Kmart Corp.

National Labor Relations Board - Board Decisions

Apr 22, 1996

320 N.L.R.B. 1179 (N.L.R.B. 1996)

1179
320 NLRB No. 156
KMART CORP.
1 No exceptions were filed to the judge’s findings that the Re-
spondent did not unlawfully discharge Yvette Oldham or Monica
Lewis in violation of Sec. 8(a)(1) and (3) of the Act.
2 The General Counsel 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.
1 All subsequent dates refer to 1994 unless otherwise stated.
2 The name of the Respondent appears as amended at the hearing.
Kmart Corporation and Amalgamated Clothing and
Textile Workers, AFL–CIO, CLC. Case 11–
CA–16138
April 22, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
On September 25, 1995, Administrative Law Judge
Albert A. Metz issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed a brief in opposition.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Jane North, Esq., for the General Counsel.
Bruce A. Petesch, Esq. (Haynsworth, Baldwin, Johnson, and
Greaves), of Raleigh, North Carolina, and Sherry L. Mc-
Millan, Esq., of Troy, Michigan, for the Respondent.
Dean Vaughn, of Greensboro, North Carolina, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
ALBERT A. METZ, Administrative Law Judge. This case
was tried at Greensboro, North Carolina, on February 15–17
and March 28–30, 1995. The proceeding was closed by order
dated June 8, 1995. The original charge in Case 11–CA–
16138 was filed by Amalgamated Clothing and Textile
Workers, AFL–CIO, CLC (the Union), on July 27, 1994.1 A
complaint issued on September 9 against Kmart Corporation2
(Respondent). The primary issues are whether Respondent’s
suspension and discharge of Marston Clark and the discharge
of Brenda Stacks, Yvette Oldham, and Monica Lewis violate
Section 8(a)(1) and (3) of the National Labor Relations Act
(the NLRA or the Act).
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the de-
tailed and helpful briefs filed by counsel for the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a Michigan corporation with a warehouse
facility located in Greensboro, North Carolina. From its
Greensboro facility it is engaged in the distribution of prod-
ucts to retail stores in North Carolina, South Carolina, Vir-
ginia, West Virginia, and Tennessee. At all times material,
Respondent purchased and received goods and materials val-
ued in excess of $50,000 at its Greensboro facility directly
from points outside the State of North Carolina. The com-
plaint alleges, Respondent admits, and I find that Respondent
has been at all times material an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The complaint alleges, Respondent admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent’s large distribution center (DC) at Greens-
boro, North Carolina, covers an area approximately the size
of 30 football fields. Around 500 employees work at the fa-
cility. In July 1993 the Union started an organizational cam-
paign at the DC. This resulted in an election in September
1993 which the Union won. Collective-bargaining negotia-
tions between the parties were continuing at the time of the
hearing.
The complaint alleges no independent violations of Section
8(a)(1) of the Act. However, the Government did offer back-
ground evidence of some instances of unalleged conduct to
support its theory of unlawful activity. The Respondent intro-
duced testimony in rebuttal of the General Counsel’s back-
ground evidence. I have taken this background information
into account in reaching my decision.
B. The Suspension and Discharge of Marston Clark
The Government alleges that Marston Clark was sus-
pended on February 10 and discharged on February 14 be-
cause of his union activities. The Respondent asserts that his
dismissal was for the misappropriation of property, specifi-
cally, the unauthorized possession of company documents.
Clark was employed as a group leader/‘‘supervisor.’’ The
parties agree that this is not a supervisory position within the
meaning of 2(11) of the Act but rather a leadman position.
Clark was an active and open union supporter. His picture
appeared in several photos of a union handout. He wore a
union T-shirt at work the day of the election. His picture ap-
peared in a union handbill, and he handed out union lit-
erature. Clark was not the only group leader who supported
the Union. Steve Herring, Debra Holt, Robert Darnell, and
Carol Payne likewise were supervisor/group leaders whom
the Company knew to have strong union sympathies.
