J. C. Penney Co., Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1971

193 N.L.R.B. 684 (N.L.R.B. 1971)

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. C. Penney Company, Inc. and International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO,
Local 115 . Case 4-CA-5472
October 12, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 6, 1971, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in certain
unfair labor practices and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Therefore,
the General Counsel filed exceptions and a support-
ing brief, and the Respondent filed a brief in support
of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
I The Trial Examiner's findings and conclusions are based , in large
measure , upon credibility resolutions made by him. The General Counsel
has excepted to certain credibility findings made by the Trial Examiner. It
is the Board's established policy not to overrule a Trial Examiner's
resolutions with respect to credibility unless the clear preponderance of all
of the relevant evidence convinces us that the resolutions were incorrect
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A
3) We have carefully examined the record and find no basis for reversing
his findings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BoTT, Trial Examiner: Upon a charge of
unfair labor practices filed by the Union on January 29,
1971, against J. C. Penney Company, Inc., herein called
Employer or Respondent, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing dated March 10, 1971, in which he alleged
that Respondent had engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, herein called
the Act. Respondent filed an answer denying the commis-
sion of any unfair labor practices, and a hearing was held
before me in Philadelphia, Pennsylvania, on April 15, 1971.
Subsequent to the hearing, General Counsel and Respon-
dent filed briefs which have been carefully considered.
Upon the entire record in the case and from my
observations of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent is a Delaware corporation operating retail
stores in many States, including a retail department store in
Audubon, New Jersey, the establishment involved in this
proceeding. During the year prior to issuance of the
complaint. Respondent had a total dollar volume in excess
of $500,000 at its Audubon operation and, in the same
period, purchased goods valued in excess of $5,000 from
outside the State of New Jersey. Respondent concedes, and
I find, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Suspension of Charles Radford
1. The evidence and some basic findings
Charles Radford, employed for approximately 8 years at
Respondent 's Audubon store as a major appliance
salesman , was the prime mover in the Union 's attempt to
organize the employees at that store, and he has since
sometime in November 1970 been soliciting them to join
the Union.
On January 15, 1971, Radford was suspended for 3 days,
because of his activities on behalf of the Union , according
to General Counsel, but, according to Respondent, because
he had solicited an employee on company time after having
been warned not to engage in such activity while he or the
person solicited were working.
193 NLRB No. 104
J. C. PENNEY COMPANY, INC. 685
Radford admitted that he has been soliciting employees
for the Union in the store and that he has distributed to
them, in some cases while they were at work,' a booklet
entitled, "The Law and You," which contains a brief
summary of certain basic employee organizational rights as
well as a form for an employee to use to designate the
Union to represent him.
On January 14, 1971, Radford was called to Division
Manager Wilson's office. There is no question but that in
the meeting between the two, Wilson told Radford that the
Company was aware of his union activities including his
distribution of union booklets. It is also undisputed that
Wilson told Radford not to solicit on company time and
that Radford replied that he would solicit only during lunch
and rest periods.
On the following day, January 15, Radford was not
scheduled to begin work until I p.m., but he visited the
store in the morning to make a personal purchase. As
Radford was leaving the store, Alma Copeland Lee, an
employee whose supervisory status is in dispute, observed
Radford and made a remark to him about his apparel.
During their brief encounter, Radford admittedly handed
Mrs. Lee a copy of the union brochure, "The Law and
You" but there is a sharp dispute over whether he initiated
a conversation about unions and gave Lee the booklet at
her request or whether Lee first turned their conversation to
union activity and requested Radford to supply her with
additional information. General Counsel contends that
Lee, a supervisor, started the talk about unions and
entrapped Radford into an apparent violation of Respon-
dent's instructions not to solicit employees while they were
working.
Before considering Radford's and Lee's conflicting
versions of what occurred when they met, the question of
her status will first be disposed of. Although Lee does some
actual selling, her responsibilities and duties are broader
and more management oriented than those of an ordinary
salesperson, but nevertheless I find that she is not a
supervisor within the meaning of the Act.
Lee occupies the position of "selling supervisor"
according to her job description which defines her "basic
function" and "principal responsibilities and duties."
