BJ's Wholesale Club

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 684 (N.L.R.B. 1995)

684
318 NLRB No. 83
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.
2 In affirming the judge’s conclusion that the Respondent did not
violate Sec. 8(a)(3) and (1) of the Act by issuing a verbal warning
to employee John Cavaliere for ‘‘harassing [a] team member’’ in the
course of soliciting authorization cards, we find that the Respondent
lawfully responded to employee Teresa LaTorre’s request, following
repeated interruptions by Cavaliere during worktime, that the Re-
spondent stop Cavaliere from harassing her while she worked.
Cavaliere’s testimony was discredited, and the credited testimony of
General Manager Tom Norris establishes that the Respondent had a
policy prohibiting employees from harassing coworkers. The legit-
imacy of the Respondent’s no-harassment rule is not in dispute. Fur-
ther, the Respondent did not solicit complaints from employees
about Cavaliere’s union activity, and unlike the cases on which the
General Counsel relies, he was not disciplined for violating an un-
lawful no-solicitation rule nor was he falsely accused of interfering
with work. Cf. PPG Industries, 251 NLRB 1146, 1147–1148, 1168
(1980); Switchcraft, Inc., 241 NLRB 985 (1979); Miller’s Discount
Dept. Stores, 198 NLRB 281 (1972). In agreeing with the judge’s
dismissal of these allegations, we note that the Respondent has es-
tablished the equivalent of a Wright Line defense. Wright Line, 251
NLRB 1083 (1980). As noted above, the lawfulness of its no-harass-
ment rule is not in dispute, and LaTorre complained to the Respond-
ent that Cavaliere was harassing her. Moreover, the Respondent es-
tablished that it had previously counseled Cavaliere about harass-
ment after another employee complained about his conduct. This
prior incident, which occurred in 1993, did not involve union activ-
ity. The foregoing establishes that the Respondent’s issuance of the
warning was motivated by conduct unrelated to Cavaliere’s solicita-
tion of union authorization cards and did not violate the Act.
BJ’S Wholesale Club, a Subsidiary of Waban, Inc.
and Local 371, United Food & Commercial
Workers Union, AFL–CIO, CLC. Case 34–CA–
6596
August 25, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On November 16, 1994, Administrative Law Judge
Frank H. Itkin issued the attached decision. The Gen-
eral Counsel filed exceptions and a brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record in light of the
exceptions and brief and has decided to affirm the
judge’s rulings, findings,1 and conclusions2 and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
John Gross, Esq., for the General Counsel.
Irving Ritz, Esq., for the Respondent Employer.
DECISION
FRANK H. ITKIN, Administrative Law Judge. An unfair
labor practice charge was filed in this case on May 19 and
a complaint issued on June 30, 1994. The General Counsel
alleges in the complaint that BJ’s Wholesale Club, a subsidi-
ary of Waban, Inc. (Respondent Employer) violated Section
8(a)(1) and (3) of the National Labor Relations Act by
issuing a warning to employee John Cavaliere on May 16,
1994, because he had assisted Local 371, United Food &
Commercial Workers Union, AFL–CIO, CLC (the Charging
Party Union) and had engaged in protected concerted activi-
ties. Respondent Employer denies in its answer violating the
Act as alleged. A hearing was conducted on the issues raised
in Hartford, Connecticut, on September 28, 1994, and on the
entire record, including my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
The Charging Party Union is admittedly a labor organiza-
tion and Respondent Employer is admittedly engaged in
commerce as alleged. Brian Truini, an organizer for the
Union, testified that his Union had first tried to ‘‘organize’’
the Employer’s employees during 1992 and that effort cul-
minated in a Board-conducted representation election which
the Union lost. Later, in May 1994, the Union ‘‘started a
new campaign.’’ Employee John Cavaliere ‘‘contacted’’
Truini ‘‘the first week of May’’; they ‘‘met the next day’’;
Cavaliere was then given ‘‘approximately 20 Union author-
ization cards’’; they subsequently ‘‘met basically every day’’
and Cavaliere ‘‘would hand [Truini] authorization cards that
were filled out and [Truini] would hand him [more] blank
authorization cards.’’ The Union’s ‘‘campaign’’ is ‘‘currently
in progress.’’
