Kohl's Food Co.

National Labor Relations Board - Board Decisions

Apr 25, 1980

249 N.L.R.B. 75 (N.L.R.B. 1980)

KOHL'S FOOD COMPANY 75
Kohl's Food Company and Rebecca Leving. Case
13-CA-18169
April 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On January 24, 1980, Administrative Law Judge
Michael D. Stevenson issued the attached Decision
in this proceeding. Thereafter, the Charging Party
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The Charging Party 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 are incorrect. Standard Dry Wall Prod-
ucrs Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge:
This case was heard before me in Chicago, Illinois, on
June 27 and 29, 1979,1 pursuant to a complaint issued by
the Regional Director for Region 13 on March 22, 1979,
and which is based on a charge filed by Rebecca Leving,
an individual and mother of the alleged discriminatee
(herein called Charging Party), on November 1, 1978.
The complaint alleges that Respondent Kohl's Food
Company (herein called Respondent), has engaged in
certain violations of Section 8(a)(1) of the National
Labor Relations Board Rules and Regulations, Series 8,
as amended (herein called the Act).
L All dates herein refer to 1978 unless otherwise indicated.
249 NLRB No. 13
ISSUES
Whether at a meeting between Respondent's agents
and employee Carol Leving: (I) The employee had a
right under N.L.R.B.v. J. Weingarten, Inc., 420 U.S. 251
(1975), for a union representative to be present; (2) the
employee requested that a union representative be pres-
ent; and (3)if the employee did make the request, was it
unlawfully denied.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of General Counsel, Charging Party, and Re-
spondent.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
2
Respondent admits that it is a corporation which oper-
ates a business for the retail sale and distribution of food
and related products with a retail store located in Lin-
colnwood, Illinois. It further admits that during the past
year, in the course and conduct of its business, that its
gross volume exceeded $500,000 and that annually it pur-
chases goods and materials valued in excess of $5,000
from sources outside Illinois. Accordingly it admits, and
I find, that it is an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Retail Clerks
Union Local 1540, chartered by Retail Clerks Interna-
tional Union, AFL-CIO, hereinafter referred to as the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts
Carol Leving, daughter of the Charging Party, began
working at Respondent in October 1975 at the age of 15
years. 3 From then until her termination on June 29,
1978, Leving was a satisfactory employee. She worked
I In its "Answer" (.C. Exh. (e)), more properly characterized as a
letter to the Regional Director. Respondent has specifically denied only
par. V(A) of the complaint which is the central charging paragraph. Al-
legations of the complaint not specifically denied are admitted Sec.
102.20 of the Board's Rules and Regulations. Based on Respondent's fail-
ure to deny par. VI of the complaint, which in conclusionary terms al-
leges a violation of the Act, General Counsel orally moved for summary
judgment at the hearing. I took the matter under advisement and neither
side has raised the matter in its brief. I will construe Respondent's letter
as a bona fide answer. Further, I will construe Respondent's denial of
par. V(A) of the complaint as a general denial which is a sufficient plead-
ing. Granireville Company. Sibley Division, 96 NLRB 456, 461 (1951). Ac-
cordingly, I deny General Counsel's oral Motion for Summary Judgment
and will rule on the merits of this case.
3 In her application for employment Leving listed her date of birth as
December 16, 1957, whereas the correct date was December 16, 1958
Kohl's Food Company and Rebecca Leving. Case
KOHL'S FOOD COMPANY
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a cashier, on a part-time basis. As a part-time employ-
ee, Leving worked between 8 to 32 hours per week with
an average of about 20 hours per week. At different
times she worked at several of Respondent's stores locat-
ed in the northern suburbs of Chicago. While she was
employed, Leving was also a student having completed
1-1/2 years of college at a local community college. At
the time of the hearing, Leving was living at home with
her mother, but there had been a period of a year within
the past 3-4 years when she did not reside with her
mother.
Shortly after Leving was hired by Respondent she
joined the Union. In March 1977, Leving filed a griev-
ance with her union alleging that a store manager was
sexually harassing female employees. Leving was familiar
with the Union's role in processing grievances and other-
wise assisting to resolve job-related problems.