Although the word "supervises" appears in the document in
a number of places, thereby suggesting that the occupant of
the job is a supervisor, further examination of it in the light
of Lee's testimony reveals that the only area in which she
might be considered to have statutory supervisor responsi-
bility is in the assignment of employees.
With respect to the use of the word "supervises" in her
job description, this supervision seems to be sales
supervision generally, not direction of employees as such.
For example, her "basic function" is to "supervise the sales
and training activities . . . to insure optimum customer
service, maximum sales production and continuous super-
i Employee Holiday testified without contradiction that he had been
solicited by Radford three or four times while both were working Radford
also gave him a number of copies of "The Law and You" and asked him to
give them to other employees Holiday reported this incident to his
supervisor Employee Messimer also testified credibly that he was solicited
three times by Radford while at work and also received a copy of the union
brochure from him According to him, he reported these facts to his
supervisors when they asked him about it later Supervisor Dilmore
vision of the selling effort." Similarly, although the
employee "supervises and participates in the selling
service," this responsibility more specifically includes
watching customer traffic flow in order to observe whether
customers need sales assistance ; observing sales and cash
register procedures; exploiting credit programs in closing
sales; and watching for shoplifters. In addition, according
to the job description, Lee "handles customer complaints,
exchanges, refunds and adjustment," and she also conducts
credit interviews and issues charge cards, but although
these responsibilities as they affect customers and sales are
important, they are not supervisory as defined in the Act.
The job description does, however, include the responsi-
bility for "making temporary personnel assignments as
required by work load fluctuations and customer traffic
flow," but Lee testified without contradiction that her
authority in this area is restricted to asking the manager of a
department for permission to use one or more of his
subordinates in another department which is busier at the
moment. After the volume of customers subsides, she sends
the employees back to their regular departments or they
may return on their own.
Lee testified without contradiction that she has no power
to hire or fire or recommend such action; she does not
schedule employees for work; she cannot recommend
increases in pay, discipline employees, or grant time off;
she has no authority to promote employees or adjust their
grievances; employees do not report to her and that she is
not responsible for a specific department; and she does not
approve employees' timesheets and does not attend
management meetings. Lee is also hourly paid, signs a
timesheet like other employees, and is paid for overtime
worked.
I find that Lee does not exercise such independent
judgment with respect to the movement of employees from
one department to another based on the flow of customer
traffic that she can be said to be able to effectively " assign"
employees within the meaning of the statutory definition.
In the absence of other supervisory indicia, I also find that
the use of the word "supervisor" in her job title and her job
description is not sufficient to establish her supervisory
status.2
Returning to the Radford-Lee conversation on January
14, which took place in the presence of Bergeron, a
cosmetic saleswoman, while both she and Lee were on
company time chatting about matters not connected with
their employer's business, Radford testified that after he
jokingly responded to some facetious comment Lee made
about the boots he was wearing, she introduced the subject
of unions by asking him what was causing so much talk
among the employees. He replied that "we are trying to get
a union in here" and added that a union would benefit all,,
employees including Lee and Bergeron. At that point,
according to Radford, Lee asked him if he had any
testified that employee Minnick told him that Radford had solicited her at
work on more than one occasion and that he reported this information to
Gill, the store manager.
2 Besides making temporary assignments , Lee also has other
responsibilities in regard to employees , but it appears that these are only in
connection with training of employees, as far as the job description
discloses
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional "information" and he reacted by handing her
the union brochure.
Lee denied that she questioned Radford about unions or
asked him for the booklet. She testified that after a few
remarks about an unrelated subject, Radford handed her
the booklet and asked her to read it. She said she gave it
back to him and told him he could not do "that on
company time ," but he replied that he could.
As soon as Radford left, Lee said she told District
Manager Wilson, who was in the store at the time, that she
would like to see Gill, the local store manager. When
Wilson asked her why, she said she explained what had just
happened between her and Radford.
Later that afternoon Lee said she was called to the office
to repeat to a group of management representatives what
she had told Wilson earlier. Present were approximately
seven company officials, including Wilson and Gill. After
she reported what had occurred regarding union solicita-
tion, she was dismissed, and the others remained in the
room.
