D & W Food Centers

National Labor Relations Board - Board Decisions

Nov 8, 1991

305 N.L.R.B. 553 (N.L.R.B. 1991)

553
305 NLRB No. 63
D & W FOOD CENTERS
1 We agree with the judge that employee VanderWall’s early June
telephone call to the Respondent’s director of human resources,
Terveen, was protected concerted activity. We therefore find it un-
necessary to reach the issue of whether VanderWall’s submission of
15 questions to Assistant Store Director Dawes on June 8, 1989, also
constituted protected concerted activity.
2 The General Counsel excepts to the recommended Order provi-
sion which requires posting of the notice only at Respondent’s
Grandville, Michigan store. Assertedly the handbook containing the
unlawful work rule was distributed to employees in all the Respond-
ent’s stores. In a letter to the Board dated November 30, 1990, the
General Counsel contends that the Respondent’s answering brief
dated November 26, 1990, implicitly acknowledges that the notice
should be posted ‘‘at all stores where the unlawful handbook was
distributed.’’
However, Respondent contends that the handbook was changed
and sent, inter alia, to new stores, i.e., stores at which the unlawful
handbook was never distributed. Respondent argues that there is no
need for a notice at these new stores. In response, the General Coun-
sel contends that some ‘‘old store’’ employees (who saw the unlaw-
ful handbook) may now work at the new stores. Because there is
insufficient evidence on this matter, we leave it to compliance.
The Respondent excepts to the judge’s refusal to allow testimony
relating to VanderWall’s alleged postdischarge misconduct thereby
rendering her reinstatement inappropriate. We find it unnecessary to
reach this issue because we adopt the judge’s finding that the Re-
spondent did not unlawfully terminate VanderWall.
D & W Food Centers, Inc. and Debbie Vanderwall.
Case 7–CA–29505
November 8, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 14, 1990, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed an exception and a sup-
porting brief, and an answering brief.
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, and con-
clusions and to adopt the recommended Order, as
modified.
We agree with the judge that the General Counsel
made out a prima facie case that a reason for the dis-
charge of employee VanderWall was protected con-
certed activity1 Thus, Store Director John Dykhouse
was motivated in part by VanderWall’s having en-
gaged in this activity when he permitted Dawes to seek
higher management’s permission to terminate
VanderWall. That is evidenced by the contents of the
correction report Dykhouse wrote in connection with
the discharge. Unlike our dissenting colleague, how-
ever, we also agree with the judge that the preponder-
ance of the evidence shows that VanderWall would
have been discharged even in the absence of her pro-
tected concerted activity.
One of VanderWall’s responsibilities as a General
Service Clerk S-12 was opening checkout lanes and
keeping them open as needed. She was derelict in this
duty. In February 1989 she received a correction report
for her failure to open lanes and keep them open as
she had been instructed. She was entered into a formal
counseling program by the Respondent to correct this
problem, and was warned that further infractions could
result in a disciplinary layoff or discharge. In her eval-
uation in April 1989, she was rated ‘‘below average’’
in ‘‘Initiative,’’ and was again criticized for her failure
to open lanes as needed. There is persuasive evidence
from Dawes, other supervisors, and other employees
that this dereliction of duty by VanderWall continued.
The credited testimony of Dawes shows that on June
15, Dawes had to operate a lane for 45 minutes while
VanderWall was talking to other employees and ne-
glecting her own duties, despite Dawes’ repeated in-
structions for her to open lanes. On June 16, Dawes
recommended to John Dykhouse that VanderWall be
terminated for this conduct. John Dykhouse told
Dawes to seek permission from higher management,
Robert Dykhouse. Robert Dykhouse gave that permis-
sion and VanderWall was discharged on that same day.
Based on the above evidence, we agree with the
judge that the Respondent has shown by a preponder-
ance of the evidence that it would have discharged
VanderWall even in the absence of any protected con-
certed activity. Wright Line, 251 NLRB 1083 (1980).
VanderWall had been warned twice before about a
failure to keep the lanes open, and indeed she had
been told that repetition of this conduct could result in
her discharge. Her protected concerted activity oc-
curred in early June. She was not discharged until June
16, the day after she repeated the misconduct of failing
to keep the lanes open. In these circumstances, we
agree with the judge that she would have been dis-
charged even if she had not engaged in protected con-
certed activity. Accordingly, we will dismiss the alle-
gation of the complaint alleging the unlawful dis-
charge.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent D &
W Food Centers, Inc., Walker, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the recommended Order, as modified2 by
substituting the following for paragraph 2(a):
‘‘(a) Post at the Respondent’s store number 218 in
Walker, Michigan, as well as its other stores where it
employs employees who had received the handbook
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
containing the unlawful provision, and at its principal
offices in Grandville, Michigan, copies of the attached
notice marked ‘‘Appendix.’’13 Copies of that notice,
on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt, and maintained for 60 con-
secutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that this notice is not altered, de-
faced or covered by any other material.’’
