Tri-State Truck Service, Inc.

Tri-State Truck Service, Inc. and James W. McDon- ald, Jr. Case 6-CA-10881 March 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 13, 1978, Administrative Law Judge Almira Abbot Stevenson issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order, as herein modified. We agree with the Administrative Law Judge that employees McDonald and Kovach were discharged by the Respondent in violation of Section 8(a)(1) of the Act. We do not agree that the Respondent made Kovach a valid offer of reinstatement on January 25, 1978, which tolled the backpay due him, or satisfied the Respondent's obligation to extend to Kovach a valid reinstatement offer. The evidence which was credited by the Adminis- trative Law Judge reveals that Kovach was in the office of the Respondent's President Snow on January 25 to pick up his paycheck. At that time, Snow com- mented to Kovach that he had received a copy of the charge in this proceeding. Kovach responded that he had no part in it and that he was leaving town. He told Snow he wanted no hard feelings, and offered to shake hands with Snow and be his friend. Snow then said, "Well, if you feel that way, why don't I take you out to Ed Marshall and I'll put you back to work." Kovach said no, that he just wanted his check and that he was leaving. In our opinion, Snow's remarks to Kovach did not constitute a valid offer of reinstate- ment. It is well settled that an employer's offer of rein- statement must be unequivocal, specific, and uncon- ditional for it to remedy the employer's unfair labor practices. Here, both the timing and the wording of Snow's remarks reveal that the offer of reinstatement to Kovach was a result of Kovach's disavowing any interest in pursuing the charge in this case. It is clear 'The Respondent's request for permission to argue orally before the Board is hereby denied because the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. TRI-STATE TRUCK SERVICE, INC. to us that the Respondent's offer was not forthcoming prior to Kovach's expressed lack of interest in this proceeding, and that the offer was conditioned on Kovach's refraining from further pursuing his Section 7 rights. In these circumstances, we find that the Re- spondent did not make an unconditional offer of rein- statement to Kovach and that its obligation to rem- edy its unfair labor practices has not been met.2 Accordingly, we will amend the Administrative Law Judge's recommended Order and order full backpay and reinstatement for Kovach. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Tri- State Truck Service, Inc., Paris, Pennsylvania, its offi- cers, agents, successors, and assigns, shall take the ac- tion set forth in the said recommended Order, as so modified: 1. Substitute the following as paragraph 2(a): "(a) Offer James McDonald and Thomas Kovach immediate and full reinstatement to their former posi- tions, or if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed; and make them whole for any loss of earn- ings each of them may have suffered by reason of their discharges on January 21, 1978, in the manner set forth in the section of this Decision entitled "The Remedy." 2. Substitute the attached notice for that of the Administrative Law Judge. 2 In light of this finding, we deem it unnecessar to pass upon the Admin- istrative Law Judge's discussion and findings concerning the obligation of a discnrminalee to make inquiries of an employer in order to learn the specifics of a reinstatement offer. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE AILL NOT interfere with, restrain, or coerce employees by discharging, or in any other man- ner discriminating against them, for striking or engaging otherwise in concerted protected activi- ties. WE WILL NOT in any other manner restrain or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. 241 NLRB No. 32 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WtE WILL offer James McDonald and Thomas Kovach immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, and WEI WIL.L make them whole for any loss of earnings they have suffered, with interest. TRI-SIATE TRUCK SERVICE, INC. DECISION SIAIEMEFN1 OF IIIE CASE ALMIRA ABBOI STEVENSON, Administrative Law Judge: This case was heard before me in Pittsburgh, Pennsylvania, on July 10, 1978. The original charge was filed and served on the Respondent on January 23. 1978; the amended charge was filed February 27, and served March 2, 1978. The complaint was issued March 2, 1978, and duly an- swered by the Respondent, which amended its answer at the hearing.' The basic issue is whether or not the Respondent's termi- nation of James McDonald and Thomas Kovach on Satur- day, January 21, 1978, for refusing to work that day be- cause the Respondent would not pay time and a half for Saturday work was violative of Section 8(a)(1) of the Na- tional Labor Relations Act, as amended. For the reasons fully set forth below, I find that the Respondent violated the Act as alleged. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the Respondent and the General Counsel. I make the following: FINDINGS OF FA(T AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent is a Pennsylvania corporation engaged in the wholesale of gasoline, fuel oil, and motor oil. During the last 12 months it purchased from points directly outside Pennsylvania goods and services valued in excess of $50,000 for use at its Paris. Pennsylvania, facility. I conclude that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. UNFAIR LABOR PRACTICES2 The Respondent is engaged in the sale and delivery of fuel oil to industry and private homes. William Snow is president, Charles Lipovitch is supervisor, and Edward Marshall is dispatcher. The Respondent also employs me- chanics and five permanent truckdrivers-James McDon- ald, Thomas Kovach, David Howell, Curtis Pitcock. and Richard Welch. The employees are not union represented. I The General Counsel's motion to correct transcript is granted in the absence of opposition. 