Air Surrey Corp.

National Labor Relations Board - Board Decisions

Jun 1, 1977

229 N.L.R.B. 1064 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Air Surrey Corporation and Randy Patton. Case 8-
CA- 10027
June 1, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On December 20, 1976, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief, and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
Unlike our dissenting colleague, we agree with the
Administrative Law Judge's conclusion that employ-
ee Patton's action in inquiring at Respondent's bank
as to whether Respondent had sufficient funds on
deposit to meet its upcoming payroll was protected
activity under the Board's holding in Alleluia Cushion
Co., Inc. 2 Inasmuch as we find that Patton's actions
were protected under the rationale employed in the
aforementioned decision, it is unnecessary for us to
pass upon the Administrative Law Judge's alterna-
tive rationale that Patton's visit to the bank was
protected because he was, in fact, acting in concert
with the other employees.
In Alleluia Cushion the Board held that an
employee was engaged in protected concerted activi-
ty when, acting alone, he filed a complaint with the
California OSHA office protesting safety conditions
at the respondent's plant therein. By interpreting
Alleluia Cushion in the restrictive manner expressed
in his dissent, our colleague indicates that he
misperceives the import of that decision. In our
judgment, that decision rests not only on the
statutorily expressed concern of the Federal and state
governments with respect to safety conditions and a
corresponding accommodation of the principles
embodied within that legislation with the principles
of our own Act, but also on the premise that an
individual's actions may be considered to be concert-
ed in nature if they relate to conditions of employ-
ment that are matters of mutual concern to all the
The Employer has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
229 NLRB No. 155
affected employees. Indeed, we are hard pressed to
think of a matter of more vital concern to employees
than that involved herein-receiving payment for
one's labor. Certainly it is on a par with the concern
for safe working conditions.
In the instant case, Respondent's paychecks had
been repeatedly dishonored and on one occasion the
employees had their pay delayed from 1 to 3 days. It
is within this context that Patton's actions must be
viewed. Although admittedly not entirely motivated
by altruistic considerations, Patton's actions clearly
encompassed the well being of his fellow employees.
In support of our finding that by so acting Patton
was engaging in protected activity, we rely not only
on the record evidence which clearly indicates the
deep concern engendered by the Respondent's
dishonored paychecks, but also on the likelihood that
the other employees, in the absence of evidence to
the contrary, shared his interest in receiving a valid
paycheck and supported his effort to secure Respon-
dent's compliance with the financial obligation it had
incurred toward them. Moreover, the law of the State
of Ohio, wherein this case arose, provides in
substance that it is a misdemeanor for a person to
issue a check knowing that it will be dishonored and
that knowledge is presumed if the check was refused
payment for insufficient funds upon presentation
within 30 days after issue, and the liability of the
drawer is not discharged within 10 days after notice
of dishonor. In view of the foregoing, we conclude, in
agreement with the Administrative Law Judge, that
Patton's action in acting individually to forestall
further dishonoring of the paychecks received by the
Respondent's employees is close enough to the area
encompassed by the aforementioned Ohio statutes
that this case cannot be distinguished in principle
from Alleluia Cushion, wherein the discharged em-
ployee sought the respondent's compliance with
health and safety standards that it was obligated to
comply with under state law.
Our dissenting colleague, however, asserts that our
decision herein unwarrantedly expands the principle
of Alleluia Cushion. We cannot agree. In our
judgment, for the reason fully expressed above, we
feel that our decision is logically consistent with
Alleluia Cushion and reaffirms the principles ex-
pressed therein.
Finally, as we have indicated above, we found it
unnecessary to consider whether Patton actually
acted in concert with the other employees in reaching
our decision herein. Thus, while we find interesting
convinces us that the resolutions are incorrect. Standard Drr Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
2 221 NLRB 999(1975).
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AIR SURREY CORP.
our dissenting colleague's discussion of that issue, we
do not feel obligated to respond to it.
Accordingly, we find, in agreement with the
Administrative Law Judge, that Respondent violated
Section 8(a)(1) of the Act by discharging Randy
Patton.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the Respondent, Air Surrey
Corporation, Medina, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
MEMBER WALTHER, dissenting:
Contrary to my colleagues, I find that Respon-
dent's discharge of employee Patton because he
inquired into Respondent's financial status at its
bank was not violative of Section 8(a)(1).
On April 9, 1976, employees Patton, Guitar, Cline,
and Sanders agreed to go to Respondent's bank to
inquire as to whether or not Respondent would have
sufficient funds to pay them. That afternoon the four
employees drove to the bank, but, because they could
not find a parking space, Patton was dropped off to
make the inquiry. Later that afternoon, Respondent
President Davis was informed by his wife, who had
just returned from the bank, that she had been
informed by a teller that one of Respondent's
employees had inquired into the Company's bank
balance. Davis thereafter called his employees
together and asked whether anyone had been to the
bank. All of the employees, except Patton, denied
going to the bank. Patton, however, admitted that he
had gone to the bank for the purpose of finding out
whether Respondent had sufficient funds to meet the
payroll. Davis testified that he then told Patton,
"Pick up your tools. I can't use you anymore. You
really have no business checking into something that
is of no concern to you."
I My colleagues specifically adopt the Administrative Law Judge's
discussion of Alleluia Cushion Inc., 221 NLRB 999 (1975). and conclude that
under that decision, even if Patton acted alone in his inquiry into whether
Respondent was financially able to meet its payroll, his conduct would be
deemed to have been concerted. As I indicated in my partial dissent in
Diagnostic Center Hospital Corp. of Texas, 228 NLRB 1215 (1977), Alleluia
Cushion set forth a very narrow exception to the basic principle that in order
to find a discharge unlawful there must be evidence in the record that the
dischargee's conduct was concerted in nature. In that case an employee,
apparently on his own initiative and acting alone, filed employment safety
complaints with state authonties pursuant to a state occupational safety
statute. The Board noted that occupational safety was of vital concern at all
levels of government and accordingly the Board should recognize the
purposes and policies of other employment legislation and construe our Act
in a manner supportive of the overall statutory scheme. Alleluia Cushion was
Although the record reveals that Patton was in fact
acting in concert with other employees when he went
to Respondent's bank, 3 I find that Respondent did
not violate the Act by discharging him. It is well
settled that in order to find a discharge violative of
Section 8(a)(1) it is necessary to show that the
concerted nature of the employee's activity was
known to the employer at the time of discharge. The
record indicates that at the time it discharged Patton
Respondent had no knowledge that employees
Guitar, Cline, and Sanders had planned with and
accompanied him to the bank to inquire into
Respondent's financial status. Thus, all four employ-
ees testified, without contradiction, that prior to
going to the bank they told no one of their plan.