MEMBER OVIATT, concurring in part and dissenting in
part.
I agree with the majority except that I would find
that the Respondent violated Section 8(a)(1) of the Act
by discharging Debbie VanderWall for engaging in
protected concerted activity.
As the judge found, VanderWall engaged in pro-
tected concerted activity when, about 8 to 10 days be-
fore her discharge, she called the Respondent’s director
of human resources, Terveen, and complained on her
own behalf and that of other employees, about the
transfer of employee DeVries from another store to the
store where VanderWall worked. Terveen told
VanderWall he would check on it, and he did call As-
sistant Store Director Dawes and discuss the matter.
On June 16, 1989, Dawes recommended to Store Di-
rector John Dykhouse that VanderWall be terminated
for her recurring failure to open checkout lanes as
needed. John Dykhouse told Dawes to seek permission
from Senior Vice President of Operations Robert
Dykhouse to terminate VanderWall. Dawes received
permission, and VanderWall was terminated that day
by John Dykhouse, with Dawes present. A correction
report signed by John Dykhouse stated as follows:
This week Deb has been asked on numerous occa-
sions to jump on a lane in reference to giving bet-
ter customer service. During these moments she
has complained to other associates concerning an-
other associate being able to come to our store to
fill a position in reference of an opening at our
courtesy desk. Deb received a verbal warning ap-
proximately 5 weeks ago that this type of behav-
ior cannot go on. As store director, I make these
decisions, not Deb. Deb has too often adminis-
tered the informal negative norm and this disrupts
our front end operation. This store will no longer
put up with this kind of behavior. Her past record
overall is not good and improvement concerning
past negative incident reports have [sic] not
occured [sic].
Based on this evidence, the judge found that the
General Counsel had made out a prima facie case that
VanderWall had been fired unlawfully for engaging in
protected concerted activity, and that the burden then
shifted to the Respondent to show that it would have
taken the same action in the absence of the protected
activity. The judge then found that the Respondent had
met its burden, based on evidence of VanderWall’s re-
curring failure to open lanes, and the credited testi-
mony of Dawes that she recommended the termination
because of that problem. He thus found that the Re-
spondent would have terminated VanderWall even in
the absence of the protected activity, and he dismissed
that allegation of the complaint. I disagree with this
latter finding.
As the judge found, it was John Dykhouse who told
Dawes to seek permission to terminate VanderWall,
and it was he who terminated VanderWall and signed
the correction report showing the reasons behind the
discharge. The unlawful motivation behind his actions
is clearly shown in the wording of the report.
There is evidence that there were shortcomings in
VanderWall’s work performance for which she had
been counseled and threatened with adverse action in-
cluding layoff or discharge. Nonetheless, she was con-
sidered overall to be at least a ‘‘good’’ employee, as
evidenced by her evaluations, and she had received
several favorable incident reports, one only 10 days
before her discharge. Although Dawes recommended
that she be discharged on June 16 for not opening
checkout lanes as expected, there is insufficient evi-
dence to show that she would have been terminated at
that time based on Dawes’ recommendation. Rather,
the evidence shows that John Dykhouse seized upon
Dawes’ recommendation that VanderWall be termi-
nated as an opportunity to rid the store of an employee
whom he thought did not properly respect his author-
ity. The failure to respect his authority, however, was
protected.
Dawes did not make the decision to terminate, John
Dykhouse did. Robert Dykhouse, who authorized the
termination, did not testify, and there is no evidence
concerning the conversation between Dawes and Rob-
ert Dykhouse. Therefore, the only credited evidence
before us showing the motivation for the termination
is the June 16 correction report, correctly found by the
judge to show—indeed it asserts—an unlawful motive.
I therefore find that the Respondent failed to meet its
burden under Wright Line, 251 NLRB 1083 (1980).
Accordingly, I would find that VanderWall was dis-
charged in violation of Section 8(a)(1).
Joseph P. Canfield, Esq., for the General Counsel.
Marshall W. Grate, Esq. and Leo Litowich, Esq., for the
Charging Party.
555D & W FOOD CENTERS
1 Errors in transcript have been noted and corrected.
2 At the time of the hearing job titles of some of these persons
had changed as follows, but all remained statutory supervisors and
agents of Respondent:
Wayne Terveen Store Director
Chuck Fausnaugh President
Robert Dykhouse Vice President of Store
Development
Peter Visser Store Director
Patricia Dawes Cultural Coordinator
3 The conclusions of fact are based on the credible portions of tes-
timony of the participants and the documentary evidence received.
