Ritz Department Stores

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 57 (N.L.R.B. 1972)

RITZ DEPARTMENT STORES
Ritz Department Stores and Milton Mitsunaga and
Bruce E. Allen. Cases 37-CA-683-1 and
37-CA-683-2
November 7, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On July 17, 1972, Administrative Law Judge' Allen
Sinsheimer , Jr., issued the attached Decision in this
proceeding . Thereafter , General Counsel filed excep-
tions and a supporting brief , and Respondent filed a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be and it hereby is
dismissed in its entirety.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner: This proceeding
was heard at Honolulu, Hawaii, on May 8 and 9, 1972. The
consolidated complaint, issued March 20, 1972,1 alleges
violation of Section 8(a)(1) of the Act.
The issues are: (1) Whether Mitsunaga and Allen
engaged in concerted activity; (2) whether at the time of
termination Respondent possessed knowledge of any
concerted activity; (3) whether they were terminated
because of concerted activity; and (4) a possible issue of
whether as management trainees they could legally be
terminated for concerted activity.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs of the
General Counsel and Respondent, I make the following: 2
1 The charge in Case 37-CA-683-1 was filed January 3, 1972, and the
charge in 37-CA-683-2 was filed on January 3, 1972
2 During the course of the hearing the Respondent's answer was
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
57
Respondent, a Hawaiian corporation, is engaged in the
operation of retail stores on the island of Oahu, Hawaii.
During the past year, it had gross revenues in excess of
$500,000, and in the course and conduct of its business,
purchased materials and supplies valued in excess of
$50,000 directly from suppliers located outside the State of
Hawaii. I find Respondent is, and at times material has
been, an employer engaged in commerce and operations
affecting commerce within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Preliminary Facts
On September 18, 1971, Respondent employed Milton
Mitsunaga and Bruce Allen as management trainees, with
their work consisting largely of selling and also handling of
stock. Although the General Counsel contends that their
position was merely that of sales trainees, it appears that
the Respondent hired them with the expectation that they
might (or would) eventually become part of management.
Sales training was an initial step, to be followed by systems
training, including handling cash registers, changing tapes
and learning matters about the sales floor; with the third
step then being actual exposure to supervision. As
management trainees, they were given overtime, expected
to read the executive bulletin board, and treated as a part
of the overall management structure. A number of such
prior trainees have become part of management. Mitsuna-
ga was a Japanese who graduated from college while Allen,
who is Caucasian and younger, being 19 at the time of
employment, was a high school graduate. Mitsunaga was
told when employed there was a 3-month probationary
period and a training period that would last about a year.
B. The Alleged Concerted Activities
On November 20, employees were informed of the death
of Mrs. Kamuri, a cofounder of the Respondent, and
notified of the time and place of the funeral. There was
also a request made to contribute flowers to the funeral.
Several days thereafter, Mitsunaga observed a notice
posted on the bulletin board, which contained the names of
17 employees (including himself) who had not contributed
for flowers. According to Mitsunaga, he complained about
this to Allen and other employees to whom he said he
stated he thought the contribution was supposed to be
voluntary and this action was "arm twisting." Mitsunaga
testified that he said to his supervisor, Taketa, "Well, I
guess I'll have to pay the dollar now," to which Taketa
responded, "Yes, if you want to." Mitsunaga did not
attend the funeral because his relationship with the
deceased was "strictly business." Mitsunaga gave Mrs.
Nakamura, the store manager, a dollar without comment.
Allen testified that after Mitsunaga spoke to him he saw
the same list of names (including his) on the bulletin board.
amended and it was also admitted that Alvin Taketa was a supervisor within
the meaning of the Act.
200 NLRB No. 10
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He spoke to Mitsunaga and several other persons whom he
named about this and said that Mitsunaga told him he
thought it was "somewhat arm twisting." Allen felt it was
somewhat voluntary but, if they didn't contribute, he was
afraid of what the results might be. Thereafter, he went up
to Mrs. Nakamura to talk to her about the funeral and the
dollar donation. She told him it was good Japanese policy
to go to funerals and the donation was part of it. He told
her he personally didn't believe in funerals and the
ceremony thereof. Allen asked if it would be better if he
were to donate the dollar and Nakamura replied "Yeah, it
would probably be better." Allen then gave her the dollar.