John Cavaliere testified that he started working for the
Employer in February 1992 and ‘‘quit’’ in June 1994. He
telephoned Union Organizer Truini on May 2, 1994, because
he was unhappy with ‘‘what was going on in the store’’ with
respect to employee terms and conditions of employment.
The two met the following day, May 3, and Truini then gave
Cavaliere ‘‘Union authorization cards’’ to be distributed to
Cavaliere’s coworkers. Starting on that same day, May 3,
Cavaliere ‘‘talked to many employees’’ about the Union ‘‘in
the break room’’ and ‘‘in the store itself.’’ He would return
signed cards to Truini. From May 3 until 16, he had obtained
some 30 to 35 signed ‘‘Union authorization cards’’ from his
coworkers.
On or about May 12, as Cavaliere further testified,
Cavaliere ‘‘spoke’’ to coworker Teresa LaTorre ‘‘in the
[store] bakery’’ where ‘‘she works.’’ He recalled:
I [Cavaliere] was walking down the hallway right out-
side the bakery on my lunch break and I saw her
[LaTorre] standing there. I went inside in the bakery
and asked her what her feelings were about the Union.
She says that she didn’t want to talk about it now and
I said, okay, I’ll talk to you later.
Cavaliere assertedly ‘‘did not’’ then ‘‘ask . . . her if she’d
be interested in signing a [Union] card’’ and ‘‘did not’’
685BJ’S WHOLESALE CLUB
‘‘speak . . . to [her] at all that day after [his] initial con-
versation.’’
Thereafter, on May 16, as Cavaliere further testified,
Cavaliere was instructed by Senior Manager Lisa Williams to
meet in her office with Tom Norris, the store general man-
ager. There,
He [Tom Norris] told me [Cavaliere] that there were
three issues he wanted to discuss with me, one being
a harassment complaint filed against me [by
LaTorre]. . . . Norris said [nothing else] about this al-
leged harassment complaint at the time. . . . Second
one . . . punching in six minutes late . . . . He wanted
to know why I punched in late and I said, because I
was consoling a [co-worker, Angela Gatlin,] and while
I was consoling [her] he [, Norris, had also] asked her
what was wrong while I was talking to her [and there-
fore] he knew . . . . The third issue was taking a break
without permission . . . and I informed him that I did
get permission to take my break. . . . I told him that
Brenda Barnes, the supervisor on the podium at the
time, gave me permission to take my break. . . . The
meeting was about five minutes long and that was
it. . . . They just told me that was it and have a good
day.
On the following day, May 17, Cavaliere was again in-
structed to attend a meeting in Williams’ office with Norris
present. There,
[H]e [Norris] informed me that he was giving me a
verbal warning for two of the three issues [previously]
discussed . . . one being the harassment complaint
from Terry LaTorre and [the other] punching in
late. . . . He informed me that . . . LaTorre had filed
a harassment complaint against me for . . . pressuring
her into signing a Union authorization card three or
four times in one day. . . . I said [that] was out-
rageous. . . . Then he informed me . . . I was getting
written up for being six minutes late . . . . I informed
him, but you know I was talking to Angela Gatlin, she
was all upset . . . I was there before 11, I would have
punched in, I was only ten feet from the clock, I was
just sitting there listening to her because she was upset
. . . about a friend [who had] passed away the night
before. . . .
Cavaliere was then given a copy of the General Counsel’s
Exhibit 2, a ‘‘corrective interview’’ form dated May 16, stat-
ing:
On May 16, 1994 you [Cavaliere] were scheduled 11
AM–3 PM. At approximately 11:05 you were observed
talking to associates on the sales floor but had not yet
punched in to work and reported to the front line. You
punched in at 11:07.
Additionally, on May 13, 1994, Terry LaTorre (bak-
ery) approached Ted McGhie (LP Mgr) and said that
you had harassed her while she was working in the
bakery. . . .
You must report to work at the properly scheduled
time and be punched in and ready to work at that time,
particularly if you are already in the building. . . .
Team members will not be subjected to harassment of
any kind. . . . Further violations of these policies can
result in further disciplinary action up to and including
termination. . . .