In November 1977, Leving was transferred from Re-
spondent's Touhy Avenue store to its Lincolnwood
store. The manager of the latter was Fran Seidell. The
union business agent responsible for the Lincolnwood
store was Wayne Wood.
According to Leving, in April, Respondent began a
bedsheet promotional campaign for the customers. In
return for purchasing 300 worth of groceries and turn-
ing in the appropriate cash register tapes customers were
presented a bedsheet, worth about $10. Respondent's
policy was that employees were permitted to participate
on the same basis as customers. All of the above is undis-
puted except that Raymond Hironimus, Respondent's
Chicago area operations manager, and James Reik, Re-
spondent's Chicago area personnel manager, both testi-
fied that the bedsheet promotion did not begin until
June. This conflict is important because Leving also testi-
fied on direct examination that in April, she turned in
$300 worth of register tapes at the Lincolnwood store
where she was employed at the time for a free bedsheet.
The redemption occurred after Leving allegedly collect-
ed cash register tapes primarily from customers who dis-
carded the tapes after checking out. A small percentage
of the tapes allegedly came from Leving's own purchase
of groceries. Because neither Frannie Melamed, the lady
in the cashier's cage who accepted the tapes and gave
Leving the bedsheet, nor anyone else ever questioned
this redemption, Leving testified that a second redemp-
tion occurred which led to her termination.
I find that Leving could not have redeemed tapes in
April for a bedsheet since the promotion did not begin
until June. In discrediting Leving's testimony, I rely first
of all on her testimony on cross-examination on this sub-
ject:
Q. [Mr. Janco] Now, I believe that you indicated
you had twice turned in register receipts; is that
correct?
A. [Ms. Leving] Yes.
Q. And the first was in April that you testified?
A. Yes.
Q. Of 78?
A. Urn-hum
Q. And was that for a sheet promotion?
A. Yes.
Q. Would it refresh your memory if I indicated
that the sheet promotion wasn't started until June of
'78? Do you recall that?
A. I don't recall.
This testimony was evasive and unconvincing. Next, it
is incredible that Leving or anyone else could have accu-
mulated $300 worth of tapes within a short time after the
promotion began without arousing the suspicion of man-
agement. Indeed, Reik testified that the majority of re-
demptions come at the end of this type of promotion. Fi-
nally, the testimony of Hironimus and Reik on this point
was straightforward and persuasive.4
In early June, Leving accumulated $300 in tapes from
her cash register. Of these about $50 represented her
own grocery purchases and the remainder came from
customers who discarded them. Leving gave these tapes
to her cousin who redeemed them at Respondent's store
located in Morton Grove, Illinois. This store was near
the Lincolnwood store where Leving worked. Leving
testified that at the time in question she was at an auto
repair shop across the street from the Morton Grove
store having her car repaired. 5
On or about June 28, Hironimus received a phone call
from the manager of the Morton Grove store. On the
basis of that phone call, Hironimus went to the Morton
Grove store and picked up the tapes which Leving or
her cousin had turned in. Hironimus gave the tapes to
Reik for examination and analysis. They had been col-
lected over a very short period of time, and in many
cases, from the same register. Reik then compared the
tapes to other business records and determined that they
had all come from cash registers assigned to Leving. On
the basis of this preliminary information, Hironimus di-
rected Reik to call Leving in for questioning. Reik did
call, but the contents of the conversation are disputed by
the parties.
According to Leving, she was at work on June 29
when she received a phone call from Reik whom she did
not know. Reik introduced himself as the new personnel
director and asked her to come to the personnel office
the next day to meet with him at 9 a.m. She further testi-
fied that he did not explain why he wanted to see her
and she did not ask him. According to Reik, he called
Leving at the store and either left a message with Sei-
dell, the store manager, for Leving to call back, or Reik
spoke to Leving directly when he called. In any event,
Reik further testified that after he asked Leving to come
to the personnel office on the next day, she asked, "What
is this regarding?" He then explained that he wanted to
discuss the redemption of sheets at another store with
tapes which came from her register.
