Circle K Corp.

National Labor Relations Board - Board Decisions

Dec 23, 1991

305 N.L.R.B. 932 (N.L.R.B. 1991)

932
305 NLRB No. 139
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1990 unless otherwise specified.
2 See Southland Corp., 267 NLRB 303 (1983); Stop-N-Go Foods,
279 NLRB 777 (1986).
Circle K Corporation and Charlotte Moneagle. Case
9–CA–27904
December 23, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On May 28, 1991, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The Respondent hired Charlotte Moneagle on May
15, 1989. In April 1990,1 Moneagle filed an unfair
labor practice charge against the Respondent alleging
discrimination in training and promotion because of
her history of filing charges with previous employers.2
In June, Store Manager Sheila Weatherholt con-
ducted a store meeting in response to the complaints
of employees Ron Beard and Jack Applewhite about
Moneagle’s poor work performance and their threats to
quit if something was not done about Moneagle.
Moneagle was notified that her performance needed
improvement. The same month, the Respondent issued
two warnings to Moneagle for cash shortages and
noted a ‘‘poor attitude’’ in her evaluation. Moneagle
filed another unfair labor practice charge alleging dis-
crimination in discipline and evaluation because of her
April charge against the Respondent. The Board dis-
missed Moneagle’s April and June charges.
In September, Weatherholt notified Moneagle that
she had incurred another cash shortage and that the
third warning for this offense was grounds for termi-
nation. However, Moneagle thereafter found her mis-
take and subsequently Zone Manager Bob Herman told
Moneagle that no discipline would attach to this third
shortage.
Employee Ron Beard testified that Moneagle told
him about her warnings and offered to pursue a warn-
ing Beard had received, together with her own, through
the management hierarchy. Moneagle also told Beard
that employees needed to bring in a union to get better
working conditions and fairer treatment and that she
had discussed this with a person who was going to as-
sist her in the proper procedures. Beard declined
Moneagle’s assistance with his warning. However, he
told Applewhite and Weatherholt about this conversa-
tion with Moneagle, informing Weatherholt specifically
that he thought Moneagle ‘‘was serious about . . . try-
ing to get either a union or some kind of employee
support thing going in the store.’’
On September 21, Moneagle distributed the fol-
lowing letter to store employees, posted it at the cash
register, and mailed it to other area stores:
Clerk’s and Asst. Managers
Do you have any concerns or idea’s [sic] for im-
provements about your job position and/or any of
the following:
1.) Wage’s [sic] and/or wage increases
2.) Working conditions
3.) Our performance evaluations
4.) Job Security
5.) Hours
6.) Write-ups
We as employee’s [sic] must counsel and stand
together concerning our employee rights.
If you have a concern or problem or are interested
in more information about our protection contact
me at:
2012 Deanwood Ave.
Dayton, OH 45410
phone 256–7346
AN EMPLOYEE —
Charlotte Moneagle
Beard testified that Moneagle gave Beard a copy of
her letter and told him that ‘‘this was the letter she had
been talking about writing and that if I would sign it
and encourage other people to sign it, we could pro-
ceed along the lines of getting a union into the store.’’
Beard declined to sign the letter and told Moneagle
that he would ‘‘like to consider it’’ but ‘‘would have
to see how things developed before [he] made any de-
cision.’’
Beard also testified that he showed Moneagle’s let-
ter to Weatherholt and told her he thought it was ‘‘the
union letter’’ and recounted Moneagle’s efforts to get
him to sign it, specifically Moneagle’s urging that if
Beard signed the letter ‘‘it could progress.’’
Weatherholt told Beard that his cooperation with
Moneagle was ‘‘against store policy and store rules.’’
Weatherholt herself testified that she interpreted
Moneagle’s letter as yet ‘‘another way of [Moneagle’s]
giving me a hard time.’’ Weatherholt further testified
that employees who discussed Moneagle’s letter with
Weatherholt ‘‘thought it was a joke, thought it was
funny, thought it was another way of Charlotte causing
problems.’’
On September 25, District Manager Bill Freeman in-
spected the store. Freeman testified that he was in-
933CIRCLE K CORP.
3 The judge noted that: (1) Moneagle’s claim was uncorroborated;
(2) she engaged in no action such as obtaining and circulating union
cards; (3) the union she claimed to have contacted, the Teamsters,
is precluded from organizing store employees under the agreement
for its readmission to the AFL–CIO; (4) the letter she circulated to
employees does not mention a union; and (5) she falsified her em-
ployment application with respect to why she had left her prior em-
ployment at Southland (Moneagle wrote the she left Southland be-
cause of ‘‘Illness in family.’’ In fact, she was fired from Southland,
but filed charges with the Board and later received $18,000 in back-
pay. The Respondent does not contend that it was unaware of
Moneagle’s experience at Southland until after she was discharged
from the Respondent or that the falsification of her application
played any part in her discharge from the Respondent.