In those instances where conflicts in testimony arose I have consid-
ered the reasonable probabilities, the convincing character of the tes-
timony, and comparative demeanor of opposing witnesses. Testi-
mony that might appear to conflict with my findings of fact has been
examined and rejected as less credible than that on which I have re-
lied. I have credited parts of witnesses’ testimony while not crediting
other parts. This is neither unusual or improper. NLRB v. Universal
Camera Corp., 179 F.2d 749 (2d Cir. 1950), vacated on other
grounds 340 U.S. 474 (1951).
4 Respondent refers to its employees as associates.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Grand Rapids, Michigan,
on January 22 and 23, and February 21, 1990, pursuant to
an amended complaint issued November 3, 1989, alleging D
& W Food Centers, Inc. (Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act) by dis-
charging Debbie VanderWall and by publishing and enforc-
ing a rule concerning the solicitation of employees to join a
union or ‘‘sign a card.’’ Respondent, in its answer to the
amended complaint, denies the commission of unfair labor
practices, and raises an affirmative defense to the effect there
is no charge to support the allegation of an unlawful rule.
This affirmative defense has no merit because an amended
charge filed on October 13, 1989, alleges the rule to be un-
lawful.
On the entire record,1 and after carefully considering the
comparative testimonial demeanor of the various witnesses,
I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent is a Michigan corporation with principal of-
fices and place of business in Grandville, Michigan, and is
engaged in the retail sale of groceries and other items at sev-
eral locations in Michigan. Respondent’s store 218 in Walk-
er, Michigan, is the facility involved here. During the cal-
endar year ending December 31, 1988, Respondent derived
gross revenues exceeding $500,000 from the retail sales de-
scribed above, and purchased and caused business merchan-
dise valued at more than $50,000 to be delivered directly to
its Walker, Michigan store from suppliers located outside the
State of Michigan. Respondent is, and has been at all times
material to this proceeding, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. SUPERVISORS
The parties agree the following named individuals occu-
pied the positions set after their names up to and including
the time of VanderWall’s discharge,2 and at all times mate-
rial to this proceeding have been supervisors and agents of
Respondent within the meaning of the Act:
Wayne Terveen Director of Human Resources
Chuck Fausnaugh Chief Operations Officer
Doug Blease Vice President of Human
Resources
Robert Dykhouse Senior Vice President of
Operations
Peter Visser District Superintendent of
Walker Store 218
John Dykhouse Store Director of Walker
Store 218
Patricia Dawes Assistant Store Director
James Perkins Store Service Manager
Chelle Markowski Assistant Service Manager
Carol Downer Assistant Service Manager
III. THE ALLEGED UNFAIR LABOR PRACTICES3
A. The Rule
Respondent maintained the following rule in its associate
handbook4 from the 1970s until November 13, 1989, after
the amended complaint issued:
If anyone should cause you trouble at work or exert
pressure to join a union or sign a card, you should tell
the store director about this so the activity can be
stopped. D & W will always protect your rights and
those of our customers under applicable laws.
Respondent acknowledges in its posttrial brief that such em-
ployer statements have been held to be unfair labor practices,
citing NLRB v. Colony Printing & Labeling, 651 F.2d 502
(7th Cir. 1981), and J. P. Stevens & Co. v. NLRB, 638 F.2d
676 (4th Cir. 1980). Even so, urges the Respondent, in the
absence of any evidence the rule was enforced a cease and
desist order should not issue with regard to the rule because
Respondent promptly revoked it on the issuance of the
amended complaint herein. Respondent directs attention to
Greencastle Mfg. Co., 234 NLRB 272 (1978); NLRB v.
Furnas Electric Co., 463 F.2d 665 (7th Cir. 1972); and
Deringer Co., 201 NLRB 622 (1973).
Although General Counsel filed a brief concerning the
treatment of VanderWall, he makes no argument in support
of the complaint allegation concerning the aforementioned
rule. Notwithstanding this failure by General Counsel to as-
sist in the determination of this issue, a rather unusual stance,
it is my duty to determine whether the evidence supports the
allegation and whether Respondent’s able argument should
prevail.
I agree with Respondent’s suggestion that the rule is in-
valid for reasons explicated in the court decisions Colony
Printing and J. P. Stevens, both of which enforce Board or-
ders, and conclude its maintenance during the period covered
by the charge and complaint violated Section 8(a)(1) of the
Act. With respect to the necessity for a remedy, it is true
there is no showing the rule has ever been enforced, and it
is also true that Respondent issued the following memo to
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 All dates are 1989 unless otherwise noted.
6 The form used is dual purpose and is utilized both to commend
via favorable incident report and criticize via unfavorable incident or
correction report.
