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Wegmans Food Markets, Inc. and Edwin R. Melhorn. Case 5–CA–33228
November 29, 2007
DECISION AND ORDER
By Members Liebman, Schaumber, and Kirsanow
On August 3, 2007, Administrative Law Judge Richard A. Scully issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed 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 decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended
Order.
ORDER
In addition, some of the Respondent’s exceptions imply that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit.
The
recommended Order of the administrative law judge is adopted, and the complaint
is dismissed.
Dated,
Wilma
B. Liebman, Member
Peter
C. Schaumber, Member
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
James C. Panousos, Esq. and Anne K. Yereniuk, Esq., for the General Counsel.
R. Michael Smith, Esq., of
DECISION
Statement of the Case
Richard A. Scully, Administrative Law Judge. Upon a charge and amended charge filed by Edwin R. Melhorn on September 13 and December 12, 2006, respectively, the Regional Director for Region 5, the National Labor Relations Board (the Board), issued a complaint on December 22, 2006, alleging that Wegmans Food Markets, Inc. (Respondent), had committed certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The Respondent filed a timely answer denying that it had committed any violation of the Act.
A hearing was held in
Findings of Fact
i. jurisdiction
At all times material,
Respondent has been a
ii. alleged
unfair labor practices
The complaint alleges that Charging Party Edwin R. Melhorn was unlawfully terminated by Respondent because he engaged in concerted activity protected by the Act and because it mistakenly believed that he was involved in activity in support of a union. It also alleges that Melhorn was unlawfully interrogated by supervisors concerning his union and protected concerted activities.
Melhorn was employed by Respondent at its
Melhorn was hired as an entry-level employee and began working cleaning and assembling shelves before the store opened to the public in October 2005. Once the store opened, he was assigned to the customer service desk where he worked until December 2005. In early November 2005, Melhorn met with area manager Douglas Porter, employee representative Laurie Katerle,2 and his immediate supervisor JoAnne Handy-Sims to discuss alleged deficiencies in his job performance at the customer service desk. During the meeting, Melhorn criticized Handy-Sims as “unapproachable,” said he was “not one of her favorites,” that she treated every mistake he made as a ”federal offense,” and he said that he had not been properly trained to do his job. It was agreed that they would meet again in 2 weeks to see if there was any improvement.
On November 25, 2005, Melhorn had an argument with an
African-American employee at the customer service desk. When Front End manager Andrew Kujawa
attempted to interview Melhorn about what had occurred, Melhorn said that he
did not want to discuss it because in
When Melhorn’s performance at the customer service desk did not improve, he was reassigned to work as a cashier. Porter testified that this was done because Melhorn’s performance at the customer service desk was substandard, that he had been trained to operate a cash register as a part of his customer service duties, that he was unhappy working under Handy-Sims, and that the cashier position involved fewer tasks than the customer service desk. Melhorn was not happy about this reassignment and complained about it in a letter to Katerle, dated December 5, 2005. The letter accused Kujawa of defaming and lying about Melhorn, accused Respondent of retaliating against him because he had reported being discriminated against by his supervisor at the customer service desk, and stated if the matter was not resolved to his satisfaction he was “prepared to take appropriate steps to correct this injustice.” On December 10, Melhorn sent a letter to Store Manager Wendy Webster requesting a meeting with her and Company CEO Danny Wegman to discuss the list of complaints he outlined therein. This was followed by another letter to Webster, dated December 16, repeating his complaints and stating that if she did not respond by December 19, he was going to contact Danny Wegman.
On December 21, Melhorn met with Webster and Employee Representative Karin Flanagan. Webster told Melhorn he was a valuable employee and she wanted to see him continue working at the store. They eventually agreed that Melhorn might be happier in a job which involved demonstrating products in the cheese shop section of the store. He was then assigned to reshopping (putting items back on the shelves), until March 2006,3 when he began working in the cheese shop.
