Fast Foodmakers

FAST FOODMAKERS 49 Fast Foodinakers and Local 773, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 4-CA-6394 February 14. 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On September 20, 1973, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel and Charging Party filed briefs in opposition to Respon- dent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Fast Foodmakers, Quakertown, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. they went on strike in protest to the discharges; interrogat- ed employees concerning their desires for union represent- ation and their voting intentions in a contemplated Board election; and promised better working conditions and reinstatement of the terminated employees provided the employees withdrew support of the Union's organizational efforts and its representation petition, and provided the unfair labor practice charges were withdrawn. At the close of the hearing, the parties waived oral argument but thereafter filed briefs in support of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a North Carolina Corporation, with an office and place of business in Quakertown, Pennsylvania, is engaged in the warehousing and wholesale distribution of food and other products. The Quakertown facility is the only operation involved in this proceeding. During the 12- month period preceding the issuance of the complaint herein, the Respondent sold and shipped products valued in excess of $50,000 to customers located outside Pennsyl- vania. During the same period, the Respondent's gross volume of business exceeded $500,000. It is conceded, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Il. TIIE LABOR ORGANIZATION INVOLVED There is no question that Local 773, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. DECISION SI'ATEMENT OF THE CASE PAUL BISGYER. Administrative Law Judge: This proceed- ing, with all parties represented, was heard on July 24 and 25, 1973, in Allentown, Pennsylvania, on the complaint of the General Counsel issued on June 5, 1973, as amended at the hearing,' and the amended answer of Fast Foodmak- ers, herein called the Respondent or Company. In issue are the questions whether the Respondent, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended,2 placed Orville McClanahan and Joseph Irelan on "probation" and subsequently discharged them because they engaged in a protected concerted refusal to work; threatened employees with reprisals, including a lockout, if i The amended complaint is based on original and amended charges filed on April 4 and July 18, 1973. respectively Copies of these charges were duly served on the Respondent by registered mail on April 4 and July 19, 1973,respeclively 2 Section 8(a)(l) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain , or coerce employees in the exercise of Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The truckdrivers' complaints over the Respondent's delay in reimbursing them for road expenses The Respondent, a division of Hardee's Food Systems, inc , serves as a distribution point for all Hardee Restaurants in the northeastern section of the country. For such purpose, it maintains a warehouse in Quakertown, Pennsylvania, from which it transports by truck food and nonfood products to these restaurants located in various States. Joseph Shaull, the warehouse manager, is in charge the rights guaranteed in section 7." Insofar as pertinent. Section 7 provides that "[elmployees shall have 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 .. " 209 NLRB No. 4 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of this facility where 10 over-the-road truckdrivers, 9 warehousemen,3 and other personnel are employed. The drivers have fixed assigned routes and generally work in pairs. In making the deliveries to the restaurants, the drivers normally incur reimbursable road expenses for turnpike tolls, meals, lodging, and incidental truck repairs. To meet these anticipated expenses, the Respondent initially furnished each driver with a $75 advance which was later increased in August or September 1972 to $125 when the smaller amount proved to be inadequate. Because the run of Orville McClanahan and Joseph Irelan, the dischargees herein who were assigned as a team, entailed greater expenditures than the routes of the other drivers, their advances were further increased to $175 in October or November 1972. It has been the normal procedure for all the drivers, except McClanahan and Irelan, to submit their weekly expense vouchers to Manager Shaull every Wednesday, while McClanahan and Irelan customarily handed in their weekly vouchers on Tuesday before they made their scheduled run at night. Until May 1973,+ Shaull, in turn, would forward these vouchers to the Respondent's home office in Rocky Mount, North Carolina, for processing and the preparation of expense checks for the individual drivers. These checks would then be transmitted to the Quakertown facility where they would be given to the drivers. This procedure contemplated that the drivers would receive their checks by the second Monday following the submission of their vouchers, thus allowing about 12 days for reimbursement of expenses. Such timing, it apparently was believed, would minimize the need for the drivers to lay out their own money for road expenses .5 Unfortunately, due to various administrative and mail- ing problems, the expense checks did not always arrive at the expected time from the home office with the delay amounting to one or more days and as much as a week. The net effect of these delays was to create a situation where drivers on occasions would be out of pocket sums of money which they had expended on the Company's behalf in excess of advances that they had received. As a result, drivers repeatedly complained to Shaull about the late delivery of their expense checks. An admitted outspoken critic of this unhappy situation was McClanahan. Around Christmastime, 1972, the problem of late expense checks visibly troubled the drivers. In a group, including McClanahan and Irelan, the drivers met with Shaull and protested their failure to receive their overdue expense checks which had obliged them to use their own money to meet road expenses. They also warned that, if this condition persisted, they would not operate their trucks. Shaull indicated agreement that the drivers should park their trucks if their money were not forthcoming. Shaull thereupon communicated with the Rocky Mount 3 The day shift warehousemen unload and store products shipped from the Company's manufacturing facilities or outside suppliers The ware- housemen on the night shift pull orders and load the trucks with merchandise for delivery to the Hardee Restaurants ° Shaull testified that the procedure of forwarding expense vouchers to the Rocky Mount home office for processing was discontinued in May 1973 when, on his recommendation, he was authorized to review the vouchers and issue checks to the drivers. According to Shaull, the new system has been working well and has eliminated