Hancor, Inc.

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hancor, Inc. and Milton D. Ward. Case 8-CA- 17842 23 January 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 30 August 1985 Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in opposition to the Respondent's exceptions. The National Labor Relations Board has delegat- ed 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 decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Hancor, Inc., Findlay, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wdll Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Steven D. Wilson, Esq., for the General Counsel. Donald F. Woodcock and William L. S. Ross, Esqs., of Cleveland, Ohio, for the Respondent. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge. This proceeding was litigated before me at Findlay, Ohio, on 7 and 8 May 1985 pursuant to charges timely filed and served and complaint issued on 29 November 1984. The complaint alleges that Milton Ward and Merle Shank were discharged because they engaged in protected con- certed activities, and in order to discourage employees from engaging in protected concerted activities. Hancor, Inc. (Respondent) contends that Ward and Shank were discharged for lawful reasons. Upon the entire record' and my observations of the witnesses' demeanor as they testified before me, and after considering the able posttrial briefs submitted by counsel for the parties, I make the following FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is a manufacturer of plastic drain tubing with an office and place of business at Findlay, Ohio. Respondent annually sells and ships products, goods, and materials valued in excess of $50,000 directly from its Findlay, Ohio facility to points outside the State of Ohio, and is, and has been at all times material to this case, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Hancor has 14, facilities, including the one at Findlay, Ohio, in the United States. Its corporate offices are locat- ed at Findlay, Ohio. In 1983 it underwent a change in management with Fred Kremer becoming its president, Frits van der Klooster its vice president in charge of manufacturing, and Wayne Gulley the vice president of sales and marketing. Commencing in early 1984,2 at Kremer's direction, Respondent implemented a participa- tive management (quality circle) program at its facilities which involved, inter alia, securing volunteers from among its employees to meet with management and work cooperatively to solve existing problems or any that might arise affecting Respondent's operations and the employees. Respondent had 11 full-time drivers when it com- menced its quality circle program. Of these, five owned their own tractors, leased them to the Company, and drove them as employees. Ward and Shank were two of the five. The remaining drivers drove trucks leased from other sources. Respondent solicited the participation of the drivers in its quality circle program by memorandum of 30 March directed to all Findlay drivers and reading, in pertinent part, as follows: In order to address the issues that are presently unresolved, we would like to invite our volunteers from the drivers to become part of a problem solv- ing team. If you are interested in collectively resolving the issues to be identified and willing to volunteer your time and efforts, please sign up on the list posted in the drivers' room or call Larry Dunson [plant man- ager]. The intent is that we work together, list, priori- tise and search for a solution to the problems and concerns we together have. Six drivers volunteered. Jerry Voss, Dave Lauck, Merle Shank, and Milton Ward became regular participants in the quality circle meetings. Jerry Fletcher and Wilmer Reese were alternates. Fletcher credibly testified that he had talked to other drivers about having someone to rep- ' Errors in the transcript have been noted and corrected 2 All dates hereafter are 1984 unless otherwise indicated 278 NLRB No. 30 HANCOR, INC. resent them at these meetings, that they picked Shank and Ward, and that he asked Shank and Ward to so serve. According to Shank's uncontroverted testimony, driver John Starr asked him and Ward to be a member of the drivers' group at the meetings. Ward credibly tes- tified that he and Shank were asked by drivers to attend. There were three quality circle meetings attended by Ward and Shank: 10 April, 9 May, and 23 July. The 10 April meeting was primarily devoted to identifying issues to be discussed at future meetings. The issues so identi- fied were zone pay, loading sequence, height, per diem, splits, returns, mileage splits, down time, yard use of over-the-road tractors, trailer maintenance, customer complaints, paperwork, legal operation, casual drivers, dispatching procedure, and drivers manual. All these issues, with the possible exception of customer com- plaints, were clearly related to the wages, hours, or working conditions of the drivers. The four drivers at- tended the next meeting on 9 May. West Virginia zone pay was the main topic of discussion. Ward said little, but Shank and Lauck were in strong disagreement with each other over a proposed change in that zone pay. Shank ultimately agreed with the proposal, which he alone had adamantly opposed at the meeting, after dis- cussing it with other drivers outside the meeting. Inas- much as one of those who so persuaded him was Ward, I conclude Ward did not oppose the change. The third quality circle meeting on 23 July was mainly concerned with a discussion of dispatch procedures. Voss strongly disagreed with the position taken by Shank and Ward because he felt it favored owner drivers over the other drivers. It does not appear that either Shank or Ward was any more heated in their remarks than was Voss. Shank and Ward had been involved in driver meetings with management regarding matters of importance to drivers prior to the quality circle meetings. At an all- driver meeting with Kremer, van der Klooster, and Plant Manager Larry Dunson in November 1983, Kremer pro- posed that Findlay drivers agree to a pay concession in- volving the takeover of pipe hauling to Minnesota. Here, as in other instances, there was disagreement between the regular drivers and owner drivers. Voss, Lauck, and Paugh favored the proposal. Ward, Shank, Starr, and Fletcher spoke against it. Shank argued that it would be foolish for drivers to accept the proposal because it would be a first step in reducing pay across the board. At a followup meeting of the drivers with Galvin, who was then the office manager and supervised the drivers, and Dunson on 19 December 1983, Ward stated that al- though he opposed taking the Minnesota haul he would utilize his seniority to take the work if it in fact was hauled by Findlay drivers. On 18 January van der Kloos- ter, Personnel Director Hauzie, Dunson, and Galvin met with the drivers and discussed per diem pay. Ward was not present. Shank opposed Respondent's request for motel receipts, and proposed that Respondent give the drivers a flat rate per diem amount to be spent by the drivers at their own discretion. Hauzie testified that the general attitude of the drivers was that they wanted more money, and management should just go away. David Hartranft, the Company's director of materials until