Indeed, immediately before Davis discharged Patton
he inquired as to which of his employees had gone to
the bank; as noted, all of the employees except
Patton denied their participation. There was there-
fore nothing to put Respondent on notice of the
concerted nature of Patton's activity. The record
establishes that it was not until April 15, when
Respondent received the unfair labor practice charge
in this case alleging that Patton had been discharged
"because of his concerted activity when he attempted
to determine the Employer's financial status," that
Respondent became aware of the possibility that
others may have acted with Patton.
In New England Fish Company, supra, the Board
dismissed a complaint alleging that employee Facelo
had been discharged in violation of Section 8(a)(l)
and (3). Facelo and other employees had formulated
a plan to protest mess hall seating segregated on the
basis of sex, and in furtherance of this plan Facelo
proceeded to sit at tables other than his own. When
he stated to a waiter that he could sit anywhere he
wanted, the waiter attempted to remove Facelo
bodily from his seat. Facelo then struck him. The
Board found that, although Facelo was engaged in
protected concerted activity when he moved from
seat to seat in the mess hall, his protected concerted
purpose was not known to his employer when it
discharged him. Rather, the Board found that the
employer lawfully terminated Facelo because of the
thus a decision premised upon the mutual accommodation of statutory
principles relating to employment. Accordingly, since the legislation sought
to be enforced was of mutual interest to all employees, the Board concluded
that the dischargee's conduct should be deemed to be concerted in nature.
In my judgment, this case does not fall within the narrow exception
established in Alleluia Cushion. The only relevant legislation at stake here
was state banking laws. Alleluia Cushion was never intended to sanction the
deputizing of employees as private attorneys general for enforcement of all
state and local statutes. And yet, this is the effect of the majority's expansion
of the sound principle set forth in Alleluia Cushion.
4 News England Fish Company, 212 NLRB 306 (1974); Standard Brands,
Incorporated, 196 NLRB 1006 (1972); Walls Manufacturing Company, Inc..
128 NLRB 487 (1960), remanded sub nom. International Ladies' Garment
Workers' Union, AFL-CIO, 299 F.2d 114 (C.A.D.C.. 1962), decided on
remand 137 NLRB 1317 (1962), enfd. 321 F.2d 753 (C.A.D.C.. 1963).
1065
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
altercation in the mess hall. In the instant case, as in
New England Fish Company, Respondent was un-
aware of the concerted nature of the discharged
employee's activity. All Respondent knew here was
that Patton alone had inquired into its financial
status and, because it would not tolerate such an
intrusion into its affairs, discharged him on the basis
of that knowledge. I find that Respondent lawfully
discharged Patton and, accordingly, I would dismiss
the complaint in its entirety.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard at Cleveland, Ohio, on August 17,
1976,' pursuant to a charge filed on April 12 and a
complaint issued on May 27. The question presented is
whether Respondent Air Surrey Corporation violated
Section 8(a)(l) of the National Labor Relations Act, as
amended (the Act), by discharging and by failing and
refusing to reinstate Randy Patton.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
Respondent and by counsel for the General Counsel (the
General Counsel), I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Ohio corporation with its principal
office and place of business in Medina, Ohio, where it is
engaged in the business of van conversion. It annually
provides services in excess of $50,000 to various enterprises
which are each engaged in interstate commerce and meets
the Board's nonretail jurisdictional standards on other than
an indirect-outflow or indirect-inflow basis. I find that, as
Respondent concedes, it is engaged in commerce within the
meaning of the Act, and to assert jurisdiction over its
operations will effectuate the policies of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharge of and Failure and Refiusal To
Reinstate Randy Patton
1. Patton's discharge
a. Background
At the time of the events in this case, Respondent had on
its payroll seven employees, who were not represented by
any union. They ordinarily worked Monday through
Friday and received their paychecks on Friday.
About mid-March, employee Forrest Rex Demczyk
received a paycheck which was insufficient on a Friday,
but which was made good the following day. He did not
All dates hereafter are 1976 unless otherwise stated.
2 The record fails to show who these employees were, or the truth of
these reports.
I My findings as to Patton's dishonored paycheck are based on Patton's
mention this incident to Company President William
Davis, Jr., or, so far as the record shows, to any other
member of management. At the same time, employee
Stephen Guitar received a telephone call at work from his
father, telling the younger Guitar that his paycheck had
been dishonored. Stephen Guitar asked Davis about the
matter. Davis told him to run it through again. Guitar did
so, and there was no problem the second time.
Also, about this same time, employee Patton received
reports that the paychecks of employees other than Patton
had been dishonored.2 Thereafter, Patton repeatedly asked
Davis, who was his immediate supervisor, whether there
was enough money to cover the payroll, and Davis kept
assuring him that there was. Patton credibly testified that
all the employees were concerned about this matter,
because Respondent had not been getting any merchandise
out. Then, in the latter part of March, Patton cashed his
$120 paycheck at the Worktown Store, which later told him
that the check had not cleared. Patton asked Davis what to
do about it. Davis said that Patton "should take it and run
it through again, because he had problems with a
customer's check and then it would clear." Patton told
Worktown to send the check back through. Worktown did
so. Again Patton's paycheck did not clear, and he ended up
by having to buy the check back.3
Davis testified that he knew about Patton's and Guitar's
dishonored checks, but did not know whether any other
employee's paycheck had been dishonored. He also
testified that he had not heard that Patton's check had been
dishonored a second time. However, because Worktown
did not advise Patton of the initial dishonor until sometime
between March 26 and April 2, Patton may not have
learned about the second dishonor until after his April 9
discharge.
Employee Phillip Franklin Otterbacher credibly testified
that before Patton's April 9 discharge all the employees
repeatedly discussed among themselves the problem of the
dishonored paychecks. However, so far as he knew, none of
them had complained to Davis about the problem.
On at least one occasion during this period, employees'
paychecks were not available until Saturday or later, and
some of the employees did not get their paychecks until
Monday, Tuesday, or Wednesday of the following week.