the delay problem. McClanahan credibly testified , without contradiction, that back in August or September home office and arranged to secure funds from a local bank in Doylestown, Pennsylvania, to be distributed among the drivers as a temporary measure to enable them to make their runs. Accordingly, Shaull was able to give each driver a temporary advance of $60 for which he signed a receipt with the understanding that this sum would be deducted from the expense checks due the drivers. Manifestly, the use of temporary advances did not remedy the problem of late expense checks nor accelerate their timely delivery. Indeed, in the first week in January 1973, the drivers continued to experience delays in receiving their expense checks, which necessitated Shaull's making another arrangement with the home office for securing funds from the Doylestown hank to be used to provide a second temporary advance of $60 to each driver. The drivers again signed for this advance with the same understanding for the deduction of this sum from their expense checks. There is testimony that drivers were not pleased with the temporary advance measures, not only because the advances did not correct the basic problem of late expense checks, but also because their overdue expense checks would be reduced by the amount of the deductions and their personal recordkeeping would be "messed up." In fact, Shaull testified that the drivers so informed him. According to the uncontradicted testimony of driver Hillary Gallagher, which I credit, Shaul] assured him that steps would be taken to straighten out the expense check difficulties. 2. The refusal of McClanahan and Irelan to work; their placement on "probation" and subsequent termination On March 19, 1973,6 McClanahan and Irelan did not receive their expense checks which were due on that date, although other drivers were given their checks. Shaull explained to McClanahan and Irelan that they had not received their checks because someone in the Rocky Mount home office had failed to initial their expense sheets.7 The following Monday, March 26, no expense checks for the drivers had arrived as they were supposed to. Shaull telephoned the home office and was advised that the checks had been mailed out and would probably reach the Quakertown facility in the next morning 's mail. Shaull conveyed this message to the drivers. Under company procedures, McClanahan and Irelan each had two expense checks due on March 26 in payment of previously filed vouchers, while each of the other drivers had one check forthcoming. Moreover, it appears that as of that date McClanahan had advanced for road expenses approxi- mately $150 and Irelan a lesser sum out of their own pockets in excess of the $175 previously advanced by the 1972 he and Irelan made a similar proposal of direct issuance of checks by Shaul) in order to rectify the late expense check problem. According to Manager Shaull, the increases in the cash advances mentioned above and the change in the day of the week drivers were required to submit their expense vouchers were intended to avoid the problem of diners using their own money for road expenses 6 Unless otherwise indicated, all dates refer to 1973 7 According to McClanahan's undisputed and credited testimony-on March 20 Shaull gave him and Irelan $50 from Shaull's personal funds to cover expenses on their then scheduled run. FAST FOODMAKERS 51 Company to each of them, although payment for all expenditures had not yet become due. When McClanahan and Irelan returned to the warehouse from their run in the evening of March 26, they asked Night Foreman McCurdy whether their expense checks had arrived and were informed that they had not. McClanahan and lrelan thereupon discussed the matter between themselves and decided that they would not make their regular Tuesday (March 27) run, which was scheduled to begin at 11 p.m., if their expense checks were not received by then. On the morning of March 27, McClanahan went to the warehouse and was advised by Shaull that the expense checks had not yet come in. While they were waiting for an employee to return from the post office with the mail. McClanahan indicated to Shaull that he and his partner, Irelan, would not make their run unless they received their money or expense checks.8 This elicited Shaull's remark that if there is "[n Jo money, 1 guess we all leave the trucks sit." After the employee returned from the post office, Shaull apprised McClanahan that no checks had arrived. Because, as Shaull testified, the drivers "were running dust a little bit too low," he decided again to secure a temporary advance for the drivers to tide them over until they received their expense checks. Shaull then arranged with the home office to obtain $600 from the Doylestown bank and invited McClanahan to accompany him there. McClanahan declined the invitation, declaring that Shaull could get all the money he wanted but that he (McClana- han) would not sign for the temporary advance and thus cause his expense account to be "messed up" and cause further delay in their payment, as prior experience proved to be the case.-9 After obtaining funds from the bank, Shaul] placed $60 in separate envelopes for each driver together with a receipt to be signed by the recipient. These envelopes were then handed to Night Foreman McCurdy for distribution among the drivers when they reported for work. Subse- quently, only 2 of the 10 drivers accepted the $60 when McCurdy offered it to them. In the meantime, Irelan called the warehouse office about 1 p.m. of the same day (Tuesday, March 27) and was advised that the expense checks still had not arrived. Irelan then conveyed this information to McClanahan. About 10:30 p.m., McClanahan telephoned McCurdy and in- quired whether the expense checks had come in. McCurdy answered in the negative and, in reply to his further questions, McCurdy said that Shaull had obtained money from the bank to give the drivers, as a temporary advance, s It is clear that McClanahan used the term "money" and "expense checks" interchangeably 9 The foregoing findings reflect the credited portions of McClanahan's and Shaull's testimony Although Shaull denied McClanahan's testimony that McClanahan told him that he and Irelan would not make their run unless they received their money or expense checks or that McClanahan said that he would not sign for a temporary advance, it is highly probable that McClanahan made the statements in question which are clearly consistent with his position in the ensuing events leading up to his discharge iu This account of the McClanahan-McCurdy conversation is based on the former's credible testimony McCurdy's version does not substantially differ from McClanahan's except that McCurdy testified that McClanahan only asked him if he had "money' not the expense checks Since McClanahan was obviously more concerned about the expense checks, it is very likely that he would ask about them i i Although McCurdy testified that McClanahan did not explain "in any for which they would have