February 1985, was the official responsible for ne- 209 gotiating the tractor leases with the owner-drivers. He did not take part in the quality circle meetings but did meet with owner drivers on matters of particular con- cern to them. At one such meeting in July-there was a discussion of driver costs. Ward disputed the Company's figures. At another July meeting, Shank objected that the amount of per diem proffered was not enough and "if we had to, we may have to get outside help." Hartranft re- plied that the Company could give no more because there was no more to give. In addition to their participation in quality circle and all driver and owner-driver meetings, Shank and Ward have for several years taken an active role in presenting employee concerns to Respondent, primarily the office manager who directly supervised the drivers. These situ- ations arose from informal gatherings, usually by chance, of employees wherein pay and other employment-related complaints were aired. At the request of concerned driv- ers, Shank and/or Ward, occasionally accompanied by Lauck or Starr, would report the complaints aired by particular employees or the drivers in general to the office manager. There is no evidence either Ward or Shank had ever been warned or disciplined in any way for their state- ments or conduct during any of their various group meetings with management representatives or their pres- entation of employee concerns to their supervisors. On 18 July there was a management meeting attended by Kremer, van der Klooster, Hauzie, Hartranft, Dunson, and Brunswick. After some discussion it was decided to do away with the owner-driver system at Findlay for economic reasons. The affected drivers were then discussed, and it was tentatively decided to termi- nate Shank and Ward completely rather than retain them as regular drivers. The same group met again on 25 July and agreed to terminate the leases of all owner drivers and the employment of Merle Shank and Milton Ward. There is no contention the economically motivated change in driver operations was an unfair labor practice, and I find it was not. The argument advanced is that the selection of Shank and Ward for termination, while con- verting the other three owner drivers to regular drivers operating equipment leased from other companies, was retaliation for their protected concerted activities and an effort to discourage similar activity among the remaining drivers. The participants in the 18 and 25 July meeting variously testified regarding their reasons for recom- mending or concurring in the termination of Shank and Ward. This testimony is set forth below in substance where possible and substantially verbatim where such recitation is helpful to an understanding of the evidence. A. Frederick Kremer Jr. All five of the people, had been with Hancor for a period of time. It was- obvious from the informa- tion we had that the kinds of money they were making was considerably in excess of what the av- erage employee/driver would be making. And our concern was the obvious one; that what would their reaction be with the elimination of those favorable agreements with them. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [I]t became clear that there was great concern about Merle Shank and Milt Ward in terms of their ability to make that transition and become produc- tive, constructive Hancor employees. I had my own perceptions . . . that Milt and Merle tended to be negative; that no matter how we tried, it was impossible to get a positive-kind of re- action from them. I won't say that they ever said to me, directly, "I don't believe you," but it was clear that in the meetings, where numbers were presented by others in the organization, that they disagreed with the numbers. And it's pretty difficult to have a positive-kind of discussion when there's just abso- lute disagreement and no basis for it; that is, there was no explanation as to why the numbers were wrong. And . . . in response to asking them to provide their own numbers, or to review the numbers that had been put on the board or passed out, there was lack of response. So, you can't have a positive-kind of discussion in that situation. Their performance was discussed; in particular, the comment which had been heard from one of our sales people, from a customer, who commented that, in specific, Merle Shank had made a negative comment about Hancor , as being a reasonable place to work. Q. Did you have any personal relationships with these individuals that caused you to have an opinion of any kind? A. Yes, to the extent that I observed them in meetings. What stood out with Milt and Merle is that, in addition to speaking out, it was generally negative .... There's generally a consensus that, "Hey, were trying to improve"; whereas, the comments generally from Milt and Merle were of the negative kind. The decision was reached to terminate both of those gentlemen. The reason was that it was our considered opin- ion that, under the circumstances of our experience with them over the past year and a half and the in- creasing negative approach to the company, that there was no way that they were going to turn around having been divested of a very profitable leasing situation. There was no way they were going to turn around and all of a sudden become good Hancor employees. We concluded that, in interest of the business, in terms of our customers and the rest of our people, that we couldn't continue employment. B. Frits R. A. van der Klooster-on direct examination [At the 18 July meeting] . . . the fact was brought out that if we would terminate lease contracts, that we would have five individuals . . . that would see a livelihood, or at least a very significant additional income disappear. And discussed, among all of us, the fact whether these people, individually or col- lectively, could stand that, and would be good Hancor employees. We discussed all five owner/operators. And, in the end, concluded that especially two . . . would not be able to do without the additional income without severe repercussions as to their attitude. Since their attitude in the past . . . had been very negative, it was felt that this would be an extra burden on top of that already negative attitude that they would not be able to overcome. I think Fred Kremer, at that time, stopped the meeting. And then we asked some questions, specifi- cally around the fact . . . that we have these two owner/operators that continually say that manage- ment has given them a bad deal. Merle Shank and Milt Ward, specifically. [Kremer] asked whether any of the people present there could recall any time that Hancor had, indeed . . . as was continually alleged by these individuals, giv[en] the owner/operators a bad deal. [W]e felt that, as a group, that, indeed, we had not only not given reason for these allegations, but had gone the extra step in safeguarding that they would not have that as a reason. I, at that meeting, then, proposed that we would, indeed, terminate . . . all five owner/operator con- tracts. I further proposed that we . . . terminate Merle Shank and Milt Ward because we felt that they could not overcome some kind of a drastic cut. It was everybody's individual, in turn, recom- mendation that we would sever . . . the contracts. And, in