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Government offered background evidence that Re-
spondent questioned Clark’s union support. On the eve of the
September election, Supervisor Warren Hogan talked to
Clark. He told him he could not believe that Clark was going
to vote for the Union after the support he had given Clark
in getting his supervisor job. Hogan said he thought Clark
was stabbing him in the back. Hogan also angrily removed
a production report from a bulletin board that noted Clark’s
superior performance when he had previously worked as an
order filler. Clark asked Hogan if his union sympathies
would hurt his chances of promotion. Hogan replied that he
did not know because such matters were out of his control.
Clark was questioned by Supervisor Karen Canjar later the
same evening. Canjar asked him why he was voting for the
Union. Clark explained his views, and Canjar told him he
should do what he thought was right for him.
In approximately November 1993, Clark had two con-
versations with Supervisor Bryan Barton. On both occasions,
Clark was wearing his union T-shirt and button. In the first
exchange Barton asked him what he thought the Union could
do for him that the Company could not. The following morn-
ing Clark met Barton as he was getting off work. Barton
asked him how much money the Union was paying him to
wear the shirt and button. Barton also said he had a lot of
respect for Clark and he had made only one mistake since
working there—voting yes for the Union.
As a group leader Clark was responsible for certain paper-
work. Clark testified that he would routinely make copies of
some of these documents for required distribution to other
DC personnel. He also made extra copies of these and other
documents and retained them in private files. His private
files were kept at his residence or in his DC locker.
Management received reports that Clark had been ob-
served spending most of one of his working shifts making
copies. On February 10 an investigation was begun. Clark
admitted he made and kept copies of some company produc-
tion reports and had taken them home. He was asked to re-
turn Respondent’s documents that he possessed. The next
night he did return some of the documents. Later that
evening he was asked to give a statement about his taking
company paperwork home. Clark was then suspended.
On February 14 Clark called the Company and was told
to return to the DC and bring any other company paperwork
he had. Clark complied and gave the Respondent additional
documents that he had not previously turned over. After ex-
amining these documents, the Company’s representatives told
him he was fired. Clark was escorted to his locker so he
could get his possessions and leave the premises. The escort
discovered more company documents in his locker. After the
discharge, the Respondent determined that some of the docu-
ments had not been recorded in its computer system, thus
merchandise had been needlessly lost in the warehouse.
Some employee witnesses testified that they had on occa-
sion seen other group leaders take company paperwork from
the DC. No evidence was offered that the Company author-
ized or generally had knowledge of these instances.
C. Analysis of Clark’s Discharge
The General Counsel has the initial burden of establishing
a prima facie case. This must be sufficient to support an in-
ference that union or other protected activity was a motivat-
ing factor in Respondent’s action alleged to constitute dis-
crimination in violation of Section 8(a)(3). The elements
commonly required to support a prima facie showing of dis-
criminatory motivation under Section 8(a)(3) are union activ-
ity, employer knowledge, timing, and employer animus.
Once such prima facie unlawful motivation is shown, the
burden shifts to Respondent to demonstrate that the alleged
discriminatory conduct would have taken place even in the
absence of the protected activity. If Respondent goes forward
with such evidence, the General Counsel ‘‘is further required
to rebut the employer’s asserted defense by demonstrating
that the [alleged discrimination] would not have taken place
in the absence of the employee[’s] protected activities.’’
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
The test applies regardless of whether the case involves
pretextual reasons or dual motivation. Frank Black Mechani-
cal Services, 271 NLRB 1302 fn. 2 (1984). ‘‘A finding of
pretext necessarily means that the reasons advanced by the
employer either did not exist or were not in fact relied upon,
thereby leaving intact the inference of wrongful motive es-
tablished by the General Counsel.’’ Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982).
Clark was not treated disparately. Some evidence was in-
troduced of other instances where personnel took documents
off the premises. However, none of these examples were of
the magnitude associated with Clark’s behavior. Additionally,
it was not shown that the Respondent generally had knowl-
edge of these events or condoned the activity.
Clark’s conduct in copying and taking company docu-
ments home is puzzling. Clark defended his behavior on the
basis that he wanted to keep a record of what occurred on
his shift. However, Clark failed to satisfactorily justify his
unauthorized custody of this large number of business pa-
pers.