to sign. In response, McClana- han indicated that he and Irelan would not make their scheduled run unless they received their overdue expense checks, nor would they accept the $60 temporary advance if they were required to sign for it.i0 McCurdy then communicated with Shaull and related this conversation. Shaull directed McCurdy "to dust leave the truck set." According to McClanahan's testimony, if he and Irelan were given the $60 without their signatures they would have made their scheduled trip and used the money for the road expenses and, on their return, they would have turned back the unused portion of the advance. In this way, McClanahan testified, the temporary advance would not have been charged against the expense checks which were owing to them, thereby not "messing up" their accounts. After the foregoing telephone conversation, McClanahan and Irelan decided to report for work because of the possibility that the Company might give them the tempo- rary advance without signing for it. When they arrived at the warehouse about 11 p.m.. they asked McCurdy for the money. McCurdy refused to give it to them unless they signed a receipt, which they refused to do.li Consequently, McClanahan and Irelan determined between themselves that they would not make the run that night. Following his second call to Shaull to report the latest development, McCurdy informed McClanahan and Irelan of Shaull's decision that, if they refused to sign for the money, to "leave the truck set" and they would be on "probation." iz At this point, McClanahan requested McCurdy not to take over and make his (McClanahan's) and Irelan's run because, if he did, it would defeat the purpose of their action. McCurdy assured them that he would not make the:ir run and McClanahan and Irelan left. About 2:30 or 3 o'clock Wednesday morning (March 28) McClanahan and Irelan returned to the warehouse. While in the parking lot, they informed the drivers, who were preparing to leave on their tour of duty, that they were not making their run. However, it appears that the drivers nevertheless proceeded to make their deliveries. At this time, McClanahan again spoke to McCurdy and repeated his prior request that McCurdy refrain from taking over McClanahan's and Irelan's assigned route and received the same assurance as before that he would not,13 3. The discharge of McClanahan and Irelan; the drivers' protest and their withholding of services When Manager Shaull came to the warehouse at 8 detail" the reason he would not sign a receipt, in a pretrial affidavit McCurdy had given to a Board agent, he made the statement, which he testified was true, that McClanahan . . said that he didn't want to sign for the $6000 since it would probably mess up the amount of expense and it would take longer to get it back He said the company should have another way. Mac [McClanahan ] said the company was into him for expense money amounting to about $134 00 i2 McClanahan credibly testified , without contradiction , that a notice on the bulletin board stated that two periods of probation would result in disciplinary action 13 Although McCurdy could not recall whether McClanahan requested him not to make his and Irelan's run in this and their prior conversation, I credit McClanahan's testimony that he did make the request 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD o'clock Wednesday morning (March 28), he noticed that the loaded truck assigned to McClanahan and Irelan was still in the yard. He thereupon telephoned the Rocky Mount office and reported to the Company's officials that McClanahan and Irelan had failed to make their Tuesday night run. Shaull was instructed to terminate the two drivers for this reason. In the meantime, McClanahan and Irelan learned that morning that their overdue expense checks had arrived. In the afternoon, they went to the warehouse prepared to go to work. After picking up their expense checks, they proceeded to Shaull's office where Shaull informed them that, as he had expected, they, were terminated by the home office because they had refused to make their Tuesday run.14 With Shaull's permission, McClanahan then used the company telephone in an unsuccessful effort to reach the Board's Regional Office. Following their discharge, McClanahan and Irelan went to their truck to remove their personal belongings. While so engaged, other drivers approached them and, in answer to their inquiries as to what had happened, were informed that they were discharged because they had refused to make their scheduled run the day before because their expense checks were then overdue. The drivers expressed their dissatisfaction with the Company's action. One of the drivers, Hillary Gallagher, thereupon discussed the dis- charges with Shaull, who stated that nothing could be done inasmuch as Rocky Mount had made that decision. When Gallagher attempted to justify McClanahan's and Irelan's conduct on the ground of the continuing expense check problem, Shaul] retorted that he had offered them the $60 temporary cash advance. In reply, Gallagher pointed out that that sum was less than the amount of the money they had already expended out of their own funds. There is also testimony by Shaul] that during the day, as drivers returned from their runs, he also explained to them what had transpired and the reason for the discharges and that this caused "a little bit of tension in the air." Later in the afternoon, the drivers held a meeting among themselves. Concluding that the discharges were unfair in view of the recurring expense check problem, they decided to speak to Shaull to protest the discharges and to withhold their services and shut down the operation unless McCla- nahan and Irelan were reinstated. Accordingly, between 6:30 and 7 p.m., the drivers entered 'Shaull's office and, with Gallagher as their main spokesman, voiced their opposition to the discharges. This led to a discussion of the expense check problem which the drivers declared required correction. The drivers also pointed out to Shaull that what happened to McClanahan and Irelan on account of their failure to receive their checks on time could happen to them and that it was unfair for the Respondent to terminate those employees. Gallagher then indicated that, under these circumstances, he would not work unless McClanahan and Irelan were reinstated. At Gallagher's suggestion, Shaull polled the individual drivers to ascertain whether they, too, intended not to work that night. After IS Subsequent to their discharge. McClanahan and Irelan received their paychecks and the balance of expense moneys due them after deductions were made for the moneys previously advanced to them 15 The findings relating to the drivers meeting with Shaull are based on putting that question to most of the drivers who expressed a uniform intention of not making their runs, Shaull declared that it looked like all of them did not intend to work and that they should know what they were doing-they were "asking for trouble." Further stating that either all or none of the trucks would go out, Shaull suggested that the drivers go home, think about their action, and he would set up a meeting the next morning with William Bunch, the Respondent's director of distribu- tion.'