addition, that we would terminate Merle Shank and Milt Ward. . .. We went around. And, in turn, people of- fered their reasons as to why they felt that display in the past of non-cooperation with management, of very negative attitudes. And there were specific ex- amples brought out at that time by individuals, and we went through those. I recall, from myself, the November '83 meeting on Minnesota runs where there was a general, very negative attitude from both Milt and Merle about taking . . . the hauling of a large diameter pipe to Minnesota, which had been given to outside truck transportation firms. They felt that . . . one of the solutions that we were discussing there that was just the beginning of the end. You were given one finger now, and that would be the beginning of the end, is one of the statements that I recall. That was by Merle Shank. I remember . . . the January meeting that on per diems where we came was to try to find out ulti- HANCOR, INC. 211 mate ways of paying per diems, and get input back, that we were flat out told ..., just keep paying the way it is. And we will, at that moment, decide our- selves as to how to apply that money. I took that directly as meaning that I'll take the money and put it in my pocket, and I'll sleep over the wheel, rather than as the DOT requires to be away from the cab for a period of time. Q. Again, to whom do you attribute that- A. Merle Shank. I was present at two quality circle participa- tive management meetings, one in April, and one in May, where we tried to follow the structure of the quality circle program that we had learned about in January. I felt that, during these meetings, Milt and Merle tried to circumvent the meeting format several tines. And were, in general, not willing to come up with-or look at different solutions . When there were opposing views, they would hold dogmatic to their point, without trying to see the other side and/or offer new solutions that were different. Then we had . . . the second quality circle par- ticipative management meeting in May, and . . . the one and only' agenda item on that -was West Virgin- ia and zone pay for extraordinary runs , runs with more mileage than what zone pay would indicate. [A]lthough all four drivers present at that time were, again, vocal and had comments. I, again, re- member very distinctly Merle Shank at the time talking about, you know, having just a negative effect and a holding out for his own point .. . wanting to only look at his side, and not go, as we had tried to discuss during these quality circle meet- ings, try to look at ultimate waysof solving the problems. I then recall a meeting that I was present that was July 7. That was a meeting that was held at my request. We had this in subsequence to the DOT in- spection, we had called an all hands driver meeting, in which we had asked Ryder's safety manager to come in and explain about logging requirements, et cetera. I remember both Milt and Merle, during that meeting, to be very unattentive, to the point of being downright rude to the speaker, not paying at- tention. And, in general,- not believing what was said, or not participating. It's those things that I have personal recollection of. I then, during that meeting, recall items such as late '83. We had a special report written by one of our salesmen that came into the office , and that spoke directly to situation where Merle Shank had made a delivery. And the customer had asked .. . "Boy, Hancor is a good company to work for, is it not?" Merle's direct comments to that customer, al- though I' do not recall the exact wording, were suf- ficiently negative that the customer remarked about it to the , salesman upon the salesman's subsequent visit. I had-directed, at the time, that Denny Galvin do talk to Merle Shank about it. That conversation to that effect, according to Denny Galvin, did take place. And Denny tells me that Merle neither denied it or, you know, he had recollection of that going on. And there were other things , like Rick Bruns- wick's, you know, I get-I, at the time, for a period of about two and a half years, had either direct dealings or indirect dealings with old drivers, and had, through supervisory comments, etcetera, in general, formed an opinion. And indirect comments had, in general, formed an opinion that particular these two people, Merle Shank and Milt Ward were very distrustful, and stated so much to my face, of management. Not only present management, past management, any management that had been there. And I wondered, you know, whether they would ever find anybody in management that they could trust. They continuously , throughout that period of time, when exhibits were offered, would question the exhibits, would totally not accept figures that were proffered. As a matter of fact, but when asked to produce their own figures on various items, would not come forward with those-would not come forward-was different. So, in general, I had a very negative- impression of those two, and felt, personally, and that was said by all of the others in that group in July 18, felt that they could not overcome the added burden of having the contracts cancelled. And we decided, then, to . . . get back together ... on July 25. I, myself, during that time, did a lot of soul- searching about the fact of whether if we could or did not continue these individuals , maintain that po- sition. I took into account the fact that for the last year and a half our sales and shipments from, espe- cially, the south plant, not only corporate overall, but especially the south plant, had very drastically reduced. And that Dunson and myself, as well as Bob Hauzie had been talk for the last half year about the fact that there were too many full -time drivers look- ing to us for full-time employment . And that we needed to reduce drivers. And I felt why not these two, as opposed to-we had other full-time longer senior drivers that were on the payroll, but at the bottom of the list. Why take the bottom ones when [we] have, obviously, two individuals that we're going to give an extra burden to, that they probably will not be able to overcome. We had a meeting on July 25, ... and we decid- ed to go ahead, as had been tentatively decided on July 18th. Q. What, specifically, was the reason for the ter- mination of Mr. Ward and Shank? 