Express Messenger Systems

651 301 NLRB No. 96 EXPRESS MESSENGER SYSTEMS 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evi- dence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex- amined the record and find no basis for reversing the findings. 2 With respect to part II, B,2 of the judge’s decision, we find that the Re- spondent’s supervisor Lawson Lloyd’s order to employee Karl Haas to get out, in the context of their preceding exchange of statements, establishes that Haas was discharged by the Respondent, and that he did not voluntarily quit. In addition, we note that the duration of the collective-bargaining agreement in this case was from July 18, 1988, to July 17, 1990. 3 The judge inadvertently failed to include certain standard injunctive lan- guage in the Order. We have corrected this omission by adding a narrow cease-and-desist provision and have otherwise conformed the provisions of the notice to those of the Order. Express Messenger Systems, Inc. and Karl Haas. Case 20–CA–22569 February 8, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND RAUDABAUGH On June 29, 1990, Administrative Law Judge George Christensen issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief answering the Respondent’s exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Ex- press Messenger Systems, Inc., San Francisco, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1. ‘‘1. Cease and desist from ‘‘(a) Disciplining its employees for disseminating in- formation concerning protections and benefits available to them by virtue of their employment and urging them to take actions designed to secure such protections and benefits. ‘‘(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.’’ 2. Substitute the attached notice for that of the ad- ministrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT discipline you for disseminating infor- mation about protections and benefits available to you as an employee and urging any coworker or coworkers to take action designed to secure those protections and benefits. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer immediate reinstatement to Karl Haas to his former position or, if that position no longer exists, to a substantially equivalent position, with all rights, benefits, and seniority restored and WE WILL make him whole for any loss of earnings and other benefits he suffered by virtue of our discrimina- tion against him for advising a coworker of the rights, benefits, and protections she would be entitled to under the collective-bargaining agreement between us and Teamsters Local 665 on completion of her proba- tionary period and urging her to remain in our employ until she completed her probationary period. WE WILL notify Karl Haas that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. EXPRESS MESSENGER SYSTEMS, INC. Donald R. Rendall, Esq., for the General Counsel. Ned A. Fine (Fisher & Phillips), of San Francisco, Cali- fornia, for Express Messenger. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge. On March 20, 1990, I conducted a hearing at San Francisco, California, to try issues raised by a complaint issued on May 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Read 1989 after further date references omitting the year. 2 While every apparent or nonapparent conflict in the evidence has not been specifically resolved below, my findings are based on my examination of the entire record, my observation of the witnesses’ demeanor while testifying and my evaluation of the reliability of their testimony; therefore any testimony in the record which is inconsistent with my findings is discredited. 3 All full-time and regular part-time driver and biker messengers employed by the Employer at its San Francisco, California facility; excluding all other employees, dispatchers, walkers, office clerical employees, guards and super- visors as defined in the Act. 4 The first quarter of 1989. 5 The complaint alleged, the answer admitted, and I find at all pertinent times Lloyd was a supervisor and agent of the Respondent acting on its behalf within the meaning of Sec. 2 of the Act. 30, 1989,1 based on a charge filed by Karl Haas, an indi- vidual, on March 31, 1989. The complaint alleged and Express Messenger Systems, Inc. (Respondent) in its answer denied the Respondent dis- charged Haas because he engaged in activities for employee aid or protection and to discourage employees from engaging in such activities, thereby violating the National Labor Rela- tions Act (the Act). In its answer to the complaint, the Respondent alleged at times material Haas was a supervisor within the meaning of the Act, Haas was not discharged but voluntarily quit his