Empire Gas, Inc.

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Empire Gas, Incorporated and Gregory Cooper. Case 27-CA-4673 2 Substitute the attached notice for that of the Administrative Law Judge June 10, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On March 19, 1976, Administrative Law Judge Richard J Boyce issued the attached Decision in this proceeding Thereafter, the Respondent filed excep- tions and the General Counsel filed a brief in answer to the exceptions 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 his recommended Order, as herein modified I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Em- pire Gas, Incorporated, Nederland, Colorado, its of- ficers, agents, successors, and assigns, shall take the action set forth in said recommended Order as so modified 1 Substitute the following as paragraph 1 "1 Cease and desist from "(a) Telling its employees they are to be dis- charged for engaging in protected concerted activi- ties and discharging its employees for engaging in such activities "(b) In any other manner infringing upon the rights guaranteed to its employees by Section 7 of the Act " i We adopt the Administrative Law Judge's conclusion that Respondent s statement to Cooper that he was to be fired for engaging in activities found to be protected and concerted activities, and Respondent's subsequent dis- charge of Cooper, in each instance, violated Sec 8(a)(1) of the Act In his recommended Order, however, the Administrative Law Judge inadvertently failed to include language defining the scope of the Order The discharge of an employee for engaging in protected concerted activities is an unfair labor practice which goes to the very heart of the Act and in such cases the Board has traditionally provided broad and injunctive language, constituting a broad order Accordingly, we shall modify the Administrative Law Judge s Order to require that the Respondent cease and desist from in any other manner infringing upon the rights guaranteed to its employees by Sec 7 of the Act N L R B v Entwistle Mfg Co 120 F 2d 532 (C A 4 1941) SKRL Die Casting, Inc, 222 NLRB 119 (1976) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all em- ployees the following rights To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities In recognition of these rights, we hereby notify our employees that WE WILL NOT tell our employees they are to be discharged for engaging in protected, concerted activities and we will not discharge our employ- ees for engaging in those activities WE WILL NOT in any other manner interfere with the rights guaranteed to our employees by Section 7 of the National Labor Relations Act WE WILL offer to Gregory T Cooper immedi- ate and full reinstatement to his former position or, if that position no longer exists, to a substan- tially equivalent position, without prejudice to his seniority and other rights and privileges and make him whole for any loss of earnings and other benefits suffered because of his unlawful discharge EMPIRE GAS, INCORPORATED DECISION STATEMENT OF THE CASE RICHARD J BOYCE, Administrative Law Judge This case was heard before me in Denver, Colorado, on February 10, 1976 The charge was filed on September 24, 1975, by Gregory T Cooper, in his individual capacity (herein called Cooper) The complaint issued on November 13, 1975, and alleges violations by Empire Gas, Incorporated (herein called Respondent), of Section 8(a)(1) of the Na- tional Labor Relations Act, as amended The parties were given opportunity at the hearing to in- troduce relevant evidence, to examine and cross-examine witnesses, and to argue orally A timely brief was filed for the General Counsel 224 NLRB No 92 EMPIRE GAS, INC 629 I ISSUES The issues are whether Respondent, on about September 15, 1975, threatened Cooper with discharge, and, on Sep- tember 18, did discharge him because of his protected con- certed activities, thereby violating Section 8(a)(1) in each instance II JURISDICTION Respondent is a Missouri corporation, headquartered in Lebanon, Missouri, engaged at numerous locations in the United States, including Nederland, Colorado, in the sale and distribution of bottled gas It annually purchases and causes to be delivered into Colorado directly from outside that State goods and materials valued in excess of $50,000 Respondent is an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act III LABOR ORGANIZATION No labor organization is involved in this proceeding IV THE ALLEGED UNFAIR LABOR PRACTICES A Facts Respondent's Nederland operation consisted, at relevant times, of a retail manager, a driver-salesman, and an office manager or bookkeeper The retail manager was in charge, with power to hire and fire He was accountable to a divi- sion manager, who officed some 55 miles away in Love- land, and who visited the Nederland operation every week or so Cooper was the driver-salesman at Nederland from Feb- ruary 1975 until discharged on September 18, 1975 For most of this time, he received a monthly salary of $550, plus a 1 cent commission on each gallon delivered John MacDougall, as retail manager, was Cooper's immediate superior until August, when MacDougall quit He was suc- ceeded by Dennis Johnson, effective August 20 The divi- sion manager during this period, and thus the immediate superior of MacDougall and Johnson, was Cliff Goodwin On August 15, in anticipation of Johnson's succeeding MacDougall, Goodwin met with Johnson and Cooper in Nederland It was revealed during this meeting that Re- spondent was instituting a new bonus program in replace- ment of the 1-cent-per-gallon commission This disturbed