The W. G. Diehl Distributing Co.

524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The W. G. Diehl Distributing Company and Team- •sters Union No. 348, affiliated with the Interna- tional, Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Lynn Stovall. Cases 8-CA-17626-1 and 8-CA- 18294 31, March 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 9 September 1986 Administrative Law Judge Walter J. Alprin issued the attached decision. The Respondent, the Charging Party, and the General Counsel filed exceptions and supporting briefs, and the Respondent and the General Counsel filed an- swering briefs.1 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, 2 and conclusions only to the extent consistent herewith.3 ORDER The National Labor Relations Board orders that the complaint in Case 8-CA-17626-1 is dismissed. 1 On 23 December 1986 the Board issued an Order granting the Gen- eral Counsel's motion to sever and remand Case 8-CA-18294, which had been consolidated with the above-captioned case, to the Regional Direc- tor because the parties had arrived at a non-Board settlement in that case. Thus, this decision is limited to resolution of the issues in Case 8-CA- 17626-I. 2 The Respondent, the Charging Party, and the General Counsel have excepted to some of the judge's credibility findings. The Board's estab- lished 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 Wall 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. s The judge recommended dismissal of that portion of the complaint which is presently before us in Case 8-CA-17626-1. We are adopting that dismissal and, accordingly, our Order is limited to that case. Steven D. Wilson, Esq., for the General Counsel. Harry A. Tipping, Esq. (Roderick, Myers & Linton), of Akron, Ohio, for the Respondent. DECISION STATEMENT OF THE CASE WALTER J. ALPRIN, Administrative Law Judge. On charges filed 19 June 19841 by Teamsters Union 348 (the Union), and on charges filed 23 May 1985 and amended 30 July 1985 by Lynn Stovall, the General Counsel issued complaints on 30 July and 2 August 1985. A hear- 1 All dates are in 1984 unless indicated otherwise. ing on the first charges was begun at Akron, Ohio, on 17 April 1985 but was adjourned for 8 months while the parties discussed` settlement of these and additional= cases in -litigation. The complaints were consolidated on 23 October 1985, , and were heard at Akron, Ohio, from 4 through 6 December and on 13 December 1985. Briefs were thereafter filed on behalf of the General Counsel and the Respondent. The issues are whether John Jaber- and Frank Cutright were refused employment in- violation of - Section 8(aXl) and (3) of-the National -Labor Relations Act (the Act) and whether the employment of Lynn Stovall was termi- nated in violation of Section 8(a)(1) of the Act. On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION The W. G. Diehl Distributing Company (Respondent) of Akron, Ohio, operates as a wholesale beer distributor. It is stipulated and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. H. ALLEGED UNFAIR LABOR PRACTICES A. Background Kohn Beverage Company (Kohn) was a wholesale beer distributor in Akron. It was owned and operated by members of the Kohn family, including Gary W. Diehl (Diehl), who joined the Company in 1970 and became vice president and general manager at some later date. Kohn warehousemen, driver-salesmen, and helpers had been represented by the Union since at least 1957, and there was a bargaining agreement in effect from 1 June 1980 through 31 May 1983, providing for a union shop. Kohn's union employees engaged in what has been de- scribed as a "wildcat strike," and all unit employees who refused to report to work on 9 October 1981 were dis- charged on that date and subsequently replaced by new employees who were not members of the Union. Diehl advised the new employees that under the existing bar- gaining agreement they were required to become union members, and even physically took them to the office of the Union to see that they joined. The Union, however, for purposes not pertinent to this proceeding, refused to permit the new employees to join the Union. Jaber and Cutright were employed by Kohn as driver- salesmen at the time of the wildcat strike, both since 1957, and both were members of the Union. At the time of the strike Cutright was on sick leave and Jaber was on vacation. Mailgrams were sent to them as to other em- ployees, terminating their employment for failure to return to work on 9 October 1981. However, they pre- sumably later demanded the right to return to work be- cause their failure to report to work was due to proper absence for illness or vacation. Jaber apparently went on sick leave prior to the end of his vacation leave. Kohn 283 NLRB No. 76 W. G. DIEHL DISTRIBUTING CO. permitted them to return to work after examination by a company-appointed doctor. Outright returned to work in late October or early November 1981, and Jaber re- turned in March 1982. On their return they were Kohn's only union employees. __ B. Failure to Rehire Jaber and Cutright Diehl caused the incorporation of Respondent in May or June 1983 with no specific plan to engage in the wholesale distribution of beer, but'in the fall of that year decided to assume Kohn's operations, which he did in February as sole owner and operator. Applications for employment were distributed to and returned by all of Kohn's employees and all were employed by Diehl for Respondent but for one Stanley Knepper, Jaber, and Cutright. Knepper had been hired by Kohn after the wildcat strike and had not been a member of the Union. 