Teresa LaTorre testified that on May 13, 1994,
I [LaTorre] was working at the bakery and [Cavaliere]
came to the bakery and asked me if I wanted to fill out
a Union card. I told [him] that I was busy, that I was
working, and . . . I took the card and put it in the
pocket of my bakery coat. . . . I told him that I would
look at it later. . . . So he left and I kept working, and
he came back and asked me if I filled out the card, and
I told him, no, to leave me alone, that I was busy work-
ing and . . . I didn’t have time to look at it . . . . So
he left again. I went on my lunch, and after a half an
hour of my lunch I came back. I went back to work,
and he approached me and he told me, did you already
sign it, and I told him, no. So he left and I got upset
and I went and told Ted McGhie . . . the LP manager
. . . that I wanted to talk to him because I was upset
. . . . So he [McGhie] took me to his office and he
told me what was wrong. So I told him that [Cavaliere]
came and gave me a Union card and that I didn’t want
to fill it out, but he kept buggin[g] me about it and I
was too busy and I was tired and I didn’t want to be
bothered by no Union, to tell him to leave me alone.
So [McGhie] told me that he would take care of it and
I just left and went back to work.
Thomas Norris is the Employer’s general manager. Norris
testified that on May 16,
I [Norris] noticed [Cavaliere] standing next to one of
the registers talking to another associate after 11:00
o’clock, after the Club had already opened for business.
And I just asked him, actually, I noticed he didn’t have
his name badge on, and I asked him if he had his name
badge, and at that time he told me he had not yet
punched in. And then I continued on walking . . . .
Shortly afterwards, Lisa Williams, my operations man-
ager, approached me and said that she had noticed
[Cavaliere] after he was scheduled to start working that
day, sometime after 11, standing at the front line talk-
ing to somebody and when she approached him he told
her that he had not yet punched in for work. . . . [Wil-
liams] at the time said that she would like to give him
a verbal warning about the situation and I agreed based
on the fact that I had had the same conversation obvi-
ously within the same five minute span of him sup-
posedly starting his shift . . . . [Williams] said that she
wanted to do the verbal warning, I agreed. . . . At the
time, I also wanted to include in the verbal warning the
information that had come to me regarding Terry
LaTorre, so I just added that to the verbal warning that
we did. . . . The information that I had which was in-
correct . . . I took off and actually changed the warn-
ing notice, because obviously he [Cavaliere] had talked
to somebody before he went on break that day and I
did not want to include that in the write up because it
was not true . . . . So I created a new document, tore
up the old one.
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Counsel for the General Counsel cites in his posthearing brief
(Br. 16) Miller’s Discount Dept. Stores, 198 NLRB 281 (1972);
Switchcraft, Inc., 241 NLRB 985 (1979); and PPG Industries, 251
NLRB 1146, 1166–1168 (1980). Those cases are factually distin-
guishable from the credible evidence of record here.
2 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.
Norris was admittedly ‘‘aware’’ that Cavaliere ‘‘was en-
gaged in Union organizing activity’’ ‘‘at that time.’’ An ‘‘as-
sociate’’ had previously informed Norris that Cavaliere ‘‘had
been giving out some Union cards in the Club.’’ In addition,
Manager McGhie ‘‘had the Union card [of LaTorre] which
[McGhie] showed [to Norris] . . . .’’ Further, Norris con-
ferred with the Employer’s human resources department. As
Norris acknowledged,
I relayed both this situation and the harassment charge
to Tom Davis [in the human resources department] and
he instructed me to write [Cavaliere] up for both . . .
on the same warning notice.
Norris also acknowledged that he was opposed to ‘‘the
unionization of the employees’’ as not in ‘‘the best interest’’
of the Employer. And, Norris admittedly had been ‘‘told’’ by
the human resources department with respect to the Union’s
organizational campaign that ‘‘people were allowed to con-
duct themselves in the break room on their own time and any
other activities I should report to them.’’
On this record, I am persuaded that the testimony of Te-
resa LaTorre, as detailed above, is credible and trustworthy.
Her candid and complete recitation of the pertinent sequence
of events was not even challenged on cross-examination.
