plotzka, and the record shows
that other employees griped among themselves about their
partners not carrying their share of the workload.18 Kalisz
and Snyder were merely more outspoken than other
employees in making their views known about something
which was clearly a working condition affecting them and
others.
At the departmental meeting on Monday, February 7,
Kalisz and Snyder were again more outspoken than
anyone else when Plotzka solicited their opinions about
what was wrong with the department. They listed disregard
of seniority in making promotions, redistribution of work
assignments, appointment of an employee to approve
"splitting the payroll department into segments or groups," she said she did
not.
15 Respondent in its brief states that they may "very well have worked in
concert to create ferment and dissension in the payroll department , but such
activity . . . is not protected by the Act.
16 Rodgers thought that the sporting goods check writers "needed" an
employee with this authority, but she was not as stirred up about this and
other matters as Snyder was, and she disagreed with Snyder s description of
the existing situation as the sporting goods checkwriters being "shafted" by
the automotive section. She said there were problems in the department, but
she was more concerned about what she thought was a disregard of
seniority in making promotions . To me, Rodgers' differences with Snyder
seem to be differences over priorities.
17 Plotzka testified that Kalisz and Snyder told her that they needed a
person to approve checks so that the employees would not "have to stand
around and wait" for the employee in automotive to take care of them.
Plotzka asked Kalisz and Snyder to suggest a person to do the work, but
after they did she turned the entire idea down.
18 Rodgers' testimony.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation and other payments for time not worked, and,
more daringly, they both told their supervisor that her
"yelling" and "screaming" and her manner of addressing
employees intimidated them and made them feel "igno-
rant," "stupid" and like "jerks," to the point where they
were afraid to seek her counsel. These utterances about
working conditions, spoken on behalf of themselves and
others, were a form of concerted activity, and if they
materially influenced Plotzka's decision to terminate them,
their discharges would be illegal,19 but as appears from
Plotzka's and Stutzman's testimony, Respondent claims
that the decision had been reached before the meeting. I do
not believe it was.
Plotzka's account of the events that preceded and
allegedly moved her to discharge Kalisz and Snyder is
confusing, illogical, inconsistent, and most unconvincing.
After studying it and recalling her as a witness, one gets the
definite impression that she does not know, or does not
want to recall, why or when she really decided to sever the
employees, if, indeed, it was her decision.20
On direct examination, Plotzka was painstakingly direct-
ed to describe conditions existing and incidents occurring
in her department from December 1971 to early February
1972, which caused her to believe that her department had
fallen apart and to feel that she had lost control of it. This
disturbing conclusion drove her to seek advice from
Personnel Manager Schick and later, by chance, to confide
in Stutzman, another of Respondent's personnel managers.
The theory behind this presentation, of course, was that
Kalisz and Snyder were at the center or connected in some
way with the uneasy feelings Plotzka had about herself and
her department which caused her to seek counsel and that
when she suddenly discovered this on her own on
Saturday, the solution to her "problem" was simple-elimi-
nate Kalisz and Snyder and the department will come
together again. This is illogical because Plotzka herself
testified that she did not consider Kalisz and Snyder
responsible for the "split" in her department or for its
"falling apart," which, however, was the very condition
which caused her to talk with Schick in the first place.21
Plotzka did not know what her "problem" really was
when she spoke with Schick, and when he suggested that
she hold an employee meeting to try to find out what was
going on, she agreed and set the meeting for the following
Monday. When Schick met with Kalisz on Friday to listen
to her problems, he advised her to wait and see what
developed in the Monday meeting. But without waiting for
what she might learn from the employees on Monday,
Plotzka said she decided on Saturday that Kalisz and
Snyder were her "problems," and she did this without
19 The record is clear that the employees did complain about Plotzka's
demeanor at the meeting, and there is no contention that the words they
used gave Respondent cause to discharge them It is also unnecessary to
decide whether, in testifying at the hearing, Kalisz and Snyder overstated
Plotzka's abrasive or tactless manner of supervising them All that is
necessary is a determination, which I make, that they honestly felt
concerned about her manner and did not create the issue in order to
undermine her Voices can easily be overheard in Respondent's payroll
department Employee MacArthur said that Plotzka "has a temper," "gets
mad," but forgets it quickly, and she "raises her voice " Toolm testified that
"yelling" was mentioned at the meeting and that Plotzka does get "upset,"
but she can understand why she does Employee Rodgers thought Kalisz
and Snyder got "carved away" on the "yelling" issue, but she, too, said that
anyone's aid or advice. This on its face is illogical , for she
had learned nothing new to help her solve her "problem"
and her action ran counter to Schick's advice.22
But even more illogical, it seems to me, she went through
with the Monday meeting designed to isolate or illuminate
the problem even though she knew what it was and had
decided to cure it by eliminating Kalisz and Snyder; and
she had difficulty explaining this. Asked why she held the
meeting despite her conclusions about Kalisz and Snyder,
she replied that she "wanted to know why there was
dissension in the department," that she knew there was
"dissension," but she did not know "where it stemmed
from," and that she "wanted to know why my department
was falling apart . . . the girls were not working together
any longer." Respondent contends that Kalisz and Snyder
were discharged because they were fomenting "dissension"
in the department, but Plotzka, who said she made the
decision to fire them on Saturday, was still trying to find
out where the dissension "stemmed from" on Monday. Her
testimony makes a farce out of the employee meeting and
makes her plea to employees at the beginning of the
meeting to speak freely and her closing statement to them
that the meeting had been "open and above board and
everyone knew how each other felt," sound most hypocriti-
cal.