1. Diehl's union animus a. Antiunion meetings Although Kohn was still in operation there was an election held to decertify the Union. Knepper, then a Kohn employee not later hired by Respondent, testified that about five monthly meetings were held among Kohn employees prior to the election, with -notice only by word of mouth and, "on rare occasions," by notes left on the timeclock, at which the subject matter was, without further description, "antiunion." Diehl- was present at most of these meetings and the speakers ;were "a select group of people that were very close to Gary Diehl." Jaber and Cutright testified they were never given notice of these meetings. Knepper also testified that Kohn re- moved from the bulletin board a union notice of a pizza- and-beer "prounion" meeting. Cutright testified that early one morning, about a week prior to the decertification vote, he unexpectedly walked into a meeting and heard Diehl "mention something about the Union," that when the other employees saw him there was "dead silence," and that Diehl merely said, "Remember what we talked about," and the meet- ing broke, up. Jaber testified he arrived immediately afterwards and, in response to his question of 'what was going on, Cutright responded that he did not know. Knepper was at the meeting and testified that it was the "usual" statements by employees,, that it was "antiunion, don't vote for the union because if you do your, money is going to end up with the Mafia,,and so on and so forth," and that when Cutright appeared the 'unidentified speak- er changed the topic to "sales." ,$nepper also identified this as an evening, rather than a morning, meeting. Brian Ross, at various times , a warehouseman, driver- helper, and driver-salesman for Kohn, was later hired by Respondent as a warehouseman, but he was discharged- about a month prior to giving testimony. He testified that at an employee meeting attended by Diehl, Dave Weaver, a driver salesman for Kohn since 1981 ,who was hired by Respondent to take over Cutright's route, said that it was a "bad idea to hang around with" Jaber and Cutright "and if they get their jobs back or if we go union they'd-we'd lose our jobs and the other guys 525 would come back, things like that "2 Ross also testified that Weaver stated °Jaber and Cutright were coming back to Kohn to cause trouble "and stuff like that." Weaver testified there were no "antiunion" meetings at Kohn, but he was not questioned as to the alleged statements described by Ross. Ross also testified that Kohn's em- ployee meetings before decertification were at first ar- ranged by word of mouth and later by notices on the bulleting board. He also testified that Cutright walked into one such morning meeting in 1981 and that Jaber also came in, "and - everything got quiet and then the meeting just came to a halt and we all went back to' work." He could not recall the topic of that meeting. Diehl specifically denied holding any antiunion meet- ing or barring Jaber and Cutright from any meeting. He admitted that when employees in groups asked questions he would attempt to address them. As later discussed, there were a number of sales meet- ings held for driver-salesmen and driver-helpers during this period which Jaber and Cutright did not attend. b. Exclusion from social affairs Kohn held Christmas parties annually for its employ- ees. Jaber and Cutright testified that prior to the wildcat strike of 1981 notices of the parties were posted on the bulletin board and they would attend, but that from then on they were not notified of and hence could not attend such parties. Knepper testified that in 1981 and 1982 no- tification of the parties was "verbal,"3 but that in 1983 ' it was by a mailed, written invitation. Diehl testified ` that starting in 1981 notices of the par- ties were posted on the bulletin board , and in the last year they were distributed to employees , including Jaber and Cutright, by hand. He stated that Jaber and Cutright were never excluded from the parties. James Stanford, a, driver-salesman hired by Kohn after the wildcat strike and later hired by Respondent, testified that he believed notices of the 1981-1983 parties were distributed along with paychecks, and that posters and maps were dis- played on the bulletin board . Gary 'E., Maddy, also a driver-salesman for Kohn since 1981 and then hired by Respondent, testified that invitations were by word of mouth from Diehl, and that posters and ,maps'also. were placed on the bulletin board. c. Prejudicial assignment of vehicles Kohn had several different types of vehicles available for assignment to driver-salesmen. Knepper testified that Kohn's general manager, and Diehl, told warehousemen to use trucks 27, 28, and 29, "obsolete" vehicles without power steering and with nonstandard storage bins, for Jaber and Cutright; He further testified that these vehi- cles were assigned to Jaber and Cutright regularly though other, newer and better vehicles were available. Cutright testified that from the time of his- return after the wildcat strike he was never assigned one of the 2 The "other guys" referred to apparently were the Kohn employees fired during the wildcat strike, who had grieved their discharges. a I assume the witness meant that notification was oral, i.e., by word, of mouth, rather than verbal, by means of words. 