And, she also impressed me as a reliable witness. In short,
I find here that John Cavaliere did in fact repeatedly solicit
LaTorre while she was working to sign a union authorization
card despite her statement to him that she was ‘‘busy’’ and
‘‘to leave [her] alone,’’ and that she became ‘‘upset’’ and re-
ported the incident to management. Insofar as LaTorre’s tes-
timony conflicts with the testimony of Cavaliere, I find the
testimony of LaTorre to be more detailed, complete, forth-
right, and trustworthy. Much of the remaining pertinent testi-
mony, including that of Brian Truini and Tom Norris, is not
in dispute. In any event, insofar as the testimony of Norris
conflicts with the testimony of Cavaliere, on this record, I
am persuaded that Norris has more fully and forthrightly re-
lated the pertinent sequence of events.
Discussion
Section 7 of the National Labor Relations Act guarantees
employees the ‘‘right to self-organization, to form, join or as-
sist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’’ as well as the right ‘‘to
refrain from any or all such activities.’’ Section 8(a)(1) of
the Act makes it an unfair labor practice for an employer ‘‘to
interfere with, restrain or coerce employees in the exercise
of’’ their Section 7 rights. And, Section 8(a)(3) of the Act,
in turn, forbids employer ‘‘discrimination in regard to hire or
tenure of employment or any term or condition of employ-
ment to encourage or discourage membership in any labor
organization.’’
In the instant case, employee Cavaliere was actively and
overtly engaged in assisting the Union’s organizational drive
at his Employer’s store. In the process, he approached co-
worker LaTorre while she was ‘‘working’’ and asked her to
sign a ‘‘Union authorization card.’’ LaTorre then told
Cavaliere that she ‘‘was busy . . . working’’ and ‘‘put’’ the
card in her ‘‘pocket’’ stating that she ‘‘would look at it
later.’’ Cavaliere later again approached LaTorre while she
was ‘‘working.’’ Cavaliere asked LaTorre if she had ‘‘filled
out the card,’’ and she ‘‘told him, no, to leave [her] alone,
that [she] was busy working and . . . didn’t have time to
look at it.’’ Cavaliere later again ‘‘approached’’ LaTorre
while she was ‘‘working’’ and again asked did she ‘‘sign
it,’’ and she again ‘‘told him, no.’’ LaTorre ‘‘got upset’’ this
time and complained to management that Cavaliere ‘‘kept
buggin[g]’’ her about the union card and that she ‘‘didn’t
want to be bothered by no Union, to tell him to leave [me]
alone.’’ In addition, Cavaliere was also late some 6 to 7 min-
utes ‘‘punching in’’ because he was engaged in a conversa-
tion with a coworker or coworkers. Management thereafter
issued a warning to Cavaliere that
You [Cavaliere] must report to work at the properly
scheduled time and be punched in and ready to work
at that time, particularly if you are already in the build-
ing. . . . Team members will not be subjected to har-
assment of any kind. . . . Further violations of these
policies can result in further disciplinary action up to
and including termination.
On this record, I find and conclude that management, by
issuing a warning to employee Cavaliere, was not impinging
on his Section 7 rights or discriminating against him because
he was engaging in union and protected concerted activities.
It is undisputed that Cavaliere was in fact late ‘‘punching
in’’ and there has been no showing made here that manage-
ment was treating Cavaliere differently than any other em-
ployee. Further, management had received a complaint from
employee LaTorre that Cavaliere ‘‘kept buggin[g]’’ her about
the union card and that she ‘‘didn’t want to be bothered . . .
tell him to leave [me] alone.’’ Management thereafter cau-
tioned Cavaliere to ‘‘report to work at the properly scheduled
time’’ and that coworkers ‘‘will not be subjected to harass-
ment of any kind.’’ Under the circumstances, the Employer
has not impinged on protected activities or discriminated
against an employee for engaging in protected activities. I
would therefore dismiss this complaint.1
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
the Charging Party Union is a labor organization as alleged.
2. Respondent Employer has not violated Section 8(a)(1)
and (3) of the Act as alleged, and the complaint should
therefore be dismissed.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
It is ordered that the complaint filed is dismissed.