Patton credibly testified that on one occasion in mid- or
late March, the employees were not paid until the following
Monday or Tuesday; and that Davis explained that he had
not written out the paychecks because there was not
enough money in the bank account to cover them. Davis
testified about one occasion where the paychecks did not
"show up" until Saturday. According to Davis, one
employee came in to pick up his check on Saturday, and
the others received theirs on Monday.
b. Patton's visit to the bank
While eating lunch together on Friday, April 9, four of
Respondent's employees-Patton, Guitar, Jeff Cline, and
Gregg Sanders-discussed among themselves the fact that
testimony. To this extent, and for demeanor reasons, I do not credit Davis'
testimony that the situation presented by Respondent's dishonored
paychecks, admittedly because of a "lack of funds at that particular time,"
was always corrected within a day.
1066
AIR SURREY CORP.
no merchandise had been out that week and that
Respondent's checking account would likely be getting
low. Because all of them needed their pay that Friday,4
they decided to check Respondent's checking account to
see if there was enough money to cover the payroll that
Friday. They decided that, after finishing lunch, they
would go to Respondent's bank to check on its checking
account. This was Respondent's only checking account
and was used for payroll purposes among others.
All four drove to the bank in the same van. They had all
intended to go into the bank, but they were unable to find a
parking place. Patton volunteered to make the inquiry, and
the others dropped him off in front of the bank.
Patton then went into the bank, told a teller that he was
employed by Respondent, and further said that he would
like to know if Respondent had enough money in its
checking account to cover the payroll for that day. The
teller replied that Respondent had around $800 in its
checking account, and that this was enough for a partial
payroll. Patton then returned to the three employees in the
van and relayed what the teller had told him. The four
decided that they would be the first ones to get there to
make sure that their checks got through. They then
returned to the shop.
c. Patrton's termination
About midafternoon that Friday, Company President
Davis' wife, who is Respondent's secretary, went down to
the bank to make deposits totaling $6,670 into Respon-
dent's account. When she returned to the shop, she angrily
told her husband that the teller who handled the deposit
had told her that the teller had nearly been fired because
one of Respondent's employees had come in and asked
what Respondent's bank balance was and the teller had
"told them, which was against bank rules." She further told
her husband that the bank had apologized for the teller's
action in releasing the information. In addition, she gave
her husband the teller's physical description of the
employee who made the inquiry.5
Davis thereupon called together all the employees who
were present in the shop. Patton and Guitar were
temporarily absent from the shop on an errand. Davis
asked the employees then present whether any of them had
gone to the bank to check on how much money was in
Respondent's account. Each of them said that he had not
and did not know who had.6
Thereafter, when Patton and Guitar returned to the
shop, employee Otterbacher told them that Davis had
found out that someone had gone to the bank, that Davis
was "mad" about it, and that somebody was going to get
fired for going to the bank. 7 Then Davis came out of the
office and asked Guitar whether he was the one that went
into the bank. Guitar said no. Davis then asked Patton if
I Sanders had just returned to work after a leg operation which had
incapacitated him for 3 months.
My findings in this paragraph are based on President Davis' testimony.
His wife did not testify. Taking together the transcript of testimony, his tone
of voice when testifying, and his demeanor at the hearing, I do not interpret
his testimony as averring that she said the employee was seeking to
determine Respondent's financial position as well as the size of Respon-
dent's bank balance. Rather, I conclude that the reference in his testimony
to "financial position" was conclusionary in nature.
he was the one that went into the bank. Patton said yes.
Davis asked why he had gone. Patton replied that he
wanted to see whether Davis had enough money for the
payroll. Davis replied that this was none of Patton's
business, said that Patton was "prying into" Davis' affairs,
and told Patton that he was discharged. Patton said "You
will see me again. I will be back." All the employees were
present when Davis discharged Patton.
My finding as to Patton's explanation for the visit is
based on Demczyk's testimony. My finding that Davis said
this was none of Patton's business is based on the
testimony of Cline, Guitar, Demczyk, and Davis. Davis
testified, in effect, that Patton explained that he had gone
to the bank to find out whether Respondent had enough
money to meet Patton's payroll check. Davis' testimony in
this respect gains some corroboration from Cline. How-
ever, because Patton's inquiry did in fact extend to the
entire payroll, it seems likely that he said so. Moreover, it
seems to me improbable that Davis would have told Patton
(as Davis admittedly did) that the subject of Patton's
inquiry was none of Patton's business, if Patton had
described the inquiry as limited to his own paycheck.
Moreover, during the pretrial investigation Davis admit-
tedly told the General Counsel that Patton had no right
checking into Davis' ability to make the payroll for the
employees. Accordingly, and after considering the witness-
es' demeanor, I do not credit Davis' testimony about
Patton's explanation for this inquiry.
My finding that Patton was discharged after, and not
before, he explained the reason for his visit is based on
Demczyk's testimony, with some corroboration from
Sanders. Davis, with some corroboration from Cline,
testified that Patton was discharged before explaining the
reason for his visit. For demeanor reasons, I believe that
Patton's explanation preceded the discharge. However, for
reasons summarized, infra, the result herein would be the
same even assuming that Patton's explanation came
immediately afterwards.
At the time Davis discharged Patton, Davis did not know
of the other employees' role in Patton's trip to the bank.
2. Events after Patton's discharge
After the close of business on that day, April 9,
employees Otterbacher and Ken Austin told Davis that
Randy Patton and his father were actively soliciting
business from Respondent's customers to take the work out
of Respondent's place of business and do it themselves.
Otterbacher and Austin based this statement partly on
"talk" from employees other than Patton, and partly on
Randy Patton's statement to Otterbacher that the Pattons
had contacted one of Respondent's customers, Marty
Blume. (Randy Patton did not testimonially deny either
that he made this statement to Otterbacher about Blume,
6 My finding as to the exact nature of Davis' inquiry is based on Sanders'
testimony. In view of Davis' version of his wife's report and demeanor
considerations. I do not credit his testimony that he asked whether an) of
them had inquired "about our financial statement and position with our
checking account."
7 This finding is based on Patton's testimony. For demeanor reasons. I
accept his version of Otterbacher's statement rather than the somewhat
different version testified to by Guitar. Otterbacher was not asked about this
conversation.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or that this statement was true.) In consequence of
Otterbacher's and Austin's report, Davis got in touch with
Blume, who told him that Al Patton (inferentially, Randy
Patton's father) "had contacted him to take the vans out of
[Respondent's] place of business and let them do them
himself, and [Blume's] answer to them was no, that he was
satisfied with [Respondent's] work." At the time Randy
Patton was discharged, negotiations were taking place
between his father and Davis about his father's becoming
Respondent's plant manager.