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. It was the consensus and my personal opinion that they could not overcome the additional nega- tive input to themselves of having the leases termi- nated. And, therefore ... . On cross-examination Q. You testified that, in July '84, a meeting was held with the drivers to discuss matters pertaining to logs. And this meeting was conducted by repre- sentative of Ryder, correct? A. A Ryder representative was present. Q. Okay. And what, specifically, did Milt Ward and Merle Shank do at that meeting that led you to state, as you did on direct, that they were unatten- tive, and rude, and the rest of the things that you used to describe their conduct there? A. I happened to be sitting at the front end of the room, looking at the drivers sideways. And I was able to observe. all drivers. Both Milt and Merle were not looking at the slides being shown. Were, in general-never made eye contact with the speaker. In general, I recall that there was just a very non-attentive, non-will- ingness to learn from the meeting attitude. Q. They were the only two that you perceived as not paying attention? A. Yeah. I had looked at all individuals . . . . In general, everybody paid attention. Q. Did either Mr. Ward or Mr. Shank say any- thing during this meeting? A. I recall them both being very quiet, and not asking for any questions. Q. Turning, now, the incident where Merle Shank said something derogatory about Hancor to a customer that was reported back to Hancor man- agement. Do you recall what customer it was? A. I do not. We-I do not. Q. Okay. Do you know what point in time this, allegedly, happened? A. Uh-huh. Late '83. Q. Do you recall what Shank was alleged to have said? A. Not verbatim, no. Q. Okay. On August the 6th, when you were ex- plaining to Ward and Shank the reason for their ter- mination, one of the things you said to them-one of the reasons you gave them was that they had ad- vised others not to believe statements presented to them by Hancor management, right? Is that one of the things you said to them? A. I believe that that is true, yes. Q. Okay. Was that just your opinion, or was that ... your perception? Or was it also the perception of the others who had been involved in this deci- sion? A. That was not only-that was not my percep- tion. That was from input from other people that perception was there. Q. Then what, specifically, did you, at least, have in mind when you said to them that they had ad- vised others not to believe -statements presented to them by management? A. What did I have specifically in mind? Q. Right. You made your statement. I want to know what you had in mind. ,A. I offered that as part of the reasons that were brought up for their termination because-you know, as a background to their termination. Q. You didn't have any specific instance, other than that, in mind then? A. Nor at this moment can I recall any, nor do I know whether, at that time, I had any specific in- stances. I was not questioned on that at the time. [Q.] There was some discussion at [the 18 July] meeting about Mr. Ward and Mr. Shank's reaction to the owner/operator leases being cancelled, cor- rect? A. Yes. Q. And there was some discussion as to how that might affect their future actions as employees if they were retained, correct? A. Correct. Q. And there was also some discussion about how their future-how their reaction might impact on the other drivers, correct? A. I don't recall that I made that, no. Q. You don't recall that being discussed at that meeting? A. I don't recall that I said that that was dis- cussed, nor do I recall that that was discussed. C. Robert G. Hauzie-on direct examination Two people, in particularly, kept stemming up by all of those people, or their names kept coming up by all of those people present that they felt that they just couldn't accept the cancellation of those agreements. Those two people were Milt Ward and Merle Shank. It was a consensus of the group that this cancel- lation to them would be one more straw because of past statements by them for distrust of management, never favoring management's opinions, never look- ing at any proposals that management had made in the favorable way. At the dismissal of the meeting, it was recom- mended that the two individuals, Milt and Merle, should possibly be terminated, and the other three individuals, it was felt, could accept the termination of the leases and could continue on and exemplify the type of employee that Hancor would like, working in the field, and in particular, meeting its customers. Our drivers have direct contact with the custom- er, and if you don't have a team player, it could create some poor relationships and also cost you business, which we, at that time, just could not afford to do. We could not afford to lose business. I was asked to make recommendation re- garding their termination, would I recommend that HANCOR, INC. they be terminated. I told them that from the infor- mation that had been passed on to me from that meeting or that I had received at the meeting, I, at that point, certainly felt that these two individuals did not exemplify or had not exemplified in the past what we determined to be as a good employee, and that, perhaps, termination should be in order. 1. On cross-examination Q. I believe you testified just now that there had been notes made to the file about problems-to the personnel files of Mr. Ward and Mr. Shank in the past about problems, right? A. Yes. Q. Now, were these in reference to this attitude problem he had, or was it on other topics? A. I want to say other topics. It all centers back around to attitude. Q. Okay. I have here what was provided pursu- ant to a subpoena I issued for all personnel files. This is identified, to me, as personnel file of Milt Ward. . . . I wonder if you could review that, show me in that file where there's anything along the lines you've mentioned, some note about atti- tude problem, or something of that nature? THE WITNESS: The only thing I could find was a auto liability accident claim on Mr. Ward. That was it, other than another note to file, that was it. Q. (By Mr. Wilson) was that actually the claim of factor discussed in the decision to terminate Mr. Ward. A. No, sir. Q. Okay. ' I'm going to present with another per- sonnel file. This is the one of Merle Shank. I wonder if you might go through there and, as you did with Mr. Ward, show me examples of write-ups, and like that you stated reflected the attitude prob- lem that he had? A. The first document I have, dated March 16th, 19'83, is a memo, interoffice correspondence, to Merle Shank from Dennis Galvin. It's a file copy whereby discussion was presented to Mr. Shank on his performance. In fact, one paragraph stating Hancor will not tolerate this kind of performance in the future. JUDGE WOLFE: What did he do? THE WITNESS: It says, It is apparent that you did forget the special verbal instructions, but you also failed to observe the obvious written instructions and arrival time of 8:00 o'clock a.m. that was on your delivery ticket. Apparently, he did not arrive at the customer's at the time he was supposed to arrive at. It says, "Let this serve as a written warning to make you aware that any similar poor performance on your part will result in suspension without pay disqualification and/or termination." 