!", A conflict in testimony is presented whether Shaul] also stated something to the effect that, "if you're all not working . . . there's going to be a lockout." However, this conflict need not be resolved since it is clear that, regardless of the terminology used by Shaull, the cessation of work resulted from the drivers' deliberate determination to withhold their services and not to any affirmative act on the part of Shaull. After the drivers left Shaull's office. they returned to the drivers' room where McClanahan and Irelan had remained during the above meeting. Subsequently, Shaull appeared and told the group they had 5 minutes to leave the premises. Here, too, there is a dispute in the testimony whether Shaull mentioned "a lockout," which is also not necessary to resolve for the previously indicated reason. On this note, the drivers departed. About this time, Shaull instructed Night Foreman McCurdy to send home the warehousemen, whose duty it was to load the trucks, and to close down the facility, as no trucks were going to make any deliveries that night. Several hours before the warehouse was closed, McCla- nahan engaged McCurdy in a conversation in the parking lot. According to McCurdy, McClanahan told him that it would not be healthy for him to take McClanahan's run that evening because a friend, who was familiar with McClanahan's route, would be out to get him. McCurdy further testified that he did not respond but only shrugged his shoulders. McClanahan's account of this incident is, as follows: When McCurdy drove into the yard, McClanahan ap- proached him, saying that he wanted to talk to him about making his (McClanahan's) run. McCurdy answered that he, too, wanted to speak to him about that matter. McClanahan then stated that McCurdy must be aware that every driver was parking his truck; that he did not think that it would be healthy for McCurdy to make a run because he would make "too darn many enemies"; and that, if he made the run, McCurdy would be defeating his and the other drivers' purpose. McCurdy replied that he would not make the run. McClanahan further testified that a week later in Shaull's office, in the presence of Irelan, Shaull and another person, he told McCurdy that "last week ... [he] was out to hang . . . [his] ass" and that he had called the New York Port Authority to report that McCurdy could not lawfully make a run after working a full day in the warehouse.1e McCurdy admitted that McClanahan told him that the previous week he was "out to get ... [his ] those parts of the testimony of Gallagher , Shaull , and driver Floyd Hangey which 1 believe reflect what probably transpired on this occasion iS Irelan testified that he was present when McClanahan made the telephone call to the New York Port Authority McClanahan also testified FAST FOODMAKERS ass." Although McCurdy also testified at first that he did not recall whether McClanahan gave a reason , later in his testimony he recalled that McClanahan mentioned that he had reported to some authority McCurdy's "log" violations due to his failure to take a sufficient rest period before driving. Irelan confirmed the correctness of McClanahan's testimony concerning the above conversations. Giving careful consideration to all the testimony, I am not convinced by McCurdy's account that McClanahan threatened him with bodily harm. At best, l find McClana- han's remarks ambiguous and that they were actually intended as a warning that he would report McCurdy to the appropriate authorities for driving a truck in violation of highway rules pertaining to rest periods. 4. The drivers' return to work on March 29; their resumption of the work stoppage on April 1; the Respondent's April 2 telegram; and the termination of the second walkout The next morning, March 29, William Bunch, the Respondent's director of distribution , met with the drivers. In answer to Bunch's inquiry concerning the drivers' problems, Gallagher, as spokesman for the drivers, brought up the subjects of McClanahan's and Irelan's discharge and late expense checks which necessitated their using their own money for road expenses . Bunch explained that the discharges were caused by the failure of McClanahan and Irelan to make their scheduled deliveries after they were each offered a temporary advance by Shaull to cover their road expenses . As for the late expense checks, Bunch acknowledged that it was a problem and assured the drivers that he would look into the matter to see what could be done to facilitate the handling of their expense vouchers . The meeting ended with the drivers agreeing to return to work , which they did, completing the week 's runs. On Sunday night, April 1, the drivers, still unhappy over the discharges, held another meeting among themselves at which they decided to resume their work stoppage. Thereafter, all but two drivers, who had left earlier to make their deliveries, notified the Company of their decision. About 12:30 Monday morning (April 2). Night Foreman McCurdy informed Shaull of this development. Shaull, in turn, conveyed this information by telephone to Melton Futrell, the overall warehouse operations manager in the Rocky Mount home office. Futrell advised Shaull that Bunch and he would visit the Quakertown facility on April 4. About 1 :30 p.m. on April 2, Futrell telephoned McClanahan at his home, requesting him to put the men back to work and to call off the strike. McClanahan stated that he would talk to the men about it but doubted that he could do anything . Futrell, however, expressed confidence that McClanahan could do it, adding that when company officials returned from a convention in Acapulco , he would arrange a meeting at which McClanahan would have an opportunity to discuss the discharges with them . McClana- han thereupon communicated with the drivers who adhered to their position not to return to work and McClanahan so advised Futrell. that he called the New York State police to watch for the Respondent's 53 Later in the afternoon, Shaull sent the following telegram to each striking driver: Bill Bunch will be in Quakertown Monday , April 9 for employee meeting. Drivers who fail to work as scheduled are subject to disciplinary actions up to and including possible termination. About 5 or 6 o'clock in the evening, Shaull received a telephone call from a driver inviting him to a drivers meeting then being held at his home. Shaull accepted. At the meeting, Shaull participated in the discussion concern- ing the discharges and the expense check problem, as well as Shaull's above telegram . Shaull stated that he lacked the authority to change any decision but that he expected that the division head would be at the Quakertown facility by Wednesday, April 4, at which time a meeting with the drivers would be held to settle these matters. On April 4, Bunch met with the drivers in another effort to resolve the discharge and late expense check difficulties. In the course of these discussions, the subject of employee benefits was raised and the Respondent agreed to have an official conversant with such matters speak to them on a future date. Following this meeting, the drivers returned to work. The same day the Union filed the unfair labor practice charge which initiated this proceeding. 