em- ployment and, if discharged, Haas was not discharged for en- gaging in concerted activities protected by the Act. The issues for resolution are whether: 1. At times pertinent Haas was a supervisor within the meaning of the Act; 2. If not, whether Haas voluntarily quit his employment or was discharged; and 3. If he was discharged, if he was discharged for engaging in concerted activities protected by the Act. Counsels were afforded full opportunity to adduce evi- dence, examine and cross-examine witnesses, to argue, and to file briefs. Both filed briefs. Based on my review of the entire record, observation of the witnesses, perusal of the briefs and research, I enter the following FINDINGS OF FACT2 I. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted and I find at all pertinent times the Respondent was an employer engaged in commerce in a business affecting commerce and Team- sters Automotive Employees Local No. 665, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL–CIO (the Union) was a labor organization within the meaning of Sec- tion 2 of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts At all relevant times the Respondent, a Minnesota corpora- tion, has maintained a facility and employed a work force at San Francisco, California, in conducting its business, sup- plying message and courier services to individuals and busi- ness entities. After an election conducted by the National Labor Rela- tions Board (the Board), within a stipulated unit of the Re- spondent’s employees,3 the Respondent and the Union exe- cuted a collective-bargaining agreement on July 19 for a 1- year term commencing July 18 and expiring July 17, 1990. Under the terms of that agreement: 1. The Respondent recognized the Union as the exclusive collective-bargaining representative of its full-time and reg- ular part-time driver and biker messengers and excluded its dispatchers and walker messengers from coverage under the agreement and union representation. 2. All employees covered by the agreement were denied seniority protection, receipt of fringe benefits (paid vacations, health insurance), protection against arbitrary discharge and access to the grievance/arbitration procedures established under the agreement until and unless they completed a 90- day probationary period. 3. The employees covered by the agreement were paid a percentage of the Respondent’s charge for pickups and deliv- eries except under specified conditions, when they were paid a flat rate. 4. The messengers were required to furnish their own ve- hicles (bikes or autos) and rent radios from the Respondent. The walker and biker messengers made pickups and deliv- eries within the central business area of San Francisco; the driver messengers handled pickups and deliveries outside that area. During times pertinent,4 the greatest volume of Respond- ent’s business was conducted during daytime hours between Monday and Friday (though the Respondent maintained a skeleton operation outside those hours to service its cus- tomers). The driver dispatch board was manned during all hours the Respondent conducted operations and the dis- patcher or dispatchers manning that board handled all dis- patches, including driver, biker, and walker dispatches, out- side the Monday–Friday daytime working hours. During the Monday–Friday daytime working hours, in addition to the driver dispatchers, the Respondent employ a dispatcher to man the walker dispatch board and a dispatcher to man the biker dispatch board and a relief dispatcher to handle the walker and biker dispatch boards during the early morning hours (before the two regular dispatchers came on duty), to relieve and assist regular walker and biker dispatchers during the balance of his shift, and to perform other duties (here- after described). The Respondent required the dispatchers to follow a first-in first-out policy in parceling out work assign- ments, unless a messenger happened to be present near a lo- cation where a rush order came in for priority handling. Lawson Lloyd closely supervised the work of the biker messengers and dispatchers during Monday–Friday daytime working hours in the first quarter of 1989, controlling about 15 biker messengers and 3 dispatchers. He possessed and ex- ercised the power to hire and fire bike messengers and dis- patchers, review their work performance, handle their com- plaints and requests and, when circumstances warranted, man the dispatch board.5 Haas was hired by the Respondent as a biker messenger on January 19. After a short time, Lloyd promoted him to the position of relief biker dispatcher, covering the early morning walker/biker messenger dispatch function and re- lieving regular walker and biker messenger dispatchers dur- ing the balance of his shift. In addition to those duties, Haas 653 EXPRESS MESSENGER SYSTEMS 6 Haas knew Lloyd was developing a plan to hire and station additional walker messengers at various locations in the city and utilize a van to service those locations, enabling the walker messengers to handle a much larger pro- portion of the Respondent’s deliveries and pickups in the inner city, at the same time substantially reducing if not eliminating the use of biker mes- sengers. 