7 VanderWall’s penchant for less than innocent horseplay is further
displayed by her conduct in stapling the sleeves and waist band of
another employee’s coat whom she considered rude. She apologized
to the employee for this conduct when called into the store director’s
office about it.
its employees on November 13, 1989, with the form and re-
visions referred to therein attached.
Dear Associate:
Because of some recent changes in our operation
several revisions have been made to our associate hand-
book. The five revisions include: premium pay, sick
pay, holiday pay, associate rights, and associate insur-
ance benefits.
In early 1990 we will be publishing a new associate
handbook—which we will provide to you at that time.
Please read and sign the attached form and return it
to your supervisor.
The attached form reads:
D & W ASSOCIATE HANDBOOK CHANGES
By my signature on this form I signify that I have re-
ceived the new or revised information listed below. I
also understand that it is my responsibility to read and
place this information in my D & W Associate Hand-
book.
llll llllll lllll
Store # Signature Date
ADDITIONS OR REVISIONS
Holiday Pay/Personal
Holiday Pay pages 40 & 41
Sick Pay page 42
Associate Rights page 14
Associate Insurance
Benefits page 48
Premium Pay page 37
The rule at issue appeared as the last paragraph of the sec-
tion entitled ‘‘Associate Rights’’ at page 14 of the Hand-
book. The Associate Rights section on the page 14 attached
to the November 13, 1989 memo no longer contains this
paragraph.
Unlike the solicitation and/or distribution rules dealt with
in Greencastle, supra, Furnas, supra, Deringer Co., supra,
and Bellinger Shipyards, 227 NLRB 620 (1976), the rule
here at issue is, as Respondent recognizes, on its face viola-
tive of the Act because it does not distinguish between law-
ful organizing and coercive conduct and urges employees to
report anyone who should ‘‘exert pressure to joint a union
or sign a card.’’ Here as did the letter in Colony Printing &
Labeling, 249 NLRB 223, 225 (1980), enfd. 651 F.2d 502
(7th Cir. 1981), Respondent’s rule had ‘‘the potential dual ef-
fect of encouraging employees to report to Respondent the
identity of union card solicitors who in any way approach
employees in a manner subjectively offensive to the solicited
employees, and of correspondingly discouraging card solici-
tors in their protected organizational activities,’’ and there-
fore violated Section 8(a)(1) of the Act. Accord: Kendall
College of Art, 288 NLRB 1205, 1208 (1988); Bay State Am-
bulance Rental, 280 NLRB 1079, 1083 (1986). This rule has
been maintained since the 1970s and constituted a serious re-
striction of employee rights. Compare St. Vincent’s Hospital,
265 NLRB 38, 42 (1982), with respect to the long-term
maintenance of an overly broad rule prohibiting the wearing
of union insignia. The rule in this case is clearly at least as
serious an infraction as a prohibition against union insignia.
Respondent’s November 13, 1989, memo merely advised that
revisions had been made to the handbook concerning, inter
alia, associate rights due to recent changes in Respondent’s
operation, and then attached a new statement on associate
rights deleting the last paragraph thereof which is the rule in
issue. In my view, simply excising the printed rule and at-
tributing the excision to a change in operations, which is not
true, does not effectively advise the employees it has been
repudiated and that they are not requested or encouraged to
report card soliciting or other lawful union organizing to
their superiors, and are free to join unions and sign union au-
thorization cards if they so desire. I therefore conclude that
a remedial order is required to cure the effects of the long-
term maintenance of this rule.
B. Termination of Debbie VanderWall
1. Relevant documents
Debbie VanderWall started to work for Respondent in
1986 as a service clerk at its Walker, Michigan store, and
progressed to the position of general service clerk S-12
which she held until her discharge on June 16, 1989.5 As a
service clerk she received favorable incident reports6 on Jan-
uary 26 and March 17, 1987, for coming in to work on very
short notice and working late in place of absent employees.
After her promotion to the S-12 level she received a favor-
able incident report and was nominated for associate of the
month on February 5, 1988, for the same reason. On Decem-
ber 3, 1988, and January 21 and June 6, 1989, she was given
favorable incident reports. Each time she had come to work
and worked hard and long on short notice to fill in for absen-
tees. The 1988 reports make reference to her excellent work
at the candy racks. The June 6 report again nominates her
for associate of the month.