During the approximately 6 months that he worked in the cheese shop, Melhorn received a number of counselings, two warnings, and a suspension for violating work rules. Before starting in the cheese shop, Melhorn had to complete a computer-based training program on food safety. Among the areas included in these instructions is Respondent’s “glove rule” which requires that anytime employees touch something that could potentially contaminate the food they are demonstrating, they must wash their hands and put on new plastic gloves. On several occasions, Melhorn violated the glove rule or other parts of the food safety policy. The violations included wearing his gloves out of his work area, failing to change his gloves after eating a piece of cheese and after blowing his nose, failing to sanitize a knife he had dropped on the floor, wearing a mesh protective glove while eating in the break room and while entering a restroom, and attempting to reuse food that had been thrown in the trash. As a result, Melhorn ended up taking the food safety course a total of three times. He also violated Respondent’s timeclock rule by making a purchase in the store while on the clock instead of while off the clock or during a break period. On August 5, Melhorn was suspended for 3 days for going into the bakery and taking a cookie from a sample bin with his bare hand which required that the remaining cookies in the bin be destroyed. He had previously been told by a bakery supervisor that he had to use a glove when removing cookies from the bin. Cheese shop Supervisors Monika Thompson and Erin MacMillan and Service Area Manager Shawn MacKay, all of whom had counseled Melhorn about glove rule violations, credibly testified that Melhorn often made sarcastic comments and/or engaged in conduct they considered mocking and disrespectful by waving his gloved hands or mentioning the number of gloves he had used during a shift.
On August 7, Melhorn sent a
letter to Respondent’s CEO Wegman complaining about the management of the
Melhorn testified that when he arrived at the meeting he was surprised to find Flanagan present because she had not told him she would be there when she arranged the meeting. Flanagan offered to leave but he told her to stay. Webster said she wanted to discuss his letter to Wegman and that he could meet with her or meet with Ferrera and Stickles, but not both, and he agreed to talk to Webster. Webster began by saying she didn’t know how to satisfy him. Melhorn responded that she should treat him like every other employee and Webster said she could not treat 800 employees the same. Melhorn said that he wanted to discuss his letter, that he had been treated unfairly, that he had been accused of stealing time, that he had been followed around the store on three occasions, and that he had been falsely accused of food safety rule violations. He also said that there were morale problems in the cheese shop, that the employees were frustrated, and “the place is ready to explode.” He said that there were morale problems in his old department customer service. Melhorn next said that he felt Wegmans needed an independent representative in labor relations decisions and a fair process for appealing disciplinary actions. At that point Webster threw up her arms and said: “you’re talking union, aren’t you? That’s what you’re talking about. You’re talking about the union. We don’t need a union here. Have you been soliciting employees?” Melhorn said he had not, but that employees had come to him, referring to morale problems in the cheese shop and customer service desk. Webster concluded by saying she would try to set up a meeting for him with either Ferrera or the human resources representative. When asked if he had anything else to say, Melhorn responded that he had noticed a startling parallel between his treatment at the store—being followed and under constant surveillance which made him afraid to walk around in the store—and “the Gestapo-like tactics of Nazi Germany.” Webster responded that he would hear from them and he left the office.
Webster testified that
at the start of the meeting she told Melhorn that she wanted to discuss his
letter to Wegman and asked how she could help him. She said that Melhorn seemed unhappy and
angry that the company CEO had not come from
Flanagan testified that at the meeting Melhorn was upset that the CEO was not there and that he was disrespectful, confrontational, and hostile. He said he was concerned that the Company had accused him of stealing time and it was trying to build a case against him, that he was intimidated by his suspension, and that people were following him around. He said that morale was bad in the cheese shop and that the manager was a “manipulative and nasty young woman.” He told Webster that “the company was a Nazi-like environment” and said “the truth hurts, doesn’t it?” Melhorn said that an independent third party was needed to review Wegmans’ labor relations decisions and Webster referred him to the “You First” and “Ask Jack” programs. She said she did not know what Melhorn meant by “an independent third party,” that Melhorn did not say what he meant by his references in his letter to a third party review of labor relations decisions or a fair process for appealing disciplinary actions, and that he was not asked any questions about either subject. Melhorn did not make any comments about the need for a union at Wegmans and did not indicate that he was active on behalf of a union. He was not asked any questions about his union activities or sympathies or whether he was attempting to organize or unionize the employees.