5. The April I I Allentown Airport episode As previously promised, company officials from the home office met with the drivers at the Quakertown warehouse on April 10. At this meeting, the Respondent's Vice President Ramsey discussed the Company's employee benefit program. While the meeting was in progress, Warehouse Operations Manager Futrell received a tele- phone call from McClanahan who complained that neither he nor Irelan had been invited to that meeting and that Futrell had thus "reneged" on his prior agreement . Futrell explained that the reason why they weren't invited to the meeting was the fact that an unfair labor charge had been filed against the Company and that if Futrell had arranged for their attendance, the Company would "have ... [his I head in fifteen minutes." Futrell then handed the phone to Richard F . Sherman, corporate counsel to the Respon- dent's parent company. to speak to McClanahan . Although Sherman was disposed to hear McClanahan's account of ' his discharge over the telephone, McClanahan insisted on having a face-to-face meeting . Because of a prior commit- ment, Sherman agreed to notify McClanahan if such a meeting could be scheduled. About 9:30 a.m. the next morning (April 11), Shaull called McClanahan and informed him that Sherman would see him at the warehouse between 1 and 2 p.m. This meeting was subsequently changed to 5 or 6 o'clock in the evening at the Allentown Airport where Sherman would make an en route stopover in a company plane. Since Irelan was unable to attend this meeting, McClanahan asked Union Business Agent Neal Manganelli to accompa- ny him. There is an irreconciliable testimonial dispute as to what Hardee equipment on the road which was being operated in violation of "log" rules. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transpired at the airport meeting. McClanahan testified that he and Manganelli met Futrell, Sherman, and two other company people in the Reading Aviation Service hangar; that, after Futrell introduced him to Sherman, he, Manganelli, and Sherman left and boarded the plane; that on the plane, Sherman asked who was the person with him; and that Manganelli answered that he was the Union's business agent and that the Company's "people have chosen us to represent them and that's what we intend to do." McClanahan further testified that Sherman then questioned Manganelli's presence, remarking that he thought that this was going to be a "one-to-one" meeting. Manganelli thereupon departed. According to Sherman, while in the plane Manganelli identified himself as a Teamsters representative and proposed that, if McClanahan and Irelan were reinstated, "we" would drop the unfair labor practice charges. In response, Sherman testified that he stated that he thought that McClanahan had requested a "one-to-one" meeting and at this point Manganelli left the plane. Both McClana- han and Manganelli contradicted Sherman and denied that Manganelli or anyone else mentioned the unfair labor practice charge at this point. I have serious doubts that Manganelli would propose dropping the charges as soon as he identified himself and before the subject of the discharges was even discussed. For this reason and in view of my credibility findings below, I credit McClanahan's and Manganelli's denials that the unfair labor practice charge was mentioned when the three of them were together. Concerning the ensuing conversation between McClana- han and Sherman when they were alone on the plane, McClanahan gave the following account : Noting that it was his business to deal with organized labor and union activities, which the Company opposed, Sherman asked, "What will it take for him to pull his horns in and go home." When McClanahan answered "nothing," Sherman commented that it was costing the Company quite a bit of money to fight the unfair labor practice charges and inquired, if he were able to secure McClanahan's reinstate- ment, whether McClanahan would take the other four drivers who signed union cards to the Labor Relations Board and tell the Board that they did not want an election but wanted the petition withdrawn. Sherman then added that he was not making a promise of reinstatement to McClanahan but that he would see what he could do for him. McClanahan responded that he could not comply with Sherman's request because it involved other individu- als than himself . Sherman also asked McClanahan whether he would consider reinstatement in another branch of the Company's operation . To this inquiry, McClanahan gave a negative reply because his home was in the Quakertown area. In answer to Sherman's further question how did he think he could benefit the Company if he were reinstated, McClanahan stated that he, Irelan, and everybody else were dedicated employees. In the course of the conversa- tion, Sherman indicated that , if the petition for an election could he withdrawn, this would give the Company I year within which to try to correct its mistakes and problems before the employees could " petition for the union again." McClanahan's response was that all he could do is discuss the matter with the other drivers . In addition , Sherman inquired whether McClanahan "would ... be in there battling for the union" when the employees would have the opportunity to petition for the union again . McClanahan answered, "Possibly." Sherman furnished an entirely different version of his conversation with McClanahan, placing the initiative on McClanahan in offering to drop the unfair labor practice charges and to solve union problems in return for reinstatement. Thus, according to Sherman's testimony, the following occurred : When Manganelli left the plane, Sherman asked McClanahan to relate his side of the story concerning his discharge . McClanahan answered that he refused to sign for the temporary cash advance because it would mess up his expense account. Sherman then responded that McClanahan 's position was not justified as the Company needed his signature for its records. Thereupon , McClanahan asked Sherman what it would take to be reinstated . Sherman replied that he did not know and, in turn, inquired of McClanahan what he had to offer. When McClanahanY stated that he was a good employee, Sherman remarked that he didn't know it but his driving record would speak for itself. McClanahan then offered to drop the charges. To this offer, Sherman commented that he thought that the Company would be successful in defending its position , even though the litigation costs were "kind of prohibitive." McClanahan then asserted that he could take care of the other problems, by which he meant union