Lee also testified that before Radford approached her
with the union brochure, she had obtained copies of the
brochure and given them to the company officials
Virginia Bargeron, cosmetic saleslady, was present, at
least most of the time, during the Radford-Lee conversa-
tion. She testified that Lee did not start the conversation
about unions or ask for the booklet which Radford handed
her, but she conceded that she was absent for a "couple of
minutes" waiting on a customer while Radford and Lee
were talking. She said that as she left to make a sale the
union was being discussed by Radford and Lee and that
when she returned "they were still discussing the union as
far as (she) could recall." It was after she returned to the
scene that Radford gave Lee the booklet, she said. This
occurred according to her, after "a couple of more minutes"
conversation about the union. She also said she recalled
that Lee indicated to Radford that she "just didn't
understand about it and couldn't say for or against because
she didn't know the full story on what was going on." She
also said that when Radford left, Lee commented that he
had been previously warned about "handing out booklets
or anything on company time "
District Manager Wilson testified that he told Radford
on January 14 that the company did not "want (him)
approaching (employees) on his working time or their
working time" in connection with his union activities.
Radford replied that he had been conducting his activities
on nonworking time.
According to Wilson, the next day Lee told him Radford
"was bothering two of the girls on the main floor, in the
cosmetic department." A management meeting was held to
consider this information, and, after Lee made her report
and left the meeting, the question of "keeping (Radford) in
his department" was discussed and because Radford's
offense followed so closely on his previous warning, Wilson
decided to suspend him for three days.
Robert Hickey, who manages a number of store
departments and supervises Radford, testified credibly that
on January 7 he observed Radford talking with a group of
employees in the rug department. Radford told him that he
was on his break, and Hickey said he accepted this
explanation, but also warned Radford not to tie up the
other employees who were not on their breaks but were on
company time. Hickey did not know what the group was
discussing and there is no direct evidence that the subject
was unions. Hickey advised Radford of his suspension on
Wilson's instructions . He interviewed Radford in the
personnel office on January 15, 1971, and advised him that
he had "been given the unpleasant task" of suspending him
for 3 days because despite the warning that Wilson had
given him the previous day "about conducting union
activities on other people's time ," Radford had continued
the practice. Hickey said he asked Radford directly whether
or not he had "solicit(ed) Mrs. Copeland (Lee) with union
literature" that morning and that Radford stated that he
had. Since this was an admitting violation of Wilson's
previous directions, he imposed the suspension, he said.
Radford's version of the talk he had with Hickey in which
Hickey announced his suspension is not too unlike
Hickey's. Hickey reminded him that Wilson had instructed
him the day before not "to conduct union activity on
company time" and asked him if he had spoken with Lee
that morning. Radford admitted that he had, but he said
that he denied Hickey's charge that he had solicited Lee for
the Union and explained to him that "she asked me."
Hickey conceded that at some point in their talk Radford
claimed that Lee "asked him to come over and talk." He
said he told Radford that Lee had reported that it "was the
other way," and that in any case the decision to suspend
him had been made and he was merely "performing a
function" in effecting the suspension.
Hickey also testified that during Lee's report to the
management group about Radford's solicitation she did not
mention that she had spoken to Radford first. The
substance of what she did report, however, was that "she
had been approached and solicited."
B. Analysis, Additional Findings, and Conclusions
Respondent was within its rights in warning Radford to
restrict his union activities to times when he and other
employees were not working, because a rule against union
solicitation by employees during working hours is presump-
tively valid both as to promulgation and enforcement.3
Indeed, since Respondent operates a retail establishment, it
could have restricted all union activity on the selling floor if
it wished.4 The presumption of validity of a no-solicitation
rule may be overcome if it can be shown that it was adopted
for a discriminatory purpose, and, of course, if it is unfairly
applied, it will be no defense for discipline imposed under
It . 5
Radford had repeatedly engaged in union solicitation
during working time before Respondent directed him to
stop it. Although he was the Union's only solicitor and
Respondent promulgated the rule after the Union began to
3 Republic Aviation Corp v N L R B, 324 US 793, 797-798, Walton denied 329 U S 725, Marshall Field & Company, 98 NLRB 88, 90
Manufacturing Company, 126 NLRB 697, The Wm H Block Company, 150 5 Republic Aviation Corp, supra, 324 US 793, 803, In 10 ; Walton
NLRB 341 Manufacturing Company and Wm H Block Company, supra
4 N L R B v May Department Stores, 154 F 2d 533 (C A 8), cert
J. C. PENNEY COMPANY, INC. 687
organize the store, these facts alone do not establish, and I
do not understand General Counsel to so contend, that the
rule was established for a discriminatory purpose and not to
maintain order and discipline on the selling floor.