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD newer vehicles, and Jaber testified that he "mostly had the old trucks," which were harder to work with. The record does not clarify whether Jaber and Cutright were also assigned those vehicles prior to the wildcat strike. James Morrison, sales supervisor for both Kohn and Respondent, testified that vehicles were assigned to driv- ers on the basis of capacity, to match quantities sold by the driver-salesman, and that trucks 28 and 29 were still in use. He stated that diesel trucks were not assigned to city routes, such as Jaber's and Cutright's, because the advantage in using them was over greater distances out of town. Diehl denied that the assignments to Jaber and Cutright were "intentional," pointing out that there were six vehicles in all without power steering , and that be- cause, of an-increased chance of mechanical breakdown the older vehicles were rotated among the driver-sales- men whose routes, like those of Jaber and Cutright, were closer to the warehouse. 2. Respondent's grounds for not hiring Decisions on hiring for Respondent were made solely by Diehl, who testified that his criteria were "eagerness, competency ... [and] aggressive salesmanship" as he observed them while the applicants had worked for Kohn. a. Failure to attend sales meetings Kohn had regular , monthly as well as special sales meetings , for driver-salesmen, which driver-helpers also sometimes attended . Attendees were not paid for attend- ance, and though attendance was expected it was not a requirement and no one was discharged or disciplined for failure to attend. Cutright testified that prior to the 1981 wildcat strike notices of the meetings were always posted and he'usual- ly attended, but that after his return to work after the strike the notices were never posted and he never attend- ed the meetings because he "knew nothing about them until after they was [sic] over."4 Jaber also testified that prior to the wildcat strike meeting notices were posted and the general manager would ask "whether you were coming,"s and that he attended "some of them." After the wildcat strike the meetings continued, but Jaber did not attend because "nobody mentioned it, there was nothing put on the bulletin board."6 Knepper, a ware- houseman until shortly before his discharge, testified that he attended "a couple" of sales meetings , learning of them by word of mouth except for "very rare occasion[s]" on which a notice was posted. Sales Manager Morrison testified that he posted no- tices of all sales meetings on the bulletin board. Mark Bonchu and Michael George, driver-salesmen and helper for Kohn and Respondent, testified' that notices of meet- ings were posted, and that attendance was necessary. Mi- 4 Two exceptions were one meeting he was told about in advance be- cause brewery representatives were coming and the meeting referred to earlier on which he and Jaber unexpectedly walked in. s I am not certain whether Jaber here referred to being asked about attending a regular-sales meeting on the premises or an off-premise party sponsored by a brewer, but the point is not determinative. s An exception was Jaber's stumbling into a meeting right after Cutrigbt did, described above. chael George attended the meetings even when working as Jaber's helper, and testified that when he tried to get Jaber to also attend Jaber told him he `had gone to such meetings when he was paid for attendance, and intimated he would do so again only if paid.' b. Failure to participate in contests Among the means fostered by individual brewers and conducted by Kohn -as sales aids were contests awarding prizes to driver-salesmen, and sometimes to their helpers, over and above normal commissions or salary. Diehl, General Manager Granata, and driver salesmen Bonchu and Weaver testified' that participation by driver-sales- men in such contests was required, but the admitted fail- ure of Jaber6 and. of Cutright9 to participate did not result in their censure, discipline , or discharge. Knepper specifically testified that the salesman for whom he worked as helper also failed to participate in at least one contest. c. Poor job performance Respondent declared that the alleged discriminatees did not properly perform their work at Kohn by failing to build "displays," which are generally attractive, cus- tomer-convenient physical placements of merchandise, at retail outlets, by "turning in stops," which are notations of failure to make service calls on the route, and by fail- ing to make special deliveries after completing their routes when requested to do so. Displays are built by a driver-salesman, by his sales su- pervisor, or by both. In some stores, particularly chain outlets, permission to build displays had to be obtained at, higher management levels and was beyond the power of a driver-salesman to obtain. At other such stores bargain- ing agreements -with employees restricted-a driver-sales- man from performing such work in the retail outlet. There is nothing in the record to indicate warnings to or discipline of the alleged discriminatees, other driver salesmen, or any sales supervisors for failure to build dis- plays. Stops are turned in by all driver-salesmen, and can be caused by any number of circumstances beyond the con- trol of the driver-salesman, such as vehicle malfunction, excess time required by other customers, or the stop not being open when called on. The record does not disclose specific instances, the number, frequency, or reasons for stops turned in by the alleged discriminatees nor the-rela- tionship of these instances compared to other drivers.1 ti 4 George had given the same testimony at a hearing on Jaber's com- plaint to the Ohio Civil Rights Commission of age discrimination, dis- cussed below. 