Vic Tanny International

VIC TANNY INTERNATIONAL Vic Tanny International, Inc. and Rochelle Reagan. Case 7-CA- 13147 September 26, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On April 8, 1977, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in response to the General Counsel's exceptions. 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, find- ings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. Respondent operates 10 physical fitness clubs in the Detroit metropolitan area. The events herein occurred at its facility in Livonia, Michigan. On May 24, 1976, instructor-employees Rochelle Reagan, Debbie Mitchell, Linda Szabo, and Janet Lange walked off their jobs allegedly in protest against Respondent's decision to require them to pick up payroll checks and supplies at its headquarters in Dearborn, Michigan, 14 miles away. Thereafter, Reagan, Szabo, and Lange were discharged. The General Counsel contends that the discharges were motivated by the walkout, a protected concert- ed activity, and therefore violated Section 8(a)(1). Respondent, on the other hand, contends that the discharges were not motivated by the walkout, but rather by insubordinate conduct on the part of the three employees. The Administrative Law Judge agreed with Respondent and accordingly dismissed the complaint. Since he concluded that the dis- charges did not result from the walkout, the Administrative Law Judge found it unnecessary to rule upon the General Counsel's contention that the walkout constituted protected activity. The General Counsel has filed exceptions contending that the walkout: (I) was protected concerted activity, and (2) ' The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find' no basis for reversing his findings. In the first paragraph of the section of the Administrative Law Judge's Decision entitled "A. Facts." the Administrative Law Judge noted that 232 NLRB No. 57 was the reason for the discharge. We find merit in the General Counsel's exceptions. As noted above, Respondent's Dearborn, Michi- gan, facility served as headquarters for all 10 clubs in' the Detroit metropolitan area. On Monday of each week, each facility would designate one employee to travel to headquarters in order to pick up supplies and paychecks. Prior to May 24, 1976, selection of an employee for the Dearborn trip at the Livonia facility was made on a strictly voluntary basis. The trip was not a sought-after assignment and the employees displayed a general reluctance to volunteer for the trip even though it meant receiving an additional half hour's pay.2 Indeed, Reagan, Szabo, and Lange were so dissatisfied with the arrangement that employee Debbie Mitchell ended up making the trip on a fairly regular basis. In the opinion of Livonia Club Manager John Baker, the primary reason for the employees' dissatisfaction lay in the voluntary nature of the Dearborn assignment. Accordingly, in order to remedy this situation, Baker decided to assign employees to the Dearborn trip on a rotating basis, with each employee traveling once every 4 weeks. Allowances would be made for special unforeseen circumstances. On May 21, 1976, Baker conducted a meeting and explained the rotating schedule to the employees. They vociferously protested the decision, but to no avail. It also appears that the issue of these instructor-employees assisting in cleanup duty when the maids were absent was debated. On Monday, May 24, the roster for the Dearborn trip was posted and Assistant Manager Mary Kopka informed Reagan that she was responsible for making the trip that day. Reagan refused to go, whereupon Kopka requested that she discuss the matter with Baker. During the ensuing conversation with Baker, Reagan remained adamant in her refusal to go to Dearborn. In response thereto, Baker suspended Reagan for the remainder of the day.3 Following this discussion, Reagan went to the club's coffeeroom and there disclosed the outcome of her discussion with Baker to her fellow instructors. It was agreed that the four employees would walk off their jobs and go to Dearborn in an effort to resolve the conflict with Baker's superior, Area Supervisor William McDowell. Assistant Manager Mary Kopka often made the trip to Dearborn. Michigan. Examination of the record, however, reveals that Kopka rarely made this trip. In the same paragraph, the Administrative Law Judge found that the employees began receiving additional compensation in late April 1976 for traveling to Dearborn. The record discloses, however, that such compensation was given beginning in March 1976. 2 The employees traveling from Respondent's other facilities received no additional compensation. 3 Kopka made the tnp in place of Reagan that day. 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At Dearborn, the four employees met with McDo- well and aired their grievance. McDowell advised them that they were wrong to walk out and that their action rendered them subject to discharge. He recommended that they return to Livonia and attempt to straighten out the matter with Baker. McDowell also told Baker, by telephone, that they were all subject to termination and action was up to Baker's discretion. Upon their return to the Livonia club, Reagan asked Baker to speak to the girls as a group. Baker responded that he would speak with them but on an individual basis. During Baker's conversation with Reagan, Reagan produced and read from a list of grievances which included both the trips to Dearborn and the supplemental maid duties. When Reagan continued to refuse to perform either of these two functions, Baker informed her that she was dis- charged. Szabo likewise refused to perform either function and as a result was terminated. Lange agreed to travel to Dearborn but refused to engage in cleaning work. Baker informed her that he would consider her position and then advise her of his decision. Later that evening, Baker contacted Lange and notified her that he could not retain her under the conditions she proposed and that she was therefore terminated. Mitchell agreed to perform both functions and was retained. The termination reports for Lange and Szabo indicate that their discharges