2 The relevant facts are substantially undisputed, except as otherwise indi- cated. The Paris, Pennsylvania, area was struck by heavy snow during the week beginning January 16, 1978, and the Re- spondent was able to operate only 3 days out of the regular Monday-through-Friday 40-hour schedule. Until that week, no Saturday work had been requested or performed. On either Tuesday or Friday of the week of January 16, President Snow informed the drivers that because deliveries had fallen behind that week, they might be called in to work on Saturday if the weather permitted. No comment was forthcoming from the drivers. On the way home that day, McDonald and Kovach, who lived together, decided that they should get time and a half if they were required to work Saturday. That evening the two of them discussed the matter again, agreeing that they would not work Saturday unless they received time and a half pay. They then tele- phoned truckdriver David Howell and put the matter to him; he said he would go along with them if the other truckdrivers would.' No other drivers were contacted. Early Saturday morning, January 21, President Snow di- rected Supervisor Lipovitch to call the drivers and tell them to come to work. McDonald was the first driver called. Mc- Donald asked if he would be paid time and a half, and Lipovitch put Snow on the telephone. McDonald repeated his question, and Snow informed him that he had not worked 40 hours that week, and premium pay was paid only after 40 hours. McDonald stated he would not come in unless he was paid time and a half. Snow told him if he refused to come today, he would not be needed Monday or any other time. A short while later, Snow, who was aware that McDonald and Kovach lived together, called Kovach to come to work. Kovach told Snow he was sticking with McDonald and would work only if he was paid time and a half. Snow let Kovach know that he would be discharged if he did not work that day.4 Future possible conduct by ei- ther the employees or management was not discussed in either conversation. When Snow telephoned David Howell, Howell said he could not come to work because he was snowed in. McDonald also telephoned Howell, and Howell told McDonald that he was not working either. Snow waited for McDonald and Kovach most of the morning, thinking they would change their minds and re- port for work. When they had not reported by noon, Snow terminated them. Howell was not terminated because he had what Snow considered an acceptable excuse. The fuel- delivery trucks were driven that day by the drivers who did report, supplemented by mechanics and salaried employees. The facts set forth above establish that employees Mc- Donald and Kovach, who were unrepresented and had no established means of presenting grievances or complaints, engaged in a concerted refusal to work on Saturday, Janu- ary 21, 1978, because the Respondent would not pay them time and a half for working that day. The record also estab- lishes that the Respondent, through its knowledge that Mc- Donald and Kovach lived together and Kovach's specifi- cally informing President Snow that he was sticking with 3 ased on the testimony of Howell whose version was more probable in light of all the circumstances than McDonald's. ' The facts as to Snow's conversations with McDonald and Kovach on January 21 are based on Snow's testimony, because his versions seemed the more likely, as he seemed to have the more accurate recall, and because he was in general more credible than they. 226 TRI-STATE TRUCK SERVICE, INC. McDonald, had reason to believe the two men were acting in concert.5 Moreover, McDonald and Kovach had not been asked, and had not refused, to perform Saturday work before, there was no discussion of any such conduct by the employees in the future, and the Respondent admits that its demand of Saturday work on this occasion was an isolated occurrence brought about by unusual weather conditions. In these circumstances, the conduct of McDonald and Ko- vach was concerted activity protected by Section 7 of the Act. 6 Accordingly, I conclude that the Respondent's termi- nation of McDonald and Kovach on January 21, 1978. be- cause they refused to work unless they were paid time and a half for Saturday, violated Section 8(a)(I) of the Act. REMEDY In order to effectuate the policies of the Act, I recom- mend that the Respondent be ordered to cease and desist from the unfair labor practices found and, in view of the nature thereof, to cease and desist from infringing in any other manner on its employees' rights guaranteed by the Act. N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532 (4th Cir. 1941). I have found that the Respondent discharged James Mc- Donald and Thomas Kovach in violation of Section 8(a)(I) of the Act. The Respondent contends that it offered Ko- vach reinstatement Wednesday, January 25, 1978. The credited evidence shows' that Kovach came to Snow's office on the morning of the 25th to get his paycheck. After Snow told Kovach his check would not