Cooper He reminded Goodwin of a $50-per-month raise he had been promised when hired, upon completion of 2 months' service and announced that he would be quitting the next day if the raise were not forthcoming Goodwin told Cooper the next day that the raise had been approved, and asked that he stay on Cooper agreed A week or so later, the Nederland operation received a memorandum from Robert W Plaster, company president, describing the new bonus program It stated, as Goodwin earlier had indicated, that "all existing commission pro- grams will cease to exist as of July 31, 1975 " Upset anew, Cooper prepared a letter for mailing to 112 of Respondent's drivers around the country The letter, mailed September 13, stated Dear Friend, It is imperative that we, the men who drive the trucks and deliver the fuel for the Empire Gas Compa- ny, get our act together in the immediate future and put a stop to Mr Robert Plaster's "Bonus Growth Program" insofar as this program delineates the tenth of a cent per gallon commission paid to the company drivers We cannot accept this unilateral cut of our income nor our unsolicited enrollment in a bogus pro- gram handed to us in August instead of the real in- come of salary raises Simple mathematics show that the drivers of Empire Gas take a cut in last year's take home pay A plant with a 500,000 gallonage last year paid $500 in commission to its drivers If this same plant pumps a half million gallons again this year there will be no commission paid to its drivers Given an optimistic growth factor of ten percent this plant will pump 550,000 gallons this new year, and the com- mission paid the driver (three man plant) will be $333 commission under the "Bogus Growth Program" The standard 1/10 of a cent commission would be $550- an income loss of better than $200 What is your situa- tion9 Are you expecting 10% growth, 5% growth, or marginal growth9 In these troubled economic times, Robert Plaster cums [sic] with a growth program that promises to take all of last year's commission away from you until it grows, and the more it grows, the more of last year's income will be returned to you All of us drivers are in this together, and it is only by collective action that we can right the wrong We must demand that our wages not be so capriciously dealt with, and that the unilateral severance of com- missions paid to the men who drive the trucks and deliver the fuel for this company be reinstated as per se the company policy manual Unless there is recog- nition of our problem by the home offices in Lebanon by the end of this month (September), pump no gas on the first of October This will demonstrate solidarity and commitment to our just cause If no change is forthcoming, no gas will be pumped on the 17th and 18th of October I am only going to reach some one third of the Empire Gas plants, please carry this pro- gram on for the good of all of us driving for this com- pany, and write or communicate with at least three or four other plants in your area In the last three months five managers have left the company in Northern Col- orado, but their actions lost much of their effect be- cause the men did not act collectively The success of our venture will be directly proportional to the una- nimity with which we act All of us should also write to Lebanon attention to Mr Plaster I would also like to hear from you yourself and will keep an account of our strength of our new coalition Most respectfully yours, Gregory T Cooper Gregory T Cooper P 0 Box I I I Rolhnsville, Colorado 80474 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 15, Retail Manager Johnson called Coop- er to the office, asking about the letter To Cooper' s admis- sion of authorship, Johnson said that the "home office" in Lebanon was "very upset" and that Goodwin would be there the next day to fire Cooper I Goodwin did not arrive the next day, but a second driver-salesman, one Steven Walker, was hired Then, on September 17, having received a copy of Cooper's letter, MacDougall, Johnson's prede- cessor, asked Johnson if he knew about it Johnson replied that he did and that Goodwin would be coming to Neder- land to fire Cooper because of it 2 Goodwin came to Nederland September 18 Calling Cooper and Johnson together, he announced that he would have to let Cooper go because he had driven a company truck home the night before and because he had been 15 minutes late to work that morning Goodwin explained that taking the truck home was "against company policy " Goodwin then raised the subject of Cooper's letter, asking to see a copy Cooper obliged Goodwin stated to him that the letter was not the reason for the discharge Cooper admittedly had been "slightly tardy" that morn- ing, and had driven a company truck home the night be- fore His being tardy was unusual, never before prompting management comment As for taking a truck home, Coop- er had done this once or twice a week throughout his ten- ure-whenever the end of the day found him appreciably closer to home than to the plant He was never admonished for this,3 indeed, MacDougall testified that he knew of no policy against it and had condoned Cooper's doing it Goodwin, who by all accounts made the discharge deci- sion, did not testify Respondent's counsel represented that he no longer works for the Company and could not be located Goodwin's successor as division manager, Bob Burns, testified that the company manual prohibits anyone but the retail managers from taking trucks home Respondent did not introduce the manual, however, and Burns asserted that none had been brought to the hearing This failure to produce