were the result of insubordination and because they, respectively, "walked out" and "walked out on job." In view of the above, the issues before us are: (1) was the May 24 walkout protected concerted activity; and (2) if so, was Respondent's conduct in discharging the employees motivated by the walkout. If both questions are answered in the affirmative, then a violation must be found. The General Counsel contends that the Adminis- trative Law Judge should have concluded that the walkout was protected concerted activity. We agree. Under the circumstance of this case, the spontaneous banding together of employees in the form of a work stoppage as a manifestation of their disagreement with their employer's conduct is clearly protected activity. N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9 (1962); General Nutrition Center, Inc., 221 NLRB 850(1975). We also find evidence to support the General Counsel's contention that the discharges were moti- vated, at least in part, by the employees' participa- tion in the May 24 walkout. First, Respondent's Though the termination report on Reagan did not include the notation that the walkout was a cause of her discharge, it is clear that the notation "bhad attitude" extended to that protected activity. I Inasmuch as the matter was fully litigated, Member Jenkins would also officials commented that the employees laid them- selves open to discharge for walking off the job. Second, the information set forth in the termination reports for both Lange and Szabo reveals that their discharges were the result of both insubordination and having walked off the job. We find such notations sufficient to establish that the employees' walkout-a protected concerted activity-precipitated the dis- charges. Therefore, we find that Respondent violated Section 8(a)(1) of the Act by discharging Reagan, 4 Lange, and Szabo in part for exercising their rights guaranteed under Section 7 of the Act. While the complaint does not so allege, the General Counsel submits that McDowell's statement on May 24, that the four employees by having walked out had subjected themselves to discharge, is unlawful under Section 8(a)(1) of the Act. It has been the Board's practice to find unfair labor practice viola- tions not alleged in the complaint if, in the Board's opinion, the matter is reasonably related to the complaint's other allegations and was fully litigated at the hearing. Upon examination of the record, we are satisfied that this issue was sufficiently litigated and, inasmuch as we have concluded that the walkout was protected concerted activity, we find that Respondent violated Section 8(a)(1) of the Act by threatening its employees with discharge for engaging in such activity. 5 CONCLUSIONS OF LAW i. Vic Tanny International, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging employees Rochelle Reagan, Janet Lange, and Linda Szabo on May 24, 1976, for engaging in a walkout to protest their working conditions, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By threatening the above-named employees and employee Debbie Mitchell, on May 24, 1976, with discharge for participating in the above-de- scribed walkout, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by threatening to discharge and by discharging employees for engaging in a protected find an 8(a)(l) violation in Baker's refusal of the concerted request of the dischargees to speak with them as a group on their return from Dearborn, and his insistence on conducting the discussion individually with each employee. 354 VIC TANNY INTERNATIONAL concerted activity, we shall order that Respondent cease and desist from engaging in such conduct and take certain affirmative action designed to effectuate the policies of the Act, Having found that Respondent's discharge of employees Reagan, Lange, and Szabo violated the Act, we shall order that Respondent offer these employees immediate and full reinstatement to their former jobs or, if their 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 discharges by payment to them of a sum of money equal to that which they normally would have earned as wages from the date of their discharges to the date of Respondent's offer of reinstatement, less their net earnings during such period, with backpay and interest thereon computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962); and Florida Steel Corporation, 231 NLRB 651 (1977).6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Vic Tanny International, Inc., Livonia, Michigan, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Discharging employees because they have engaged in a walkout which was protected concerted activity under Section 7 of the Act. (b) Threatening employees with discharge for engaging in said protected activity. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer employees Rochelle Reagan, Linda Szabo, and Janet Lange immediate and full reinstate- ment to their former positions or. if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner set forth in the section above 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 all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Livonia, Michigan, place of business copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6 In accordance with our decision in Florida Steel Corporation, supra, we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 7 In the event that this 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 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 discharge or refuse to reinstate any employee for engaging in a walkout which is protected concerted activity. WE WILL NOT threaten any employee with discharge for engaging in protected concerted activity. WE WILL NOT in any other manner interfere with, restrain, or coerce any employee in the exercise of his or her rights guaranteed under Section 7 of the National Labor Relations Act, as amended. WE WILL offer Rochelle Reagan, Linda Szabo, and Janet Lange immediate and full reinstate- ment 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 previously enjoyed, and we will make them whole for any loss of pay they may have suffered as a result of the discrimination against them. Vic TANNY INTERNATIONAL, INC. 