8 Jaber explained that his failure to participate was first the result of not being advised of the contests There is sufficient contrary evidence to overcome the assertion, but because Jaber admits -he did not participate even after learning of the contests a credibility-determination is not called for. _ 9 By the testimony of Yoder, his helper. 10 Except that former driver-salesman Knepper testified that the driver-salesman with the worst record, who was not one of the alleged discriminatees, turned in three times as many stops as anyone else. W. G. DIEHL DISTRIBUTING CO. 527 The record also reveals no discipline of any driver-sales- men for turning in stops. Customer complaints regarding the alleged discri mina- tees existed, some actual and at least one refuted by cus- tomer testimony. There are also instances of proven cus- tomer satisfaction. The record again contains no method of judging customer complaints in terms of number, fre- quency, or services or of comparing the records of the alleged discriminatees with those of other driver sales- men. There is no record of any discipline of driver-sales- men due to such complaints. General Manager Granata testified regarding some complaints, but added, "It's kind of hard for anybody to have a rapport with every cus- tomer." 3. Other proceedings Though the charge on their behalf in this proceeding was filed by the Union, Cutright and Jaber themselves had filed complaints with the Ohio Civil Rights Commis- sion on 17 February 198411 charging age discrimination. Both complaints state: "I believe I have been unlawfully discriminated against due to -my age (57) because ... [djespite my years of experience, Mr. Diehl refused to hire me opting instead , for younger, less experienced workers. At the present time all of the driver salesmen working for the company are in their twenties or early thirties. I believe my age was a factor in the company's refusal to hire me." Discussion Section 8(a)(3) of the Act proscribes "discrimination in regard to hire . . . to encourage or discourage member- ship in any labor organization" and it is clear that any refusal to hire based on union affiliation constitutes viola- tion of both that section and of Section 8(a)(1) of the Act as well. - The General Counsel proved that Cutright and Jaber were the only union members to be retrained -by Kohn after the wildcat strike and two of the only three Kohn employees not hired -by Diehl for Respondent . I consider that a prima facie case has been made by such showing alone that the failure to hire was based on union mem- bership. I do not credit inferences that Respondent conducted meetings which were unlawfully "antiunion" in nature. Knepper was an obviously prejudiced witness, having been, though not a union member,, also not rehired by Diehl for Respondent . I do not credit his testimony that meetings were held without general notice, particularly in view of the contrary testimony by Morrison, Bonchu, and George, even though the alleged discriminatees sup- ported Knepper's statements as , to a general lack of notice of meetings. The only evidence of antiunion senti- ment expressed at-such meetings is Knepper's bare state- ment, that they were antiunion. When Cutright unexpect- edly walked into a meeting, all he could testify to was that Diehl "said something about the union." Particularly because this was during the period prior to the decertifi- cation election it is clear that there would be nothing per se improper in a meeting at which "something" is said about the Union. I do not credit testimony by Cutright and Jaber that they were purposely excluded from Christmas parties as an indication of union animus . Contrary testimony was presented that notice was posted and/or written invita- tions extended. It is much more in the nature of the atti- tude, discussed below, of Cutright and Jaber not to par- ticipate in contacts with fellow empoyees, that they knew of such functions and voluntarily absented them- selves. Although I credit testimony by Outright and Jaber that the equipment assigned for their use did not have automatic transmissions or power steering, that per se is insufficient to draw any inference of union animus. It was proven that other, similar equipment was assigned to other driver-salesmen who were not union members. Having determined that there does,' however, exist a minimal showing that the alleged discrimiriatees were re- fused employment because of their union membership, it is necessary to consider whether Respondent has demon- strated by a preponderance of the evidence that it would have failed to rehire Cutright and Jaber even had they not been union members. I do not credit testimony of Respondent's witnesses that Cutright and Jaber did not successfully complete the work functions of overall sales, of covering their routes, of turning in excessive stops, of failing to make special deliveries, of failing to build displays or engage in con- tests, or of improperly, servicing or improperly dissatisfy- ing customers. The testimony presented on such - points, all contested, is completely lacking in sufficient detail to consider it, if at all, as more than vague feelings or sub- jective attitudes, rather than as demonstrated fact. As to the activities and attitudes of the alleged discri minatees regarding interacting with other personnel in the employer-sponsored sales meetings and activities, I fail to credit the 'testimony of Knepper, Outright, or Jaber that prior notice of the meetings was withheld. Even Knepper, a witness clearly prejudiced against Re- spondent for not being rehired, testified that on at least "rare" occasions notice of meetings was posted.