NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
September 30, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On October 24, 2007, Administrative Law Judge Keltner W. Locke issued the attached bench decision and certification.[1] The General Counsel filed exceptions and a supporting brief. The Respondent filed a response and a supporting brief.
The National Labor Relations Board[2] has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.
The complaint alleged that the Respondent violated Section 8(a)(1) on January 13, 2007, by impliedly threatening its employees with discharge if they engaged in protected concerted activity and, on April 2, 2007, by impliedly threatening employee Darrell Chapman with discharge and by discharging him because he engaged in protected concerted activity. The judge dismissed the allegations, and the General Counsel has filed exceptions to all the dismissals. We find merit in the General Counsel’s exceptions.
i. facts
The Respondent is a trucking company. On January 13, 2007,[3] the Respondent’s owner, Alton Piester, announced a proposed change to its billing and bookkeeping practices regarding fuel surcharges (“the fuel surcharge change”). The change would decrease the drivers’ net pay. Though many drivers protested, Piester told them that his mind was made up and that the change would proceed regardless of their objections. Piester told the objecting drivers that if they didn’t like it, they could “clean out their truck and move to another job.”
“Clean out your truck” has a special meaning for the Respondent and its drivers. A driver will typically leave personal items in a truck if he expects to use it again. Therefore, a supervisor’s statement to a driver to “clean out your truck,” conveys the message that the driver will no longer be operating that truck, i.e., that he is discharged.
After the January 13 meeting, and up to the time of Chapman’s discharge, employees frequently complained among themselves about the fuel surcharge change. Employees also complained directly to Piester and the Respondent’s secretaries,[4] although only Chapman continued to complain to the Respondent after January. On several occasions, however, owner-operator Adger McAlister informed Piester that the drivers continued to complain among themselves about the unfairness of the fuel surcharge change.[5]
On April 2, Chapman spoke with Derrick, the Respondent’s secretary, who also had various accounting duties. Chapman repeated the complaint he (and others) had voiced about the fuel surcharge change, and asked that the surcharge change be reflected on his paycheck stub.[6] During this conversation, Chapman spoke loudly, then went into Piester’s adjoining office to further discuss his concerns. Derrick followed Chapman into the office.
Chapman reiterated to Piester the same complaint and request he made to Derrick, at which point Derrick interjected that if Chapman was unhappy working there, he “should clean out” his truck. Chapman protested that Derrick did not have authority to discharge him. Chapman became louder, got up from his chair, and stepped toward Derrick.[7] Piester then told Derrick to clean out his truck, which, as Piester acknowledged at the hearing, meant that Chapman was discharged.
Piester testified that Chapman’s shouting on April 2 was the latest in a series of misconduct, and was the “last straw” in deciding to discharge him.[8] However, Piester did not mention any prior misconduct to Chapman, and the only reason listed for Chapman’s discharge on the form filed with the South Carolina Employment Security Commission was “Disorderly Conduct in office, 4-02-7.” On that form, Piester directly linked Chapman’s April 2 conduct to the January 13 meeting by stating that “meet 1st part of Jan 07 that fuel surcharge would be taken out due to customer didn’t want share.”
ii. analysis
A. Alleged January 13 Threat
The General Counsel argued that Peister’s statement to the drivers at the January 13 meeting that if they did not like the surcharge change they could “clean out their trucks” constituted a veiled or implied threat of discharge in response to the employees’ protected concerted activity. Although the judge agreed that the employees were engaged in protected concerted activity when protesting the surcharge change,[9] he found that not every reference to cleaning out a truck would automatically indicate the discharge of an employee.[10] Instead, the judge found that a typical driver would reasonably understand Piester’s statement to mean, “if you don’t like the new system you can leave.”
The judge acknowledged that similar statements, i.e., “if
you don’t like the new system you can leave,” have been found unlawful, citing
The General Counsel excepts, arguing that the judge
inappropriately distinguished Jupiter,
supra, as involving union activity rather than the protected concerted activity
here. The General Counsel contends that
what is critical is not the specific nature of the protected concerted activity,
union or nonunion, but the similarity of the threats made. The General Counsel further argues that the uncontradicted
record evidence shows that “clean out your truck” at this workplace means that
an employee is discharged, demonstrating that Piester’s statement meant that complaints about the fuel surcharge change
were incompatible with continued employment.
Finally, the General Counsel claims that the judge erred in finding
Piester’s statement to be no more than the announcement of a fait
accompli.
We find merit to the General Counsel’s exceptions and reverse the judge’s dismissal of this allegation. First, as described above, substantial credited evidence, including by the Respondent’s own witnesses, shows that the phrase “clean out your truck” equates to a discharge. Piester, Marntin, and Derrick all so testified. Therefore, when Piester responded to the employees’ complaints about the fuel surcharge change by telling them that if they didn’t like it, they could “clean out their truck and move to another job,” he impliedly threatened to discharge them for their protected concerted activity of voicing employment-related complaints. It is well settled that such threats violate Section 8(a)(1).[12]
Further, even if, as the judge found, “clean out your truck” meant “if you don’t like the new system you can leave,” Piester’s statement was still unlawful. Thus, in House Calls, Inc., 304 NLRB 311, 313 (1991), the Board found that the respondent engaged in unlawful coercion by telling employees protesting late paychecks that they could quit if they did not like it.[13]
The judge’s distinction of Jupiter, supra, on the basis that it dealt with union activity rather than protected concerted activity is misguided.[14] The Act protects concerted activity for mutual aid or protection regardless of whether a union is involved.[15] Finally, the fact that the Respondent was not obligated to bargain with its unrepresented employees over the fuel surcharge change does not nullify the unlawful threat, i.e., render it the lawful announcement of a fait accompli. The violation flows from Piester’s threat to discharge employees because they engaged in protected concerted activity, not the Respondent’s failure to accede to employee protests against the fuel surcharge change.[16]
Based on the above, we reverse the judge and find that Piester’s statement at the January 13 meeting constituted an implied threat of discharge in violation of Section 8(a)(1).[17]
B. Alleged April 2 Threat
The judge found that Derrick was acting as an agent of the Respondent when she told Chapman, on April 2, that “if you don’t like it, maybe you should clean out your truck.”[18] Nonetheless, the judge concluded that Derrick’s statement was not a veiled or implied threat of discharge for the same reasons he offered when analyzing Piester’s January 13 statement. The judge additionally found that Derrick’s April 2 statement was not unlawful because Chapman was acting only for himself, in contrast to the concerted activity at the January 13 meeting. Therefore, the judge recommended dismissal of this 8(a)(1) allegation.