Again, I cannot accept Leving's account. She testified
that she never asked why the personnel director wanted
to see her because she assumed it was with reference to
some store grand openings which she had worked at
4 Under the circumstances, I do not regard Respondent's failure to call
or otherwise explain the absence of Frannie Melamed, the person who
allegedly made the April redemption, as leading to any inference that her
testimony would be unfavorable to Respondent. It was sufficient to call
Hironimus and Reik.
I Leving's cousin did not testify.
KOHL'S FOOD COMPANY 77
before, or possibly a promotion to head cashier. This tes-
timony is inherently improbable and unbelievable. First,
any special assignments or promotions could be indicated
over the telephone rather than a nonroutine visit to the
personnel office. Next, a natural sense of curiosity and
self preservation would motivate most persons to ask
why they were being asked to meet with the personnel
manager. Finally, Leving had a particular reason to pro-
ceed with caution. Leving testified that as a result of the
grievance Leving filed in March 1977 she had become
friendly with Reik's predecessor, Gil Graybull. Leving
confided to him that she was fearful the Company would
start transferring her around, "cutting her hours," and
otherwise playing games with her as a result of her
grievance against the store manager. After Graybull as-
sured Leving that it wouldn't happen and not to worry
about it, he was fired. 6 Thus, Leving had every reason
to be curious and even concerned about the next day's
meeting. I find that she asked and was told about the
purpose of this meeting.
On June 30, Leving went to Respondent's personnel
office located in Niles, Illinois, which is still another
northern suburb of Chicago. Leving arrived there about
9 a.m. She was alone.
After waiting for what Leving described as an hour,
she met with Reik in a conference room adjacent to his
office. Only Reik and she were present for most of the
meeting, although Leving spoke to Hironimus for a brief
period while Reik was absent. There is a conflict as to
what occurred at the meeting. According to Leving,
when she entered the conference room, she observed
cash register tapes strewn about. Reik told her that his
attention had been directed to the tapes which she had
collected and turned in to the Morton Grove store. Reik
then accused her of stealing the tapes and asked whether
she knew what she had done was against company
policy. She replied that she did not steal anything. Then
Leving explained that her cousin brought them in as the
bedsheet was for her aunt. Reik interpreted this to mean
that Leving did steal them. He then told her in a loud
voice that $100 was a misdemeanor, and $200 was a
felony and for S300 Kohl's could throw her in jail. Reik
continued, "You won't have any friends and your repu-
tation would be ruined." At this point, Leving became
hysterical and asked for a "union rep" or for time to go
home and think about the matter. Reik told her that the
only matter for discussion was whether she would resign
or be discharged. At this point Leving asked to speak to
Hironimus and Reik agreed.
Before Hironimus entered the conference room, Reik
spoke privately with him. Then Hironimus walked in and
Leving reminded him of the various assignments she had
with Respondent over the years. She asked him if they
could overlook the matter with the tapes. Hironimus an-
swered that there was nothing he could do and he quick-
ly left the room.
6 The testimony relative to Leving's relationship and conversation with
Graybull came in by way of an offer of proof from Charging Party's at-
torney, after I had first refused it. In retrospect, I believe it is relevant
and material, although not for the same reason as Charging Party. In any
event, I have reversed my ruling and now consider and weigh the testi-
mony as though it had been allowed.
Reik reentered the room and wrote out a "confession"
for Leving to sign. He then wrote a "resignation" for her
to sign. These statements read as follows:
June 30, 1978
/s/ CL I, Carol Leving, do hereby state that I
have, on occasion, given to my aunt register tapes
which were left by other customers at my register
for use on a sheet redemption program at the
Kohl's Food Stores. I also state that this was a vio-
lation of company policy. /s/ CL
/s/ Carol Leving
I, Carol Leving, do hereby resign my employ-
ment with Kohl's Food Stores effective June 30,
1978 for reasons of conflicting work and school
schedules.
/s/ Carol Leving
Leving again requested time to think the matter over and
consult with her mother. Again Reik explained that
when she left she was out of a job. She then signed the
two statements and left the premises about 12:30 p.m.