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge: The charge herein was filed by Rochelle Reagan, an individual, herein called Reagan or Charging Party, on July 2, 1976, and the complaint issued on August 19, 1976, alleging that Vic Tanny International, Inc., herein called Respondent or Employer, discharged four employees because they had concertedly engaged in a cessation of work to meet with an agent of Respondent to discuss and resolve problems in respect to their terms of employment and working conditions. An answer thereto was timely filed by Respon- dent. Pursuant to notice, a hearing was held before me at Detroit, Michigan, on November 15 and 16, 1976. Briefs have been duly filed by the General Counsel and Respondent which have been duly considered. FINDINGS OF FACT I. THE EMPLOYER'S BUSINESS Employer maintains its principal office and place of business at 2234 Michigan Avenue, in the city of Dearborn, Michigan. Employer maintains other places of business in the State of Michigan including one located at 29220 West Seven-Mile Road, Livonia, Michigan. Employer is engaged in providing health and physical fitness courses for the general public. During the year ending December 31, 1975, Employer, in the course and conduct of its business operations, sold from its facilities located throughout the State of Michigan, health and physical fitness courses from which it derived gross revenues in excess of $500,000. During the same period of time it purchased and caused to be transported and delivered to its various places of business in the State of Michigan, goods and materials valued in excess of $50,000 which were transported and delivered to its various facilities in the State of Michigan directly from points located outside the State of Michigan. The complaint alleges, the answer admits, and I find that the Employer is an employer within the meaning Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES 1 A. Facts Respondent operates physical fitness clubs at some 10 locations in the Metropolitan-Detroit area, including clubs at Livonia and Dearborn which are some 14 miles apart. Dearborn also functions as area headquarters where supplies are maintained and where the paychecks are distributed. It has been the practice for the other Detroit area clubs to send someone from each of those clubs to the Dearborn Club on Mondays for the purpose of picking up supplies and the employees' paychecks. At the Livonia Club, this practice appears to have been on a somewhat It was stipulated at the hearing that, in addition to those individuals named as supervisors in par. 6 of the complaint, Ameen Solomon, administrative supervisor, is also a supervisor within the meaning of Sec. 2(1 ) of the Act. informal, voluntary basis. The employees were able to refuse such request, in which case other employees would be asked, until a willing employee was located. In addition to the instructors, the assistant club manager, Mary Kopka, often made this trip. Employees who made the trip were paid only their normal hourly rate of pay until late April 1976, when, in an effort to placate employees who were dissatisfied about making the trip, those making the trip were given one-half hour additional straight time pay. Reagan was employed by Respondent on February 2, 1976, as an instructor at the Livonia Club. There were a total of four instructors at the Livonia Club, Reagan, Janet Lange, Debbie Mitchell, and Lynda Szabo. As instructors, their duties included supervising customer workouts, conducting group exercises, and demonstrating exercises on the equipment. They were supervised by Club Manager John Baker. On the first Monday after she was employed, Reagan made the trip to Dearborn for supplies and the checks. This was the only time Reagan made the trip although she was asked to go on four or five other occasions and refused. There appears to have been a general reluctance among the instructors at Livonia towards making this trip which was not satisfied by the additional one-half hour's pay. Szabo, Lange, and Mitchell all had expressed dissatisfaction with having to make the trip. Mitchell's complaint about having made more than her share of the Dearborn trips gave rise to a meeting of the staff of the Livonia Club on Friday, May 21, 1976.2 At this meeting Baker told the instructors that in the future the trip to Dearborn would be made by the instructors on a mandatory rotating basis so that the burden of making the trips would be more evenly distributed. This schedule was to be made up by Mary Kopka and posted the following Monday, May 24, 1976, to go into effect at that time. On Monday, May 24, the roster was posted and the first trip that day was to be made by Reagan. When Reagan refused to make the trip she was sent home for the day by Baker, and Kopka made the trip to Dearborn that day. Reagan, however, did not go home as requested but went instead to the coffeeroom, and also spent some time on the floor with customers. After leaving Baker's office she encountered some of the other instructors and they all decided to leave the club and take a trip to the Dearborn Club in order to discuss the matter with William W. McDowell, area supervisor who was Baker's supervisor. This was done without notice to Baker who was on the telephone with McDowell discussing the problem at the time they left. Upon arriving at the Dearborn Club, they met with McDowell in his office. They complained to him that they were dissatisfied with the arrangements for making the trip to Dearborn, pointing out that the present additional compensation was inadequate. McDowell advised them in essence that they had done wrong by walking out of the 2 While there appears to be some confusion about the date of this meeting, a review of the entire record convinces me that it was held on May 21, 1976. 