All the paychecks issued the day of Patton's discharge
were honored by Respondent's bank. The record fails to
show whether Respondent continued to maintain its
account at the bank after learning about the teller's report
to Patton.
On April 15, Davis received Patton's charge herein,
which alleged, inter alia, that Respondent had discharged
him "because of his concerted activity when he attempted
to determine the Employer's financial status." That same
day, Davis called all the employees together, read the entire
charge to them, and asked all of them if "they had elected
Randy Patton to represent them in any way, shape, or
form." All of them said no. The complaint herein, which
Respondent received on May 28, alleges, inter alia, that
Respondent discharged, and failed and refused to rehire,
Patton "for the reason that he had, or Respondent believed
that he had, engaged in protected concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, including, but not limited to, inquiring at the
Ohio State Bank in Medina, Ohio, regarding the sufficiency
of Respondent's funds to cover the employees' payroll
checks." Respondent's answer concedes that at all times
since about April 9 Respondent has failed and refused to
reinstate Patton.
3. Respondent's explanation for Patton's discharge
Davis testified that he discharged Patton for a "culmina-
tion of shoddy workmanship, lateness, disobedience,
arrogance and going to the bank."
I. Patton began working for Respondent on April 1,
1975, as a part-time employee, and became a full-time
employee in June 1975. On direct examination, Davis
testified that the quality of Patton's work was "marginal
.... Perhaps because he was a beginner and came to me
from the vocational school program, probably that's the
reason we overlooked a lot of his bad work, which in many
cases had to be redone." However, on cross-examination,
Davis testified that "to start with" Patton's work was
"fair," and that Davis did not notice any problem with
Patton's work prior to January 1976.
Davis gave a total of two specific instances where
Patton's work had to be redone. Specifically, Davis
s Saturdays aside, these latenesses ranged from .04 hour (2.40 minutes,
on March 11 and 26) to 1.45 hours (1 hour and 27 minutes, on April 9, his
last day of employment). Patton was 2.16 hours late on Saturday, March 27,
and 1.60 hours late on Saturday, April 3. However, on both Saturdays he
clocked out about an hour before the regular quitting time. No contention is
made that he habitually clocked out early, and his timecards indicate that
Respondent did not normally operate on Saturdays.
9 These lunchbreaks exceeded the prescnbed half hour by between .01
testified that about February 1976, two tire carriers made
by Patton broke at the weld when the customer began to
use them, and that Respondent thereby incurred a $203
bill. Davis further testified that he told Patton about this
incident but did not otherwise reprimand him. Patton
testified that Davis had told him that these tire carriers had
broken and Davis would like to see that they were welded
better the next time. Patton credibly testified that at that
time some of the welding was being done by others, but
there is no evidence that he pointed this out to Davis, nor
did Patton specifically disclaim responsibility for these
defective tire carriers. Davis testified that after this
incident, Respondent checked everything Patton did, and
had to correct his work "probably once or twice" before his
April 9, 1976, discharge. The only specific additional
incident given by Davis occurred sometime in March,
when a weld failed to hold on a plexiglass divider which
separates the luggage compartment from the passengers.
Davis testified that he reprimanded Patton for the
quality of his work "constantly" and "every day." Davis
further testified that as of Patton's discharge on April 9,
"his work was deteriorating rather than improving." Davis
testified that when talking to the General Counsel during
the investigation of this case, he did not tell her that
Patton's work was shoddy. Patton testified that "once or
twice" Davis talked to him about poor workmanship; that
toward the spring of 1976 Davis told him that his work was
improving; and that Davis had told him more than once
that he was doing very good work, the last such occasion
having been 3 to 4 weeks before Patton was fired. Because
Davis gave only two specific instances of poor work by
Patton, because of the internal inconsistencies in Davis'
testimony about when Patton allegedly did poor work,
because of Davis' failure to mention shoddy work during
the investigation of the case, and for demeanor reasons, I
credit Patton and discredit Davis regarding Davis' com-
ments about Patton's work, and do not regard as given in
good faith Davis' testimony that Patton's work was
deteriorating and that he would not have been retained as
long as he was but for Respondent's pending negotiations
with his father about becoming plant manager. Also, I
credit Patton's testimony that Davis never told him that he
might be discharged if his workmanship did not improve.
2. Between March 5, 1976, and Patton's discharge on
April 9, 1976, Patton was late to work on about 18
occasions,8 and overstayed his lunchbreak on about 11
occasions. 9 The timecards submitted in connection with
Patton's lateness reflect three full payroll weeks of
employment. During one of these weeks, he worked about
45 hours. The other 2 weeks he worked more than 39 hours,
hours (.6 minutes) on March 18 to .17 hours (10.2 minutes) on April 9, his
last day of employment. There is no evidence that his three lunch
companions on that day were discharged for being late from lunch that day.
Although none of them was still in Respondent's employ at the time of the
hearing, Cline quit, and Guitar's discharge (for undisclosed reasons) did not
take place until about 2 months later. The record fails to show the
circumstances of Sanders' separation.
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AIR SURREY CORP.
although during one of these weeks Patton was absent (for
unexplained reasons) for a full day.10 Davis testified that
lateness was a general problem with most of the employees,
to the point where he put on the bulletin board a notice
that he would not tolerate any more lateness, "but most of
them corrected the situation, and those that didn't got
fired." Before Patton's discharge, nobody had ever been
fired merely for being late, although one employee had
been fired for lateness and absence from work. Respondent
failed to produce other employee timecards, which would
have shown how Patton's lateness record compared to the
records of those who were not discharged (see supra, fn.
10). Employee Sanders credibly testified that he did not
recall Patton's "particularly being late. There was always a
lot of people late, really." Employee Guitar credibly
testified that "everybody" sometimes overstayed his lunch
period, that he and others had been late to work, and that
"very often" Davis had reprimanded them for being late to
work. Davis testified that he warned Patton and all other
employees every time they were late. Patton testified that
he was reprimanded for lateness on only one occasion, a
month or two before he was discharged, when he was also
laid off for a week because of lateness. The record fails to
show whether anyone else was ever suspended for lateness.
For demeanor reasons and in view of the probabilities of
the situation, I conclude that Patton was reprimanded for
lateness on several occasions, but not on each occasion he
was late.