As an S-12 she received an unfavorable incident report on
September 7, 1988, for horseplay involving placing a broom
on the automobile of Supervisor Carol Downer. She was
warned by Department Manager Perkins that such conduct
was unprofessional, the next offense would result in a 3-day
layoff, and a third offense could result in discharge. On Feb-
ruary 2, 1989, she was issued a correction report, was en-
tered into Respondent’s counseling program, and was warned
of a layoff and/or discharge for further infractions. This re-
port is based on her practice of closing down checkout lanes
after being several times instructed to open a lane and keep
it open. Another correction report was given to her on March
2, 1989, for horseplay7 consisting of the placement of a
package of Twinkies on the car of Downer. For this
VanderWall received a 3-day layoff. She signed all three of
these reports. Finally, she was terminated on June 16 and a
correction report signed by Store Director John Dykhouse
issued stating: ‘‘This week Deb has been asked on numerous
557D & W FOOD CENTERS
8 No one alleges or contends VanderWall was a statutory super-
visor. Respondent refers to S-12 as a nonsupervisory lead position.
I therefore need not examine her status further.
9 VanderWall and Terveen place it on June 7 or 8. Dawes recalls
Terveen calling her about it on June 6. The exact date is not impor-
tant.
occasions to jump on a lane in reference to giving better cus-
tomer service. During these moments she has complained to
other associates concerning another associate being able to
come to our store to fill a position in reference of an opening
at our courtesy desk. Deb received a verbal warning approxi-
mately 5 weeks ago that this type of behavior cannot go on.
As store director, I make these decisions, not Deb. Deb has
too often administered the informal negative norm and this
disrupts our front-end operation. This store will no longer put
up with this kind of behavior. Her past record overall is not
good and improvement concerning past negative incident re-
ports have not occured [sic].’’
D & W Associate Performance Evaluation reports for
VanderWall contain the following information. As a service
clerk she had no lane opening duties and received very good
to excellent ratings. From her first rating as an S-12 in Au-
gust 1987 through October 27, 1988, she was evaluated as
very good the first three times in 1988, then excellent on Oc-
tober 27, 1988. On April 21, 1989, her overall evaluation
dropped to good. This evaluation by Perkins rates her below
average in initiative and notes ‘‘We are constantly asking
you to run a lane. You know when you should and we need
you to do so,’’ and concludes, as areas for improvement,
‘‘Deb, you know when you should be on a lane. We need
you to watch those lanes and open up immediately when you
are needed. You are looked up to by service clerks and we
need you to set the example for them to follow. Promote
teamwork—don’t talk about other people, that is how rumors
start. Don’t stand and talk when it gets slow. Focus on your
responsibilities. You know what is expected of you, you sim-
ply need to apply yourself.’’ This evaluation and the others
are signed by VanderWall.
2. Conduct of VanderWall and others leading to
this proceeding
Among VanderWall’s job responsibilities, which included
operating a checkout lane as necessary, were the controlling
of breaks taken by service clerks and making sure the service
clerks were kept busy at their work.8 Her uncontroverted and
not improbable testimony that service clerks often brought
work related problems to her, and that Assistant Store Direc-
tor Dawes knew this, compared her to a mother hen with
chicks, and advised her that she should refer the clerks to
management personnel for answers to their problems is cred-
ited. Reading the record carefully it seems quite clear that
VanderWall was given to complaining to all who would lis-
ten concerning matters that irked her. Her testimony and that
of others further shows that she usually sought to involve
others in matters of concern to her, and was a bit of a busy-
body in this regard who sometimes spent worktime talking
to other employees about personal concerns when she might
better have been engaged in necessary work, e.g., running a
checkout lane. Respondent knew from its experience with
VanderWall that she frequently did in fact discuss work-re-
lated concerns with other employees.
Moving on to early June, according to VanderWall she
discussed the transfer of Deann DeVries from another store
to the position of courtesy clerk at the Walker store with
Amy Quist, Pam Mason, and Joanne Ogden. She asserts that
she believes it was Mason who mentioned calling the cor-
porate office to find out what was going on, and recalls that
Mason said, ‘‘O.K.’’ when VanderWall later said she would
make the call. Mason did not testify and VanderWall is cred-
ited with respect to her conversation with Mason.
VanderWall claims that before making the call she talked
to Amy Quist on the phone and asked if she knew if DeVries
was available for the transfer because she had earlier talked
to Quist about this. Quist advised her of the days DeVries
was available. Quist, a courtesy clerk at the Walker store, re-
calls that VanderWall spoke to her about the transfer and
said she was not happy with it and was going to call the cor-
porate office and complain. Quist testifies that she neither
agreed or disagreed with VanderWall, and had no telephone
conversation with her on the matter until a month before the
trial when VanderWall asked her to speak to VanderWall’s
lawyer. I believe the testimony of Quist and VanderWall is
complementary and conclude that VanderWall spoke to
Quist, although not on the phone, expressed her disgruntle-
ment with the transfer, asked for and received information
regarding DeVries’ availability for the job, told Quist she
would call corporate management, but did not succeed in en-
listing Quist in her cause.