Melhorn was told to meet again with Webster on on the following day at 9 a.m. Following the meeting and again the next morning, Webster discussed what had occurred with Ferrera and Stickles. They discussed Melhorn’s work history, the previous incident involving his disrespect toward other employees, and his multiple problems in the cheese shop and concluded that he should be terminated. When Melhorn arrived at her office the next morning, Webster was on the telephone and, at approximately 9:20 a.m., Melhorn left the store. Around 11 a.m., Webster telephoned Melhorn and told him that he was being terminated “due to disrespect.” Melhorn asked for a copy of the termination notice but Webster declined to provide it to him. A memorandum in Respondent files prepared by Webster states that Melhorn was terminated for numerous work rule violations and for his disrespectful comments to Webster that the store was a “Nazi-like environment,” “you don’t want to hear the truth” and “the truth hurts doesn’t it.”
Counsel for the General Counsel asserts that Melhorn was
terminated in retaliation for his union and other protected concerted
activity. The evidence shows that on
April 6, Melhorn went to the
Melhorn testified that shortly after he began working in the cheese shop in March, he spoke with some coworkers, whose full names he did not know, about conditions there because some of them did not appear to him to be happy. He said that one employee named Donna told him that morale in the department was poor, that they were frustrated, and that the place was ready to explode. Donna did not say what she meant by this and he did ask her. Melhorn testified that a week or so later he spoke to Flanagan and informed her as to what he had been told about the morale problems in the cheese shop, the employees’ frustration, and it being about to explode. He told Flanagan that the employees had taken their concerns to human resources but that nothing had been done and told her that this made him wonder “if third party representation is needed in a matter such as this.” Flanagan did not ask him what he meant by “third party representation,” but told him there was no need for it. Melhorn testified that he again raised the need for “an independent third party representative” during a meeting with Flanagan on June 10 in which he was reprimanded following a customer complaint about a glove rule violation. Flanagan did not ask him what he meant and he did not explain but she said she did not agree with him. In a follow-up meeting several days later with Flanagan and Katerle, Melhorn told them they were not true employee representatives which were needed in the store and said he was talking about “an independent third party representative.” Katerle asked him if he didn’t like the way things were done at the store why he didn’t leave. He responded that he needed the job and that he wanted to be an agent of change.
In her testimony,
Flanagan denied that these conversations about an independent third party
representative ever took place, saying, that Melhorn had never come to talk to
her about morale in the cheese shop, never said that the cheese shop was ready
to explode, and, prior to August 22, had never said anything to her about the
need for third party review. Katerle
testified that she met with Melhorn in June, after he asked to see his personnel
file, and that Flanagan was present.
They discussed his concerns about the store management and Melhorn said
that people were following him and watching his every move. She asked why he chose to work there if he
was so unhappy and he responded that he was 80 years old and that this job was
his last resort. Melhorn said that he
wanted to see things changed. She told
him to jot down what he would like to see changed and they would meet again to
discuss what they could do to make the changes happen. The conversation ended after Melhorn said he
did not need to see his personnel file but he never followed up with her about
the changes he wanted to see. Katerle
denied that Melhorn said anything about morale in the cheese shop or the store
or that he said anything about the need for employee representation by an independent
third party at the store.
Analysis and Conclusions
In cases where an
employer’s motivation for a personnel action is in issue, it must be analyzed
in accordance with the test outlined by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 800 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under Wright
Line, the General Counsel must persuade the Board that animus toward
protected activity on the part of employees was a substantial or motivating
factor in the employer’s decision. Once
that has been done, the burden shifts to the employer to demonstrate that it
would have taken the same action even in the absence of protected activity on
the part of the employees. Manno Electric, 321 NLRB 278, 280 at fn.
12 (1996). The General Counsel’s initial
burden is met by proof of protected activity on the employee’s part, employer
knowledge of that activity, and employer animus toward it. W.R.
Case Cutlery Co., 307 NLRB 1457, 1463 (1992).
It is clear that Melhorn did not engage in any activity in
support of the Union beyond a single visit to its
Counsel for the General Counsel contends that Melhorn was engaged in protected, concerted activity when he sent his letter to CEO Wegman and when he discussed it with Webster on August 22. I do not agree. The standard for determining whether an employee’s activity is concerted is found in the Board’s decision in Meyers Industries, 281 NLRB 882 (1986), where on remand, it reaffirmed the definition set forth in its prior decision in the case, Meyers Industries, 268 NLRB 493, 497 (1984), that it must “be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” The only evidence in the record of Melhorn’s alleged concerted activity consists only of his own self-serving testimony.