The General Counsel excepts, generally making the same arguments advanced in support of his exceptions to the dismissal of the allegations relating to Piester’s January 13 threat. The General Counsel also asserts that the evidence establishes that Chapman’s April 2 conduct related to ongoing protected concerted activity.
We find merit to the General Counsel’s contentions. Like Piester’s January 13 statement, Derrick’s “if you don’t like it maybe you should clean out your truck” statement constitutes an implied threat of discharge. Moreover, for the reasons set forth in our analysis of Chapman’s discharge below, we find that the Derrick’s statement was directed towards Chapman’s protected concerted activity on April 2. Because Derrick’s statement threatened adverse consequences for engaging in protected concerted activity, it violated Section 8(a)(1).[19]
C. April 2 Discharge of Chapman
The Respondent admittedly discharged Chapman on April 2,
when Piester directed him to “clean out his truck.” In finding that the discharge did not violate
Section 8(a)(1), the judge, applying Wright
Line,[20]
first concluded that Chapman was raising a personal pay computation issue on
April 2, and was not eliciting the support of other employees. He found no
evidence that other employees wanted or sought similar changes to their pay
stubs. The judge, therefore, concluded
that Chapman’s April 2 conduct was not protected concerted activity.[21]
The judge further found that: Chapman had engaged in
protected concerted activity at the January 13 meeting, that the Respondent
knew of the activity, and that Chapman’s discharge constituted an adverse
employment action. However, he concluded
that the General Counsel failed to show a link between the January 13 protected
concerted activity and Chapman’s discharge.
Noting that 2 1/2 months had elapsed between the January meeting and
Chapman’s termination, the judge found the circumstances distinguishable
from
The General Counsel excepts, arguing that the judge improperly distinguished Salisbury Hotel. The General Counsel also asserts that the record contains substantial evidence that the employees continued to complain among themselves about the fuel surcharge change and that the Respondent knew of this continuing dissatisfaction through McAlister. The General Counsel asserts that the evidence establishes that Chapman’s April 2 conduct was related to ongoing protected concerted activity and that the judge’s decision should be reversed on that basis.
The General Counsel further contends that the judge
improperly failed to give due weight to the shifting reasons the Respondent
gave for discharging Chapman, beyond its original claim that Chapman engaged in
disorderly conduct (as was stated on the South Carolina unemployment
form). These shifting reasons include
Chapman’s two accidents, two incidents of insubordination, and an alleged
inappropriate comment (as described in fn. 8 above). The General Counsel notes that the Respondent
did not impose any discipline on Chapman for the earlier incidents.[24] Further, the General Counsel asserts that, at
the hearing, Piester admitted he did not mention any of these incidents when he
discharged Chapman, but instead focused on Chapman’s April 2 conduct.
We find merit to the General Counsel’s contentions. Unlike the judge, we conclude that Chapman’s conduct on April 2, amounted to a continuation of the earlier concerted employee complaints about the adverse change to the fuel surcharge. We also find, and the Respondent does not seriously contest, that the April 2 incident was the primary basis for the discharge.[25] Consequently, we reverse the judge and find that Chapman’s discharge violated the Act.
First, as the Respondent’s own witnesses acknowledged, Chapman reiterated the shared employee complaint about the fuel surcharge change during his meetings with Derrick and Piester. According to Piester, when Chapman came into his office, he was talking about the fuel surcharge change. Similarly, Marntin (who overheard the discussion) testified that Chapman was “complaining about the fuel surcharge.” Finally, Derrick testified that Chapman “was complaining about the fuel surcharge and wanted it showed (sic) on his check stub.” As discussed above, the record evidence clearly establishes that the fuel surcharge issue was not unique to Chapman, but was instead concertedly voiced by employees on January 13, and thereafter. Moreover, Piester, via McAlister, knew that the issue remained a concern to the employees.[26] We therefore find that Chapman’s repetition of the complaint about the fuel surcharge change on April 2 was a continuation of earlier protected concerted activity.
We recognize that Chapman made an individualized request
for a notation on his pay stub. However,
that request was made in the context of his underlying complaints about the
fuel surcharge change. Further, other employees also had requested
that the fuel surcharge information be included on their worksheets. The mere
fact that those other employees had not additionally requested that the
information be reflected on their pay stubs, does not exclude Chapman’s request
from the scope of protected concerted activity. See JMC
Transport, 272 NLRB 545, 546 fn. 2 (1984), enfd.