Allen indicated that he felt it should be called a bill and
taken out of their checks. Whether this may be viewed as a
protest is a matter of argument but I do not consider it to
have been concerted activity.
About December 10, Respondent posted a notice
informing employees of participation in a grab bag for
Christmas gifts. Marsha Yoza, a supervisor, approached
Bruce Allen and told him that she was there to remind him
of the grab bag. He said he would rather not participate
and that he didn't believe in getting or receiving gifts. Yoza
explained that it was a store policy and that as part of the
management level they should try to perpetuate the
Christmas spirit feeling in the store. Yoza talked to Store
Manager Elaine Nakamura about Allen's response and
was told not to push it, tojust let it be. Thereafter she told
Allen she had crossed his name off the list. He responded
"Thank you, I appreciate it." Allen did not participate in
the grab bag and did not mention to Yoza that he had
discussed the matter with Mitsunaga. Yoza was the only
management representative Allen spoke to.
Yoza testified she also spoke to Mitsunaga about
participating in the Christmas potluck. Mitsunaga said he
would rather not. Yoza told him she'd see what she could
do about it. Later she returned and told him his name had
been removed from the list and he did not have to
participate, whereupon Mitsunaga said that he would
participate. Mitsunaga then did participate. In his conver-
sation with Yoza, Mitsunaga did not mention Allen.
Allen and Mitsunaga discussed the matter among
themselves indicating their disagreement with the program.
They testified that they also mentioned it to other
employees. Yoza reported the separate conversations with
Mitsunaga and Allen to Miss Rose Kamuri (Shigemura),
president of the Company, shortly after her discussions
with Mitsunaga and Allen. Mitsunaga testified that he had
but one conversation with Yoza about the potluck gifts.
She asked him whether he would participate in a $5 grab
bag. He said "no;" she appeared disappointed and asked
him whether he wanted to participate; he said "no" and
asked if it was mandatory. She told him that it was not but
everybody would be participating Mitsunaga then said he
would participate. Subsequently Mitsunaga was ap-
proached by an employee to draw in a grab bag. He
thought it was a $5 grab bag but, after he drew, found it
was a $10 bag for management personnel. The next day
Mrs. Nakamura brought a $5 grab bag from which he drew
a name. Mitsunaga testified that after he drew a total of
3 Shigemura also testified as to meeting Allen's father and learning from
him that Allen was a little headstrong, of a rebellious attitude, and learning
$15 worth of grab bag vouchers he mentioned it to Taketa,
saying that $15 was too much. Taketa simply told him he'd
get something back, "so don't worry about it."
The foregoing may be claimed to be concerted by the
General Counsel but I do not so view it and conclude that
there was no concerted action to this point. The General
Counsel also relies on events at the time of the termina-
tions of Allen and Mitsunaga on December 21 to be
discussed hereafter.
C. Terminations of Allen and Mitsunaga
Thomas Shigemura, vice president of Respondent and
husband of Rose Kamun, the president of Respondent,
testified that the first 2 weeks of Allen's employment had
been superb but that Allen started to change thereafter,
became slow in reaching customers and seemed to have
some difficulties in meeting and handling them. Shigemura
said he also spoke to Allen about a "filthy habit of putting
pins in his mouth" and apparently picking his teeth as he
waited on customers. Shigemura testified Allen said he
would stop this but had to be reminded again to
discontinue it. Shigemura said he also criticized Allen for
the length of conversation with customers having observed
on numerous occasions "he chit chatted with single girls."