problems. Sherman thereupon told McClanahan: even if the company were interested, . .. if there is a union battle, the company would have no idea of knowing whether you were for or against the company .. . . And secondly, . . . the only way that I could see that . . . your offer here to get rid of the union problems, could result in success would be if the petition was withdrawn , or the complaint whatever it was. At this point, McClanahan declared that he didn't "have that much power" and that he didn't think he could do that. The conversation concluded with Sherman saying that in any event he did not think anything could be done for McClanahan since he (Sherman) did not have the power to hire and fire and that all he could do is to report to the Rocky Mount officials what McClanahan had related. Sherman further testified that he was not aware at the time of the above conversation that a petition had been filed with the Board's regional office , although he knew that the Company had received the Union's letter requesting recognition but he had not seen its contents. He also testified that he was aware at the time of the conversation that a petition could be filed. From my appraisal of the above testimony I find Mc Clanahan's account more persuasive than Sherman's. Considering the details and nature of the conversation recounted by McClanahan, as well as his demeanor on the witness stand , I do not believe, as the Respondent argues, that McClanahan's testimony was "patently fabricated." Although there is no direct evidence that Sherman was aware that the Union had filed a representation petition FAST FOODMAKERS 55 earlier in the day of the conversation in question, it does not necessarily follow, as the Respondent indicates, that Sherman could not possibly have suggested to McClana- han that he attempt to secure the withdrawal of the petition or notify the Board that the employees did not want an election . Admittedly, Sherman was aware that before his conversation with McClanahan the Company had received a letter from the Union claiming to represent a majority of the employees and requesting recognition. In addition, there can be little doubt that, as corporate counsel, Sherman also knew that the Company would decline to recognize the Union without a Board election, as the Company did the next day when it answered the Union's letter. In these circumstances, it could reasonably be assumed that a representation petition might be filed so that it is not so unlikely that, in anticipation of such filing, the subject of withdrawal of the petition could have been discussed. Indeed, as shown above, Sherman testified that when McClanahan offered to remove the union problems, he (Sherman) stated that the only way McClanahan's offer could be successful "would be if the petition was withdrawn, or the complaint whatever it was." Moreover, militating against the probability that McClanahan offered to drop the unfair labor practice charges in this case in exchange for reinstatement is Sherman's testimony that McClanahan stated that he lacked the power when Sherman suggested the withdrawal of "the petition . . . or the complaint whatever it was." All things being consid- ered, I credit McClanahan's version of the April 11 episode. 6. The Union's request for recognition; the representation petitions; interrogation by the Respondent On April 10, the Union sent a letter to the Respondent at its Quakertown facility, claiming to represent a majority of its employees and requesting recognition. Upon its receipt, which was probably on April 11, Warehouse Manager Shaull telephoned the Company's home office in Rocky Mount and advised them of the letter and "roughly" of its contents and that he was forwarding the letter to them. Subsequently, the home office dictated to Shaull on the telephone the Company's response which Shaull transmit- ted to the Union by letter dated April 12. In it, the Respondent questioned the Union's majority claim and declined recognition without a Board election. On April 11, the Union filed a representation petition (Case 4-RC-10306) with the Board's Regional Office seeking to represent a unit of warehousemen and truckdn- vers at the Respondent's Quakertown location. With the approval of the Regional Director, this petition was withdrawn on April 19. On the same day, another petition was filed (Case 4-RC-10325) for a unit of truckdrivers only. An election was held on June 15, which the Union won, resulting in its certification on June 25. At the hearing, the Respondent admitted the following allegations of paragraph 5 of the complaint: (e) On or about April 20, 1973 and again on April 27, 1973, Joseph Shaull interrogated employees concerning their desire for representation by the Union. (f) On or about April 20, 1973 and again on April 27, 1973, Joseph Shaull interrogated employees concerning how they would vote in the Board representation election being sought by the Union. B. Concluding Findings 1. With respect to the discharges Section 7 of the Act guarantees employees "the right to .. . engage in ... concerted activities for the purpose of ... mutual aid or protection ...." Unquestionably, the protection afforded employees by this provision extends to concerted work stoppages for such objective.17 To penalize an employee by discharge or other discipline for exercising this right violates Section 8(a)(1) of the Act.'8 I find that McClanahan's and Irelan's refusal to make their assigned deliveries on March 27 was the kind of activity Section 7 protects and that their placement on "probation" and their subsequent discharge for such reason violated Section 8(a)(1) of the Act. As shown above, the Respondent's truckdrivers had been repeatedly experi- encing delay in reimbursement for road expenses incurred by them in excess of the moneys advanced by the Respondent. Admittedly. this delay was a source of annoyance to the drivers who complained about this condition and even warned on one occasion that they would not operate their trucks if that problem was not remedied. On March 27, when the Respondent was concededly delinquent in the payment of the two expense checks due to McClanahan and Irelan,19 McClanahan and Irelan jointly decided not to make their scheduled run that night unless they first received their checks. At this time, they had already advanced substantial sums of their own money on the Respondent's behalf. Manifestly, their concerted withholding of services was directly related to employees' legitimate interest in improving a recurrent condition of employment and served as a protest against the Respondent's failure to make timely reimbursement to the drivers of their road expenses. In these circumstances, there can be no doubt that the concerted effort of McClanahan and Irelan to induce the Respondent to rectify the late expense check situation constituted an activity for the mutual aid and protection of themselves, as well as of the other drivers. Indeed, as discussed above, the drivers subsequently engaged in two strikes in protest of the discharges and the unresolved late expense check problem which brought about those dismissals. It therefore follows that the placement of McClanahan and Irelan on "probation" and their subsequent discharge were in violation of Section 8(a)(1) of the Act.20 The Respondent concedes that ordinarily the conduct of McClanahan and Irelan in protesting the nonpayment of expenses would constitute a protected concerted activity. '7 N L R B v Washington Aluminum C ompany. Inc, 370 U S 9. 