The evidence also shows that the Respondent understood that the April 2 conduct was an extension of the earlier protected activity. First, Derrick’s April 2 statement to Chapman, that if he was unhappy, he “should clean out” his truck, was an almost verbatim repetition of Piester’s unlawful response to the employees’ January 13 protected protest against the fuel surcharge change. In addition, in the space on the South Carolina Employment Security Commission form requesting the reason for termination, the Respondent wrote, “meet 1st part of Jan 07 that fuel surcharge would be taken out due to customer didn’t want share. Disorderly conduct in office, 4-2-07.” Thus, the Respondent itself linked Chapman’s April 2 conduct to the January 13 meeting.[27] Accordingly, we find that Chapman’s conduct on April 2 was, and was viewed to be, a continuation of earlier protected concerted activity.
Viewed applying a Wright Line analysis, the record further shows that the Respondent discharged Chapman for his protected concerted activity on April 2. To establish a violation under Wright Line, the General Counsel bears the initial burden of showing that protected concerted activity was a motivating or substantial factor in the adverse employment action. The elements commonly required to support such a showing are protected activity by the employee, employer knowledge of that activity, and animus on the part of the employer. The burden then shifts to the employer to prove, as an affirmative defense, that it would have taken the same action even in the absence of the employee’s protected activity. See, e.g., Consolidated Bus Transit, Inc., 350 NLRB No. 82, slip op. at 2–3 (2007).[28]
First, the General Counsel established both that the Respondent knew of Chapman’s protected concerted activity (since Piester was present to observe it on April 2), and bore animus against it, as demonstrated by Piester’s threat at the January 13 meeting, at which Chapman was present, and Derrick’s subsequent April 2 threat to Chapman.
In addition, the Respondent has failed to show that it
would have discharged Chapman absent his protected concerted activity. Though Respondent now contends that it
discharged Chapman for reasons beyond his April 2 conduct (after initially
asserting it was the April 2 conduct alone),[29] that
assertion is undermined by the fact that the Respondent never disciplined
Chapman for the other incidents, and never mentioned those incidents to Chapman
or in its filing with the state unemployment commission. Moreover, the Respondent’s own admissions
demonstrate that Chapman’s protected activity was a substantial and motivating
factor for his discharge. Thus, Piester testified
that Chapman’s conduct on April 2, was the “big reason” for the discharge. Further, on the
Finally, we find that the same result obtains under an Atlantic
Steel/Felix Industries[30] analysis
(as the Respondent effectively concedes)[31].
Pursuant to Atlantic Steel, an employer violates the Act by discharging an
employee engaged in the protected concerted activity of voicing a complaint
about his employment terms unless, in the course of that protest, the employee
engages in opprobrious conduct, costing him the Act’s protection. In assessing the conduct, the Board assesses
four factors: (1) the place of the
discussion; (2) the subject matter of the discussion; (3) the nature of the
employee’s outburst; and (4) whether the outburst was, in any way, provoked by
the employer’s unfair labor practices.
Here, as we have found, Chapman was engaged in protected concerted activity on April 2, when he protested the surcharge change and requested that the monetary impact of the change be reflected on his paycheck stub. The Respondent claims that Chapman lost the protection of the Act on April 2, by speaking loudly to Derrick, and standing up and taking a step in her direction. We disagree. Applying the Atlantic Steel factors, we find that Chapman’s conduct did not cost him the protection of the Act
First, the incident took place in Piester’s office, and there is no evidence that any unit employee witnessed the incident or overheard the remarks. Thus, the first factor weighs in favor of protection. [32]
Similarly, the second factor weighs in favor of protection because the subject matter of the discussion, and Chapman’s comments, related to protected concerted activity.
Regarding the third factor, the nature of the outburst, Chapman’s conduct consisted of speaking loudly and stepping toward Derrick. However, merely speaking loudly or raising one’s voice while engaging in protected concerted activity generally will not deprive an employee of the Act’s protection.[33] Nor was Chapman’s moving toward Derrick sufficiently egregious. Given the small size of Piester’s office, it would have been difficult for Chapman to move without approaching Derrick. Moreover, he stopped his approach almost immediately, and made no threatening gestures towards Derrick. Hence, this factor favors finding Chapman’s conduct protected.
Finally, as to whether Chapman’s outburst was provoked by the Respondent’s unlawful conduct, the record reflects that Chapman stood up and approached Derrick promptly on the heels of her unlawful threat of discharge.[34] Thus, each of the Atlantic Steel factors weighs in favor of finding that Chapman’s conduct did not cost him the protection of the Act.
Therefore, whether we apply a Wright Line or Atlantic Steel/Felix Industries analysis, the result is the same. Accordingly, we reverse the judge and find that the Respondent violated Section 8(a)(1) by discharging Chapman on April 2, 2007 because of his protected concerted activity.
Amended Conclusions of Law
1. The Respondent Alton H. Piester, LLC, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) by impliedly threatening its employees with discharge for engaging in protected concerted activity.
3. The Respondent violated Section 8(a)(1) by discharging Darrell Chapman for engaging in protected concerted activity.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(1) by discharging Darrell Chapman because he engaged in protected concerted activity, we shall order the Respondent to offer him full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed, and to make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also be required to remove from its files any and all references to the unlawful discharge of Chapman, and to notify him in writing that this has been done and that the discharge will not be used against him in any way.
ORDER
The Respondent, Alton H.
Piester, LLC,
1. Cease and desist from
(a) Impliedly
threatening its employees with discharge for engaging in protected concerted
activity.
(b) Discharging
its employees for engaging in protected concerted activity.
(c) In any like or related manner
interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date
of this Order, offer Darrell Chapman full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously
enjoyed.