I found Melhorn to be a singularly unreliable witness who appeared to be unable to admit any failings or accept personal responsibility for his actions. The record shows that when he was criticized or reprimanded for ineptness or work rules violations, he consistently claimed that he did not commit any violations, that he was not properly trained, and/or he was the victim of a plot by management to build a case against him. The evidence shows that although Respondent made special arrangements to permit him to take a food safety training program three times, he repeatedly violated Respondent’s glove rule that was a part of that training. Melhorn admittedly deliberately lied on the employment application he submitted to Respondent (omitting the fact that he was a college graduate) because he had “been advised” that if he indicated that he was a college graduate he would probably be considered “over-qualified” for the entry level job he was seeking. In an affidavit Melhorn gave the Board in which he was asked to describe the meeting with Webster and Flanagan on August 22, during which he made comments that led to his termination, he omitted any reference to accusing Webster of running a “Nazi-like environment” or saying that she “didn’t want to hear the truth.” He now admits saying those things but testified that he did not think they were “important.” Melhorn told Maryland Unemployment Insurance adjudicator Robert Marker that his remarks were not disrespectful and that he felt justified in accusing management of being “Nazis” because that is what they were. He also told Marker that he had become enraged during the August 24 meeting with Webster.
I do not credit Melhorn’s testimony about his purported conversations with other employees of the cheese shop about problems there. No other the cheese shop employee corroborated his testimony and his claims about the employees’ unhappiness were refuted by the credible testimony of MacMillan, Webster, and Flanagan. However, even taking Melhorn’s testimony at face value, it fails to establish that he did anything “with or on the authority of other employees” or even sufficiently identify who those employees might be. According to his vague, generalized testimony, Melhorn talked to some employees shortly after he began working at the cheese shop because some of them looked unhappy. An employee named “Donna” told him that morale in the cheese shop was bad, that the employees were frustrated, and the place was ready “to explode.” Although Donna did not say what she meant by any of this (and Melhorn did not ask her), it was the alleged basis for his actions in contacting management. There is no evidence that Melhorn discussed taking any action about perceived problems in the cheese shop with any other employee or that any other employee was aware that he was going to contact Human Resources about those problems or write a letter about them to the CEO of the company. There is also no evidence that any other employee authorized Melhorn to speak on his or her behalf.
In his letter to Wegman, Melhorn offered his view of the
Counsel for the General Counsel contends that, even if Melhorn did not actually engage in any union activity or in any concerted activity, Respondent thought that he did and that is why it terminated him. I did not believe Melhorn’s testimony that he repeatedly voiced his concern that independent third party employee “representation” was needed at the store to human resources personnel, based on his overall lack of credibility, the complete absence of any corroborating evidence, and the credible denials by both Flanagan and Katerle that he ever mentioned it to them. In his August 7 letter to Wegman, which was discussed at the August 24 meeting that resulted in his discharge, Melhorn stated that morale at the store was slipping because of “onerous conduct on the part of Hunt Valley management and also the fact that Wegmans does not provide an independent third-party review of labor relations decisions or a fair process for appealing disciplinary actions.” This, it is argued, led Respondent to believe Melhorn was advocating that there be union representation of employees at the store and that was the motivation behind and the real reason for his discharge.