Joanne Ogden, a courtesy clerk at the Walker store, testi-
fied that VanderWall, upset over DeVries’ transfer, said she
had called the corporate offices over the matter, wanted a
bunch of people to call the office, and gave Ogden a piece
of paper with the corporate phone number on it. Ogden made
no call. She recalls little else about the conversation, but spe-
cifically denies asking VanderWall to call the corporate of-
fices. VanderWall merely says she ‘‘talked a little bit with
Joanne Ogden,’’ and denies saying anything about the cor-
porate office when she talked to Ogden. I credit Ogden’s
version and conclude that VanderWall attempted unsuccess-
fully to solicit Ogden’s support for the complaint about the
DeVries transfer.
VanderWall called Wayne Terveen, Respondent’s Director
of Human Resources at the time, on June 6, 7, or 8.9 Her
version is that she said Walker store employees including her
questioned the DeVries transfer because several Walker em-
ployees could use the extra hours and could do the job, and
because DeVries had limited availability, and some employ-
ees and she thought DeVries’ mother arranged the transfer.
Terveen’s reply, says VanderWall, was that he would check
and call back. Terveen testified that VanderWall was con-
cerned about DeVries’ transfer, but he gives no details of the
conversation other than that he told her that he would look
into it and she should take her concerns to her store manage-
ment. He definitely recalls however that she did not advise
she was representing others when she called. This is the only
portion of his testimony that can fairly be characterized as
a partial rebuttal of VanderWall’s testimony. VanderWall’s
definite and certain recitation of what was said during the
conversation had the ring of truth and is entitled to credit.
In arriving at this conclusion I have noted that Dawes, a mat-
ter-of-fact, certain, composed, and believable witness even
under stiff cross-examination, credibly testified that
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
VanderWall was very upset when she learned of DeVries up-
coming transfer to the Walker store, and during several con-
versations with Dawes expressed a fear her work hours
would be cut as a result. These discussions only concerned
VanderWall’s personal feelings on the matter, but this does
not mean other employes were not similarly concerned or
had not discussed it with VanderWall.
Terveen called Dawes and told her VanderWall had called
and was concerned about the DeVries transfer. Dawes ex-
plained the transfer was necessary.
VanderWall had voiced concerns about several other mat-
ters in May and June. Dawes told her to put them on ‘‘hot
line’’ cards. The company provides these cards for employ-
ees to use in submitting questions and concerns to manage-
ment. On or about June 8, finding no hot-line cards avail-
able, VanderWall used other pieces of paper to submit 15
questions about working conditions. She left these slips on
Dawes’ desk. VanderWall had gathered some of the ques-
tions from other employees, but concedes she did not advise
the company from whence she got them. She told Dawes that
she had concerns she wanted answered, and did not tell her
anyone else but VanderWall was involved in posing the
questions. She recalls the following were among the ques-
tions asked: ‘‘Why do Managers only tell us when we do
something wrong, instead of when we do something right?’’
and ‘‘Why do we have to cover the hours when Managers
schedule us when we can’t work?’’ I do not agree with Gen-
eral Counsel’s suggestion that because VanderWall used the
words ‘‘us’’ and ‘‘we’’ in such questions Respondent was
put on notice the questions were the product of concerted ac-
tivity, nor does the mere use of the words operate to further
corroborate VanderWall’s claim, which is however credited
solely because it is uncontroverted, that others had a hand in
composing the questions.
VanderWall again called Terveen on June 15. This time
she complained of the conduct of Deann DeVries’ mother
who was a customer. VanderWall credibly recalls she ad-
vised Terveen that this lady had told her she was not nice
and would get fired if not careful, that this lady had made
rude comments about Supervisor Sue Mingerink’s private
life, and had said employee James Parzych’s father deserved
bypass surgery. She did not advise she was calling on their
behalf. Terveen told her he would tell Dawes and John
Dykhouse of these matters, and she should talk to John
Dykhouse about it. He then called Dawes and advised that
she and John Dykhouse should look into the matter. Dawes
credibly testified VanderWall had angrily demanded of her
that DeVries’ mother be thrown out of the store for her com-
ments to VanderWall. Dawes rejected this request.
Parzych, an S-12 at Walker, denies saying anything to
VanderWall about his father’s surgery because it did not take
place until after her discharge, and recalls that, when
VanderWall asked about his conversation with Mrs. DeVries,
all he said was that she would corner you and ask questions
that were none of her business, but he just ignored it. He de-
nies any discussion with VanderWall about calling the cor-
porate office. I credit Parzych who had no direct interest in
the proceeding and had no perceptible reason to fabricate.
The record does not establish concert between him and
VanderWall in this instance. Mingerink did not testify, but
VanderWall states that she told Mingerink what Mrs.