(b) Make Darrell Chapman whole
for any loss of earnings and other benefits suffered as a result of the discrimination
against him, with interest, in the manner
set forth in the remedy section of this decision.
(c) Within 14 days from the date
of this Order, remove from its files any reference to the unlawful discharge of
Darrell Chapman, and within 3 days thereafter, notify him in writing that this
has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days
of a request, or such additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place designated by the Board or its
agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service
by the Region, post at its facility in
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Peter C. Schaumber, Chairman
Wilma
B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice to
Employees
Posted By
Order of the
National Labor
Relations Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We
will not impliedly threaten you with discharge
for engaging in protected concerted activity.
We will not
discharge you for
engaging in protected concerted activity.
We
will not in any like or related manner
interfere with, restrain, or coerce you in the exercise of the rights set forth
above.
We
will, within 14 days from the date of the
Board’s Order, offer Darrell Chapman full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously
enjoyed.
We
will make Darrell Chapman whole for any loss
of earnings and other benefits resulting from his discharge, less any net
interim earnings, plus interest.
We
will, within 14 days from the date of the
Board’s Order, remove from our files any reference to the unlawful discharge of
Darrell Chapman, and we will, within
3 days thereafter, notify him in writing that this has been done and that the
discharge will not be used against him in any way.
Jasper C. Brown Jr., Esq., for the General Counsel.
Charles Thompson, Esq. (Malone, Thompson, Summers
& Ott), of
BENCH DECISION AND CERTIFICATION
Statement of the Case
Keltner
W. Locke, Administrative Law Judge: I heard this case on September 17 and 18,
2007, in
Additional Discussion
Credibility of Charging Party Chapman
The bench decision
explained why I credited the testimony of certain witnesses, but did not
discuss my conclusion that Charging Party Chapman’s testimony should not be
credited. For the following reasons, I
do not consider it reliable.
During
cross-examination, Chapman initially testified that he had only one speeding
ticket on his driving record. When asked
if he had three speeding tickets, Chapman answered, “Not of my knowledge.” However, when confronted with documentary
evidence, he admitted he had three speeding tickets. It seems unlikely that Chapman, a commercial
truckdriver, would lack knowledge of his own driving record.
Additionally,
Chapman’s interest in the outcome of this proceeding—he stood to regain his job
with backpay—may have affected his recollection. For example, Chapman described a conversation
he had with another driver on April 2, 2007, just after Respondent’s owner,
Alton Piester, discharged him. Chapman
testified that he told this driver that Piester fired him “because I was
talking about our money.” However,
according to the other driver, James Seibert Jr., Chapman said he had been
fired because “he got loud in the office.”
Witnesses Marntin, Derrick and Piester uniformly testified that Chapman
had, in fact, become loud before Piester discharged him. Crediting Seibert’s testimony, I find that
when Chapman spoke with Seibert on April 2, 2007, Chapman did attribute his
discharge to getting loud in the office rather than, as Chapman testified at
the hearing, that he was “talking about our money.”
This difference,
between how Chapman testified at the hearing and what he told Seibert on the
day of his discharge, suggests an inclination to embellish his testimony in a
way favorable to his case. This tendency
may explain some rather improbable words which Chapman attributed to Renee
Derrick.
Complaint paragraph
6 alleges that Renee Derrick, a secretary, was Respondent’s agent. Complaint paragraph 7 alleges that
Respondent, through Derrick, made an unlawful implied threat of discharge. The General Counsel thus had the burden of
proving both Derrick’s status as Respondent’s agent and that she made the
alleged threat.
Chapman quoted
Derrick as saying, right before the alleged threat, “I can speak for me and
For the reasons
discussed in the bench decision, I have concluded that Derrick was a very
reliable witness and credit all of her testimony concerning her interaction
with Chapman on April 2, 2007. That
testimony does not suggest that she said “I can speak for me and
Moreover, she would
have no reason to make such a statement.
Although it is possible to imagine circumstances in which Derrick might
have a reason to say that she could speak for the owner, such circumstances
were not present here. For example, if
she had been trying to prevent Chapman from talking to Piester, she might have
said that she had authority to speak for Piester. However, she was not trying to shield Piester
from Chapman. To the contrary, Derrick
credibly testified that she told Chapman that he “needed to go talk to
Additionally, when
Derrick told Chapman that if he didn’t like the way things were done, “then
maybe he should clean his truck out,” Piester was present. It would seem odd for Derrick to say “I can
speak for me and
Indeed, Chapman’s
testimony that Derrick referred to Piester as “
In sum, Chapman’s
testimony does not ring true and I do not credit it.
Derrick’s Status as Respondent’s Agent
As noted above, the
complaint alleged that Derrick was Respondent’s agent. Citing Dentech
Corp., 294 NLRB 924 (1989), the General Counsel argues that Derrick
possessed the apparent authority to act for Respondent.
The Dentech Corp.
decision notes that, “The Board has held that apparent authority may be
inferred when an employee acts with the cooperation of or in the presence of
supervisors.”
In the present
case, Owner Piester was present when Derrick told Chapman that if he did not
like the way his pay was calculated, he should clean out his truck. Piester did not contradict this comment or
otherwise indicate that he disagreed with it.
Piester’s silence amounted to acquiescence. See Dentech
Corp., 294 NLRB at 927. Accordingly,
I agree with the General Counsel that Derrick’s “clean your truck” remark may
be imputed to Respondent.
However, for
reasons discussed in the bench decision, I have concluded that the remarks
about Chapman cleaning out his truck did not, considered in context,
communicate an implied threat or otherwise interfere with, restrain or coerce
employees in the exercise of Section 7 rights.