Allen admitted the "pin picking." Shigemura said he did
not give specifics to Miss Kamuri but discussed Allen's
performance generally. In an evaluation prior to Thanks-
giving according to Shigemura it was considered that Allen
had3 the potential and desire for supervision but was
somewhat immature. Shigemura testified that in discus-
sions with Fontana, the operation's manager, Shigemura
said that he liked Allen's enthusiasm but recognized
Allen's immaturity. Shigemura considered Mitsunaga to be
quiet, reserved, and withdrawn. According to Shigemura,
Fontana thought Mitsunaga should be released but at that
time Shigemura felt he should be kept on to about
Christmas to see whether there was ability not yet
manifested. Shigemura testified that in mid-December he
concluded that Mitsunaga was neither salesman-minded
nor fashion-minded in the sense of suggesting clothes or
accessories for men.
On December 21, Mitsunaga and Allen were informed
that they were terminated by Miss Kamuri. There is
dispute as to the sequence of events as testified to by Allen
and Mitsunaga and Miss Kamun.
According to Allen, on December 21, he had two
conversations with Kamuri, the first at about 1 p.m. when
she came up and told him, "Chris, I understand you do not
believe in receiving gifts." Allen said he did not comment
at that time. According to Allen, Kamuri then said he was
a self-centered or selfish SOB and I said, "Well, I don't see
how those words are justified." Allen said he did give to
relatives but didn't believe in "giving and receiving" in this
instance. Allen testified a second conversation occurred at
about 10:15 p.m. when Kamun asked him to come in the
back section of the store where Mitsunaga was present and
also Shigemura, Mrs. Nakamura, the store manager, and
Taketa, the men's department manager . According to
of his leaving home
RITZ DEPARTMENT STORES 59
Allen, Miss Kamun said that the men's department
employees were not working as a group and would have to
pull together to have good sales. She then turned to Allen
and referred to his "not attending the funeral and not
giving a dollar donation."4 Allen testified she then
"mentioned as far as the grab bag, that it was store policy,
that this was to be done." Allen said he didn't believe in
giving and receiving and didn't believe in funerals.
Discussion continued, with Allen saying the dollar dona-
tion could have been taken out of his check. Allen testified
Miss Kamun said "Well, I hope that your mother dies
tomorrow." According to Allen, Kamun then talked to
Mitsunaga about the funeral and wondered why he didn't
attend. Mitsunaga replied his relationship was strictly
business and that if his mother were to die he would not
expect Miss Kamuri to come to the funeral, not knowing
her. Miss Kamuri disagreed and called him a "haole
[Caucasian] with a Jap face."
Allen said Kamun then asked about whether Nakamura
made him donate the dollar and he replied that she did not.
However, Allen said he didn't want to do so. Kamuri asked
Mitsunaga the same and then according to Allen stated
"I'll give you your dollar back with interest." Kamuri left
and then returned and gave Mitsunaga and Allen their
dollars. She then said to Allen and Mitsunaga "I don't
want to see either of you here again in the store after
Friday." Kamun then left. Allen testified Mitsunaga asked
how this would go down in the records and Shigemura said
"Well, it would probably go down as a seasonal layoff."
On Thursday morning, thereafter, Allen saw a notice on
the bulletin board referring to his termination.
Milton Mitsunaga testified that on December 21 about
10 o'clock at night Kamuri talked to him in the men's
department. Present were Shigemura, Nakamura, Bruce
Allen, and Alvin Taketa. Mitsunaga stated Kamun started
out by stating she wanted the men's department employees
to work more as a team and then "began going" after
Bruce Allen because he had not participated in the grab
bag. Kamuri asked Allen why he didn't. Allen replied he
didn't believe in giving gifts to someone he didn't even
know. Thereupon Kamuri called him an "egotistical
bombastic" SOB. She then asked both of them why they
had not contributed a dollar for funeral flowers. Bruce
Allen stated he didn't believe in funerals. Mitsunaga added
that Kamuri also said he (Mitsunaga) was reluctant to pay
the dollar. Mitsunaga testified that, after Allen replied he
didn't believe in the ceremony of funerals, Kamun said to
Allen, "Well, I wish that your mother would die tomor-
row." Kamuri then asked Mitsunaga why he didn't attend
the funeral. Mitsunaga told her he had no personal
relationship with her mother and his relationship with her
was strictly business. She thereupon called him a "haole
with a Japanese face." Kamuri then said "Well, I don't
want to see either of you two at the store anymore after
Friday." Kamun left and Mitsunaga asked how it would
go on the record. Shigemura said, "Well it would probably
be a seasonal layoff." Thereafter Kamun came back and
said that she was paying them money while they were
standing there and told Bruce Allen to leave. Kamuri told
Mitsunaga to stay and said that she thought he was a better
Japanese than that and that he was more prudent and
again told him he was "just a haole with a Jap face."