be ready until later in the day, Snow commented that he had been served with a copy of the charge in this proceeding. Kovach said he had no part in it and was leaving town, "he was going to Cleveland and wanted no hard feelings, and would [Snow] shake his hand and be his friend." Snow responded, "Well, if you feel that way, why don't I take you out to Ed Marshall and I'll put you back to work"; but Kovach said no, he wanted his check, as he was leaving. Ed Marshall is the dispatcher responsible for delivery trucks, and Snow testified that he intended his offer as an invitation for Kovach to resume his former job. In my opinion, Snow's offer neither stated nor implied any conditions or qualifications. Moreover, in view of the fact that Marshall was the dispatcher, it seems that the only reasonable interpretation of Snow's offer was that it was for the truckdriver job previously held by Kovach, as Snow I Hugh H. Wilson Corporation v. N. L. R.B.. 414 F.2d 1345 (3d Cir. 1969). In any event, the Board has held that "the existence of a 'group' need not be communicated to management" to insure the Act's protection of concerted activity. Oklahoma Allied Telephone Company, Inc., 210 NLRB 916, 920 (1974). 1 do not construe the dicta in New England Fish Company, 212 NLRB 306, fn. 2 (1974). relied on by the Respondent, as necessarily inconsistent with the aforecited decisions of the Board and court. 6N.LR.B. v. Washington Aluminum Companv, Inc.. 370 U.S. 9 (1962); First National Bank of Omaha, 171 NLRB 1145 (1969), enfd. 413 F.2d 921 (8th Cir. 1969); Polytech, Incorporated, 195 NLRB 695 (1972). Under these cases, the protection afforded these two employees is unaffected by the Re- spondent's need to supply its customers with fuel dunng the severe weather, particularly in view of the fact that, as far as the record shows, deliveries were made by other personnel; or the fact that only two of the Respondent's five permanent dnvers participated; or by the employees' failure to inform the Respondent in advance of their demands. 'Based on Snow's testimony. Snow was corroborated to some extent here by company Assistant Treasurer Jean Kuritz. while Kovach seemed particu- larly uncertain about this conversation. intended. Nor is there any basis for concluding that Snow's offer did not encompass all the rights and privileges previ- ously held by Kovach. The Board has said that, in such circumstances, if a dischargee had any doubts about whether the offer was for the job he previously held or whether the offer was without prejudice to his previously held seniority or other rights and privileges, he should have inquired,' but Kovach did not inquire. I therefore find that on January 25, 1978, President Snow unconditionally of- fered Kovach full reinstatement to his former job. which offer was immediately and unequivocally rejected by Ko- vach, who did not ask for time to consider the matter. I further find that the offer of reinstatement tolled backpay due to Kovach.' Accordingly, I recommend that the Re- spondent be ordered to offer James McDonald immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and to make McDonald and Kovach whole for any loss of earn- ings suffered by reason of their discharge, tolling backpay due to Kovach as of January 25, 1978. F. '.: 4Woolworth Company, 90 NLRB 289 (1950). Interest shall be paid on all amount;; due in the manner prescribed in Florida Steel Cor- poration, 231 NLRB 651 (1977): see, generally. Isis Plhmb- ing & Heating Co., 138 NLRB 716 (1962). Contrary to the Respondent's request, I find that the posting of the usual notice will best effectuate the policies of the Act."' Upon the foregoing findings of fact, conclusions of law. and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, Tri-State Truck Service, Inc.. Paris, Pennsylvania, its officers, agents. successors, and assigns, shall: I. Cease and desist from: (a) Interfering with, restraining, or coercing employees by discharging or in any other manner discriminating against employees for striking or engaging otherwise in con- certed protected activities. (b) In any other manner restraining or coercing employ- ees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer James Mci)onald reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges: and make James McDonald and Thomas Kovach whole for any loss of earn- Mor Motors Ltd. 216 NL.RB 192 (1975) 9 Moro Motors ltd, supra; Robert M. Anderson. an Individual Proprietorship d/b/a Anderson Plumbing and Heating Company, 203 NL.RB 18 (1973). to First National Bank of Omaha, supra A notice based on that ordered in Brantly Helicopter Corporation, 135 NLRB 1412 (1962), would not be appro- pnate in this case. 11 In the event no exceptions are filed as provided b Sec. 102.46 of the Rules and Regulations of the National l.abor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted hb the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ings each of them may have suffered by reason of their discharges on January 21, 1978, in the manner set forth in the section of this Decision entitled "The Remedy." (h) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facility in Paris, Pennsylvania, copies of the attached notice marked "Appendix."' Copies of said notice on forms provided by the Regional Director for Region 6, 12 In the event that this Order is enforced by ajudgment of a United States Court olf Appeals. the words in the notice reading "Posted by Order of the after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 228