3. Davis testified that Patton was "arrogant" in that,
after learning in January 1976 that his father might become
plant manager, he "many times" responded to lateness
warnings by saying, "If you don't like it, fire me." Davis
further testified that Patton made the last such remark
"probably" within the month prior to his discharge.
Further, Davis testified that he "constantly" warned Patton
about being arrogant and disobedient. Also, Davis testified
that beginning in January 1976, Patton was "disobedient"
in that he failed to complete the work assigned him within
the hours paid at straight time. Davis testified that when
talking to the General Counsel during the investigation of
the case, he did not tell her that Patton had been
disobedient and did not recall whether he told her that
Patton had been arrogant. Patton testified that he said, "If
you don't like it, fire me," on one occasion, 2 or 3 months
before he was discharged. Patton further testified that on
one occasion in January 1976, Davis complained to him
that he had failed to do some of the work that he was
supposed to do, but that Davis had made no like
complaints thereafter. Patton also denied that Davis ever
told him that he had been disobedient, or gave him any
warning about disobedience. For demeanor reasons, and in
view of Davis' actual or possible failure to mention
Patton's alleged disobedience and arrogance to the General
Counsel, I credit Patton over Davis as to the conversations
described in this paragraph.
m' Davis testified at one point that Patton was discharged partly for
absence from work. However, this is the only reference by Davis or counsel
B. Analysis and Conclusions
1. Whether Patton was discharged partly for
reasons unrelated to his visit to the bank
Although conceding that Respondent discharged Patton
partly for his visit to the bank, Respondent contends that
he was discharged partly because of shoddy work, lateness,
arrogance, and disobedience. I do not believe that any of
these considerations played any part in Patton's discharge.
Thus, Patton credibly testified without contradiction that
none of these reasons was given to him when he was
discharged, and that the sole reason given to him was his
visit to the bank. Moreover, the credited evidence as to the
shoddy-work contention shows that towards the spring of
1976, Davis told Patton that his work was improving; 3 or
4 weeks before firing him, Davis told him that he was doing
good work; and Davis admittedly did not mention shoddy
work to the General Counsel during the investigation of the
case. Further, Davis related only two specific incidents of
shoddy work by Patton during his year of employment
with Respondent, the last of which occurred several weeks
before his discharge. Although Patton was frequently late,
lateness was admittedly a general problem, and the record
fails to show how his tardiness record compared with that
of others. The only credible incident of Patton's "arro-
gance" ("If you don't like it, fire me") occurred 2 or 3
months before Patton was discharged, and Davis could not
recall whether he had told the General Counsel, during the
investigation of the case, that Patton had been arrogant.
Moreover, Davis had never told Patton that he had been
disobedient, or given him any warning about disobedience;
nor did Davis tell the General Counsel, during the
investigation of the case, that Patton had been disobedient.
In any event, assuming Respondent could not have
lawfully discharged Patton solely because of his visit to the
bank, his discharge partly for that reason would violate the
Act even though lawful companion motives likewise
existed. N.L.RB. v. West Side Carpet Cleaning Co., 329
F.2d 758, 761 (C.A. 6, 1964); Dilene Answering Service, Inc.,
222 NLRB 462 (1976).
2. Whether Patton's visit to the bank was
protected concerted activity
The undisputed evidence establishes that Patton's visit to
the bank constituted part of the effort of four employees,
including Patton, to make sure that their paychecks were
honored. Accordingly, such conduct constituted, at least
prima facie, "concerted activity for the purpose of. . .
mutual aid and protection" within the meaning of Section
7 of the Act. San Juan Lumber Company, 154 NLRB 1153,
1155 (1965), enfd. 367 F.2d 397 (C.A. 9, 1966); Guernsey-
Muskingum Electric Cooperative, Inc., 124 NLRB 618
(1959), enfd. 285 F.2d 8 (C.A. 6, 1960). There is no
evidence to support Respondent's suggestion at the hearing
that Patton's inquiry was related to an alleged attempt by
the Pattons to obtain customer lists from Respondent.
Rather, all four of the employees testified that the inquiry
was made because the employees wanted their paychecks
to Patton's attendance record, which was unexplored in the record. Nor is
there any evidence that Davis ever mentioned absence from work to Patton.
1069
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
honored. Furthermore, Patton's credible denial that he
inspected Respondent's customer lists or obtained there-
from the names of any customers is partly corroborated by
the credible denials of Cline, Sanders, Demczyk, and
Otterbacher that they saw him leafing through, or even
unexplainedly near, the file where such lists were kept.
Respondent contends that Patton's inquiry to the bank
about whether Respondent's account could cover that
day's payroll I was unprotected because the inquiry
constituted an effort to cause the bank to breach a duty of
confidentiality which it owed Respondent. 12 However, I do
not regard such a duty as affecting the statutorily
guaranteed rights of Patton against Respondent, at least in
the absence of evidence that he knew of its existence. See 9
C.J.S., Banks and Banking, sections 159-160, p. 343 (1938).
The General Counsel does not contend and I do not find
that the Act afforded Patton the right to receive this
information. The question presented here is whether, under
all the circumstances, he had a right to request this
information without being discharged for that request.
3. Whether Respondent's limited knowledge
regarding the context of Patton's conduct
constitutes a defense to his discharge
Respondent principally contends that Patton's discharge
was not unlawful because, before discharging him, Davis
did not know that Patton was acting pursuant to the
decision of four employees to try to get their paychecks
honored. Respondent asserts that an employee may
lawfully be discharged for conduct which enjoys statutory
protection if the employer is ignorant of facts which
rendered such conduct protected. However, the credited
evidence shows that before discharging Patton, Davis knew
that Patton was trying to find out whether Respondent had
enough money for "the payroll." Accordingly, even
accepting this legal view advanced by Respondent, Pat-
ton's discharge was unlawful if an inquiry for this purpose
would have been protected activity if engaged in by Patton
alone. N.L.R.B. v. Office Towel Supply Company, Incorpo-
rated, 201 F.2d 838, 840-841 (C.A. 2, 1953).