7 Apparently, in Haas’ opinion, by telling Finnegan she need not fear losing her job, in view of Lloyd’s plan to increase the use of walker messengers and decrease or eliminate the use of biker messengers. from time to time utilized his bike to make pickups and de- liveries, manned a telephone for the purpose of pacifying complaining customers (troubleshooting), ran errands, and did paperwork. He was placed on salary status following his promotion. Neither Lloyd nor any other Respondent manager told Haas he was authorized or empowered to hire, fire, dis- cipline, transfer, reward, promote, layoff, or recall any other employee, to adjust employee grievances, or to effectively recommend any of those actions; nor did Haas at any time hire, fire, discipline, transfer, reward, promote, lay off, or re- call any other employee, or adjust an employee grievance. From time to time Haas interviewed applicants for biker messenger jobs referred to him by Respondent’s personnel department. He recommended a number of applicants not be hired (one known to him as a thief and others who appeared to be substance abusers). Every negative recommendation he made was rejected and the applicants hired. Per Lloyd’s instructions, Haas occasionally completed forms furnished by Respondent when a bike messenger was late in reporting for work or deficient in his or her work per- formance and forwarded the forms to the Respondent’s per- sonnel department. There was no evidence the reports ever resulted in any action affecting job status, or any evidence of any action absent an independent review and evaluation of the reports. On occasion while dispatching, in the absence of or receipt of few incoming work orders, Haas told a bike messenger he or she could go home before the end of his or her workshift. On other occasions a messenger who noted no or few incom- ing orders were coming in informed Haas the messenger was going home prior to the end of the workshift and did so, without admonition from Haas. On occasion Lloyd asked Haas how a messenger was doing and Haas voiced his opinion of the messenger’s work performance; there was no evidence Lloyd ever took any ac- tion affecting the employee’s job status on the basis of Haas’ opinion or without an independent evaluation of the employ- ee’s work performance. On occasion while dispatching, Haas told a messenger he was taking too long to complete an assignment and to ‘‘cut it out’’; there was no evidence such admonitions were ever reported to Lloyd or to the Respondent’s personnel depart- ment, nor that they affected the messenger’s job status. In negotiations preceding the execution of the agreement, a member of the Union’s bargaining committee representing biker messengers asked the spokesman for the Respondent’s bargaining committee if the Respondent’s biker dispatchers had the authority or power to fire and was told they were not so authorized or empowered; the union committeeman then asked if the dispatchers had the authority or power to hire and again received a negative reply. The only evidence of union activity or advocacy by Haas occurred in mid-March, when Haas, in a conversation with biker messenger Colleen Finnegan at his home, advocated biker messengers employed by the Respondent and by other employers in the area in the same business form a labor or- ganization separate from the driver and walker messengers, to secure better wages and working conditions. There was no evidence Lloyd or any other Respondent manager heard or were aware of those comments or Haas’ views expressed to Finnegan. Haas’ employment by Respondent ended on March 30 after verbal exchanges between Lloyd and Haas, following the conclusion of a conversation between Finnegan and Haas at the dispatch room. Finnegan approached Lloyd outside of Haas’ presence and stated she was concerned over her job status, based on the fact her work assignments had decreased substantially since her return after a 1-week, unpaid vacation. Lloyd responded the situation in the Respondent’s biker messenger service op- eration was chaotic and he was trying to weed out undesirables. Finnegan asked if she was one of the