If Plotzka did not ask Stutzman for his opinion before
she acted or tell Schick what she had decided to do before
the Monday meeting, as she testified, it would seem to be a
departure from normal practice. She had sought Schick's
advice on a problem whose size was obscure but large
enough to upset her emotionally. Nevertheless, having
solved it to her own satisfaction, she ignored Schick, her
adviser, and he permitted her to carry out her supposedly
autonomous decision to discharge two experienced and
competent persons without a discussion of the merits, a
word of caution or even a casual inquiry about what she
might have discovered at the employee meeting; and this is
too much to believe.23
If Schick did not tell Plotzka about his meeting with
Kalisz at which Kalisz complained about Plotzka's
handling of employees before Plotzka made her final
decision, then, it seems to me, she overreacted on the basis
of the information she then had regarding Kalisz' and
Snyder's conduct, because their suggestions that work be
redistributed and an employee assigned to approve wage
payments and even their complaints about less productive
employees do not seem powerful enough to have triggered
her reaction.24 Telling a supervisor, however, even when
she asks for the truth about the problem in her department,
that her style is the cause of it all is enough of a catalyst to
Plotzka does "yell" sometimes Cf Joanna Cotton Mills Co v. N LR B, 176
F 2d 749, 753 (CA 4)
20 She did not deny Snyder's testimony that she told her when she
announced her separation that the decision to terminate her was not hers
21 Fn 14, supra
22 Schick had advised her that after she held the meeting and found out
what the problems were, they would "get them straightened out and go on
from there"
23 Plotzka could not remember the last employee she discharged.
24 1 have found that the employees did not refuse to have their team
divided and to take different partners , and Plotzka, it will be recalled,
testified that her paper reassignment was only a "tentative proposal "
K-MART ENTERPRISES, INC.
explain her reaction, and this happened on the following
Monday.
Plotzka's entire account of her weekend decision making
was unconvincing, and Stutzman's convenient observation
of the process was too coincidental and pat to be believed.
Plotzka said she told Stutzman when he called that she had
decided that since Kalisz and Snyder were her problems,
she must eliminate them. His laconic and low-keyed
responses to this drastic proposal seems odd coming from
the person in charge of personnel in the field, but what was
particularly unconvincing was his testimony that, although
Plotzka mentioned no names , he quickly assumed she had
Kalisz and Snyder in mind because he immediately
thought of the heated discussion among employees
participated in by Kalisz and Snyder which he had briefly
overheard some weeks before. Stutzman knew more than
he told us, and I do not credit him or Plotzka.25
Having decided that no final decision was made to
terminate the complainants before Monday, February 7,
the thing which naturally suggests itself is that they were
discharged on the basis of something connected with the
meeting, for that is the only event of any significance that
happened shortly before they were terminated. Although
Plotzka admitted on cross-examination that she did not
discharge the complainants because they were responsible
for her department "falling apart," which, to repeat, was
the basis for her seeking Schick's advice, when she was
asked why she did decide to fire them, she replied that she
did because of "the constant complaining and the friction
that was caused in just these instances" that she had
related and because she felt that they were telling her how
to run her department when they informed her that they
did not want to be separated as a team. I do not believe
that Plotzka decided to discharge the employees for that
reason either for a number of reasons.
I have found in some detail above that Kalisz and
Snyder had complained about other employees not doing a
fair share of the work, but this question concerned one
employee primarily and was resolved after a meeting with
Plotzka. I have also found that the complainants helped
other employees finish their tasks even though Snyder
resented it, and I have also found that they did not refuse
to be separated as a team. In addition, Plotzka stated that
she never had had any complaints about them from other
employees and had never seen them arguing with other
employees. These facts alone would make Plotzka's final
25 Although, a`s found below, Schick's version of what he believed caused
Kalisz' discharge was unimpressive , I find it unnecessary to decide whether
or not he first told Plotzka about Kalisz' request for a transfer after Plotzka
told him that she had decided to fire her and Snyder. If Plotzka did not
know about Kalisz ' "unhappiness" before she said she made her decision,
then she had even less reason to discharge her than I have found.
26 As appears from my extensive quotations from Plotzka 's testimony,
she sometimes based her opinions of Kalisz' and Snyder's intentions or
attitudes on something less than fact . In regard to the team assignments, she
said she had the "feeling" that she was being told by them "that they were
not going to even listen to the proposal ." She also said that her conclusion
about "tension" was based on "just a feeling of people not wanting to work
together."