3-21-83, Merle Shank signed it. 213 Q. By Mr. Wilson: Was that incident discussed in the decision you made to terminate him? A. No. JUDGE WOLFE:. . . Mr. Hauzie, you picked out some stuff from Mr., Shank's file. You've just gone through it, right? THE WITNESS: Yes, sir. JUDGE WOLFE: Was any of that material specifi- cally referred to while you were making the deci- sion-while the decision was being made, the dis- cussion was being had to terminate Mr. Shank, okay? - THE WITNESS: loo, Sir. JUDGE WOLFE: Now, is there any of those in there that are apart from mechanical performance, failure to get some place on a date, unless you con- strue that as being an attitude thing. Just what in there do you find that relates to his bad attitude, if anything? THE WITNESS: There' s a memo or an interoffice correspondence, again excuse me, from Dennis Galvin to Merle, dated October 11th, `83, whereby Merle was throwing his personal trash and garbage into the plant disposal unit. He had been warned about it before, continued to do it. Q. (By Mr. Wilson) Mr. Hauzie, I believe another factor was mentioned by you that was involved in the decision to terminate Shank and Ward. Was the fact that you perceived that their relations with cus- tomers would deteriorate if their owner operator leases were cancelled, yet I believe you also testi- fied earlier that the attitude problem that led to their termination existed for quite some time, cor- rect? A. (Nodding head.) Q. Had you had any customer complaints previ- ously, with regard to Ward and Shank. A. I was not aware of any. Q. Okay. Did you see any when you were re- viewing these two personnel files? A., I believe there was some in there, yes. In fact, the complaint about the customer not getting his product on time. Q. Are such complaints memorialized in a per- sonnel file? A. Yes. 2. Redirect examination Q. Over the period of time prior to the termina- tion of Mr. Ward and Mr. Shank, had any of the supervisors talked to you, concerning their attitude? A. Yes, sir. Q. And what had you been told by supervisors [of] Mr. Ward and Mr. Shank, concerning their atti- tude? A. Most recently, or going back? Q. That which was in your mind in July of 1983, when you were asked your opinion. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Okay. In the incidents related to me by Mr. Brunswick, which I had spoken to earlier, incidents related to me by Mr. Hartranft, which I had spoken to earlier, and also some incidents that he had while trying to deal with them as the owner/operators under the owner/operators lease agreements, inci- dents related to me by Mr. Fritz van der Klooster and his workings with the people, and meeting with them, and trying to talk with them, or explain, or bring up different problems or presentations to them, or in conducting the meetings. Q. Did anybody generate any specific memoran- da concerning each of these incidents of bad atti- tude? A. No, sir. Q. Is it typical that people would generate some memoranda concerning an incident involving bad attitude? A. Not typical. It may get to the point where enough is enough, and then it is put down, or some- thing is done about it. Q. But it's not standard practice. A. No, sir. Q. Did you, in fact, generate any memoranda concerning the incident that you participated in, in which you've described as evidence of bad attitude? A. No, sir. Q. Was that in your mind in July of 1984, when this matter was fully discussed? A. Yes, sir. Hauzie prepared minutes of the 18 July meeting in which he related the following with respect to the dis- cussion of Shank and Ward: A situation arises, however, in terminating the owner-operator contracts. Two of the employees, specifically Merle Shank and Milt Ward, have con- tinually been very outspoken in the past concerning the Company's treatment of the owner-operator, or at least their perceived notions on how the Compa- ny is treating the owner-operators. After several minutes of discussion, Fred Kramer asked each of those present' if at any time they could recall or if they could find in past records any time Hancor actually did perhaps "screw our drivers." After discussion on complaints that had been raised by the drivers, it was verified that we could not really account for any such instances. It was the consensus of the group that the entire prob- lem came down to an attitude problem on the part of Merle Shank and Milt Ward-that they were two individuals who were not willing to accept or believe any statements made by the Company with regard to operating efficiencies or costs of oper- ation. After some discussion it was agreed that we must terminate the owner-operator contracts strictly from point of pure economics. In reviewing past history situations, it was also further agreed that the two in- dividuals, being Merle Shank and Milt Ward, would not accept this discontinuance of the owner-opera- tor contracts very well. Past involvement with these two individuals shows a continuous "poison- ing of-the well" effect by their attitudes, statements they have made, and also open statements of dis- trust and not believing in management or any pres- entation that management brings forth. With regard to the fact that -our drivers have an extensive amount of exposure to our customers and also employees within our own Findlay facility, as well as outside the Findlay facility, we cannot afford to risk a situation which could- cause these two individuals' attitudes to kindle an air of distrust and disfavor toward the Company. At this point in time, there was no one at the meeting who had any reason to believe or suspect that Milt and Merle's actions would change in the future. It was also a strong feeling that the remaining three owner-oper- ators went along with the actions of Merle and Milt, both from a point of trying to "keep the peace" and also from the fact that-'they sometimes too had some advantages to gain from Merle and Milt's actions. Consensus was that terminations for these two individuals would coincide with the ter- mination of the owner-operator contracts. D. Larry E. Dunson Dunson related that he recommended the termination of Shank and Ward because he felt both were selfish, self-serving individuals who mistrusted management; whose attitude toward management would further dete- riorate because the leases were being cancelled; and,this deterioration would affect their relationship with man- agement. He conceded that he knew of no customer complaints about Shank or Ward. When asked if part of his concern about the reaction of Shank and, Ward to the lease cancellation was a belief they might lead other drivers to, adopt similar attitudes, he responded that he thought negative attitudes toward any situation, if one is exposed to it long enough, can erode the people around one. As evidence of their behavior, Dunson pointed to the opposition of Shank and Ward in late 1983,to Kremer's proposal that Findlay drivers haul pipe to Minnesota; Shank's exception to the proposal, made at the 18 Janu- ary meeting of drivers that motel receipts be required for per diem reimbursement; Shank's outspoken behavior at the 9 May quality circle meeting during a discussion of zone pay; and Ward's opposition to the dispatch proce- dures at the quality circle meeting of 25 July. Dunson also recounted an incident in June, after an audit by a Department of Transportation (DOT) inspec- tor, wherein the inspector determined that Shank had de- liberately falsified his logbook because a toll, ticket Shank had turned in indicated he was driving when his log showed he was not. Dunson spoke to Shank about this, but Shank refused to believe it was, an official DOT audit. E. David L. Hartranft Hartranft testified that he was in favor of terminating Shank and Ward because they - distrusted the figures he presented to the group of owner-drivers during lease ne- HANCOR, INC. 215 gotiations. He further asserted that no other driver did, specifically denying that Jerry Fletcher voiced any doubt of his numbers. In this connection, although Fletcher was not specifi- cally asked and did not speak specifically about _ Har- tranft's figures, he credibly testified that he, as well as Shank and