a document so central to Respondent's defense, coupled with MacDougall's ignorance of such a policy, compels the conclusion that the "policy" was of ad hoc manufacture for the elimination of Cooper Further sup- portive of this conclusion, MacDougall testified credibly and without refutation that he observed one of Respondent's trucks at the home of Cooper's replacement the night of the day of Cooper's discharge 1 This is Cooper's credited version of the conversation Johnson testified that, on Goodwin s orders, he gave Cooper a 2-week notice of discharge on September 15 Cooper then asked, according to Johnson, if it was because of the letter and Johnson replied that he did not know Johnson added that he had not heard of the letter at that time Cooper s recall articulation, forth- rightness, and overall demeanor were far more convincing than Johnson's Z MacDougall is credited regarding this conversation with Johnson While MacDougall quit Respondent because of a fall[ing] out with higher man- agement, this is not sufficient reason to disbelieve him particularly since Johnson, although in the courtroom throughout MacDougall's testimony took no exception to it 3 For the reasons cited above in fn 1, Cooper is credited over Johnson that he was never admonished for taking a truck home Johnson testified to raising the company policy with him 2 or so weeks before the discharge telling him to discontinue the practice B Conclusions Respondent, in deciding to discharge Cooper, plainly was motivated by his sending the protest letters to his fel- low drivers Not only did the discharge occur within about 5 days after the letters were sent, but Retail Manager John- son reported to Cooper that the home office was "very upset" about them, and that Division Manager Goodwin was going to discharge Cooper as a consequence Johnson also told MacDougall that Cooper was going to be fired because of the letters Further, as previously discussed, Respondent's asserted reasons for the discharge-Cooper's taking the truck home and tardiness-were notably lacking in conviction In this regard, the failure of Goodwin, the decision-maker, to testify-for whatever reason-scarcely aided Respondent's cause See Goodyear Tire & Rubber Co v NLRB , 456 F 2d 465, 468 (C A 5, 1972) Remaining is whether the sending of the letters was an activity protected by the Act The letters being in protest of a change in a condition of employment-driver compensa- tion-and being intended to rally the drivers to a common cause, it is concluded that their being sent was a protected activity As stated in Owens-Corning Fiberglas Corp v NLRB , 407 F 2d 1357, 1365 (CA 4, 1969) The activity of a single employee in enlisting the sup- port of his fellow employees for their mutual aid and protection is as much "concerted activity" as is ordi- nary group activity Whether the employees to whom Cooper made his appeal were sympathetic to the cause is of no moment To quote from Mushroom Transportation Company, Inc v N L R B, 330 F 2d 683, 685 (C A 3, 1964) [I]nasmuch as almost any concerted activity for mutu- al aid and protection has to start with some kind of communication between individuals, it would come very near to nullifying the rights of organization and collective bargaining guaranteed by Section 7 of the Act if such communications are denied protection be- cause of lack of fruition See also Ross Valley Savings & Loan Association, 194 NLRB 270, 276 (1971) It follows that the discharge of Cooper violated Section 8(a)(1) of the Act It further follows that Johnson's disclo- sure to Cooper, before the discharge, that he was to be fired for sending the letter interfered with Cooper's exer- cise of Section 7 rights, constituting an additional violation of Section 8(a)(1) Husky Oil Company, 217 NLRB 430 (1975), Evan Williams Construction Co, 208 NLRB 15 (1973) CONCLUSIONS OF LAW 1 By Johnson's stating to Cooper that he was to be fired for engaging in protected concerted activities, as found herein, and by Respondent's thereafter discharging Coop- er, as found herein, Respondent in each instance engaged in unfair labor practices within Section 8(a)(1) of the Act EMPIRE GAS, INC 631 2 These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) 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 ORDER4 Respondent, Empire Gas, Incorporated, its officers, agents, successors, and assigns, shall 1 Cease and desist from telling its employees they are to be discharged for engaging in protected concerted activi- ties, and from discharging its employees for engaging in those activities 2 Take the following affirmative action (a) Offer to Gregory T Cooper immediate and full rem- statement to his former position, or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings and other 4 All outstanding motions inconsistent with this recommended Order hereby are denied 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 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, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes benefits suffered because of his unlawful discharge Back- pay shall be computed in accordance with F W Wool- worth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962) (b) Preserve and make available, upon request, 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 place of business in Nederland, Colorado, the attached notice marked "Appendix " 5 Copies of the notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 27, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith 5 In the event the Board's Order is enforced by a Judgment of the 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