27 Some employees were also unhappy about the promotion of a less
senior employee , but although this was one of the areas of discontent
mentioned at the February 7 employee meeting, it did not seem to concern
Snyder or Kalisz seriously.
28 As found earlier, Snyder and Kalisz were not the only employees who
365
explanation for her actions suspect. When viewed in the
light of Respondent's other conduct, the explanation
appears pretextuous.
I have alluded a number of times to Plotzka's own
statements that her new team assignments were "tentative"
and only a proposal. It would be difficult to believe that
she would have reacted so severely without first advising
Kalisz and Snyder that she intended to implement her
proposals.26 It is even more difficult to believe that she
would have decided to discharge these otherwise compe-
tent and reliable employees without first warning them that
she expected her decisions to be followed. She did not, of
course, for they were not spoken to in that respect or about
causing "friction" in the department 27
The reason Respondent gave the employees for discharg-
ing them, namely, "betterment of the department," is
vague and meaningless, and, as found above, Personnel
Manager Schick could not explain what the phrase meant
and, in Kalisz' case, he attempted to inflate whatever
content it was supposed to have. Respondent's difficulty in
explaining their discharges to the employees is not
surprising for it had no legitimate or, prior to February 7,
understandable reason for terminating them. Kalisz' and
Snyder's comments at the February 7 meeting were also
legitimate, but Respondent's reaction to them was more
comprehensible, even if illegal.
For the reasons stated, I find that Kalisz and Snyder
were discharged, not for the reasons suggested by Respon-
dent, but because, at a meeting called by their supervisor
for the airing of complaints or grievances, they outspoken-
ly criticized their supervisor's manner of supervising
them.28 By such conduct, Respondent violated Section
8(a)(1) of the Act.29
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of the Respondent set forth
in section II, above, occurring in connection with its
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
• commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
mentioned Plotzka's tendency to raise her voice in dealing with employees,
and, in that connection, I have carefully considered Respondent's
arguments about Kalisz' and Snyder's animus to Plotzka . It was clear to me
at the hearing that Kalisz and Snyder do not hold Plotzka in high regard,
but it was also clear that their feelings about her are reciprocated. Most of
this attitude , at least as far as the complainants are concerned , may most
likely be attributed to their sudden terminations, which they very obviously
felt were unjustifiable, because they seem to have gotten along with Plotzka
reasonably well for some years. In any case , I have not lost sight of anyone's
possible bias in making credibility resolutions.
29 Whether or not Kalisz and Snyder were chosen by employees to
represent them in the presentation of grievances is unimportant , because
they spoke at the meeting on their behalf as well as on their own. In any
event, discharging them for expressing their solicited grievances is a
violation of the Act. Cloverdale Plywood Company, 156 NLRB 819, 827. See
also N. L. R. B. v. Phoenix Mutual Life Insurance Co., 167 F.2d 983, 988 (C.A.
7); N. L R. B. v. Halsey W. Taylor Co., 342 F.2d 406, 408 (C. A. 6).
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, it will be
recommended that the Board issue the recommended
Order set forth below requiring Respondent to cease and
desist from said unfair labor practices and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent violated the Act by
discharging Deborah Kalisz and Sandra Snyder, I will
recommend that Respondent offer them immediate and
full reinstatement to their former jobs or, if they are not
available, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges, and
make them whole for any loss of earnings they may have
suffered as a result of the discrimination against them, by
payment to them of a sum of money equal to what each of
them would normally have earned as wages from the date
of discharge to the date of the Respondent's offer of
reinstatement , less net earnings during such period, with
backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
the Act, and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. By discharging Deborah Kalisz and Sandra Snyder
because they had engaged in concerted activities, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 30
ORDER
Respondent , its officers, agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees , refusing to reinstate them, or
otherwise discriminating against them because they engage
in protected concerted activities.
(b) In any other like or related manner interfering with,
restraining, or coercing them in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Deborah Kalisz and Sandra Snyder immediate
and full reinstatement to their former jobs or, if not
available , to substantially equivalent positions , without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings in the
manner set forth in "The Remedy" section of this
Decision.
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports , and all other records
necessary to compute the backpay and reinstatement
rights, as set forth in "The Remedy" section of this
Decision.
(c) Post at its Royal Oak, Michigan, office copies of the
attached notice marked "Appendix." 31 Copies of said
notice, on forms provided by the Regional Director for
Region 7, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof , and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
30 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
31 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce
employees by discharging them, or in any other manner
discriminating against them, for engaging in protected
concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer Deborah Kalisz and Sandra Snyder
reinstatement to their former jobs or , if they are not
available, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges,
and WE WILL make them whole for any loss of earnings
they may have suffered.
K-MART ENTERPRISES, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
K-MART ENTERPRISES , INC. 367
This notice must remain posted for 60 consecutive days directed to the Board's Office, 500 Book Building, 1249
from the date of posting and must not be altered, defaced, Washington Boulevard, Deiroit, Michigan 48226, Tele-
or covered by any other material . Any questions concern- phone 313-226-3210.
ing this notice or compliance with its provisions may be