The record as a whole establishes that the Respondent had
a legitimate concern about Clark’s unapproved possession of
its corporate documentation. Several of the papers Clark re-
turned were originals and some documents had little or noth-
ing to do with his responsibilities. The absence of some of
these documents from the Respondent’s files had a need-
lessly disruptive effect on its business operations. Addition-
ally, Clark was not candid in reciting or returning all of the
documents he possessed.
In sum, Clark’s behavior raised serious issues of mis-
conduct. I find that the Respondent has met its Wright Line
burden of overcoming the Government’s prima facie case
and showing that Clark would have been terminated regard-
less of his union activities. The General Counsel did not suf-
ficiently rebut Respondent’s evidence. Thus the Government
has failed to prove by a preponderance of the evidence that
the Company violated Section 8(a)(1) and (3) of the Act
when it discharged Marston Clark.
D. Discharge of Brenda Stacks
Brenda Stacks was hired on October 16, 1993, after which
she became subject to a 90-working-day probationary period.
Stacks was discharged on February 8 because her work per-
formance was allegedly unacceptable.
1181KMART CORP.
Stacks testified she concealed her prounion sympathies
until she mistakenly believed her probationary period ended
on January 16. Thereafter Stacks’ began wearing union insig-
nia. She also was a participant in a union rally at which she
was interviewed by the local newspaper. Her picture and re-
marks appeared in an article published January 27. She was
quoted as saying it was hard to make ends meet on her $7-
an-hour pay. The Company concedes it was common knowl-
edge that Stacks was a union supporter. However, it argues
that this was not unique as a majority of the 500 employees
at the DC had shown similar support for the Union.
Stacks conceded that she had received several warnings
about her work during her probationary period. Her warnings
included such things as being tardy, lack of production, fail-
ure to follow instructions, and excessive talking. Several of
the warnings preceded her open union activity. Supervisor
Canjar noted that Stacks left her work area without author-
ization and ‘‘liked to stand and talk quite a bit.’’ Canjar
thought Stacks lacked initiative. The Respondent introduced
evidence that it was not uncommon to discharge employees
during their probationary evaluation periods.
E. Analysis of Stacks’ Discharge
Respondent demonstrated that Stacks was not a satisfac-
tory employee. While she engaged in union activity, the
record does not show that such support was the reason for
her discharge. I find that the Government did not prove by
a preponderance of the evidence that the Respondent violated
the Act when it discharged Stacks during her probationary
period.
F. The Discharge of Yvette Oldham
Yvette Oldham worked as a clerical in the receiving of-
fice. She also had an avocation as an aspiring artist. Oldham
was discharged on March 1 for the misappropriation of com-
pany property. Oldham’s union activity consisted of wearing
a union T-shirt and stickers.
In September 1993 the Respondent posted a notice on its
main bulletin board that employees were not to use company
machines for unauthorized purposes. Evidence shows that
there were nonetheless some instances when other employees
breached that policy. For example, one employee copied a
20-page college catalog for a fellow employee. Also some
Girl Scout cookie order forms—of unknown quantity—were
copied. A fax machine was used to order lunch from a near-
by restaurant. It is questionable that the Company had
knowledge of these misuses until they were mentioned at the
time of Oldham’s discharge. It is also not certain that these
other instances occurred subsequent to the Company’s notice
posting.
Oldham testified that on February 28 she wanted to make
copies of 10 pieces of artwork she had drawn. She made du-
plications on the receiving office copier, however, their qual-
ity was poor. She then went to the front office to make better
quality reproductions. Oldham testified that some supervisors
were aware of her copying the artwork because they men-
tioned it to her or saw her doing it.
The number of copies Oldham made is in dispute. Oldham
estimated she made 100. The Company’s investigation
showed she had made 522 copies of her artwork. The Re-
spondent’s conclusions as to the number of copies is sup-
ported by Oldham’s fellow employee April Polk. She testi-
fied about seeing Oldham’s stack of copies which she esti-
mated to be 1-1/2 to 2 reams of paper.
Oldham testified that after she made the copies she re-
turned to her office area and that her supervisor, Darrel
McNeill, asked for and received three or four copies of her
artwork. McNeill denied he ever sought or received copies
of the artwork. Shortly thereafter McNeill approached her
and asked her if the paper she had with her was all the cop-
ies she made. When she acknowledged they were, McNeill
gave her the impression she might be in trouble. She was
then sent to the front office to talk with Loss Prevention
Manager Jack Bennett.