Ward, voiced disbelief of the figures on costs presented by the company at meetings with owner-driv- ers. F. Ricky P. Brunswick Brunswick, who came to Findlay as office manager on 1 June, avers that while Brunswick was still at Respond- ent's New York facility, Shank made a delivery there and said something which led Brunswick to believe Shank had little confidence in Hancor management. Brunswick does not recall what Shank said. Brunswick credibly testified that after the DOT in- spector, on 8 June, pointed out the conflict of Shank's toll ticket with his log, he called Shank, advised him of the violation, and told him that Brunswick needed to speak with him about it when Shank returned from his trip the following Monday. On Monday, Brunswick was advised by the dispatcher that Shank had said when he came in that he had no time to talk to Brunswick. Bruns- wick then arranged Shank's assignment to accommodate a meeting on Tuesday . At this meeting, Shank refused to accept that there had been a bona fide DOT inspection and demanded to see the report on an official letterhead. Brunswick said he could see it when Brunswick received it. Shank said they were making too big a deal out of the matter and abruptly walked out of the office . Shank and Ward testified and Brunswick agreed that there was a mock DOT inspection to be conducted during that time- frame. Brunswick states, and I credit him, that Shank did not mention the mock inspection but just refused to accept the DOT inspection as bona fide. Shank concedes that Brunswick told him the inspection was genuine, but says he just did not believe him. This incident, in my view, reflects insubordination, regardless of what Shank had been told about the possibility of a mock inspection. The mere fact Shank had been told of this possibility provides no valid reason for him to flatly reject Bruns- wick's information. There was no ascertainable reason for Shank to believe Brunswick was not truthful or was trying in some way to entrap or mislead him, and Shank was most certainly not warranted , in walking out of the meeting, without permission, before its conclusion. The per diem policy changed after the DOT inspec- tion. Ward did not understand all the changes and came to Brunswick for explanation . When Brunswick told him that the logbooks and toll tickets were kept for 6 months, Ward asked what would happen if he turned toll tickets in 6 months late. This is all Brunswick relied on in stating a conclusion that this evidenced 'to him a mis- trust of management, that Ward was looking for loop- holes in the system, and that Ward was thinking of turn- ing toll tickets in 6 months late. Brunswick concedes he was not aware of any problem with Ward turning in sup- porting documents in a timely fashion. According to Brunswick, he recommended terminating Shank and Ward at the 18 July management meeting, based on past history and dealings with them, their con- tinued distrust of management, their never believing what management said, and because he seemed to feel that they were trying to get "the almighty dollar." I note that Brunswick only arrived at Findlay on 1 June and re- lates only one experience (the one with Shank concern- ing the DOT) that furnishes any reasonable basis for his conclusions and his testimony , with the single exception noted with Shank. This testimony is entitled to little weight because it largely consists of speculative conclu- sions without rational basis in objective fact. G. Termination Day As decided on 23 July, the leases of all owner -drivers were canceled on 6 August . On that date, Shank and Ward were called into a meeting with Kremer , van der Klooster, Hauzie, and Dunson. They were first advised that owner-driver contracts were being discontinued. Both were asked to sign an acknowledgement that they had received notification of the discontinuance . Neither did. They were then informed by van der Klooster that their employment was terminated . Shank asked why they were terminated . Van der Klooster told them they did not trust management, advised others not to believe man- agements' statements, and had been insubordinate and disrespectful of management. Shank requested the rea- sons be put in writing, and van der Klooster responded that would be done and forwarded to them. Kremer, after an expression by Shank that he was disappointed in him, replied that he was also disappointed because Shank and Ward did not trust management and had not re- sponded positively to it . According to Shank and Ward, Kremer remarked that they appeared to be the leaders, and if he got rid of them, the other drivers would fall in line. Kremer denies making such a statement. The others present did not recall it. Hauzie, Kremer and van der Klooster proceeded from their meeting with Shank and Ward to another room where they met with Hartranft, Brunswick, and the re- maining three owner-drivers who had already been ad- vised and signed an acknowledgement of notice of the lease cancellations. The minutes' of this meeting, pre- pared by Hauzie and acknowledged by Kremer to be ac- curate recite and I find that Kremer told the three em- ployees that he supported termination of Shank and Ward, and: [E]xplained to the three individuals that he most certainly welcomed any constructive criticism of the way in which he or any other member of man- agement managed the Hancor operations . However, he said he did expect the criticism to be just that- constructive. He cannot and would not tolerate any criticism of Hancor's management, management's decisions or management's facts and figures as pre- sented if the criticism was directed in a manner that would defame or cause situations of distrust and dis- respect for Hancor's management. He explained to the three individuals what his position was with regard to such actions and informed them he had expressed these same words to both Milt and Merle. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He explained it was his opinion Milt and Merle con- trolled the drivers group for their own best inter- ests. Kremer's statement to the three that he believed Shank and Ward controlled the drivers' group, together with the 18 July minutes reflecting that management had "a strong feeling that the remaining three owner-operators went along with the actions of Merle and Milt," per- suade me that Kremer and others in Respondent's man- agement did consider Shank and Ward to be the leaders among the drivers, and that this was one of the reasons for terminating them. I consider it quite likely, given this perception by management, that Kremer did tell Shank and Ward he so considered them and their absence would render the remaining drivers 'more amenable to Respondent's desires. Accordingly, Shank and Ward are credited that Kremer so told them. Subsequent to their termination, Shank and Ward were forwarded identical letters from Hauzie on behalf of Hancor, Inc. stating as follows: Per your request. I am reducing to writing the exact reason for your termination. Reason for sepa- ration of employment from Hancor is as follows: Unsatisfactory job performance. If you have any questions, please do not hesitate to contact me. They were also sent letters of reference from Dunson, on behalf of Hancor, Inc., stating their driver experience and