356 VIC TANNY INTERNATIONAL club with customers unattended, and that they were subject to discharge.a He advised them all to return to the Livonia Club and get the matter straightened out with Baker. They all returned to the Livonia Club where they met individually with Baker in his office. He spoke to Reagan and she recited her grievances to him from a typed list of grievances which she brought in with her (G.C. Exh. 2). These grievances included a reiteration of Reagan's complaints about being required to make the Dearborn trip and also her refusal to do the maid's work at the Livonia Club.4 She persisted in her refusal to do these two jobs, whereupon Baker fired her. Szabo testified that, in her interview with Baker, she was simply told by Baker that she would have to start again as a new employee and when she declined Baker fired her. Baker's testimony, which I credit as being the more detailed, internally consistent, and logical, is that in this meeting with Szabo she refused both to perform the cleaning work and to make the Monday trips to Dearborn, whereupon Baker observed that she obviously did not want to work and he discharged her. Janet Lange testified that in her interview with Baker she was asked if she would make the Dearborn trip in the future and she replied that she would. However, she refused to perform any of the maid's duties even though advised by Baker that it was part of her job. Baker did not discharge her immediately but told her to go home and he would let her know his decision. In the evening of the same day, Baker called Lange at her house. Lange was not home at the time, but she returned Baker's call about 8 p.m. at which time Baker advised her that she was discharged. Debbie Mitchell was also interviewed upon her return from Dearborn. Mitchell was also questioned by Baker about her willingness to make the Dearborn trip and to perform some of the maid's duties. Mitchell agreed to perform the duties and she was retained. B. Discussion and Analysis In order for the General Counsel to prevail in its contention that these four instructors were discharged for having engaged in protected concerted activity, it is necessary to establish both that the employees were engaged in such qualifying activity and also that Respon- dent discharged them because of having engaged in such activity. I conclude that the evidence is insufficient to establish the second element, even conceding, arguendo, that the first element has been established. 5 First, it is apparent that the instructors were not discharged by McDowell during his conversation with them at the Dearborn Club. McDowell simply advised them that they were subject to discharge for having left the Livonia Club unattended and told them in essence that 3 Szabo's version of this conversation differs from the accounts of other witnesses to the extent that Szabo concluded that they had been actually fired by McDowell. However, the clear weight of the evidence herein convinces me that McDowell did not dicharge anyone: simply advised them that they were subject to discharge. 4 It appears that the maid had been out because of illness at the Livonia Club and the instructors had been required to do some of the work that had been done by the maid. I General Counsel seeks no 8(a)1) finding or remedy for Mitchell on the they should return to their jobs at the Livonia Club and get the matter resolved with Baker. They followed this course of action and returned to the Livonia Club where they were interviewed individually by Baker. They were all asked essentially whether or not they would make the disputed trip to Dearborn and whether or not they would perform some maid's work. When Szabo and Reagan persisted in their refusal to do these jobs the) were fired immediately. Lange was more equivocal. agreeing to make the Dearborn trip but refusing to do the maid's work. After some reflection Baker decided that this too was inadequate and discharged Lange later that day by telephone. Mitchell, on the other hand, agreed to both make the Dearborn trip and to perform maid's work and she was retained. On these facts I am convinced that Reagan, Sz.abo, and Lange were discharged for insubordination, to wit, refusing to perform the work assigned to them by the club manager and not because they had walked out of the Livonia Club in an exercise of protected concerted activity.6 All four had walked out to make the trip to Dearborn to talk to McDowell. If they were discharged for walking out, as the General Counsel alleges, it is reasonable to assume that Mitchell also would have been discharged. However, she was retained, apparently because she agreed to do the work requested of her. General Counsel contends that the termination notices of Szabo and Lange suggest that they were discharged for walking out of the Livonia Club. These notices allude to both the walkout and insubordination as reasons for termination, and General Counsel urges that this evidence supports a finding that at least one of the reasons for the discharges was the walkout. I do not agree. In my opinion the bulk of the probative evidence herein supports a finding that the instructors were fired solely because they were insubordinate in refusing to do assigned work. The fact that reference was made to the walkout on the termination slips of two of these instructors is not the controlling evidential factor in this case. In this regard, I note that Reagan's termination notice contains no refer- ence at all to the walkout, simply noting "bad attitude" as the reason for her discharge. Accordingly, I conclude that Reagan, Szabo, and Lange were not discharged for having engaged in protected concerted activity and I shall recommend that the complaint herein be dismissed. CONCLUSIONS OF LAW Respondent has not engaged in any conduct violative of the Act. [Recommended Order for dismissal omitted from publi- cation.] grounds that she was "reinstated" on May 24. In my view of the case she was never discharged Accordingly. I shall recommend dismissal of the complaint as to Mitchell on the grounds that there is no evidence that she was ever discharged at all, quite apart from any question of"reinstatement." s Even assuming that the instructors were engaged in protected concerted activity. I have concluded that this was not the reason they were discharged. In these circumstances, I do not pass son whether or not the walkout at the Livonia Club was protected concerted activit). 357