Salon/Spa at Boro, Inc., (2010)

Docket Number:09-CA-045349
 
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Salon/Spa At Boro, Inc. and Natalie Ann Lakes and Elizabeth A. Frith. Cases 9–CA–45349, 9–CA–45426, and 9–CA–45538

December 30, 2010

DECISION AND ORDER

By Chairman Liebman and Members Pearce and Hayes

On October 18, 2010, Administrative Law Judge Paul Buxbaum issued the attached decision. The General Counsel filed an exception and a supporting 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 exception and brief and has decided to affirm the judge’s rulings, findings and conclusions, and to adopt the recommended Order as modified.1

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Salon/Spa at Boro, Inc., Springboro, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order, as modified by substituting the following for paragraphs 2(e) and (f), relettering the subsequent paragraphs accordingly.

“(e) Within 14 days after service by the Region, post at its Springboro, Ohio facility copies of the notice in the judge’s decision marked “Appendix.”48 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 17, 2009.”

Dated, Washington, D.C. December 30, 2010

Wilma B. Liebman, Chairman

Mark Gaston Pearce, Member

Brian E. Hayes, Member

(seal) National Labor Relations Board

Jamie L. Ireland, Esq., for the General Counsel.

Stephen A. Watring, Esq., of Dayton, Ohio, for the Respondent.

Natalie Ann Lakes, of Miamisburg, Ohio, and Elizabeth A. Frith, of Liberty Township, Ohio, for the Charging Parties.

DECISION

Statement of the Case

Paul Buxbaum, Administrative Law Judge. This case was tried in Cincinnati, Ohio, on June 28–30, 2010. The initial charge was filed December 18, 2009,1 and additional charges were filed on February 2 and April 5, 2010. The consolidated complaint was issued May 7, 2010.

The complaint alleges that the Employer, Salon/Spa at Boro, Inc., engaged in a series of violations of the National Labor Relations Act (the Act) consisting of unlawful interrogations of employees, threats of reprisals directed toward employees, and the unlawful discharge of two members of its work force, Natalie Ann Lakes and Elizabeth A. Frith. Each of these actions is asserted to be in violation of Section 8(a)(1) of the Act. The Employer’s amended answer to the complaint denies all of the material allegations and raises certain defenses, including the contention that one of the charges alleging an unlawful threat of reprisal was filed outside the time limit specified in Section 10(b) of the Act.

For the reasons described in detail in this decision, I find that the Employer did engage in violations of the Act consisting of a series of unlawful interrogations, the utterance of a threat of reprisal against an employee, and most significantly, the unlawful discharge of its two employees, Lakes and Frith. I further conclude that the Employer has established that the allegation of an additional unlawful threat was untimely filed, lacks merit, and should be dismissed.

On the entire record,2 including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following

Findings of Fact

i. jurisdiction

The Employer, a corporation, operates a hair salon and day spa at its facility in Springboro, Ohio, where it annually purchases and receives at its Springboro, Ohio facility, goods valued in excess of $10,000 directly from points outside the State of Ohio and derives gross revenues in excess of $500,000. The Company admits3 and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

ii. alleged unfair labor practices

A. The Background

In 1992, Bobbie Hausfeld opened a hair salon and day spa at Springboro, Ohio. She had prior experience operating other hair salons and is also an owner of a second salon and spa in Beavercreek, Ohio. Each salon is a separate corporate entity. Hausfeld serves as the president of the Springboro salon involved in this case. It provides “guests” with hair styling, manicures, skin care, and massages.4 During the period at issue, three team leaders reported to Hausfeld: Michelle D’Amico, Genny Dill, and Patricia Wilson Cordell. It is undisputed that these team leaders were supervisors within the meaning of the Act.5 During the events in controversy, approximately 40 persons were employed by the salon, including more than a dozen so-called “hair designers.” The employees have not been represented by any labor organization.

Among the salon’s hair designers were two persons who figure prominently in this case. Natalie Lakes was hired by the salon in April 2005. She progressed from apprentice to hair designer in February 2006. In November 2007, she received a further promotion to a level-two designer. In 2009, Lakes took maternity leave from April until July 1. Lakes testified that, shortly after her return to work, she received yet another promotion. Hausfeld disputed this claim, contending that the event described by Lakes was merely an across-the-board rate increase for the hair designers. Hausfeld indicated that she did not recall whether Lakes received anything more than this general rate increase. On rebuttal, Lakes insisted that she was promoted and that Hausfeld announced her promotion at a staff meeting. I credit Lakes’ account, finding it noteworthy that Hausfeld did not deny Lakes’ contention but merely professed a lack of recollection. In addition, the Employer would certainly be expected to possess documentary evidence that could shed light on the matter. It did not choose to present such documentation.

Another key figure in this case is Elizabeth Frith. Hausfeld hired Frith as a hair designer in April 2007. She transferred to the Springboro salon in the following September. In June 2009, Frith took a medical leave. She returned to work in mid-August.

At this juncture, it is appropriate to note that Hausfeld manages her salon with a specific overall goal in mind. She testified that she had been involved in other salon operations that had failed to provide an acceptable degree of profitability. Before founding the Springboro salon, she made a study of the crucial issue of customer retention. Based on extensive interviews with customers, she concluded that a key factor in the loss of existing clientele was a perception among those customers that the atmosphere in the salon was negative. As she put it, her ultimate conclusion was that, “negativity was one of the major reasons that guests leave a salon.” (Tr. 610.) She resolved that the Springboro salon would be operated in a manner that would minimize the possibility of creating an atmosphere of negativity by requiring all employees to avoid statements and behaviors that could contribute to such an atmosphere or perception among the customers. She characterized this policy against negativity as her “philosophy” and “vision.” (Tr. 612.)

Numerous witnesses described the content of Hausfeld’s negativity policy.6 Generally speaking, there was broad agreement as to the parameters of the policy and the vigor with which it was enforced by supervisors. To begin with, Hausfeld defined the policy as follows:

Negativity is complaining. It is not being happy or grateful for the situation that you have. It could be complaining about your personal life. It could be complaining about having a guest. It could be complaining about being busy, complaining about not being busy. It could be complaining about another employee. Whether just in general pulling people down . . . .

(Tr. 74.) Counsel for the General Counsel asked Hausfeld whether the definition included, “[c]omplaining about how the Company’s run,” and she replied, “that’s negativity.” (Tr. 74.)

Hausfeld also reported that an isolated instance of such negativity was not punishable because, “[e]verybody can have a bad day.” (Tr. 76.) However, she acknowledged that she has frequently imposed discipline on employees for statements and behavior that she perceived as constituting negativity. As she explained, “if it comes to a point where it affects the team and it affects morale, and it affects the salon overall which, in turn, affects the paying guest who comes in to have a wonderful experience [t]hat is where the zero tolerance negativity policy comes in.” (Tr. 77.) In such cases, employees face discipline, up to and including termination from employment.7

Other witnesses provided enlightening testimony regarding the content and breadth of the negativity policy as applied at the salon. Jessica...

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