DeVries had said about her, and further advised she was call-
ing the corporate office. To this Mingerink allegedly replied,
‘‘Let me know what they say.’’ Inasmuch as Mingerink took
Carol Downer’s place as an assistant service manager and
statutory supervisor at the Walker store, and held that posi-
tion at the time of this conversation, the rule that an em-
ployee cannot engage in concerted activity with a supervisor
is controlling. Capital Time Co., 234 NLRB 309 (1978).
Moreover, the casual request that VanderWall let Mingerink
know the company’s response to her call is not, in my view,
sufficient to constitute concerted activity.
VanderWall was terminated on June 16. That morning
Dawes called John Dykhouse and recommended VanderWall
be terminated because her performance was not improving
and was unacceptable on June 15, and the counselling pro-
gram with her was not working. The February 2 correction
report issued to VanderWall and her April 21 evaluation
criticize her failure to operate checkout lanes as her duties
required. Fellow employee Parzych reports that VanderWall
did not like to open checkout lanes, had to be told by super-
vision to do so, would close lanes too soon, and sometimes
would find other things to do when directed to open a lane.
Cashier Karen Plaska’s testimony and that of Supervisors
James Perkins, MIchelle Markowski, and Carol Downer are
to the same effect. This history is persuasive evidence that
VanderWall was derelict in her duties for a long period of
time with respect to operating checkout lanes. Dawes
credibly testified that she thoroughly discussed the duties of
S-12s to voluntarily open lanes when necessary at meetings
of employees in 1988 and 1989 which were attended by
VanderWall. Dawes’ testimony that her recommendation to
terminate VanderWall was precipitated by VanderWall’s con-
tinued failure to work on lanes unless specifically directed to
so do during the week preceding the discharge is also cred-
ited. John Dykhouse told Dawes to seek permission to termi-
nate VanderWall from Robert Dykhouse, Respondent’s vice
president of operations. Dawes then contacted Robert
Dykhouse and received permission to terminate VanderWall.
That afternoon VanderWall was called into John Dykhouse’s
office and terminated in the presence of Dawes.
The reasons assigned by Dykhouse are set forth in the
June 16 correction report and recited above in section III,B,1
of this decision. Although Dawes recommendation was based
on VanderWall’s failure to properly mind the checkout lanes
on June 15, the June 16 correction report issued by John
Dykhouse shows that he was motivated in considerable part
by VanderWall’s protest of his decision to award the cour-
tesy clerk job to DeVries. He plainly considered
VanderWall’s conduct in that matter as a challenge to his au-
thority not to be tolerated.
3. Discussion and conclusions
The Board set forth the controlling rule in Meyers Indus-
tries, 268 NLRB 493, 497 (1984) (Meyers I), as follows:
In general, to find an employee’s activity to be
‘‘concerted,’’ we shall require that it be engaged in
with or on the authority of other employees, and not
solely by and on behalf of the employee himself. Once
the activity is found to be concerted, an 8(a)(1) viola-
tion will be found if, in addition, the employer knew
of the concerted nature of the employee’s activity, the
concerted activity was protected by the Act, and the ad-
559D & W FOOD CENTERS
10 Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985).
11 Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II).
verse employment action at issue (e.g., discharge) was
motivated by the employee’s protected concerted activ-
ity.
On remand from the United States Court of Appeals for the
District of Columbia Circuit,10 the Board further explained:
We reiterate, our definition of concerted activity in
Meyers I encompasses those circumstances where indi-
vidual employees seek to initiate or to induce or to pre-
pare for group action, as well as individual employees
bringing truly group complaints to the attention of man-
agement.11
I agree with General Counsel that VanderWall had a his-
tory of discussing work-related matters of mutual concern
with other employees. That Respondent was aware of this
protected concerted activity through its Supervisor and Agent
Dawes, who compared VanderWall to a mother hen with
chicks and advised her to refer employees with such con-
cerns to management, is clear. It is not clear however that
Respondent always knew or had reason to believe that all the
complaints or questions she addressed to Respondent were
the products of concerted activity. An example is the incident
of the 15 questions. There VanderWall and other employees
engaged in the concerted activity of compiling questions for
Respondent to answer, but the evidence does not show Re-
spondent knew the questions rose from a concerted effort.
The call to Terveen regarding the transfer of Deann
DeVries is a different matter. Another employee suggested to
VanderWall that she make the corporate call, Mason’s
‘‘O.K.’’ was an expression fairly connoting acquiescence and
tacit agreement to VanderWall’s plan to make the call, and
VanderWall solicited Ogden to join in the effort by herself
calling the corporate offices. When VanderWall adopted the
suggestion she make the call she was then in concert with
the person so suggesting, Mason’s ‘‘O.K.’’ confirms there
was concert, and VanderWall’s effort to induce Ogden to
join her in calling management is also concerted activity
within the definitions in Meyers I further explained in Mey-
ers II. I have credited VanderWall that she told Terveen she
and other employees were questioning the DeVries transfer
on various grounds including the wish that the hours that
would be assigned to DeVries might rather be given to them.