undesirables. Lloyd replied to the contrary, she was one of his star biker messengers and she had no reason to worry about retaining her job. Finnegan stated she nevertheless was not earning enough to support herself and was uncertain about whether to continue to work for the Respondent or to seek other employment. Lloyd suggested, rather than quitting her job, she take a leave of absence while she considered what she was going to do. Finnegan accepted Lloyd’s sug- gestion, the two went to Respondent personnel department, Finnegan executed a request for a leave of absence, Lloyd approved the request, and it was handed over to the per- sonnel department for appropriate recording. Finnegan then proceeded, alone, to the dispatch office to turn in her radio. On arriving at the dispatch office, Finnegan turned her radio over to Haas. He asked her what was happening and she related the details of her conversation with Lloyd and her acceptance of his advice that she secure a leave of absence while she decided whether to remain in Respondent’s employ or secure other employment. Haas asked her if she had com- pleted the 3-month probationary period required by the Re- spondent-Union agreement to secure the protections and ben- efits set out in that agreement. She was unsure, so the two consulted a calendar and determined she needed a few more days on the job to complete her probationary period. Haas described the benefits and protections she would be entitled to under the agreement after completion of her probationary period, especially the seniority provision,6 urged her to delay taking any leave until she completed her probationary period and told her Lloyd did not have her best interests in mind when he advised she take a leave of absence at this time and had lied to her.7 Lloyd entered the dispatch room while Haas and Finnegan were conversing and overheard the conversation. On its com- pletion, Lloyd told Haas he was close to firing Haas for what he was saying to Finnegan. Haas replied he was advising Finnegan of her rights and expressing his dismay at Lloyd’s lying about what was going on. Lloyd told Haas if he did not like the way he was running the business, Haas could leave. Haas responded fine, he was going to quit anyway and was only hanging on until he qualified for health benefits and had some dental work done, and walked away from Lloyd while declaiming, in a loud voice (and before other 654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 National Livery Service, 281 NLRB 698 (1986); Bay Area-Los Angeles Ex- press, 275 NLRB 1063 (1985); cases cited in those decisions. 9 Bay Area-Los Angeles Express, supra; George C. Foss Co., 270 NLRB 232 (1984), enfd. 752 F.2d 1407 (9th Cir. 1985); Hydro Conduit Corp., 254 NLRB 433 (1981); United Services for the Handicapped, 251 NLRB 823 (1980); Western Union Co., 242 NLRB 825 (1979); Southwest Airlines, 239 NLRB 1253 (1979); Hankamer Ready Mix Concrete, 234 NLRB 608 (1978); Interstate Motor Freight System, 227 NLRB 1167 (1977); Eastern Greyhound Lines, 138 NLRB 8 (1962). 10 Bay Area-Los Angeles Express, supra; George C. Foss Co., supra; B. P. Oil, Inc., 256 NLRB 1107 (1981); Hydro Conduit Corp., supra; United Serv- ices for the Handicapped, supra; Fisher Foods, Inc., 245 NLRB 685 (1979); Southwest Airlines, supra; John Cuneo of Oklahoma, 238 NLRB 1438 (1978); Interstate Motor Freight System, supra; St. Petersburg Limo Service, 223 NLRB 209 (1976); Spector Freight Systems, 216 NLRB 551 (1975); Grey- hound Airport Services, 189 NLRB 291 (1971); Eastern Greyhound Lines, supra. 11 National Livery Service, 281 NLRB 698 (1986); Bay Area-Los Angeles Express, supra; Sherwood Trucking Co. v. NLRB, 774 F.2d 744 (6th Cir. 1985); Humes Electric, 263 NLRB 1238 (1982), enfd. 715 F.2d 468 (9th Cir. 1983); B. P. Oil, Inc., supra; Fisher Foods, Inc, supra; Western Union Co., supra; Southwest Airlines, supra; John Cuneo of Oklahoma, supra; A-1 Bus Lines, 232 NLRB 665 (1977); Interstate Motor Freight Systems, supra; St. Pe- tersburg Limo Service, supra; Spector Freight Systems, supra; Greyhound Air- port Services; supra; Eastern Greyhound Lines, supra. employees), management was bleeding its employees, firing them before they could qualify for their benefits. Lloyd at that point ordered Haas to get out and he did. The Respondent has not reinstated Haas since leaving the Respondent’s premises following Lloyd ordering him to get out. B. Analysis and Conclusions 1. Supervisor a. The Act Under Section 2(11) of the Act, a supervisor is ‘‘any indi- vidual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, as- sign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a routine or clerical nature, but requires the use of independent judgment.’’ The party asserting an employee is a supervisor within the meaning of Section 2 has the burden of establishing by suffi- cient proof the job functions of the employee in question sat- isfy the requirements of that Section.8 b. Authority No evidence was adduced establishing Lloyd or any other Respondent manager told Haas he was authorized in Re- spondent’s interest to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other em- ployees, or to adjust their grievances. To the contrary, it was established Haas never was told he was so authorized. The Board and courts reviewing its decisions frequently have held in the absence of such authorization, dispatchers and employees similarly employed were not supervisors within the meaning of Section 2(11).9 c. Effective recommendations It was established from time to time the Respondent’s per- sonnel department referred applicants for biker messenger positions to Haas for his opinion concerning their qualifica- tions. It was further established, however, Haas’ negative opinions or recommendations regarding prospective hires were uniformly and without exception rejected and those ap- plicants hired by the person authorized by the Respondent to hire. It was also established from time to time Lloyd solicited Haas’ opinion of the work performances of various biker messengers. It was not established, however, Lloyd ever took any action affecting the job status of any messenger about whose performance he solicited Haas’ opinion or rec- ommendation. It was further established Haas, pursuant to Lloyd’s in- structions, completed and forwarded to the Respondent’s per- sonnel department forms noting biker messengers’ tardiness and faulty job performances. It was not established, however, the job status of any employee named in those reports was affected thereby or that Haas had any voice or role in any decision affecting the named employees’ job status, if any such decision was made. The Board and reviewing courts regularly have held such evidence fails to establish a dispatcher or similarly situated employee effectively recommended any of the actions set out in Section 2 and therefore was a supervisor within the mean- ing of Section 2(11).10 d. Use independent judgment in assigning and directing employees It was established Haas spent a substantial portion of his workday dispatching biker messengers to pick up and deliver packages, documents, etc. for customers located in the cen- tral part of the city. For the most part, those dispatches in- volved following a set pattern; i.e., directing the first mes- senger who reported in to make the first pickup and delivery requested by a customer, directing the second messenger who reported in to make the second, etc., slotting messengers into the sequence as they completed assignments. On a few occa- sions (such as receipt of a rush request at a premium charge from a customer and a messenger who had completed an as- signment was in the immediate vicinity of the rush pickup or delivery, Haas departed from the set pattern, again accord- ing to Respondent’s instructions and practice, and radioed that messenger to make the pickup or delivery). Haas also handled assignment of break and lunchtimes, advice on loca- tions and travel routes, etc., and advised messengers they were free to quit work prior to their normal quitting times when there was an adequate supply of messengers to handle the work during slack periods, as well as acknowledge re- ports from messengers they were quitting work prior to their normal quitting times when they were awaiting but not re- ceiving any assignments due to a lack of customer orders. Certainly the performance of these dispatching duties by Haas required he assign and direct messengers in the interest of the Respondent; I find, however, the exercise of those functions occurred within parameters established by the Re- spondent and did not require a sufficient exercise of inde- pendent judgment to satisfy Section 2(11) of the Act’s defini- tion of a supervisor.11 655 EXPRESS MESSENGER SYSTEMS 12 Bay Area-Los Angeles Express, supra; Fisher Foods, Inc., supra; Inter- state Motor Freight System, supra; Spector Freight Systems, supra. 13 Eastern Greyhound Lines, supra; Humes Electric, supra. 14 Affd. sub nom Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987). 