Oldham further testified that Bennett looked at the artwork
and told her he just wanted to see what she had done. Ben-
nett said he was not sure if she was in trouble. Oldham was
next interviewed by Personnel Manager Dan Ward. He told
her that he could not let her keep the copies but that her job
was stable. He permitted her to keep one copy of each pic-
ture. She was then sent to the personnel department where
she received notices of correction for two 1993 and two 1994
tardies. The next day Oldham was discharged on orders from
Ward. Pursuant to a settlement agreement entered during the
course of collective-bargaining negotiations, Oldham was re-
hired without backpay. She subsequently voluntarily quit.
The Respondent says that Oldham admitted making a large
number of copies because she wanted to use them in selling
goods at a craft show. Ward characterized Oldham’s actions
as not just making a copy of a cookie recipe but rather
spending 45 minutes to make a large quantity of copies that
she was going to use for her personal gain. McNeill testified
Oldham also told him she was going to use part of the copies
to support a job resume she was submitting to the local
newspaper.
G. Analysis of Oldham’s Discharge
Oldham admitted the copying was for her commercial ben-
efit. Oldham’s demeanor and testimony left the impression
she was trying to minimize her actions. While Oldham ad-
mitted making 100 copies of her artwork, I find that the Re-
spondent’s version is the more accurate and that Oldham
made 522 copies.
The evidence does not establish that the Respondent seized
on Oldham’s misappropriation of company property as a
convenient excuse to fire her because of her union activities.
Oldham was not an extraordinary supporter of the union
movement. The Company had made a point of emphasizing
in the rule posted prior to her discharge that employees could
not use company machines as she did. Oldham ignored the
company policy and made a large quantity of copies intended
for her personal profit. I conclude that the Respondent has
met its Wright Line burden of showing that Oldham would
have been discharged regardless of her union activity. I find
that the Respondent did not violate Section 8(a)(1) and (3)
of the Act when it discharged Yvette Oldham.
H. The Discharge of Monica Lewis
Monica Lewis was a union supporter. Her union activities
consisted of occasionally wearing a union T-shirt, hat, and
stickers as well as passing out union leaflets.
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 I also do not credit the testimony of Nichols. Based on her de-
meanor, Nichols was not an impressive witness. She could not place
the date that her conversation with Lewis took place. Additionally,
she could only testify to the hearsay report that Lewis gave of the
conversation with Canjar. This is a version of that conversation that
I discredit. Finally, the time that their conversation took place is not
pertinent. As noted, I find that Lewis stopped work prior to 3:30
a.m. Thus, when she chose to actually leave the premises on Feb-
ruary 28 is not relevant.
Lewis was discharged on March 17 for exceeding her
‘‘bank’’ of leave hours on February 28. Each employee is
annually given a number of hours of leave. As leave time is
used it is deducted from the bank. The balance of leave
hours is noted weekly on the workers’ pay stubs. Lewis was
given 24 bank hours as of January 1. She testified that at the
end of the quarter on April 1 she would have obtained an
additional 8 hours of leave. Lewis had depleted her bank of
hours due to tardiness and absences so that by February 28
she only had 3.3 hours of leave remaining.
Lewis testified that while at work on February 28 she was
feeling ill. She states that at 3:30 a.m. she stopped work,
went to her supervisor, and reported her illness. She then
went to see Supervisor Canjar. They talked in Canjar’s of-
fice. Lewis says she told Canjar she was sick and wanted to
check on her leave balance. Lewis also allegedly asked
Canjar if she could get a special ‘‘code 15’’ leave permission
to excuse her absence. Canjar told her that such leave was
only used for absences such as snow days.
According to Lewis, Canjar checked a computer that was
on Canjar’s desk and she looked over the supervisor’s shoul-
der. Lewis states she did not read the computer screen in de-
tail but did see her name on the monitor. Canjar told her she
could go home because she would accumulate 8 more hours
the first of the month. Canjar then signed a pass for Lewis
which bears the time 3:30 a.m. Lewis testified she was not
aware of what time the pass stated as she did not read the
document she was given.