16-17 (1962) 18 Washington Aluminum, supra, Hugh H H Elton Corporation v N L R B, 414 F 2d 1345. 1347 (C A 3, 1969), cert denied 397 U S 935 (1970) 11 At that time the other drivers had one overdue expense check owing to each of them 20 ('f San Juan LumberCompani, 144 NLRB 108. fn 1. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, it vigorously contends that McClanahan and Irelan removed themselves from the protection of the Act when they refused the temporary cash advance for road expenses unless it was given to them without signing a receipt. In support of its contention, the Respondent argues that, by taking that position, McClanahan and Irelan were actually challenging the Company's authority to establish the terms on which it would disburse cash and thereby they were attempting to dictate the terms and conditions under which they were willing to work. This, the Respondent's argument continues, deprived the McClana- han's and Irelan's work stoppage of statutory protection under prevailing decisions. I find the Respondent's contention totally untenable and the principle of the cases upon which it relies inapplicable to the facts herein. In the first place, McClanahan and Irelan preferred their expense checks since the temporary cash advance was only a makeshift measure which did not solve the basic problem of late expense checks. In fact, if they accepted the temporary advance, that money would have been deducted from their expense checks as they became due thereby depriving them of full timely reimbursement of their previously filed vouchers and creating confusion for them in maintaining their personal accounts. Certainly, there is nothing in the Act which barred McClanahan and Irelan from exercising their statutory right to withhold their services until the critical problem of late checks was rectified. To be sure, they indicated a willingness to accept the temporary advance provided they were not required to sign for it. However, this did not amount to a waiver of their statutory right to cease work to protest a troublesome working condition-the late expense check problem. Moreover, it appears that McClanahan and Irelan were willing to accept the temporary advance-although with- out signing for it-in order to use the money to cover expenses on their March 27 scheduled run, returning to the Company the unused money at the end of the trip. In this way, they believed that they would avoid any reduction in the checks for which they had already expended their own money. While the Respondent might feel that McClanahan and Irelan acted unreasonably or unwisely, "it has long been settled that the reasonableness of workers' decisions to engage in concerted activity is irrelevant to a determina- tion" whether their activity is protected.21 Finally, I am unable to perceive anything in the conduct of McClanahan and Irelan from which an inference could be drawn that they attempted to impose their own conditions of employment which would justify their discharge. The cases cited by the Respondent22 are plainly distinguishable. There, the employees did not engage in a work stoppage but refused to obey orders concerning overtime while continuing to work their regular hours. The Board and the court viewed such conduct as tantamount to dictating their own terms of employment. It is clear that this is not the situation in the present case where McClanahan and Irelan ceased work to protest a working condition. Indeed, the authorities expressly recognize the inapplicability of the cited principle to a case, such as this, 21 N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 16 (1962); N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 334. 22 C. G. Conn, Limited v. N.L.R.B., 108 F.2d 390 (C.A. 7); John S. Swift where employees engage in a concerted work stoppage to protest a disagreeable condition of employment.23 To hold otherwise, would only frustrate the policy of the Act to protect the right of workers to act together to secure an improvement in their working conditions.24 In sum, I find that, by placing McClanahan and Irelan on "probation" and subsequently discharging them for refusing to make their scheduled run, the Respondent violated Section 8(a)(1) of the Act. 2. With respect to other acts of interference, restraint, and coercion It has been found above that when the truckdrivers met with Manager Shaull on March 28 and informed him that they intended to withhold their services in protest of the discharge of McClanahan and Irelan, Shaull warned them that they were "asking for trouble." It is also undisputed that, after the drivers resumed the strike, which they had previously abandoned, the Respondent sent each driver a telegram warning him that the drivers "who fail to work as scheduled . . . [were] subject to disciplinary actions up to and including possible termination." Clearly, such threats of reprisal if employees exercised their statutory right to engage in a strike or a concerted refusal to work in protest of the unlawful discharge of fellow employees violated Section 8(a)(1) of the Act. However, I find that the Respondent did not violate the Act by threatening to lock out employees, as alleged in the complaint. It has also been found that on April 11 the Respondent held out to McClanahan the prospect of reinstatement and benefits to be derived by employees from the Respondent's correction of its mistakes and problems if McClanahan would go to the Board with the four drivers who had signed union cards and notified the Board that they did not want an election but wanted the petition withdrawn. There can be little doubt that statements of this type constitute an unwarranted interference with, and restraint upon, em- ployees' right to a free choice of a bargaining representa- tive at a Board-conducted election, which Section 8(a)(1) prohibits. In this context, I further find similarly violative of this provision of the Act the Respondent's admitted interrogation of employees concerning their desires for union representation and their voting intentions in the union-sought Board election. Lastly, I find that the statements alleged to have been made on April 11, other than those found above to constitute unfair labor practices, were not established by the evidence and therefore such allegations of the complaint will be dismissed. IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and that it take certain affirmative action designed to effectuate the policies of the Act. The Respondent contends, in effect, that McClanahan and Irelan forfeited their right to reinstatement and Company, Inc., 124 NLRB 394; Successful Creations, Inc., 202 NLRB 242. 