15 U.S. Furniture Industries., 293 NLRB 159 (1989); Jhirmack Enterprises, 283 NLRB 609 (1987); El Gran Combo, 284 NLRB 1115 (1987), affd. 853 F.2d 996 (1st Cir. 1988); Scientific Atlanta, 278 NLRB 622 (1986); O’Hare Hilton, 248 NLRB 255 (1980); Pioneer Natural Gas Co., 253 NLRB 17 (1980); General Motors Corp., 239 NLRB 34 (1978). e. Solo performance, supervisor ratio, higher pay The evidence establishes during the early morning hours before the regular walker and biker dispatchers reported for duty, Lloyd was not present to supervise Haas and the walk- er-biker messengers’ performance, that Lloyd was the sole supervisor of approximately 15 biker messengers, 2 regular dispatchers, and 1 relief dispatcher (Haas), and Haas was paid a salary while the biker messengers were paid a percent- age of the Respondent’s charge for their deliveries and pickups. The Board has held when an employer has instituted pa- rameters for dispatch and similar operations, the fact the em- ployee conducting those operations is alone for limited peri- ods during his workshift is immaterial, and not controlling, in the determination of whether that employee is a supervisor within the meaning of Section 2(11) of the Act;12 that the fact the ratio of employees is as high as that between Lloyd and the employees he supervised and the fact an employee receives higher pay than those he assigns or directs likewise is not controlling, absent of proof of the exercise of super- visory functions by the employer within the meaning of Sec- tion 2(11).13 f. Conclusion On the basis of the foregoing, I find and conclude the Re- spondent failed to meet his burden of proving at times perti- nent Haas was a supervisor within the meaning of Section 2(11) of the Act and find, to the contrary, at all pertinent times, Haas was an employee of the Respondent within the meaning of Section 2(3) of the Act. 2. Quit or discharge Following Haas’ March 30 conversation with Finnegan, Lloyd told Haas he almost had fired him while hearing what Haas was saying to Finnegan; following Haas’ defensive re- joinder he was only advising Finnegan of her rights under the agreement and his dismay at Lloyd’s lying to her about his plans for the biker messengers, Lloyd Haas he could leave the Respondent’s employ if he did not like the way Lloyd was running the business; and following Haas’ appar- ent conclusion that meant he was discharged and com- plaining he and others were being fired before they qualified for benefits, Lloyd responded by ordering Haas to get out. In my judgment, Haas correctly interpreted Lloyd’s state- ment he could leave if he did not like the way Lloyd was running the walker/biker messenger section as a discharge, in the context of the previous exchanges between the two. In addition, I find and conclude Haas’ reply to that statement was not a quit, but rather the statement of a future intention, i.e., of a plan to quit after he qualified to receive health ben- efits and after he completed some dental work. Finally, it is clear Lloyd’s final order to Haas, i.e., to ‘‘get out’’ was clearly and unequivocally a discharge. I therefore find and conclude on March 30 the Respond- ent, by Lloyd, discharged Haas, that he did not voluntarily quit his employment. 3. Concerted, protected activities Findings and conclusions have been entered above em- ployee Haas was discharged on March 30. Findings have been entered earlier Lloyd discharged Haas for describing to employee Finnegan the advantages and protections the agree- ment between the Respondent and the Union would provide to her once she completed probation and urging Finnegan to remain on the job and refrain from commencing her leave of absence until she had completed her probationary period. Under Section 8(a)(1) of the Act it is an unfair labor prac- tice for an employer to interfere with, coerce, or restrain an employee in the exercise of his or her right to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection. In City Disposal Systems, 465 U.S. 822 (1984), the Su- preme Court expressed its approval of the Board doctrine acts or statements by individual employees constituted ‘‘con- certed activity’’ within the meaning of the Act when an ob- jective of the act or statement was to induce or initiate ac- tions beneficial to other employees, as well as he or she. In Meyers Industries., 281 NLRB 882 (1986) (Meyers II),14 the Board spelled out the principles it would apply to statements by an individual employee alleged to constitute ‘‘concerted activities’’ protected by Section 8(a)(1) of the Act, by quoting with approval (at p. 887) the following lan- guage of the Third Circuit Court in Mushroom Transpor- tation Co. v. NLRB, 330 F.2d 683 (1964): It is not questioned that a conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least it was engaged in with the object of initi- ating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees. City Disposal affirmed the principle employee invocation of a right, protection or