` Of greater weight is the fact that the alleged' discriminatees knew by long experience in the field and with the Em- ployer that sales meetings and programs would be held. Jaber even discussed with his helper his reason for not attending meetings. The helpers attended sales meetings and were aware when and.where they were to be held. Still, Cutright and Jaber, if they are to be believed, made no effort to learn of the meetings and programs or to participate in them. In failing to credit the testimony on-these points of, the alleged discriminatees, I must credit Diehl's uncontra- dicted testimony that he made his hiring decisions on ' the basis of eagerness and aggressive , salesmanship in addi- tion to competency, and that he did not hire the alleged discriminatees because of a perceived lack of eagerness 11 Knepper, then age 41, also filed a similar charge on 30 March 1984. 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and aggressiveness, and not because they were members of the Charging Party Union. r 2 C. Stovall's Discharge Stovall was employed by Kohn as a sales supervisor, and was not a member of the bargaining unit represented by the Union. He was hired by Respondent in the same position, but after later being placed on probation for 60 days, about May 1984, was moved to the position of warehouseman and, at times, driver-helper. On 11 April 1985 Diehl gave Stovall a "warning letter" referring to three alleged instances of negligent damage occurring on 18 February and 3 and 8 April 1985. The letter concluded with the following: These incidents of repeated negligence resulting in damage to company property will not be tolerat- ed. You are hereby warned that any further occur- ances [sic] of negligence and disregard of company property will not be tolerated and will result in your termination of employment with this company. Stovall testified that while working in the warehouse he became aware of the lack of power Respondent's em- ployees had in dealing with management. He discussed common work problems with fellow employees Brinley, Ross, Sigman, and others. With their approval he went to the offices of the Union to inquire about getting their representation and was given authorization cards which, however, he had not attempted to distribute. There was an elected "committee" of employees, one function of which was to help employees take care of grievances, but Stovall did not approach them. In addition to having the committee, Diehl also conducted "issue meetings" on request, during which employees could raise work com- plaints either directly or, if they preferred anonymity, by putting a note into a hat that was passed around. Stovall suggested to fellow employees that they raise their com- plaints in an "issue" meeting, and they agreed. There was a sales meeting scheduled for 6 May 1985 and Stovall decided to ask at-that time for an issue meet- ing. He decided to make the request at that meeting be- cause, first, he wanted the assembled employees to know, that an issue meeting was to be held at a specific time and place, and, second, because he was afraid that Diehl would refuse to hold a meeting if asked privately. Pre- cisely what happened at that meeting is the subject of some dispute. The meeting was scheduled by Sales Manager Morri-, son for 7 a.m., though due to tardiness it did not begin until about 7:10 a.m. The regular workday began at 7:30, a.m., and employees were not paid for attending sales meetings. Morrison described this meeting as one of the two most important of the year as it began the summer sales season. Morrison's highlight of the meeting was a promotion for Stroh's beer. Stovall testified that about 7:30 am., Morrison was "summing up" and called for questions. Stovall deter- 12 Allegations by Jaber and Cutright to the Ohio Civil Rights Commis- sion that their not being hired was due to age are not considered rele- vant, as claimants are free to make alternative and even conflicting claims in different forums. mined that there were no questions, and then-raised his hand. When Morrison acknowledged -him, Stovall rose and said to Morrison, "We have some issues that we would like to talk about." Morrison responded that the meeting was for sales, not for issues, and Diehl stated that he would get together with Stovall and the three committee members. Morrison then "spoke a -little bit more," and, thinking the meeting was over, Stovall raised his hand and was recognized by Morrison a second time. Without rising, Stovall queried when the issue meeting would be held, to which Diehl responded that he would "get in touch with" him. Stovall did not