Mitsunaga said a day or two later he saw the notice on the
bulletin board stating that he had been terminated.
Miss Kamuri testified that on a Sunday in October, she
spoke to Mitsunaga and asked him what was his interest in
retailing; that he responded he wasn't sure and thought he
preferred civil service; that she told him maybe he could
give it a try for a little longer but if civil service was his
interest she couldn't stop him. Thereafter she received a
report in November about Mitsunaga from Fontana, the
operation's manager, who said that he considered Mitsuna-
ga "too mousey and too quiet an individual to consider for
management." Fontana also said to her that "We'll have to
get rid of him." Shigemura mentioned that Mitsunaga's
sales aptitude was low and he was very introverted.
According to Kamuri, Shigemura spoke to her from time
to time about Allen's attitude, usually in a meeting.
Shigemura stated Allen was hardheaded and contradicted
orders and that there was always an argument to every
issue that was brought up. Fontana told her in December
in response to a question about Allen's disposition "Blow
it, he's too immature; forget it." She asked Taketa in
December about Bruce Allen going into management and
Taketa responded "Absolutely not, he's too immature, too
many problems." Kamun said she decided to terminate
Allen about 2 weeks or so before Christmas when Miss
Yoza told her that Bruce Allen did not believe in gift giving
whatsoever. She felt that a "great majority of business is
done in gift giving and therefore this is one of the most
important essential things in business." She already had
Allen's termination in mind. Kamuri testified it was her
understanding from Yoza that Mitsunaga did participate
reluctantly in the gift giving program. On December 21
according to Kamuri, after 9:30 p.m. when the store closed,
she spoke to Allen with no one else present at the time. She
told Allen "I don't think retailing is for you." Kamun
further testified:
Q. And what happened after that?
A. And he said, "Why?" And I said, "Because you
don't seem to cooperate in many of the things that we
do," one of which, I stated, was the gift giving.
To which he responded, "I don't believe"-in a very
angry tone-"I don't believe in giving gifts to anyone
nor receiving gifts."
Q. What did you say then?
A. And I said, "Well, this can't be in retailing. You've
got to receive and give gifts because this is part of
retailing."
Kamuri then testified she said "Also as a management
trainee why is it that you didn't attend my mother's
services?" Kamun said Allen responded, "Because I don't
believe in funeral services of my friends or anyone. And if
my mother should die, I wonder if I would go." Kamun
testified she became angry and said "If your mother died
tomorrow, I hope that you would have some compassion to
go. You're just a self-centered, ego-centric son-of-a-bitch."
Kamuri then said "Well, for these reasons and attitudes,
the objections you have to orders given to you, the
decisions that I have heard around, so let's forget it. Friday
4 Which he had given to Nakamura reluctantly
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is your last day. It is time, anyway, and you'd better leave
because I don't think you want retailing." According to
Kamuri, Allen said "Yes, I don't think retailing is for me."
There was a discussion about the dollar gift to the funeral
fund in which Allen told her he didn't want to give it and
she told him he didn't have to.
Kamun testified at that time she was in the center of the
men's department. She then proceeded to where Milton
Mitsunaga was about 20 feet away and told him, "I think
your time is up and I don't think retailing is for you,
Kamura asked him "Why didn't you attend the services of
my mother?" Mitsunaga responded, "I don't think I should
attend a funeral of anyone I don't know." The discussion
continued about him being from Okinawa and Japan.