Lewis states she attempted to check out, but her badge
would not work in the scanner which electronically records
her leaving the DC. She then went back to Canjar who told
her that she would check her out. She then went to the
lunchroom and briefly talked to a friend, Rebekah Nichols.
At that point Lewis went to the guard desk, asked what time
it was as she wore no watch, and was told it was about 3:45
a.m. She then left the DC premises.
Nichols, who no longer works for Respondent, remem-
bered her friend Lewis talking to her about going home one
night. She did not know a date this happened. She recalled
it was during her lunch period which she took between 3:30
and 4 a.m. Nichols testified that Lewis told her she had been
worried about her leave hours, but Canjar assured her every-
thing would be all right if she went home.
On the evening of March 16, Lewis was absent from
work. On March 17 she reported to work and checked with
Andrea Earls in the personnel department. Earls said she
could excuse her absence of March 16, but told Lewis she
was already scheduled to be fired for exceeding her bank of
hours on February 28 by 12 minutes. Earls advised her that
she could reapply for her position. Lewis subsequently did
attempt to reapply but was ultimately unsuccessful because
she was prevented from coming on the property.
Supervisor Canjar disputed Lewis’ version about asking
for leave on February 28. Canjar denied that there was a
computer in her office. Canjar also denied that she ever had
access to a computer that would tell her the number of leave
hours for an employee. She testified that Lewis did not ask
for a code 15 leave on February 28. She did not recall Lewis
reporting having problems checking out that night. Canjar
denied giving Lewis any assurances concerning her bank of
hours because she had no knowledge of her balance. Her
practice was always to tell employees who asked about their
leave balances to stop by the personnel office at 7 a.m.
Other witnesses confirmed Canjar’s denial that there was
ever a computer in her office or that she would have direct
access to bank of hours information. Such computers are in
the locked personnel offices and require special access codes
to use them. Canjar does not have access to the personnel
office or the necessary computer codes.
I. Analysis of Lewis’ Discharge
Because of her demeanor, I do not credit Lewis as to what
happened on February 28. I find that Lewis had stopped
work prior to 3:30 a.m. and was not given the leave pass
until that time. Canjar credibly testified that she set her
watch by the timeclock and used that time when filling out
a pass. Lewis is not credited when she says she did not look
at the time on the pass.
Lewis was clearly embellishing her testimony with her un-
supported story of having her leave hours checked by Canjar
on the computer. The record as a whole supports Respond-
ent’s claim that it was impossible for Lewis to see Canjar
check her bank of hours on a computer. No computer was
ever in that office. The machines that could have done such
checking were not accessible by Canjar.3
I also find Lewis’ version of her conversation with Canjar
was contrived for another reason. Lewis was aware that she
would not get an additional 8 hours’ leave in her bank until
the start of a new quarter on April 1. Yet she testified she
relied on Canjar’s alleged representation she would receive
8 hours of leave the next day, March 1. This I also find to
be a fabrication by Lewis.
While there was evidence of some historic exceptions in
the granting of code 15 leave, these were reasonably ex-
plained. More importantly, they are found to be irrelevant be-
cause I do not credit Lewis that she asked Canjar for a code
15 excused absence.
The fact that Lewis was a union supporter did not place
her in a unique role. More than half the DC had voted in
favor of the Union. It was common for employees to wear
prounion clothing as she did. There is insufficient evidence
that the Respondent’s motive in discharging Lewis was be-
cause of her union support. The Government has not met its
Wright Line burden of proof, and I find that the Respondent
did not violate Section 8(a)(1) and (3) by discharging Lewis.
CONCLUSIONS OF LAW
1. The Respondent, Kmart Corporation, is now, and at all
times material has been, an employer engaged in commerce
within the meaning of 2(2), (6), and (7) of the Act.
2. Amalgamated Clothing and Textile Workers, AFL–CIO,
CLC is a labor organization within the meaning of 2(5) of
the Act.
1183KMART CORP.
4 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.
3. The General Counsel has failed to prove that the Re-
spondent unlawfully suspended or discharged Marston Clark
or unlawfully discharged Brenda Stacks, Yvette Oldham, or
Monica Lewis in violation of Section 8(a)(1) and (3) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The complaint is dismissed.