I conclude that such activity would have been so
protected under the rationale of Alleluia Cushion Co., 221
NLRB 999 (1975). Alleluia Cushion held that an employee
was protected by Section 7 when he individually drew the
attention of the State Occupational Safety and Health
" Counsel is somewhat inaccurate in describing the inquiry as seeking
Respondent's "bank balance" or "how much money was in Respondent's
bank account." What Patton asked was whether there was enough money in
the account to cover that day's payroll. While the teller chose to reply by
giving the size of Respondent's balance, she could also have complied with
Patton's limited request by asking him to estimate the size of the payroll and
then merely telling him whether the balance was sufficient. Assuming that
Patton's inquiry about the sufficiency of the balance was protected by the
Act but an inquiry about the actual amount would not have been,
Respondent could not defend the discharge on the ground that Davis
received an erroneous report that the actual amount was requested.
N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964); N.LR.B. v. Cambria
Clay Products Company, 215 F.2d 48, 53 54 (C.A. 6, 1954).
12 Although Mrs. Davis reported to Davis that revealing the size of
Respondent's bank balance was against "bank rules," she made no like
assertion in connection with payees' or prospective payees' inquiry about
the sufficiency of the balance to cover their checks.
Respondent makes no contention that any Federal statute or regulation
forbids a state bank to answer an employee's inquiry about the sufficiency
Administration to allegedly unsafe employment conditions
which to a large extent involved the safety of other
employees. The Board relied on the likelihood that other
employees would share the complaining employee's con-
cern about safety conditions, and on the statutorily
expressed concern of Federal, state, and local governments
about safety matters. In the instant case, the other
employees' concern about dishonored paychecks not only
is shown by the record, but also would in any event appear
likely from their repeated receipt of such paychecks and
employees' natural concern about being paid on time, let
alone about dishonored paychecks' effect on their individu-
al credit ratings. Moreover, the laws of the State of Ohio,
where the events herein took place, make it a misdemeanor
for any person "with purpose to defraud, [to] issue .. . or
cause to be issued .. .a check . .. knowing that it will be
dishonored." Further, a person who issues a check "is
presumed to know that it will be dishonored" if "The check
. . . was properly refused payment for insufficient funds,
upon presentation within 30 days after issue or the stated
date, whichever is later and the liability of the drawer ...
is not discharged by payment or satisfaction within 10 days
after receiving notice of dishonor." 29 Page's Ohio Revised
Code Annotated, sections 2913.11, 2929.11, 2929.21 (1973).
Moreover, Ohio law requires wage payments at least
semimonthly and not later than one-half month after they
are earned (Section 4113.15). Whether or not Respondent's
prior issuance of dishonored paychecks ever reached the
level of violating these Ohio statutes,13 any effort by Patton
individually to forestall further dishonoring of paychecks
received by himself and others falls close enough to the
area encompassed by these Ohio statutes so as to render
Alleluia not fairly distinguishable.' 4 Furthermore, this
same result would be called for even accepting the
testimony that Patton did not advise Davis until immedi-
ately after being discharged that Patton's inquiry was
caused by a desire to determine whether Respondent's
account could cover the day's payroll. Walls Manufacturing
Company, Inc., 128 NLRB 487 (1960), remanded sub nom.
International Ladies' Garment Workers' Union, AFL-CIO v.
N.L.R.B., 299 F.2d 114, 116 (C.A.D.C., 1962); 15 see also
Home Beneficial Life Insurance Company, Inc. v. N. LR.B.,
159 F.2d 280 (C.A. 4, 1947), cert. denied 332 U.S. 758, 172
F.2d 62 (C.A. 4, 1949); General Nutrition, supra. 16
of his employer's account to cover the payroll. Nor does Respondent make
any contention that any Ohio statute or regulation contains such a
prohibition. Accordingly, I need not and do not consider whether such
provisions would affect the result herein.
13 Davis testified that the paychecks had been dishonored "Because of
lack of funds at that particular time." So far as the record shows, all
employees were in fact paid eventually. The record fails to show how soon
Respondent discharged its liability under the twice-dishonored check which
Patton had attempted to cash at Worktown.
14 While the State OSHA replied that some of the Alleluia complaints
were meritorious, the Board's decision fails to show that this reply
encompassed all of these complaints. In any event, the protected status of
complaints about working conditions does not turn on whether such
complaints are meritorious. General Nutrition Center, Inc., 221 NLRB 850,
855 (1975).
15 Decision on remand 137 NLRB 1317 (1962). enfd. 321 F.2d 753
(C.A.D.C.. 1963), cert. denied 375 U.S. 923 (1963).
16 In General Nutrition, the employer discharged several employees when
they left their place of employment as a group. The Board held that
1070
AIR SURREY CORP.
My discussion hereafter under this part 11, D, 2, will
assume that any Section 7 status accorded Patton's
conduct would depend on the fact that it was part of an
activity in which other employees participated. For
convenience, I will first determine the date on which
Respondent first had reason to know 1 7 that other employ-
ees were also involved in the activity for which Patton was
discharged. I find this date to be April 15, 6 days after
Patton's discharge, when Respondent received Patton's
charge alleging that Patton had been discharged "because
of his concerted activity when he attempted to determine
the Employer's financial status." That this charge in fact
alerted Davis to the possibility that other employees were
also involved is shown by his testimony that it led him to
ask the other employees if they had elected Patton to
"represent" them. Having thus been put on notice that
Patton was acting on behalf of others as well as himself,
Respondent cannot successfully urge subsequent lack of
knowledge to disclaim subsequent responsibility for Pat-
ton's discharge, even though Davis chose to react by asking
a legally inconclusive question to which the other employ-
ees gave a truthful reply. 18
Accordingly, Respondent's concession in its answer, that
at all times since about April 9 it has failed to refused to
reinstate Patton, establishes at the very least that it violated
the Act by failing and refusing to reinstate Patton, and
became liable to him for backpay on and after April 15,
when it acquired reason to know that other employees
participated in the decision to make an inquiry at the bank.
Home Beneficial, supra; see also General Nutrition, supra at
853, fn. 16; Walls Manufacturing Company, Inc., 137 NLRB
at 1318.'9
Although the General Counsel's posthearing brief is
more cautious, she contended at the hearing, in effect, that
an employer's unfair labor practice is established on a
showing that an employee was discharged for particular
conduct which was protected by Section 7 of the Act, and
that the employer's liability is unaffected by a showing that
he was ignorant of the facts showing that the conduct was
protected. In the most recent decision which I have been
able to find, the Board has reserved this question. Trumbull
Asphalt Company, Inc., 219 NLRB 131, 136 (1975), citing G.