According to Leving, she drove home where she com-
posed herself and called Wayne Wood, the union repre-
sentative, about 12:50. He was not in and she left a mes-
sage for him to call her. However, business records at
the union office show that Leving's message ["Urgent.
Call as soon as possible."] was received at 4:05 p.m.
(Resp. Exh. 5.)
The account of the meeting according to Reik and
Hironimus differs from Leving's in several material as-
pects. Reik testified that Leving first stated that she had
obtained the tapes from her aunt and cousin who had
shopped at Respondent's store. Then after a few minutes
of additional conversation Leving admitted that she ob-
tained the tapes either from other customers or from the
floor where they had been discharged. A few minutes
later, Leving admitted obtaining all the tapes from the
registers assigned to her. She admitted knowing this was
against company policy, but said that many other em-
ployees do the same thing. However, she declined to
identify any other persons, when asked to do so. Then
Reik told her that she would have to lose her job be-
cause of what she did. In response, Leving asked for a
lesser penalty such as suspension or a fine. She asked to
pay for the bedsheet. Reik again stated she would have
to lose her job, but he did offer to let her resign. He also
suggested that she speak with Hironimus about the
matter and she did.
According to Reik, the meeting with Leving lasted
about 1 hour. She never asked to see a union representa-
tive, nor to see anyone else. She did ask for time to think
about the matter over the weekend. Reik denied men-
tioning misdemeanors, felonies, or jail.
Hironimus' account of his part in the meeting general-
ly supported Reik's. After Reik told him that Leving had
admitted obtaining the tapes from the registers assigned
to her, Hironimus agreed with Reik that termination was
in order. He also agreed to speak with Leving outside
the presence of Reik. Leving asked him if some lesser
penalty could be imposed. She told him that she realized
KOHL'S FOOD COMPANY 7
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that what she had done was wrong. He responded that
the decision to terminate her could not be changed. No
request for a union representative was made to him. Hir-
onimus concluded his testimony by stating that in the
past other employees who did what Leving did had also
been fired.
All of the above occurred on a Friday. On the follow-
ing Monday, Wood returned Leving's call. Leving testi-
fied that she told Wood what had occurred and specifi-
cally that she had requested a union representative to be
present. In his testimony, Wood denied that Leving had
told him that she had requested a union representative at
the meeting with Reik. Wood also testified that he did
not ask her whether she had requested a union repre-
sentative. I find that Leving did not tell Wood that she
had requested a union representative be present for the
meeting. Wood had no interest in the proceedings and no
motive to lie. Furthermore, his testimony was impressive
and consistent and his demeanor was convincing. Leving
and Wood both testified that Wood promised to look
into the matter and call Leving back, which he did.
Wood went to the Lincolnwood store and talked to the
store manager. He also went to Respondent's personnel
office where Reik gave him a copy of Leving's state-
ment. 7 After examining the statement, Wood called
Leving back and told her that she had made a mistake
and that she had better learn from it. Wood did not be-
lieve further union action was warranted.
Discussion and Analysis
On this record, I cannot find that Leving was de-
prived of her right to have a union representative present
at the meeting with Reik. Pursuant to the Court's deci-
sion in N.L.R.B. v. Weingarten, 420 U.S. 251 (1975), the
right to have assistance at an interview where discipline
is reasonably feared is triggered only upon a request for
such representation. s In this case I find, and all agree,
that Respondent had not made a disciplinary decision re-
garding Leving prior to the meeting.9 I also find that, at
some point, either after the telephone notice of June 29,
or shortly after entering the meeting of the next day,
Leving reasonably feared that discipline would result.
The central issue then is whether Leving made a request
for a union representative and I find that she did not.