Accordingly, even if Derrick’s “clean your truck” comment is imputed to
Respondent, it does not constitute a violation of the Act.
The Protected Activity Issue
In substantial
part, this case turns on whether Chapman was engaged in protected activity at
the time of his discharge. This issue
appears to be a close one and it has significant ramifications.
If I erred in
concluding that Chapman’s activity on April 2, 2007, was not protected, then it
also was inappropriate to analyze the facts under the framework which the Board
established in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Rather, when an employer
discharges an employee for protected activity, the appropriate inquiry focuses
on whether the employee had committed any misconduct sufficient to remove him
from the protection of the Act. Beverly Health & Rehabilitation Services,
346 NLRB 1319 (2006). Because the issue
concerning Chapman’s protected activity is both close and consequential, the
additional discussion below may assist the Board in reviewing the correctness
of my conclusion that the cases cited by the General Counsel can be, and should
be, distinguished.
The General Counsel
has cited several cases to support the its argument that on April 2, 2007,
Chapman was continuing the protected concerted activity of January 13, 2007,
when the drivers complained about Respondent’s new method of computing their
earnings. For example, in Salisbury Hotel, 283 NLRB 685 (1987),
the Board found that the alleged discriminatee, Resnick, had engaged in
protected, concerted activity when she complained to management about the respondent’s
new lunch hour policy. Even though the
record did not establish that the “employees explicitly agreed to act together”
to change the policy, most of them complained to management. Accordingly, the Board concluded, “the
employees were engaged in a concerted effort to convince the Respondent to
change its lunch hour policy. Resnick’s
complaints to other employees, as well as her individual complaint to the Respondent,
were part of the concerted effort.” Salisbury Hotel, 283 NLRB at 687.
In Salisbury Hotel, the record did not
establish that employees authorized Resnick to speak on their behalf or even
knew in advance that she was going to complain to management. Nonetheless, the Board found that her protest
fell within the definition of concerted activity set forth in Meyers Industries I, 268 NLRB 493 (1984),
and Meyers Industries II, 281 NLRB
882 (1986).
The present facts
are similar in several ways. When Respondent
announced the new pay computation, a great many employees objected. They continued to talk about it among
themselves, and, individually, complained to management. Chapman, like Resnick in Salisbury Hotel, was
among the most vocal. Were these the
only facts, I would conclude that Salisbury
Hotel is apposite here.
However, in Salisbury Hotel, the respondent
announced the lunch hour policy in December, and management decided to
discharge Resnick in December, not long after she complained. (The respondent waited to effectuate the discharge
decision until after the Christmas holidays because it expected difficulty in
finding a replacement.)
In the present
case, Respondent announced the pay computation change on January 13, 2007, but
did not decide to discharge Chapman until April 2, 2007. In the meantime, employee objections to the
new pay computation method had faded.
The General Counsel did present evidence that the change remained a
subject of discussion among employees even at the time of Chapman’s discharge
in April, but the evidence suggests that, at the time of his discharge, Chapman
was the only driver who still was voicing objections.
Chapman’s protest,
of course, would still be protected even if he were the lone holdout trying to
rally other employees to support this cause.
Indeed, an individual employee’s complaints aimed at instigating group
action is quintessential concerted activity.
However, the
credible evidence does not establish that Chapman was trying to enlist the
support of other employees or that, on April 2, 2007, he intended to speak for
anyone but himself. On that date,
Chapman sought, in effect, that Respondent treat the reduction in pay as a
deduction from pay and list it on the paycheck stub. The record does not establish that any other
employees wanted, or had asked for, such a change. Therefore, I conclude that Chapman was acting
by himself, and not continuing the employees’ January 13, 2007 concerted activity.
Credible evidence
does not establish that, on April 2, 2007, Respondent regarded Chapman as
speaking or attempting to speak for anyone other than himself. Accordingly, it is difficult to find a nexus
between Chapman’s discharge on that date and his protected activity several
months earlier.
Based on this
absence of a link between the protected activity and the adverse employment
action, I concluded that the General Counsel had failed to prove the fourth
Wright Line requirement. However, should
the Board conclude that Chapman was, in fact, engaged in protected activity
when Respondent discharged him on April 2, 2007, use of the Wright Line
framework is not appropriate. As noted
above, the proper inquiry in such circumstances would be whether Chapman had
engaged in any misconduct sufficient to deprive him of the protection of the
Act.
Were I to reach
this issue, I would conclude that Chapman did not engage in such egregious
misconduct and, accordingly, that he did not lose the Act’s protection. Therefore, had I concluded that Chapman had
been engaged in protected activity at the time of his discharge, I would have
concluded further that the discharge was unlawful. However, in view of my conclusion that Chapman
was not engaged in protected activity, I recommend that the Board dismiss the
Complaint.
Conclusions of Law
1. The Respondent,
Alton H. Piester, LLC, is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Respondent
did not violate the Act in any manner alleged in the Complaint.
On the findings of
fact and conclusions of law herein, and on the entire record in this case, I
issue the following recommended
ORDER
The complaint is
dismissed.
Dated
APPENDIX A
Bench Decision
This decision is
issued pursuant to Section 102.35(a)(10) and Section 102.45 of the Board’s
Rules and Regulations. Based on the
credited evidence, I conclude that Respondent did not violate the Act, and recommend
that the Complaint be dismissed.
Procedural History
This case began on
April 23, 2007, when the Charging Party, Darrell Chapman, filed and served on
Respondent the initial unfair labor practice charge in this proceeding. Chapman amended the charge on June 27, 2007.