benefit established by a collective- bargaining agreement between an employer and the labor or- ganization involves the interests of other employees and therefore attempted invocation of such a right, protection or benefit constitutes a concerted activity for mutual aid or ben- efit. A line of cases also establishes the rule employee dis- cipline or discharge for discussing with other employees sub- jects affecting employment interferes with, restrains and co- erces each discussant in the exercise of his or her right to engage in concerted activity for mutual aid or benefit.15 In Jhirmack, supra, Chairman Dotson, in a concurring opinion, stated in view of the fact the discriminatee was dis- charged for advising a coworker other employees were com- plaining about his work performance to aid the coworker (by motivating him to improve his job performance and keep his job) supported the conclusion the participation of two em- ployees constituted concerted activities for mutual aid or pro- tection within the meaning of the Act and therefore Meyers II and its progeny were inapplicable. 656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec- tions to them shall be deemed waived for all purposes. 17 If this Order is enforced by a judgment of a United States court of ap- peals, 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.’’ Haas’ remarks to Finnegan were for the purpose of induc- ing her to remain on the job long enough to secure protec- tions, benefits and rights afforded employees who completed the probationary period established in the agreement between the Respondent and the Union. I find by so doing, Haas was engaged in concerted activities for mutual aid or protection and therefore the Respondent violated Section 8(a)(1) of the Act by discharging Haas for that effort. CONCLUSIONS OF LAW 1. At all pertinent times the Respondent was an employer engaged in commerce in a business affecting commerce and the Union was a labor organization within the meaning of Section 2 of the Act. 2. At all pertinent times Lloyd was a supervisor and agent of the Respondent acting on its behalf within the meaning of the Act. 3. At all pertinent times Haas was an employee within the meaning of the Act. 4. The Respondent violated Section 8(a)(1) of the Act by discharging Haas for engaging in concerted activities pro- tected by the Act. 5. The aforesaid unfair labor practice affected commerce as defined in the Act. THE REMEDY Having found the Respondent engaged in an unfair labor practice, I recommend the Respondent be directed to cease and desist therefrom and to take affirmative action designed to effectuate the purposes of the Act. Having found the Respondent discriminatorily discharged Haas, I recommend the Respondent be directed to imme- diately reinstate Haas to his former position or, if that posi- tion is not available, to an equivalent position, with all se- niority and other rights and privileges restored, and to make Haas whole for any wage and benefit losses he suffered by virtue of the discrimination practiced against him, less any interim earnings, with the amounts due and interest computed in accordance with the formulae of New Horizons for the Re- tarded, 283 NLRB 1173 (1987); Florida Steel Corp., 231 NLRB 651 (1977); and Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended16 ORDER The Respondent, Express Messenger Systems, Inc., San Francisco, California, its officers, agents, successors, and as- signs, shall 1. Cease and desist from disciplining its employees for disseminating information concerning protections and bene- fits available to them by virtue of their employment and urg- ing them to take action designed to secure such protections and benefits. 2. Take the following affirmative actions necessary to ef- fectuate the policies of the Act. (a) Offer immediate reinstatement to Karl Haas to his former job or, if that job no longer exists, to equivalent em- ployment with all seniority and other rights, benefits, and privileges restored. (b) Make whole Karl Haas for any wage and benefit losses he suffered due to the discrimination practiced against him in the manner set out in the remedy section of this decision. (c) Remove from its records any references pertaining to Haas’ unlawful discharge, informing him in writing this has been done and his unlawful treatment shall not be used against him. (d) Preserve and, on 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. (e) Post at its facilities in San Francisco, California, copies of the attached notice marked ‘‘Appendix.’’17 Copies of the notice, on forms provided by the Regional Director for Re- gion 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.