raise his voice during either period, and the meeting con- cluded about 7:40 a.m. Morrison's testimony was that Stovall's first statement came early in the meeting when he had covered the as- pects of pricing, job duties, and displays of Stroh's and was looking for questions as to those topics before going on to other brands. Stovall stated that "he had some issues to discuss" and Morrison responded that this was a sales meeting and that "[i]f -you have any questions or grievances, I'm sure that Mr. Diehl will be more than glad to meet with you after the meeting or at a later date, as soon as possible." Stovall kept going on about having issues to discuss and wanting "to discuss them now" and refused to sit down though Morrison- again as- sured him that Diehl would meet with him later. Stovall repeated his message two or three times, and then "final- ly did sit down." Morrison attempted to continue the meeting, but first again asked for questions on Stroh's products. Stovall again rose, turned to face Diehl, and said, "Mr. Diehl, we have to talk about these issues now. I want a date now when we can meet, and all you're doing is putting this off." Morrison again asked him to sit down, and Diehl said to him, "Lynn, I'll be glad to meet with you after the meeting or later in the day after the job is done and discuss any problems you have." Stovall remained standing and in a loud voice stated, "I want to discuss them now.-Feeling that the meeting was entirely disrupted Morrison decided to adjourn and to speak to the driver-salesmen individually. Diehl's testimony regarding the meeting was that as Morrison was into his presentation Stovall raised his hand and, when recognized by Morrison, said while seated, "I have some issues I would like to address:" Morrison told him it was a sales meeting, "And if you have any issues you should get with Mr. Diehl, and he'll talk and discuss those with you at that time." The meet- ing continued for 5 minutes, when 'Stovall "jumped up [and] .. said `I want a date and time, right now, to dis- cuss these issues."' Diehl told him that he "would get with the committee, and we will set up a date and time, and we will do that. But this is a sales meeting and it's for sales matters." Stovall, however, remained standing, though Morrison attempted to continue his presentation. Finally, Morrison adjourned the meeting. Other of Respondent's employees at the meeting also testified. Yakovazzi testified that Stovall asked,, near the end of the meeting when the floor was open to ques- tions, "if he could address some issues at this time"; that on being told by Morrison that the meeting was only for W. G. DIEHL DISTRIBUTING CO. sales Stovall sat down, but after a short time, when the meeting was nearly over, he raised his hand again and when recognized asked "if a date could be given as far as scheduling a meeting where the issues could be ad- dressed"; and that Stovall did not raise his voice during the meeting, but Yakovazzi's attention was diverted from the sales aspect of the meeting. Weaver testified that it was a motivational sales meeting, "And Lynn stood up I think, I don't know, approximately three times, you know, and interrupted the meeting to bring a point across to Gary about something. I don't really know what he was talking about." Weaver did not recall Mor- rison speaking to him later about the Stroh's promotion. The interruption of the meeting was, in Weaver's opin- ion, disruptive. Stanford testified that during the sales presentation the floor was opened to questions, "And Lynn stood up and said he had a couple of things he wanted to settle and he wanted to get them off his chest. And it was told that it was not the, time, that it was a sales meeting . . . and that it would be handled at a later date, to get with someone and they'd set up some kind of meeting." They attempted to get back into the sales meeting, "And Lynn stood up and said he wanted it set- tled now and a time set now for the hearing." They at- tempted again to get back to sales, "and Lynn stood up for the third time and, you know, said that he wanted this settled or a time that it would be settled." Stovall's voice at these time was firm but not really loud. Gary Maddy testified. that Stovall "stood up, like, two or three times and [Morrison] kept telling him [Stovall], you know we'd do it [have an issues meeting] at a later date." Maddy had no idea what Stovall was talking about, and Diehl also did not know. Mark Bonchu testified that during the meeting Stovall "raised his hand and stood up and told Gary that he wanted-that a meeting should be called to discuss the issues"; that Diehl responded "he would set something up and that it would be up to the committee -to set up a date that they would try to work something out"; that Stovall remained' standing for a while, and then said that he wanted a definite date right then as to a meeting and "he was, you know, persistent about getting a date and it sort of went back and forth a little bit, as far as I recall." Bonchu considered that the meeting had been disrupted. After the meeting was concluded Stovall returned to the warehouse to load the truck to which he was as- signed. Diehl approached him there, and precisely what happened is also subject to some dispute. Stovall testified that Diehl asked if he had a problem, and he responded that he had issues, not a problem; that Diehl insisted, "getting