After
investigation, the Regional Director for Region 11 of the National Labor Relations
Board issued a Complaint and Notice of Hearing on June 27, 2007. In issuing this complaint, the Regional
Director acted on behalf of the General Counsel of the Board, whom I will refer
to as the “General Counsel” or as the “government.”
A hearing opened
before me on September 17, 2007 in
Admitted Allegations
In its Answer to
the Complaint, Respondent admitted a number of allegations. Based upon those admissions, I find that at
all material times Respondent has been a
Additionally, I
find that Respondent satisfies both the statutory and discretionary standards
for the Board to exercise
jurisdiction. Further, I conclude
that Respondent is an employer within the meaning of Section 2(6) and (7) of
the Act and that its owner, Alton Piester, is its supervisor and agent within the
meaning of Sections 2(11) and 2(13) of the Act, respectively.
Respondent admits
that on April 2, 2007, it discharged its employee Darrell Chapman, and
thereafter has failed and refused to rehire him. I so find.
Respondent denies that it took this action for unlawful reasons or
violated the Act.
Background
Respondent performs
trucking in several southeastern states.
Although it contracts with some owner–operators, most of its drivers are
employees. The record does not indicate
that any labor organization represents these drivers and it does not appear
that any union was trying to organize Respondent’s employees. The government does not allege that
Respondent discriminated against any employee because of union activities or to
discourage membership in a
APPENDIX A
labor organization. Indeed, the Complaint does not allege a violation of Section 8(a)(3) of the Act, which makes unlawful employment discrimination to encourage or discourage membership in any labor organization.
Rather, the
Complaint alleges that Respondent discharged employee Chapman because he “engaged
in concerted activities with other employees for the purpose of collective
bargaining or other mutual aid or protection, and in order to discourage
employees from engaging in such concerted activities for the purpose of
collective bargaining or other mutual aid or protection.” For clarity, it may be noted that no evidence
suggests that any employee or group of employees had requested that Respondent
engage in collective bargaining and the General Counsel has not argued that any
employees had formed any committee or organization to negotiate with their
employer. Thus, notwithstanding the
allegation that Chapman had “engaged in concerted activities. . .for
the purpose of collective bargaining,” the record does not support such a
finding.
Instead, the
General Counsel argues that Chapman engaged in concerted activities with other
employees for their “mutual aid or protection.”
More specifically, the government asserts that a number of employees,
including Chapman, protested a change Respondent made in the procedure for
calculating their compensation, resulting in less pay. The employees began voicing these protests
when Respondent’s owner announced the change during a January 13, 2007 meeting. The employees’ objections at the meeting
constituted protected, concerted activity and, the government argues, Chapman
was continuing that protected activity about two–and–a–half months later, on
April 2, 2007, when, acting alone, Chapman complained about the change to one
of Respondent’s office workers and to Respondent’s president.
The General Counsel
contends that Respondent discharged Chapman in retaliation for protesting, in
concert with other employees, the changed method for calculating compensation.
Although such an alleged retaliatory discharge for protected activity resembles
a discharge motivated by antiunion animus, the absence of a labor organization
takes it outside the ambit of Section 8(a)(3) of the Act, which prohibits an employer
from encouraging or discouraging union membership by engaging in employment
discrimination.
Instead, the
Complaint alleges that Chapman’s discharge
violated Section 8(a)(1) of the Act, which makes it an unfair labor practice
for an employer “to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7” of the Act. 29 U.S.C. § 158(a)(1). Section 7 of the Act grants employees the “right
to self–organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection,” and also “the right to refrain from any or all of
such activities. . .” 29 U.S.C. § 157.
The Complaint also
alleges that Respondent made two threats which violated Section 8(a)(1) of the
Act. Specifically, Complaint paragraph 7
alleges that on January 13, 2007, Respondent, by Owner Piester, impliedly
threatened employees with discharge if they engaged in protected concerted
activity. The same paragraph further
alleges that on April 2, 2007,
APPENDIX A
Respondent, by
Renee Derrick, impliedly threatened employees with discharge if they engaged in
protected activity.
Derrick works in
Respondent’s office. The Complaint alleges,
and Respondent denies, that Derrick is Respondent’s agent
The January 13, 2007 Meeting
Respondent has not
contested that its truck drivers (apart from the few owner–operators not
relevant here), are “employees,” and therefore within the protection of the
Act. Although their legal “employee”
status isn’t disputed, it may be noted that the drivers receive compensation
under a system different from that common in other industries. The productivity of the truck in generating
revenue determines the compensation of its driver. However, as already noted, in January 2007,
Respondent announced a change in billing and bookkeeping practices which
negatively affected the amount of compensation a driver would receive. The change, which concerned the handling of
fuel surcharges, made each truck appear to be less profitable than previously,
and that, in turn, decreased the driver’s paycheck.
When Owner Piester
described the change at a January 13, 2007 meeting with the drivers, many
protested vigorously. Piester told them,
in effect, that he had made up his mind and that the change would take place
notwithstanding their objections. During
his testimony, Piester admitted he told the drivers that if they didn’t like it
or it didn’t work for them, they could “clean out their truck and move to
another job.”
The record
establishes that the phrase “clean out your truck” carries a special meaning
for truck drivers, or at least for Respondent’s drivers. Typically, a driver assigned to a truck will
leave some personal possessions in it because he expects to be returning to
operate it again. Should a supervisor
tell a driver to “clean out your truck,” it would convey that the driver no
longer would be operating that vehicle, or, in other words, that he was fired.