General Counsel does contend, however, that the rule
was unfairly applied against Radford, and he relies on
certain considerations in an attempt to establish his
position, but I find that certain elements necessary to
support his argument do not appear in the record and that
other factors relied on do not indicate discrimination. First,
I find that Radford solicited Lee, as she said he did, and
this finding is based on her version as partially corroborat-
ed by employee Bergeron who testified that Lee did not
start the conversation about unions. Although Bergeron left
the scene for a very brief period, the union issue had
already been injected into the conversation, and I credit her
testimony that Lee had not done it. Since Radford solicited
Lee without encouragement , the argument that he was
entrapped is materially weakened, and in the light of the
finding that Lee is not a supervisor, it is practically
destroyed.
Lee, however, could have begun a conversation with
Radford and subtly introduced the union idea into the talk
out of ordinary curiosity, but on the basis of Radford's
known proclivity to engage in union activity during
working hours for which he had been reprimanded only the
day before, I find that this would not have excused his
handing Lee a union booklet, which he admits, even if she
asked him if he had any "information" on the union issue.
If Radford was not actually flouting Respondent's rule in
those circumstances, he would appear to have been
somewhat indifferent about the consequences of disobeying
it.
General Counsel also argues that Lee was motivated by
antiunion considerations in reporting Radford to manage-
ment and that Respondent knew it. It appears from the
credited testimony of Mildred Sack, an office employee,
that a few days before Radford was suspended, Lee opened
a conversation in which she was critical of Radford's role as
the Union's protaganist. When Sack defended Radford,
Lee became conciliatory and, after noting that the booklet,
"The Law and You," was being circulated among
employees, indicated that she, too, might be willing to join
the Union if she were better informed. Sack asked her if she
wanted to read the brochure, and Lee said she did, but Sack
refused to give her one at the time at her request. Since Lee
is alleged to have broached the union question with
Radford, her conversation with Sack is pointed to as
another example of entrapment or conduct of the same
nature Lee engaged in with Radford in order to make more
sustainable the inference that Lee asked Radford for a copy
of the booklet so that she could report him to management.
I find that Lee's views or attitude in regard to the Union or
her conduct and conversation, as described by Sack, are
insufficient to warrant a finding that Respondent used her
to entice Radford into violating Wilson's recent rule against
union solicitation during working hours.
General Counsel also urges that Radford was treated
discriminatorily because Respondent took no action
against other "employees for misusing company time" and
that therefore Respondent is actually "unconcerned with
how Company time is used by employees for non-Company
business, unless that business is related to the Union." On
the basis of this "disparate" treatment, he concludes that
Radford was suspended on a pretextual basis. It appears,
however, that the activity that other on-duty employees
engage in is ordinary conversation about everyday matters,
but there is no evidence that Respondent allows solicitation
for any cause during working hours. The meager evidence
of normal employee talk at work which appears in the
record clearly does not suffice to overcome the presump-
tion that Respondent's rule is based on valid business
considerations. If employers must stifle all communications
between working employees in order to enforce a rule
limiting union solicitation on company premises during
working time, the presumption of validity which the Board,
with court approval, has established becomes practically
meaningless.
Having found that Radford violated a valid rule which
was not discriminatorily applied to him, I find and
conclude that General Counsel has not established by a
preponderance of the evidence that Respondent violated
Section 8(a)(3) and (1) of the Act by suspending him for 3
days.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following
conclusions of law:
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. Respondent has not violated Section 8(a)(1) and (3)
of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its
entirety.