23 See, for example, C. G. Conn, supra, p. 397. 24 Washington Aluminum, supra, p. 17. FAST FOODMAKERS 57 backpay because subsequent to their discharge McClana- han threatened Foreman McCurdy with violence if he undertook to service their route. Clearly, there is no evidence that Irelan engaged in such asserted conduct. In any event, I have previously found that McClanahan did not threaten McCurdy with bodily harm and that, at best, his remarks were ambiguous and were really intended to warn McCurdy that he would be reported to the appropri- ate authorities for driving a truck in violation of highway rules regarding rest periods. I therefore find that McClana- han did not engage in such misconduct as to warrant absolving the Respondent from the obligation of remedy- ing the unlawful discharge of the two named individuals. Accordingly, it is recommended that the Respondent offer McClanahan and Irelan immediate and full reinstate- ment to their fonner jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge by payment to each of them of a sum of money equal to that which each one normally would have earned from March 28, 1973, the date of his discharge, to the date of the offer of reinstatement, less his net earnings during the said period. Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. To facilitate the computation, as well as to clarify the named employees' right to reinstatement and employment, the Respondent shall make available to the Board, upon request, payroll and other records necessary and appropriate for such purposes. The posting of a notice is also recommended. In view of the nature of the discharges for engaging in protected concerted activity which "goes to the very heart of the Act,"25 and in view of the Respondent's other conduct, there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act.26 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS ot, LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By placing Orville McClanahan and Joseph Irelan on "probation" and subsequently discharging them for engaging in protected concerted activities for mutual aid and protection, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2s N L R B v Entwistle Manufacturing Co. 120 F 2d 532, 536 (C A 4, 1941). 26 N L R B v Exprers Publishing Compani•, 312 U S. 426,433 27 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, 4. By threatening employees with reprisals if they exercised their statutory right to engage in a strike or a concerted refusal to work to protest the discharge of fellow employees or for other mutual aid or protection with respect to their terms or conditions of employment; by holding out to McClanahan the prospect of reinstatement and benefits to be derived by employees from the Respondent's correction of its mistakes and problems if McClanahan would go to the Board with the four truckdrivers who signed union cards and would notify the Board that they did not want an election but wanted the petition withdrawn; and by interrogating employees concerning their desires for union representation and their voting intentions in the union-sought Board election, the Respondent interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not engage in the other unfair labor practices alleged in the amended complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: ORDER27 The Respondent, Fast Foodmakers, Quakertown, Penn- sylvania, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Placing employees on "probation," or discharging or otherwise disciplining them for engaging in protected concerted activities for mutual aid or protection with respect to wages, hours, or other terms and conditions of employment. (b) Threatening employees with reprisals for exercising their statutory right to engage in a strike or concerted refusal to work in protest of the discharge of fellow employees or for other mutual aid or protection with respect to their terms and conditions of employment. (c) Holding out to employees the prospect of reinstate- ment and benefits to be derived from the Company's correction of its mistakes and problems if employees would notify the Board that they did not want an election but wanted a union's representation petition withdrawn. (d) By interrogating employees concerning their desires for union representation and their voting intentions in a union-sought Board election in a manner prohibited by the Act. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization , to form labor organizations, to join or assist Local 773, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, umclusions, and order, and all objections thereto shall be deemed waived for all purposes 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from. any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Orville McClanahan and Joseph Irelan immedi- ate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and atl other records necessary and useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (c) Post at its facility in Quakertown, Pennsylvania, the attached notice marked "Appendix." 28 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the amended complaint that the Respondent violated Section 8(a)(1) of the Act in other respects than those found herein be, and they hereby are, dismissed. 28 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT place employees on "probation" or discharge or otherwise discipline them for engaging in protected concerted activities for mutual aid or protection with respect to wages, hours or other terms and conditions of employment. WE WILL NOT threaten employees with reprisals for exercising their statutory right to engage in a strike or concerted refusal to work in protest of the discharge of fellow employees or for other mutual aid or protection with respect to their terms and conditions of employ- ment. WE WILL NOT hold out to employees the prospect of reinstatement and benefits to be obtained from our correction of our mistakes and problems if employees would notify the Board that they did not want an election but wanted a union's representation petition withdrawn. WE WILL NOT interrogate our employees concerning their desires for union representation and their voting intentions in a union-sought Board election. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 773, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized by Section 8(a)(3) of the Act. WE WILL offer Orville McClanahan and Joseph Irelan immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniori- ty or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their unlawful discharge. All our employees are free to become, remain, or refrain from becoming or remaining, members of Local 773, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. Dated By FAST FOODMAKERS (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Suite 4400, William J. Green, Jr., Federal Building, 600 Arch Street, Philadelphia, Pennsylvania 19106, Telephone 215-597-7601.