Accordingly, the
General Counsel argues that Piester’s remark to the drivers that if they didn’t
like the change they could “clean out their trucks,” constitutes a veiled or implied
threat of discharge. The record, however,
does not persuade me that every reference to cleaning out a truck relates to
the discharge of an employee. Rather,
cleaning the personal possessions out of a truck reasonably would appear simply
to signify that the driver’s previous relationship with that vehicle has ended,
for whatever reason. The driver might
have been reassigned to another vehicle, or he might have been discharged, or
he might have quit voluntarily.
Therefore, I do not
understand Piester’s comment, that the drivers could clean out their trucks, to
imply that they could be discharged for not liking the new system. Rather, I conclude that a typical driver
reasonably would understand Piester’s words to mean, “if you don’t like the new
system you can leave.” Stated another
way, Piester’s words would be equivalent to saying, “If you don’t like the new
system, you can pack your bags.”
APPENDIX A
Would such a
statement to employees upset about a change in working conditions – that if
they didn’t like it they could pack their bags and leave – constitute an
implied threat? In Jupiter Medical
Center Pavilion, 346 NLRB No. 61 (March 13, 2006), the respondent conducted a
number of employee meetings in response to a union organizing campaign. At one such meeting, an employee criticized
the way management treated its workers.
A supervisor replied “Maybe this isn’t the place for you . . . there are
a lot of jobs out there.”
Reversing the
administrative law judge, the Board held that the statement, suggesting that
the employee seek work elsewhere, violated Section 8(a)(1) of the Act:
The Board has long
found that comparable statements made either to union advocates or in the
context of discussions about the union violate Section 8(a)(1) because they
imply that support for the union is incompatible with continued
employment. Rolligon Corp., 254 NLRB 22
(1981). Suggestions that employees who
are dissatisfied with working conditions should leave rather than engage in
union activity in the hope of rectifying matters coercively imply that
employees who engage in such activity risk being discharged.
However, a
significant fact distinguishes the present case from
In the absence of
any evidence establishing even that the word “union” came up during the January
13, 2007 meeting, employees would have no reason to believe that Piester was
saying that support for a union was incompatible with continued
employment. Certainly, Piester’s “clean
out your truck” comment communicated that employees dissatisfied with working
conditions or at least this particular
working condition should leave. But that suggestion isn’t the same as the
veiled message which the Board found to be unlawful in
In
Even if Piester’s “clean
out your truck” remark did not convey to employees that working for Respondent
was incompatible with union activity, could it communicate that working for
Respondent was incompatible with engaging in other concerted activities for the
employees’
APPENDIX A
mutual aid and protection? It seems unlikely. Respondent did not call the January 13, 2007 meeting to discuss employees’ protected activities.
Taking into account
the total context, I conclude that employees attending the January 13, 2007
meeting reasonably would understand Piester’s words not as the statement of a
threat but as the announcement of a fait accompli. The words signified that Piester had made up
his mind and the new plan would be going into effect despite their protests.
In this instance,
announcing a fait accompli was not unlawful.
Respondent’s employees had not selected a union to represent them and Respondent had no obligation to bargain
before making changes. Because I conclude
that Piester’s comment, in context, did not constitute an implied threat, I
recommend that the Board dismiss this allegation.
Events of April 2, 2007
The record suggests
that over time, employee discontent with the new practice abated. Chapman, however, continued to complain about
the change. On April 2, 2007, he spoke
with Renee Derrick, a secretary whose responsibilities include various
accounting functions.
Witnesses differ
somewhat concerning the details, so I must determine which gave the most
reliable testimony. Based on my observations
of the witnesses, I conclude that Derrick’s testimony merits the greatest
confidence. In addition to Derrick’s
demeanor, I also note that her answers were responsive to the questions and
well organized. Additionally, based upon
my observations of the witnesses, I credit the testimony of Sherry Marntin, who
also works in Respondent’s office.
Alton Piester
appeared to have greater difficulty providing responsive answers. Although I believe him to be a sincere
witness, his testimony sometimes seemed confusing and sometimes
conclusory. In general, however, I
credit his testimony.
The credited
testimony establishes that when Chapman spoke with Derrick on April 2, he was
concerned that the fuel surcharge amount did not appear on his pay stub. Derrick offered an explanation. Chapman remained unsatisfied and ultimately
spoke with Piester. During the
discussion, Chapman began to raise his voice.
Piester asked
Derrick to come into his office. During
his testimony, Piester explained that he summoned Derrick because he believed
it would be good for someone to witness his conversation with Chapman.
At some point
during the conversation, when Chapman still appeared to be unsatisfied, Derrick
commented to him that if he was unhappy working there, he should clean his
truck. Chapman protested that Derrick
did not have authority to tell him to clean his truck, that is, she did not
have authority to discharge him.
APPENDIX A
Derrick stressed
during her testimony, which I credit, that she did not instruct Chapman to “clean
his truck,” which would be tantamount to discharging him, and noted that she
did not have that authority. Rather, she
told Chapman that if he were unhappy working there, he should clean his
truck. That is, he should find work
elsewhere.
The Complaint
alleges that Derrick’s statement to Chapman about cleaning his truck
constituted a veiled threat which violated Section 8(a)(1) of the Act. That issue will be discussed later in this
decision.
Chapman became
louder and got up out of his chair.
Based on Derrick’s credited testimony, I find that he took a step towards
Derrick. Piester told Derrick to clean
out his truck, that he was fired.