concluding that each is "a very capable individual with skill levels that fully qualify him for the work de- scribed above." The applicable standard in cases of this nature has been set down by the Board in the following terms: In general, to find an employee's activity to be "concerted," we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self. Once the activity is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the em- ployees' activity, the concerted activity was pro- tected by the Act, and the adverse employment action at issue (e.g., discharge) was motivated by the employee's protected concerted activity.3 The Board noted, however, that its general definition of concerted activity was by no means exhaustive, and that the fate of a particular case depended on the facts of that case. Both parties ackowledged the foregoing guide- lines set forth by the Board but, as might be expected, came to different conclusions with respect to whether the evidence in this case warrants the finding of an unfair labor practice. I am persuaded, for the reasons set forth below, that the General Counsel has proven a vio- lation of Section 8(a)(1) of the Act by a preponderance of the credible evidence. 3 Meyers Industries, 268 NLRB 493, 497 (1984) Shank and Ward were solicited by fellow drivers to volunteer as participants in the quality circle meetings. This, combined with the fact that Shank, Ward, Voss, and Lauck reported what transpired at the meetings to the'drivers and solicited their suggestions on what mat- ters to raise at the meetings, is more than sufficient evi- dence to establish that Shank and Ward, as well as Voss and Lauck, were acting as representatives of the drivers when they attended the meetings. The four were certain- ly acting "with" each other as driver delegates, even though they may have differed at times, and they were clearly acting "on the authority" of other employees. The very fact that Respondent solicited, by a memo to "All Findlay Drivers," members of the drivers' group to participate in "collectively resolving the issues" illus- trates that Respondent was seeking representatives of group interests. In short, the drivers participating in the quality circle meetings were engaged in concerted activi- ty, and Respondent knew that to be the case. Moreover, that activity was protected because the issues the drivers' representatives discussed in these meetings were related to wages, hours, and working conditions of all the driv- ers. Although Shank's expressed reasons at the November 1983 meeting between management and drivers for op- posing the assumption of the Minnesota haul may or may not have been identical to those held by other drivers opposing it, the fact he was acting with at least Ward and at least two other drivers in opposing the Respond- ent's proposal is sufficient to establish concerted activity plainly obvious to Respondent's officials in attendance at the meeting and clearly protected because the proposal amounted to a, request for a pay concession potentially affecting the earnings of all drivers. Furthermore, Shank's argument can reasonably be construed as an appeal to the other drivers in attendance to join him in opposing the proposal. Appeals to others to join in con- certed activity for their mutual aid and protection with respect to a matter of common concern are themselves protected concerted activity, for, as the United States Court of Appeals for the Fourth Circuit, in enforcing a Board order, has observed, "The activity of a single em- ployee in enlisting the support of his fellow employees for their mutual aid and protection is as much `concerted activity' as is ordinary group activity. The one seldom exists without the other."4 Shank's ,proposal to management during the drivers' meeting of 18 January, that Respondent should pay a flat rate per diem to be spent at the individual driver's dis- cretion, reflected the driver's expressed position, as testi- fied to by Hauzie, that Respondent should just give them more money and go away. Accordingly, I conclude Shank was engaging in concerted activity with other em- ployees of 'dike mind at the meeting, and that activity was protected because it concerned the rate of per diem pay, a working condition applicable to all drivers. During Hartranft's meetings with the owner-drivers on matters of common concern to, them, Ward and Shank 4 Owens-Corning Fibreglas Corp. v. NLRB, 407 F 2d 1357, 1365 (4th Cir 1969), enfg 172 NLRB 148 (1968) HANCOR, INC. 217 variously questioned the Company's calculations and op- posed various of its proposals. That they were engaged in activity with and on behalf of other owner-drivers is illustrated by Shank's comment, when - he advised Har- tranft during a July meeting, that the per diem proffered the drivers was not enough and "if we had to, we may have to get outside help," and by Ward's dispute of Re- spondent's figures of drivers' costs at another July meet- ing during a discussion of such costs with owner drivers. The record shows that Ward and/or Shank had for sev- eral years been selected by drivers on both an individual and group basis to represent,them on matters of individ- ual concern, and had been selected as their representa- tives to quality circle meetings on matters of common concern to these drivers. Similarly, it was made clear to Respondent during the Hartranft meetings that Ward and Shank were themselves acting together. Kremer's statement to Shank and Ward that they ap- peared to be the leaders, and their termination would cause the other drivers to fall in line; the 18 July minutes of Respondent reflecting "a strong feeling that the re- maining three owner-operators went along with the ac- tions of Merle and Milt"; and Kremer's 6 August state- ment to the other three, as recorded in minutes he deems accurate, that "it was his opinion Milt and Merle con- trolled the drivers group for their own best interests" all confirm what other record evidence shows to be the case, which is that Respondent's management knew or believed that the conduct of Shank and Ward was indeed supported by other drivers. Thus, as far as management was concerned, Shank and Ward were acting both with each other and with the support of the other three driv- ers when it contested Respondent's proposals affecting all five. The foregoing is more than ample to establish that Shank and Ward were, and Respondent believed they were, engaged in concerted activity. Much of that activi- ty was protected because it was on behalf of or in,oppo- sition to propositions affecting the drivers' wages, hours, and working conditions. The statements of Kremer, to Ward and Shank on their termination, and to the others on the reasons therefore, together with the above excerpt from Respondent's 18 July minutes, further establish that this protected concerted activity, as well as, a desire to forestall any further such activity, were the real reasons for the termination of the two. Accordingly, I conclude that the General Counsel has established a strong prima facie case that the terminations were motivated by their protected concerted activities. Respondent's defense that Shank and Ward displayed such uncooperative and divisive attitudes that their ter- minations were warranted cannot prevail because some of the