Mitsunaga said that didn't make any difference. Kamuri
told him "Well, you're a Japanese with a haole mouth."
She meant an Oriental is not normally very articulate as
compared with a Caucasian. Kamun then said, "Well, all
right, I think that there's too much in contradiction, [sic]
besides you don't seem to like retailing. I think we'll
consider the end of this week your last day which is the
24th." Kamuri testified Mitsunaga at that point didn't say
anything about the dollar for the funeral fund. She left the
department and called Mrs. Nakamura who was across the
way and asked her if she still had the money they had
collected. Kamun received $2 from Nakamura and walked
over and gave one to Allen. She then walked over to give
one to Mitsunaga. Mr. Shigemura then walked in. Kamuri
said to him, "I want you to be in on this, I have just
terminated the two boys." According to Kamuri, she
handed a dollar to Mitsunaga. He responded in an angry
tone and said "How about paying the interest." She said
she didn't owe any interest.5
Kamuri testified she obtained information about Mitsu-
naga from Shigemura, Fontana, and from looking at the
overall. She said she was first aware that Mitsunaga had
not gone to the funeral when she began to talk to him on
December 21 and he didn't agree with some of the things
that were going on. She then learned that he hadn't gone to
her mother's funeral.
Shigemura said he had just come from another store and
encountered the situation while in process. Shigemura
testified as to the use of strong language by Miss Kamuri
during the time he was present and that, while he knew she
gave the money back, he didn't see her give a dollar to
Allen. Shigemura said there were present Allen, Mitsunaga,
and Miss Kamuri. When Kamuri left, he spoke to Allen
and Mitsunaga and mentioned that he thought it was best
all around. Shigemura was asked as to the reasons for the
termination. Although Shigemura did not actually effect
the termination, he testified that a supervisor would have
to be one who would lead and serve as a good example,
that there was a matter of immaturity, that they had failed
to be cooperative, and that there was a general feeling of
rebellion which he felt was not good in supervision.
The termination notice in the case of Mitsunaga reads as
follows: "Conflicting philosophies with employer ... .
Does not believe in receiving or giving gifts . . Lacks
5 There is also some testimony thereafter about a subsequent discussion
with Allen in which he indicated his attitude may have been wrong and
simple courtesies accorded to fellow human beings.
Interest not in retailing ... .
The termination notice in the case of Allen reads as
follows: "Does not agree with philosophy of management
... Does not also believe in receiving gifts. Also does not
believe in simple courtesies that are paid to fellow human
beings or workers without feeling that a intimate relation-
ship is needed, as a requisite. As an assistant or potential
executive . . . we cannot accept this type of individualistic
philosophy vs. company oriented philosophy which is
needed."
D. Conclusions
First, I have noted Shigemura's testimony as to a
discussion with Allen's father concerning rebellious aspects
of Allen's leaving home, Allen's contradictory attitude on
the job, and his immaturity, as well as that of Kamun to
the same effect, and also Shigemura's and Kamuri's
testimony relative to discussions with and comments by
other supervisors, including Fontana and Taketa, as to
both Mitsunaga and Allen. I also observed both Mitsunaga
and Allen while they testified and were in the hearing
room. I noticed that Mitsunaga was quiet, reserved, and
did not appear to manifest a personality inclined toward
saleswork. Allen was more outspoken and appeared to be
more outgoing, but also manifested some indication of
what might be described as a challenging attitude which
could or might manifest itself in a form of opposition,
possibly viewed as rebellious toward orders and conduct in
a store. In the young, such is neither unusual nor
necessarily undesirable. A certain amount of questioning
or challenging attitude is, in my judgment, desirable.