My finding that
Chapman spoke in a loud voice is based on the credited testimony of Derrick and
Piester. However, I also note that on
the witness stand, Chapman spoke in a noticeably louder voice than other
witnesses.
In this instance,
Chapman was concerned that information about the fuel surcharge did not appear
on his paycheck stub. Derrick offered an
explanation which did not satisfy Chapman.
Derrick then referred Chapman to Piester.
Based on the
credited testimony, most notably that of Marntin and Derrick, I find that
Chapman spoke only about his own pay and pay documents and not those of any
other employee. Additionally, the record
fails to establish that Chapman indicated in any way that he intended to speak
on behalf of any other employees or that any other employees had asked him to
act on their behalf.
Discussion
For the reasons
discussed with respect to Piester’s “clean your truck” comment at the January
13, 2007 meeting, I conclude that Derrick’s remark did not constitute a veiled
or implied threat. That is particularly
true because employees were engaged in concerted activity on January 13 when
they protested the change in pay computation, but Chapman was acting by himself
on April 2, 2007.
The General Counsel
argues that Chapman’s April 2 conduct was a continuation of the employee
protests at the January 13 meeting, and therefore protected. The credited evidence does not establish that
Chapman said anything which would lead Piester to conclude that he was
continuing the earlier protest. Considering
the amount of time which had elapsed, it would not be self–evident that Chapman’s
complaints, focused solely on his own pay and his own pay documentation,
actually constituted activity on behalf of other employees. I conclude that Respondent had no reasonable
basis to believe that Chapman was acting on behalf of anyone but himself.
APPENDIX A
Concluding that
Chapman’s conduct was unprotected, Derrick’s remark in response to that conduct
does not constitute an implied threat of discharge or other retaliation for
engaging in protected activity.
Therefore, I recommend that the Board dismiss this 8(a)(1) allegation.
In determining
whether Piester’s discharge of Chapman violated the Act, I will follow the
framework which the Board set forth in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel must
establish four elements by a preponderance of the evidence. First, the government must show the existence
of activity protected by the Act. Second,
the government must prove that Respondent was aware that the employees had
engaged in such activity. Third, the
General Counsel must show that the alleged discriminatees suffered an adverse
employment action. Fourth, the government
must establish a link, or nexus, between the employees’ protected activity and
the adverse employment action. More
specifically, the General Counsel must show that the protected activities were
a substantial or motivating factor in the decision to take the adverse
employment action. See, e.g., North Hills Office Services, Inc, 346
NLRB No. 96 [1099] (April 28, 2006).
In effect, proving
these four elements creates a presumption that the adverse employment action
violated the Act. To rebut such a
presumption, the respondent must persuade by a preponderance of the evidence
that the same action would have taken place even in the absence of the protected
conduct. Wright Line, 251 NLRB 1083, at 1089; Hyatt Regency Memphis, 296 NLRB 259, 260 (1989), enfd. in relevant
part 939 F.2d 361 (6th Cir. 1991). See
also Manno Electric, Inc., 321 NLRB
278, 280 at fn. 12 (1996).
It is true that the
Board adopted the Wright Line
framework to evaluate Section 8(a)(3) allegations, and that in certain Section
8(a)(1) discharge cases, following the Wright
Line mode is not appropriate.
However, the present discharge issue clearly turns on motive, and the
Board has held that Wright Line provides
an appropriate framework for analysis “in cases that turn on the employer’s
motive.”
At the first step,
I must determine whether Chapman engaged in protected concerted activity. Along with other employees, Chapman protested
the change in pay computation at the January 13, 2007 meeting. Although I do not conclude that his actions
on April 2, 2007 were protected, Chapman did engage in protected activity on
January 13. Therefore, I conclude that
the General Counsel has established the first Wright Line element.
The record
certainly establishes that Respondent knew about Chapman’s protests on January
13. Respondent’s owner was present at
the meeting. The General Counsel has
proven both the second Wright Line element and the third. A discharge certainly is an adverse employment
action.
However, I conclude
that the government has not carried the burden of showing a link between the
protected activity and the adverse employment action. Considering that two and
APPENDIX A
one–half months had elapsed, and considering also the absence of evidence showing that the Respondent was hostile to the employees’ protests, I do not find that such hostility existed. Indeed, I credit Piester’s testimony that he did not mind talking with Chapman about the pay issue.
The credited
evidence clearly establishes that Piester became upset when Chapman not only
spoke loudly at Derrick but also stood up and took a step in her direction. The General Counsel elicited testimony that
Chapman did not make any threat, in words or gestures. However, yelling at another employee, or even
speaking loudly to an employee in an upset tone of voice, can impart discomfort
as well.
Respondent pointed
to Chapman’s driving problems and driving record. I do not view this effort as an indication of
a shifting defense. When Piester testified
that Chapman’s shouting was “the last straw,” he seemed very sincere. Crediting that testimony, I conclude that
Chapman’s work problems had been a source of frustration to Piester which
Piester might have tolerated longer.
However, when Chapman started shouting at Piester’s secretary, that was too much.
In sum, the
credited evidence does not establish that Respondent discharged Chapman because
of any protected, concerted activities.
Accordingly, I recommend that the Board dismiss the Complaint in its
entirety.
When the transcript
of this proceeding has been prepared, I will issue a Certification which
attaches as an appendix the portion of the transcript reporting this bench
decision. This Certification also will include provisions relating to the Findings
of Fact, Conclusions of Law, and Order.
When that Certification is served upon the parties, the time period for
filing an appeal will begin to run.
Throughout the
proceeding, counsel displayed consistently high standards of professionalism
and civility, which I truly appreciate.
The hearing is closed.