W. Murphy Industries, Inc., Portable Electric Tools Division
183 NLRB 996, 1000 (1970). So far as I am aware, the
Board has never in terms held that employer ignorance is
an ineffective defense. However, particularly in view of
Trumbull, its decisions as a whole with respect to this issue
appear inconclusive. See Myers Products Corporation, 84
NLRB 32 (1949); Walls, supra, 128 NLRB at 487-488;
assuming the employer did not know when discharging them that their
purpose was to consult the Board, the employer's admitted knowledge of
this protected purpose when he refused to reinstate them rendered such
refusal a violation of Sec. 8(aX I). Home Beneficial is discussed infra.
IT Marathon Oil Company, 195 NLRB 365, 367 (1972), enfd. 478 F.2d
1405 (C.A. 7, 1973).
1i Burnup and Sims, supra,' Guernsey-Muskingum, supra, 285 F.2d at 12
("The mere fact that the men did not formally choose a spokesman or that
they did not go together . . . does not negative concert of action");
Hennepin Broadcasting Associates, Inc., 225 NLRB 486, 490, fn. 20 (1976).
19 In Home Beneficial, the employer discharged employees in the honest
belief that their absence was due to a refusal to comply with a reporting rule,
but later learned that they had failed to report for work because they were
on strike. Under these circumstances, backpay was required from the date
they applied for reinstatement or the date the employer found out about the
Indiana Gas & Chemical Corp., 130 NLRB 1488 (1961);
Walls, supra, 137 NLRB at 1318 (1962); Murphy, supra at
1000, and cases cited; Continental Oil Company, 161 NLRB
1059, 1062, fn. 1 (1966); Marathon Oil, supra at 367;
Standard Brands, Incorporated, 196 NLRB 1006 (1972)
(Member Jenkins concurring on other grounds); New
England Fish Company, 212 NLRB 306 (1974) (see infra, fn.
20); Jeannette Corporation, 217 NLRB 653 (1975), enfd. 532
F.2d 916 (C.A. 3, 1976). Cf. General Nutrition, supra at fn.
16.20 Judicial authority as to this issue goes both ways, but
preponderantly indicates that the employer must have had
at least some knowledge that the activity was concerted
and was for the purpose of mutual aid and protection. See
Burnup and Sims, supra at 23 ("§8(aXI) is violated if it is
shown that the discharged employee was at the time
engaged in a protected activity, that the employer knew it
was such, that the basis of the discharge was an alleged act
of misconduct in the course of that activity, and that the
employee was not, in fact, guilty of that misconduct");
N.LR.B. v. Office Towel, supra at 840-843; N.LR.B. v.
Westinghouse Electric Corporation (Ausonia Plant), 179 F.2d
507, 508-509 (C.A. 6, 1949); N.LR.B. v. Buddies Super-
markets, Inc., 481 F.2d 714, 717 (C.A. 5, 1973) (record must
show "that the employee was engaged in concerted activity
for the purpose of mutual aid and protection and that the
employer had some knowledge of this at the time of the
discharge"); International Ladies' Garment Workers' Union,
supra, 299 F.2d at 116; Hugh H. Wilson Corporation v.
N.LR.B., 414 F.2d 1345, 1349 (C.A. 3, 1969), cert. denied
397 U.S. 935 (1970) ("the existence of a 'group' need not be
communicated to management"). The quoted material
from Burnup and Sims was based on the Board's August
1964 Supreme Court brief (see pp. 6-7, 14), and was not
directed to any issue in that case, where the employer
undisputedly knew of the concerted activity context of the
dischargees' alleged misconduct. Accordingly, and because
Trumbull (1975) reserved the issue, I regard it as remaining
open to my own disposition in the first instance.
I conclude that this question should be resolved in
essentially the same manner as Home Beneficial, supra, and
as suggested by Mr. Justice Harlan's separate opinion in
Burnup and Sims, supra at 24 (infra, fn. 22). Where, as here,
employees know that a particular discharge was a conse-
quence of the employee's protected activity, the discharge
will likely chill continued protected activity, by both the
immediate victim and his fellows, regardless of the
employer's state of mind. Accordingly, the legality of such
a discharge cannot be determined by the same standards as
the legality of a discharge which the employer attributes to
real reason for their absence, whichever was last. Because Patton never
participated in any strike, no application for reinstatement was necessary in
order to trigger his entitlement to backpay. In any event, his charge
constituted such an application. General Nutrition, supra at 858. At the
hearing, I drew the parties' attention to Home Beneficial, but the briefs have
not referred thereto.
In Walls and General Nutrition, the employer acquired knowledge of all
the relevant facts on the same day as, although after, the discharges.
Accordingly, neither case presented the question of whether backpay was to
begin at a date after the discharges.
20 However, I do not agree with the General Counsel's contention that
the result in New England Fish, supra, turned on the dischargee's violence in
the course of his concerted activity for a purpose of mutual aid and
protection. See New England Fish Co., 212 NLRB at 310-311.
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee conduct wholly unrelated to protected activity.
Burnup and Sims, supra; N. L. R. B. v. Washington Aluminum
Company, Inc., 370 U.S. 9, 16-17 (1962); Cambria Clay
Products, supra, 215 F.2d at 53-54 (C.A. 6, 1954); Walls,
supra at 116-117; see also International Ladies' Garment
Workers' Union, AFL-CIO [Bernhard-Altman Texas Corp.]
v. N.L.R.B., 366 U.S. 731, 738-739 (1961).21 Rather, in
such a case the question is whether the discharge's invasion
of employee Section 7 rights outweighs the employer's
legitimate and substantial business justifications. N.L.R.B.
v. Great Dane Trailers, Inc., 388 U.S. 26, 32-34 (1967);
N.LR.B. v. Jemco, Inc., 465 F.2d 1148, 1152 (C.A. 6, 1972),
cert. denied 409 U.S. 1109 (1973). Here, the only such
justification is Respondent's ignorance, when discharging
Patton, that his visit to the bank was an aspect of protected
activity in which other employees had also engaged. Such
ignorance, so long as it lasted, should be considered a
sufficient justification, because Respondent should not
suffer a monetary penalty for complying with its statutory
duty not to pry into its employees' protected activities.