Terveen thus knew VanderWall was engaged in concerted
activity as a spokesman for other employees as well as her-
self seeking to preserve additional working hours, and thus
wages, for themselves rather than the transferee. There is no
evidence the phone call to Terveen nor VanderWall’s con-
versations with Mason, Quist, or Ogden disrupted any em-
ployee’s work. That VanderWall was not as diligent as she
might have been in some aspects of her work performance
has no bearing on the protected nature of her phone call.
I have concluded that VanderWall’s call of Terveen re-
garding the DeVries transfer was protected concerted activ-
ity. I further conclude that General Counsel has made out a
prima facie case that VanderWall was discharged because
she engaged in such activity. This is so because, although I
believe Dawes sought VanderWall’s termination because her
work performance was patently below par, it was John
Dykhouse who gave Dawes permission to seek permission
from Robert Dykhouse to separate VanderWall, and it was
John Dykhouse who clearly indicated in writing his dis-
pleasure with VanderWall’s call to Terveen as a portion of
the reason to terminate her. Dawes does not say what con-
versation went on between her and Robert Dykhouse when
she called for permission to discharge VanderWall. Robert
Dykhouse did not testify. A conclusion that John Dykhouse’s
resentment at VanderWall’s call to Terveen, which John
Dykhouse viewed as an unwarranted questioning of his sole
authority regarding the Devries transfer, was a motivating
factor in his decision to permit Dawes to recommend
VanderWall’s termination is therefore warranted on the evi-
dence before me. General Counsel has made out a prima
facie case. The burden now shifts to Respondent to show by
a preponderance of the evidence it would have taken the
same action had VanderWall not engaged in protected con-
certed activity. Wright Line, 251 NLRB 1083 (1980); NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983).
The February 1 warning of possible layoff and/or dis-
charge if VanderWall continued her unsatisfactory perform-
ance with respect to minding checkout lanes, her 3 day lay-
off for horseplay on March 2, and the admonition on her
April 21 evaluation regarding her failure to correct her con-
duct with respect to working on the lanes, as described by
both coworkers and supervisors, establish a pattern of unsat-
isfactory work and a failure to improve after warning and
counselling. Dawes credibly testified that she herself had to
operate a checkout lane on June 15 because VanderWall,
who was punched in to work, was off talking to other associ-
ates for 45 minutes when she should have been paying atten-
tion to and working on checkout lanes, one of the main re-
sponsibilities of an S-12. Noting the comments of various
witnesses concerning VanderWall’s attitude toward the
checkout lanes, her acknowledgement that she was told by
Dawes three times on one day, VanderWall says June 9, to
open checkout lanes, Dawes credible testimony she had to
call VanderWall to open a lane three times on June 15,
VanderWall’s incredible testimony that it was not clear to
her what she was supposed to do with respect to opening
checkout lanes even after her February 1 warning, and the
clear evidence she made no effort to correct her work habits
after warnings and counseling, I am persuaded Respondent
has shown by a preponderance of the evidence she would
have been discharged pursuant to Dawe’s report on her fail-
ure to satisfactorily perform her work on June 15 even if she
had not engaged in concerted activity.
Respondent has therefore met its Wright Line burden, and
General Counsel has not proved by a preponderance of all
the evidence that VanderWall’s termination was violative of
the Act.
CONCLUSIONS OF LAW
1. D & W Food Centers, Inc. (Respondent) is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent has interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed by
Section 7 of the Act, and thereby violated Section 8(a)(1) of
the Act by urging employees to inform Respondent if they
are pressured to join a union or sign a union authorization
card, and by inviting and encouraging them to report the
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 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.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
identity of union card solicitors to Respondent’s supervisors
and agents.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not commit an unfair labor practice by
terminating Debbie VanderWall.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, D & W Food Centers, Inc., Walker,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Urging its employees to inform Respondent if they are
pressured to join a union or sign a union authorization card,
or inviting or encouraging them to report the identity of
union card solicitors to Respondent’s supervisors and agents.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at the Respondent’s place of business in
Grandville, Michigan, copies of the attached notice marked
‘‘Appendix.’’13 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director within 20 days from the
date of this Order what steps Respondent has taken to com-
ply with this Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT urge our employees to tell us if they are
pressured to join a union or sign a union authorization card,
and WE WILL NOT otherwise invite or encourage them to re-
port the identity of union card solicitors to supervisors.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
D & W FOOD CENTERS, INC.