events on which it relies will not stand up under close scrutiny, and most of the other conduct relied on has been shown above to be protected concerted activi- ty. As examples of the former, the citation of customer complaints, the fear of future bad relations with custom- ers, and the fear that Shank and Ward' could not over- come the negative' impact of the lease terminations are not supported by any reasonable modicum of probative evidence, but rely on unsubstantiated hearsay and specu- lation. As another example, Brunswick's broad conclu- sion that Ward's simple question about the disposition of toll tickets turned in late evidences a mistrust of manage- ment and a plan by Ward to circumvent the per diem system is so farfetched that it requires no comment other than a note that :Brunswick's concession that he was aware of no problem with Ward not timely submitting supporting documents indicates he was tailoring his testi- mony to support Respondent's defense. Likewise, van der Klooster's pointing to what he perceived as inatten- tion by Shank and Ward during a meeting on 7 July,, wherein the employees were addressed on DOT require- ments-by a guest speaker, is pure makeweight. It is inter- esting to note that in this instance van der Klooster com- plains Shank and Ward did not participate, in contrast to his overall complaint that they usually participated too forcefully. His observation that what he saw persuaded him the two did not believe what was said is clearly a conclusion based on nothing objective, and betrays an eagerness to portray Shank and Ward in a bad,light for the most trivial of reasons. In at least one instance, the testimony of Hartranft that no one but Shank and Ward contested his figures, there is evidence to the contrary, which I have credited. Respondent does not question that the actual work performance of both. men was satisfactory, and there is no showing of any deterioration of that performance. Notwithstanding the claim of bad attitude for many years, Respondent had never reprimanded or disciplined Shank and Ward, employees of 15 and 12 years respec- tively, for such conduct, and there is no persuasive evi- dence their attitude or conduct had recently undergone any significant changes for the worse or that their atti- tude had particularly bothered management in the past. I agree with Respondent that during the meeting with Brunswick, about 12 June, Shank's conduct was unwar- ranted and insubordinate, but he was neither reprimand- ed nor disciplined for this conduct and it was not relied on as the major reason for Shank 's termination. What has happened here is that management has now determined that opposition to its plans and proposals by employees evidences a noncooperative attitude that cannot be tolerated and warrants termination of the em-, ployee. This might be all right, however draconian, if the employees involved are not engaged in protected ac- tivity, but that is not the case here. Management saw that Shank and Ward were leaders among the drivers who would vigorously, and even obstinately, oppose management efforts they perceived not to be in the best interests of the drivers. Of course they were also self-in- terested, but the fact is they were, as Respondent be- lieved, speaking on behalf not only of themselves but as representatives of the other drivers on matters of common interests. Respondent was upset by the refusal of the two to agree with its, proposals and their propensi- ty to view with, suspicion and even -mistrust its figures. I know of no requirement in the law that employees either agree with or believe their employer's representations or unfailingly display an attitude which their employers deem acceptable when they engage in concerted activity for mutual aid or protection. If it were otherwise, an em- ployer could effectively write protected concerted activi- 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ty out of the Act by simply stifling such activity-with oppressive rules of conduct. Nothing that Shank and/or Ward did when one or both were engaged in protected activity rises to the level of unacceptable conduct while engaged in that endeavor. When Respondent points to their conduct or attitude while engaged in protected con- certed activity as reasons for their termination, Respond- ent admits such activity was a reason they were termi- nated. I have found that the General Counsel has set forth a strong prima facie case. I further find that Re- spondent has failed to rebut the prima facie case. The General Counsel has, therefore, proved by a preponder- ance of the credible evidence that Shank and Ward were terminated in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent Hancor, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By terminating Merle Shank and Milton Ward be- cause they had engaged in concerted activity protected by the Act, and because it wished to discourage other employees from engaging in such activities, Respondent violated Section 8(a)(1) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, Hancor, Inc., Findlay, Ohio, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Terminating the employment of employees because they have engaged in concerted activities protected under Section 7 of the National Labor Relations Act, or in order to discourage other employees from engaging in such activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Merle Shank and Milton D. Ward immediate and full reinstatement to the positions as truckdrivers or, if those jobs 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 earnings sustained as a result of Respondent's unlawful conduct, the backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).6 (b) Remove from its files any reference to the termina- tions of Merle Shank and Milton D. Ward of 6 August 1984, and notify them' in writing that this has been done 5 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 objections to them shall be deemed waived for all pur- poses 6 See generally Isis Plumbing Co, 138 NLRB 716 (1962) and that evidence or their unlawful terminations will not be used as a basis for future personnel actions against them. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Findlay, Ohio office and facilities copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 7 If 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 Nation- al 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 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. WE WILL NOT terminate you because you have en- gaged in activities protected in Section 7 of the National Labor Relations Act, or in order to discourage you from engaging in such activities. 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 employees Merle Shank and Milton D. Ward immediate and full reinstatement to truckdriver positions or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of earnings they may have suffered due to the discrimination prac- ticed against them, with interest. WE WILL remove from our files any reference to the termination of Merle Shank and Milton D. Ward on 6 August 1984, and notify them in writing that this has been done and that evidence of their unlawful termina- HANCOR, INC. ticn will not be used as a basis for future personnel ac- tions against them. 219 HANCOR, INC.