louder and louder," that Stovall had a problem; and that Diehl finally stepped back "and yelled at me to get back to work in a very loud voice." Diehl testified that he merely said to Stovall, "Lynn, what is your urgent problem here?" and that Stovall replied, "I don't have a problem. You have a problem.... I don't have a problem. I have issues. You have a problem." Diehl then told Stovall to "just go about your job" and went into his office, Yakovazzi testified that he saw Stovall work- ing and Diehl following him, that their attitudes ap- peared confrontational, and that though he could not 529 hear what was said both appeared to be speaking exci- tedly and loudly. At the end of the workday the members of the em- ployee committee, and Stovall, were called into Diehl's office. With no objection from the committee., Stovall was given the following dismissal letter: Your continued disruption of the scheduled sales meeting held on 5-6-85 was inappropriate, uncalled for and inexcusable. That meeting was a scheduled sales meeting for sales matters. You were told by Jim Morrison that another meeting would be arranged to discuss any other matters. You again interrupted the meeting and thus caused considerable attention to be taken away from important sales presentations. This, type of behavior and disregard for company scheduled meetings will not be tolerated. As a result of these actions and those which occurred within the previous months, you are terminated, effective immediately, as an employee with this company. Stovall filed his charge with this Board on 23 May 1985. On 6 June 1985 he also filed a complaint with the Ohio Civil Rights Commission stating that he believed the reason given for his discharge to be pretextual and retaliatory for his having testified in March 1985 in Jaber's complaint to that Commission . Stovall's com- plaint to that Commission was found to be without merit. Discussion The General Counsel alleges that Respondent violated Section 8(a)(1) of the Act by discharging Stovall for en- gaging in a concerted and protected activity. Respondent denies the allegation, and argues that the activity was not concerted and was not protected under the Act. It is un- denied that Stovall was discharged, and that the cause of discharge, together with allegations of prior negligence, was Stovall's actions at the meeting of 6 May 1985. Both parties recognize that the issue of concert is gov- erned by the relatively recent decision in Meyers Indus- tries, 268 NLR$ 493 (1984), remanded sub nom. Frill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), which overruled the prior Board policy as enunciated in Alleluia Cushion Co., 221 NLRB 999 (1975), and its "progeny." Although the prior policy was issue oriented, determining whether an; issue addressed by a single employee "ought" to have been of concerted interest to a number of employees, the current policy is factually oriented and considers wheth- er other employees had indeed expressed their concerted interest to the single employee who took the action. As expressed' in Meyers, supra at 497, we must determine whether an objective review shows the conduct of the single employee to actually have been "engaged in with or on the authority of other employees, and not solely by or on behalf, of the employee himself." Whether Diehl or other individuals were aware of it, it is uncozitroverted that Stovall discussed both union af- filiation and complaints regarding the conditions of em- ployment with several other employees, and obtained their agreement to raising these complaints at an issues meeting. Both management, represented by Diehl and 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD others, - and the employees recognized that issues meet- ings related to labor disputes involving a number of em- ployees, and not the complaints of a single employee. I find-that though Diehl may not have known the specific issues which were to have been raised , as in fact we do not know from the record the exact nature of those issues, he recognized the call for an issues meeting as a demand to consider concerted complaints., In addition, Stovall made the demand before an assemblage of em- ployees so that all would be advised of the time and place of such meeting. As stated by the appellate court, "The activity of a single employee in enlisting the sup- port of his' fellow employees - for their mutual aid and protection is as much `concerted activity' as is ordinary group activity."1 a To satisfy the test set out in Meyers, supra at 479, it must also be shown that the concerted activity was also protected under the Act. Although we are not aware of the precise complaints sought to be raised at the issues meetings, it is clear that they arose from the concerted discussions of Stovall with the ' others regarding terms and conditions of employment, and hence fall within the purview of the Act. It can also be argued that the appeal to fellow workers to meet for support, mutual aid, and protection, as enunciated in Owens-Corning, in addition to being concerted 'must have related to such, matters of mutual employment as to be protected by Section 7 of the Act. Respondent argues that the manner in which Stovall conducted himself at the sales meeting stripped his ac- tions from the protection of the Act in that he used in- temperate language, disturbed the efficient operation of Respondent's