The only support for this argument is Melhorn’s
self-serving testimony that at the August 24 meeting with Flanagan and Webster,
when he said that Wegmans needed “independent third party representation in
labor relations decisions” and “a fair process for appealing disciplinary
actions,” Webster threw up her arms and said: “You’re talking union, aren’t
you. That’s what you’re talking
about. You’re talking about the union. We don’t need a union here. Have you been soliciting employees?” I did not believe his testimony. First, both Flanagan and Webster credibly
denied that Webster made any reference to a union during the meeting.5
Their mutually corroborative testimony described a meeting in which, at
the outset, Melhorn became irate when he learned that the CEO of the company
had not come to
In his letter to Wegman and in a statement he prepared sometime after his meeting with Webster, Melhorn referred to the need for independent third party “review” of labor relations decisions, not “representation” and he did not elaborate on what he meant by such review. The difference is significant. While it might reasonably be argued that “independent third party representation” means union representation, this cannot be said of “independent third party review” which suggests a disinterested, neutral arbiter. A union presumably serves as an advocate for the employees it represents, not as a neutral party. I find it unlikely that any employer would consider having its employees’ collective-bargaining representative review its labor relations decisions or disciplinary actions; consequently, I do not believe Melhorn’s claim that Webster concluded from his statement, that Wegmans needed such reviews by an independent third party, that he was “talking union.”
As noted, I did not believe Melhorn’s testimony that Webster accused him of talking union nor that she asked him if he had been soliciting employees at the August 24 meeting. There is no other evidence casting any doubt on the credible testimony of Webster and Flanagan that this never happened. Accordingly, I find that the allegation that Melhorn was subjected to an unlawful interrogation has not been proved.
The General Counsel has presented evidence of union animus on Respondent’s part, consisting of an antiunion video shown to new employees, which is not alleged to be unlawful. E.g., Ross Stores, Inc., 329 NLRB 573, 576 (1999); Affiliated Foods, Inc., 328 NLRB 1107 (1999). However, I find that the evidence fails to establish any nexus between this animus and Melhorn’s discharge which is essential to establish a violation. Teletech Holdings, Inc., 333 NLRB 402 fn. 2 (2001). Nothing in the video suggests that Respondent’s hostility towards unions was such that it would be willing to violate the law by discriminating against employees to keep unions out. Raysel-IDE, Inc., 284 NLRB 879, 880 (1987); Fibrican Corp., 259 NLRB 161, 171–172 (1981).
The timing of disciplinary action can be indicative of an unlawful motivation. Masland Industries, 311 NLRB 184, 197 (1993), Limestone Apparel Corp., 255 NLRB 722, 736 (1981). That is not the case here. In fact, even if all Melhorn’s testimony were to be believed, and he spoke about third party “representation” at the August 24 meeting, it would have been no different than what he had already told human resources personnel several times months before. What is different is that he had not previously accused Respondent of operating a “Nazi-like” environment or told the store manager that “the truth hurts.” I find that the timing of Melhorn’s discharge is explained by these comments at the August 24 meeting, not by any revelation that he was “talking union.”
Counsel for the General Counsel contends that Melhorn’s comments to Store Manager Webster at the August 24 meeting were not so egregious as to lose the protection of the Act. It is clear that his comments were insubordinate and disrespectful and that Respondent considered them so. Since Melhorn was not engaged in protected activity when he said them, they were not protected by the Act. I find that by any objective standard accusing one’s employer of operating a Nazi-like work environment constitutes the kind of disrespect Respondent’s policies and work rules prohibit.
In summary, the evidence concerning Melhorn shows him to be a marginal employee who failed to adequately perform the duties of three different positions, customer service, cashier, and food demonstrator in the cheese shop. While in each case Respondent attempted to make accommodations for him, his response was to deny any responsibility for his actions and accuse it of being out to get him. At his final assignment in the cheese shop, he repeatedly ignored its food safety rules, denied doing anything wrong despite numerous disciplines, and often taunted the supervisors who called him to task. He had previously been warned about making disrespectful comments and had consistently shown a dismissive attitude about the many disciplinary actions taken against him. Based on the foregoing findings, I conclude that Melhorn did not engage in any union or concerted activity protected by the Act. The evidence fails to establish that Respondent had any knowledge that he had or that it any reason to believe that he had engaged in such activity. It also fails to establish that it had a mistaken belief that he had done so, which led it to terminate him. Accordingly, I find that the General Counsel has not established that union or other concerted protected activity on Melhorn’s part was a motivating factor in his termination and, therefore, has not met his initial burden under Wright Line. I shall recommend that the complaint be dismissed.
Conclusions of Law
1. Respondent, Wegmans Food Markets, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. Respondent did not violate the Act as alleged
in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended7
ORDER
The complaint is dismissed in its entirety.
Dated,