This finding is based on a judgment as to the credibility
of the witnesses-primarily Leving and Reik-who gave
directly opposite testimony on the key point.'0
In evaluating the credibility of Leving, I note that she
has been impeached on several important points: (1) She
did not make a prior redemption in April; (2) she did
have some advance knowledge of the purpose of the
meeting; (3) she did not make a prompt complaint to the
Union; and (4) perhaps most telling, she did not tell
Wood that she had requested and been denied a union
representative at the meeting. Her failure to so state is
7 Wood testified that Reik told him that Leving wrote her statement
out He also testified that if he had known that Reik wrote the statement
and L.eving signed it, this would have made no difference in his assess-
ment of Leving's case.
N Lennox Indusries, Inc., 244 NLRB No. 88 (1979).
" See Baton Rouge Water Works Company, 246 NLRB No. 161 (1979).
"' Inland Container Corporation, 240 NLRB 1298 (1979).
impeaching to begin with since it must be assumed that
this would be the primary focus of her complaint when
Wood called her back on Monday. Moreover, the fact
that she testified she did, when I find that she did not,
further damages her credibility.
Of course, the above is not to ignore the testimony of
Reik and Hironimus about the meeting itself. However,
were the evidence confined only to the participants at
the meeting, the resolution of the credibility question
would be far more difficult. The investigative procedures
used by Respondent in this case were sloppy and uncon-
vincing. t These circumstances, however, are
outweighed by the repeated impeachment of Leving. In
addition, as between Leving and Reik, the latter made a
much more impressive witness at the hearing based on
the demeanor of the witnesses. Leving appeared to be
emotionally distraught at certain points and uncertain of
her testimony on key points. Much of what she said was
inherently implausible. For example, I cannot believe
that Reik, newly appointed to his job as Respondent's
personnel director, would loudly discuss misdemeanor
and felonies and threaten Leving with jail. Reik's ac-
count, while by no means free from doubt, see footnote
11, is more persuasive than Leving's in the context of
this case. Furthermore, it is significant that Leving did
not ask Hironimus for the assistance of a union repre-
sentative. She knew him and had reason to think he
might be more sympathetic to her position than Reik,
whom she did not know. Yet no request was made. This
failure reinforces my belief that she made no such re-
quest of Reik either.
In sum, I find that Leving reasonably feared that the
June 30 interview with Personnel Director Reik might
result in disciplinary action. I have found that, since
Leving was told by Reik on June 29 why he wanted to
see her the next day, she would have reasonably suspect-
ed disciplinary action then. Clearly, she did on June 30
within a few moments of entering Reik's conference
room. Consequently, she would have had every right to
the presence of a union representative had she asked for
one, but she did not. l 2 Consequently, I will recommend
that this case be dismissed.'s
II For example, there is no written record of the meeting. Reik, age
31, 6 feet tall and 225 pounds, met with Leving, age 19, 5 feet, 5 inches
and of proportional weight, with no other witnesses present. The state-
ment written by Reik for Leving to sign does not state that Leving knew
that what she had done was a violation of company policy. Reik told
Wood that Leving had written the statement when she had not. Finally,
Leving's "confession" was by no means voluntary under the facts of this
case
iZ Had I found that Leving did request a union representative, her fail-
ure to terminate the interview after denial raises a waiver issue which
need not now be considered. Cf. United States Postal Service, 241 NLRB
141 (1979). Similarly, it is unnecessary to consider whether Leving would
have been entitled to reinstatement had I found a violation. N.L.R.B. v.
Potter Electrical Signal Company, 600 F.2d 120 (8th Cir. 1979).
II If I had the power to do so, I would consider certain issues raised
by this case: (1) whether Leving's termination was grossly disproportion-
ate to the offense committed; (2) whether company policy which was al-
leged to have been violated was published in such a way that employees
could reasonably know what it was; (3) whether a violation of company
policy actually occurred at all; (4) whether the Union had a duty to
inform members of their rights under Weingarten and if so, whether such
duty was violated in this case; and (5) whether the surrounding circum-
stances of Leving's disciplinary interview were so fundamentally unfair
Continued
KOHL'S FOOD COMPANY 79
CONCLUSIONS OF LAW
i. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
to her due process rights, irrespective of a Weingarren violation, as to call
for some equitable remedy.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 4
It is hereby ordered that the complaint be dismissed in
its entirety.
'4 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