business, and was insubordinate. The Board has certainly held that conduct or language can be so of- fensive, defamatory, or opprobrious as to forfeit the pro- tection of law. However, I find no such language or action present in the record. Indeed, Stovall's language was sufficiently temperate to be repeated in any Sunday school without alarm, a distinct difference from the lan- guage ordinarily heard during labor disputes. The manner of Stovall's actions also bespeaks a calm reasonableness. I credit his testimony, supported by the testimony of current employees of Respondent , that he sought and received' recognition, without interrupting others, before he spoke out, and that while his voice was "firm" it was not :overly loud nor his manner overly ar- gumentative. Although the later meeting between Diehl and Stovall was described as confrontational, with loud and excited voices,'it was Diehl who followed Stovall to the latter's workplace and initiated the exchange, and not Stovall leaving his work to confront Diehl. There remains the question of whether Stovall's choice of time and place in making the' demand for an issues meeting forfeited the protection afforded such action 'by the Act. The sales meeting at which the demand was made was planned for and conducted during a period prior to the start of the workday. Although the unpaid attendance at such meetings was expected by manage- 18 Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969), enfg. 172 NLRB 148 (1968), cited by- the Board 'in Hancor, Inc., 278 NLRB 208, 216 (1986). - ment, there is nothing in the record to indicate that fail-, ure to attend ever resulted - in discipline. - On the other hand, sales meetings were , normal in Respondent's busi-_ ness, and current employees testified that Stovall's inter- ruption of the sales theme for a nonsales function inter- fered , with the purpose - of the meeting. It is clear, though, that . absent egregious harm to the employer's business operations or damage to its premises , which I find not to have here occurred, the time, place,- and even the manner of conducting concerted and protected ac- tivities will not alienate the employees from the protec- tion of law. As the scholarly - decision of Administrative Law Judge Brandon in the matter of Johnnie Johnson Tire Co., 271 NLRB 293, 294-295 (1984), phrased it:14 It has long been recognized that employees have a legitimate interest under.the Act in acting concer- tedly in making known their views to management without being discharged for that interest... . Even the reasonableness of the method of protest adopted does not decide the protected nature of the concerted activity.... Accordingly, concerted ac- tivity by nonrepresented employees to protest their working conditions is normally held to be protected regardless of the time of day it occurs or the impact of such activity on production. I find that Stovall's statements and actions during the sales meeting, although interrupting - the planned purpose of the meeting, were orderly, not overly damaging to Respondent's business or premises, and did not result in the loss of the Act's protection. They did, however, pin- point Stovall as a speaker for concerted and protected- activities, and motivated his discharge, in violation; of Section 8(a)(1) of the Act. CONCLUSIONS OF LAw- 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Lynn Stovall , an individual, because of his engaging in concerted activity protected under the Act, Respondent engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7)`of the Act. THE REMEDY Having found that Respondent , engaged in certain unfair labor practices, I fund it necessary to order Re- spondent to cease and desist and to take certain affirma- tive action designed to effectuate the policies of the Act. Respondent having unlawfully discharged , Lynn Sto - vall, I find it necessary to order it to offer him immediate and full reinstatement to his former job or , if such job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority and other rights and privi- leges, and to make him whole for any loss of earnings that he may have suffered by reason of the discrimina- tion against him by payment to, him of a sum of money equal to that which he' normally would have earned 14, citations not included, typographical error corrected. W. G. DIEHL DISTRIBUTING CO. from the date of his discharge to the date of a bona fide offer of reinstatement, less net interim earnings during such period. Backpay shall be computed on -a quarterly basis as prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977).16 Moreover, consistent with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommend that Respond- ent be required to remove from its records any refer- is See generally Isis Plumbing Co., 138 NLRB 716 (1962). 531 ences, to the unlawful discharge-of Lynn Stovall., provide written notice to him of such action, and inform him that Respondent's unlawful conduct will not be used as a basis for future disciplinary action against him. The General Counsel has requested a visitatorial clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure. Because es- tablishment of the rate of pay to which the' discriminatee would have been entitled at various times from 6 May 1985 until compliance is finally achieved may be difficult without Respondent's cooperation, I grant the request. [Recommended Order omitted from publication.]