Westinghouse, supra, 179 F.2d at 508.22 However, this
justification disappeared once Respondent knew, or had
reason to know, the involvement of other employees.2 3
Accordingly, if Patton's visit to the bank would not have
been protected activity if made pursuant to his own
individual decision, and acquired protection only because
the visit was part of his activity with other employees, I
would find unlawful his April 9 discharge and Respon-
dent's subsequent failure and refusal to reinstate him, but
would modify my recommended Order by requiring no
backpay until April 15, when Respondent knew or had
reason to know the other employees' involvement. Further,
if Respondent had in the interval hired a replacement for
Patton, I would not require backpay until after the
replacement was terminated or another employee was
hired, whichever first occurred. In so finding, I am aware
that in Westinghouse, supra at 508-509, the Court of
Appeals for the Sixth Circuit upheld an employee's
discharge, which the Board found to be motivated by his
starting a rumor about comparative wage rates at another
plant (77 NLRB 1058 (1948)), on the ground that the
employer did not know that his activity was an aspect of
concerted activity among a number of employees directed
at obtaining a wage increase. However, if I would not
otherwise be disposed to follow Westinghouse's lead, my
interpretation of a nationwide statute should not be
21 Accordingly, Respondent errs in relying on Indiana Metal Products
Corporation v. N.LR.B., 202 F.2d 613, 616-618 (C.A. 7, 1953); and
MacDonald Engineering Company, 202 NLRB 748, 750 (1973). In each of
these cases, the question was whether the employee's discharge was
motivated by his union activity or by unrelated misconduct. Alabama
Marble Company, 83 NLRB 1047, 1048 (1949), enfd. 185 F.2d 1022 (C.A. 5,
1951), cert. denied 342 U.S. 823 (1951), involved employer knowledge of
participation in an unprotected strike as a precondition for effectively
waiving the right to discharge the participants.
22 This consideration distinguishes the instant case from Burnup and
Sims, supra, where the majority approved a requirement of reinstatement,
with backpay dating from the date of discharge, to employees discharged in
the good faith but mistaken belief that they had engaged in misconduct in
the course of protected activity. The employer there knew the protected
activity context of the alleged misconduct and, therefore, had knowledge of
facts giving him the right to conduct an inquiry into what really happened.
Even so, Mr. Justice Harlan would have required reinstatement and
backpay "only as of the time the employer learned, or should have learned,
affected by the fortuity that the instant case arose in the
Sixth Circuit and, if it goes to court, will likely (although
not necessarily) be submitted to the court of appeals for
that circuit. Cf. Iowa Beef Packers, Inc., 144 NLRB 615,
616 (1963), modified 331 F.2d 176 (C.A. 8, 1964). In any
event, Westinghouse antedated all of the decisions (includ-
ing Sixth Circuit decisions), regarding where motive and
scienter need not be shown, which have led me to depart
from it.
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the
meaning of the Act.
2. Respondent has violated Section 8(a)(l) of the Act
by discharging Randy Patton on April 9, 1976, and by
failing and refusing to reinstate him at all times thereafter,
including all times on and after April 15, 1976.
3. Such unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent has violated the Act by
unlawfully discharging an employee, and thereafter failing
and refusing to reinstate him, I shall recommend that
Respondent be required to cease and desist therefrom and
from in any other manner infringing on employee rights.
SKRL Die Casting, Inc., 222 NLRB 85 (1976); Harmon
Industries, Inc., 226 NLRB 432 (1976). In addition, I shall
recommend that Respondent be required to take certain
affirmative action which will effectuate the policies of the
Act. I shall recommend that Respondent be required to
offer Randy Patton immediate reinstatement to his old job
or, in the event such job no longer exists, to a substantially
equivalent job, and make him whole for any loss of pay he
may have suffered by reason of his discharge, by payment
to him of a sum of money equal to that which he would
have earned, but for his discharge, from April 9, 1976, to
the date of an offer of reinstatement, less his net earnings
during this period, to be computed in the manner described
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).24 In addition, I shall recommend that
Respondent be required to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
of his mistake, subject, however, to a valid business reason for refusing
reinstatement . . . for example, if a replacement had been hired and the
discharged employee unduly delayed in apprising the employer of the
mistake."
23 In the circumstances of this case, I give no weight to Patton's failure,
during his discharge interview, to mention such involvement. I see no reason
to suppose that Patton knew such involvement might be material to his own
rights and, indeed, Respondent maintains that his conduct was unprotected
anyway. Moreover, after being discharged for visiting the bank, he had
every reason to anticipate that Davis would likewise effect reprisals on any
others whom he found to be involved. I note that Respondent admittedly
failed and refused to reinstate Patton even after learning the concerted
context of his visit to the bank.
24 Respondent did not contend before me that assuming a reinstatement
and backpay order would otherwise be called for, Patton's contact with
customer Marty Blume, which Davis did not find out about until after
Patton's discharge, deprived Patton of the right to affirmative relief. Rather,
Respondent merely contended that this contact may have motivated
1072
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 2
The Respondent Air Surrey Corporation, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees, or failing or refusing to
reinstate them, in consequence of their participation in
concerted activity for the purpose of mutual aid and
protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Randy Patton immediate and full reinstatement
to his old job or, in the event such job no longer exists, a
substantially equivalent job, and make him whole for any
loss of pay he may have suffered by reason of Respondent's
action in discharging and failing and refusing to reinstate
him, in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, as well as other records
necessary or useful in analyzing and computing the amount
of backpay due under the terms of this Order.
(c) Post at its Medina, Ohio, plant copies of the attached
notice marked "Appendix." 2 6 Copies of said notice, on
forms provided by the Regional Director for Region 8,
after being duly signed by the Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order what steps have
been taken to comply herewith.
Patton's visit to the bank., a contention which I have previously found
without evidentiary support. Nor did Davis testify that Patton's contact with
Blume caused Davis to fail and refuse to reinstate Patton.
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
AIR SURREY CORP.
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
26 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law by discharging Randy Patton, in consequence of
his protected activity, and afterwards failing and refusing
to reinstate him. We have been ordered to post this notice.
We intend to carry out the order of the Board and abide by
the following:
The National Labor Relations Act gives employees the
following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from any such activities.
WE WILL NOT discharge, or fail and refuse to
reinstate, any employee in consequence of his protected
activity.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of these
rights.
WE WILL offer to reinstate Randy Patton to his old
job or, if that job no longer exists, to a substantially
equivalent job, and make him whole, with interest, for
loss of pay resulting from his discharge.
Our employees are free to exercise any or all of these
rights. Our employees are also free to refrain from any or
all such activities, except to the extent that union
membership may be required by a collective-bargaining
agreement as a condition of continued employment as
permitted by the proviso to Section 8(a)(3) of the Act.
AIR SURREY CORPORATION
1073