Further, Mitsunaga and Allen appear to be intelligent
young men which is why they were selected by Respondent
for the training program. At the same time, Mitsunaga,
both from testimony and observation, appeared to mani-
fest a certain reserve which may not be desirable in a sales
force and Allen, an attitude reflecting immaturity. The
matter of the funeral is one as to which people may differ
both culturally and generation-wise. However it is clear
from the testimony of both Shigemura and Kamun that it
was important as both Japanese culture and store policy
that supervisory personnel attend funerals of employees
whenever time would permit. Accordingly such would be a
necessary aspect of the training and development of
supervisors. As for the gift giving, while the attitude of
Mitsunaga and Allen as individuals is understandable, so
also is the store policy where so much of its business is
dependent thereon. Hence, the Respondent was entitled to
expect adherence to its policy of both salespeople and
management trainees. From the record as a whole and my
observation of the witnesses, as set forth above, I am
crediting Kamuri's (and Shigemura's) testimony as to the
reasons for the termination of Allen and Mitsunaga.
A first question is was any concerted activity involved.
Except possibly for the evening of September 21, insofar as
Mitsunaga and Allen were concerned, it appears that their
actions were personal reactions, which may have coincid-
Kamun offered part- time work if he wanted it while attending school
RITZ DEPARTMENT STORES 61
ed, against the funeral, the dollar payment, and the gift
giving policy, but that no concerted action as such was
taken. The General Counsel's argument then is predicated
on the action of termination on December 21, which he
contends manifested an attitude or treatment by Respon-
dent of Mitsunaga's and Allen's conduct as concerted
action and a termination therefore. This in turn must be
predicated on a contention that since the two were treated
either together or at about the same time and the
terminations involved two of the same matters which Allen
and Mitsunaga had objected to, the terminations must
have related to and been because of concerted activity. As
part of such contention, it would be necessary to accept the
versions of Allen and Mitsunaga that they were called
together at the same time rather than that of Kamuri and
Shigemura that they were spoken to separately. But even
assuming, arguendo, these management trainees who had
been employed at the same time were called together and
terminated at the same time for reasons in part the same or
similar, including matters which they had separately
objected to, it does not follow that concerted activities
were involved. More important, even assuming, arguendo,
that their objections were concerted or that Respondent
thought they were, it does not follow they were terminated
because of concerted activity.
The cause of termination appears quite clearly to have
been the management's resolution that Mitsunaga did not
have the personality for the job and that his views were
contrary to Respondent's philosophy both as to attendance
at funerals and gift giving which the latter, management
believed, was essential to its sales. In Allen's case, it is
evident that Respondent believed he was immature,
somewhat rebellious, and also did not agree with its
philosophy or approach as to either attendance at funerals
or gift giving which it was entitled to expect both of its
6 That knowledge is a prerequisite See N L. R B v Burnup & Sims, Inc,
379 U.S 21 at 23.
r See Continental Oil Co, 161 NLRB 1059 , and cases cited
8 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,
salespeople and persons training for a management
position.
First it is evident that the mere fact that persons take like
positions doesn't make the action concerted. Nor does a
termination for like positions necessarily make such a
termination one for concerted activity. For example, if
employees oppose individually or concertedly company
rules as to absenteeism or tardiness, are either repeatedly
tardy or repeatedly absent and thereupon are either
individually terminated, or several persons are terminated
at the same time for violations of these rules, such
terminations, absent anything more, would be proper and
valid. The situation herein does not appear to be any
different. Respondent has certain policies as to what it
expects of salespeople and management trainees. If these
persons do not meet or conform to these requisites, a
termination is in order therefore. Mitsunaga and Allen
were accordingly properly so terminated. I conclude first
there was no concerted activity on their part and since
there was none, management could not have known6 of
any, and in any case they were not terminated because of
any concerted activity but for good cause.? This makes it
unnecessary to consider the question of whether or not, as
management trainees engaged in concerted activity, they
could be terminated therefor.
I accordingly find that the General Counsel has not
established either concerted activity, knowledge of concert-
ed activity, or that Mitsunaga and Allen were terminated
because of any concerted activity. I shall accordingly
recommend that the complaint herein be dismissed.
RECOMMENDED ORDER8
It is accordingly recommended that the complaint herein
be dismissed in its entirety.
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