4 Meyers Industries, 281 NLRB 882, 887 (1986), enfd. 835 F.2d
1481 (D.C. Cir. 1987).
5 Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964).
6 For our analysis, we do not rely on Moneagle’s testimony. We
therefore find it unnecessary to reach the General Counsel’s excep-
tion that the judge erroneously discredited Moneagle with respect to
her union activity. Rather, our analysis relies on the testimony of the
Respondent’s other employees and managers, which the judge either
specifically or impliedly credited or which is undisputed.
7 Mushroom Transportation Co. v. NLRB, supra.
8 Whittaker Corp., 289 NLRB 933, 934 (1988).
9 The judge ‘‘conclude[d] . . . the letter was not prepared in a
good faith effort to help employees, but an attempt [sic] by
Moneagle to assist her own personal agenda of avoiding termination
by setting up circumstances that could be used as a basis for an ap-
proach to the Board . . . .’’ The Respondent contends that this con-
clusion has ample support in the testimony of Moneagle’s fellow
employees and in the judge’s finding that Moneagle was not a cred-
Continued
formed by Weatherholt that Moneagle ‘‘was interfering
with the work of her other employees.’’ Weatherholt
showed Freeman the letter Moneagle had circulated
and, according to Freeman, told him ‘‘the situation had
become intolerable and something needed to be done
about it.’’ Freeman consulted his superiors and on Sep-
tember 26, met with Zone Manager Bob Herman and
Moneagle. Freeman asked Moneagle whether she had
written the letter. When she acknowledged that she
had, he discharged her, citing the employee hand-
book’s provision for discharge on the first offense for
‘‘threatening, intimidating, coercing or interfering with
other employees.’’
Discrediting Moneagle’s claim that she contacted a
union, the judge found that Moneagle did not engage
in union activity.3 He also found that Moneagle did
not engage in concerted activity. Rather, he concluded
that Moneagle acted in her own interest, without the
support or consent of other employees, and that her
conduct was undertaken in bad faith.
The General Counsel excepts. He contends that
Moneagle’s stated intent to organize a union and dis-
tribution of the letter constituted both union activity
and protected concerted activity. The General Counsel
also argues that the judge erroneously discredited
Moneagle based on her employment application, and
erroneously ascribed bad faith to her conduct based on
the subjective opinions of her fellow employees.
For the following reasons, we agree with the Gen-
eral Counsel’s contention that Moneagle engaged in
protected concerted activity and that her discharge for
that activity violated Section 8(a)(1) of the Act. We
have previously explicitly adopted4 the Third Circuit’s
comments in Mushroom Transportation5 defining the
scope of ‘‘concerted’’ activity:
[A] conversation may constitute a concerted activ-
ity although it involves only a speaker and a lis-
tener . . . [when] . . . it was engaged in with the
object of initiating or inducing or preparing for
group action or had some relation to group action
in the interest of the employees.
We find Moneagle’s conduct satisfies this definition of
concerted. The record shows6 that Moneagle twice en-
gaged her fellow employee, Ron Beard, in conversa-
tions about conditions of employment that affected the
store’s employees. In the first instance, she discussed
disciplinary warnings with Beard and offered to under-
take a joint appeal to management. She also told Beard
that employees needed to bring in a union to get better
working conditions and fairer treatment. In the second
instance, she gave Beard a copy of her letter calling
for group solidarity among employees with respect to
their concerns and ideas for improvements in wages,
hours, working conditions, performance evaluations,
and disciplinary warnings. She asked Beard to sign her
letter and to encourage other employees to sign it so
that employees might get a union into the store.
Moneagle thereby engaged in an initial call to group
action concerning terms and conditions of employment.
Moneagle did not have to engage in further concerted
activity to ensure that her initial call for group action
retained its concerted character.7 Neither did Beard
have to accept Moneagle’s invitation to group action
for the invitation itself to be ‘‘concerted’’ within the
meaning of Section 7.8
We conclude that the judge erroneously relied on the
subjective opinions of Weatherholt and Moneagle’s
fellow employees in determining that Moneagle acted
in bad faith to protect herself against discharge for
poor work. What Moneagle’s fellow employees may
have thought about her motives has little bearing on
whether Moneagle’s activity was concerted. Employees
may act in a concerted fashion for a variety of rea-
sons—some altruistic, some selfish—but the standard
under the Act is an objective one. See Ohio Valley
Graphic Arts, 234 NLRB 493 (1978). Under that ob-
jective standard, Moneagle’s September 21 letter to the
Respondent’s employees and her conversations with
employee Beard, on their face, were concerted. They
solicited group action and invited the backing of the
Respondent’s employees for efforts to improve their
wages, hours, and other terms and conditions of em-
ployment. See Mushroom Transportation Co. v. NLRB,
supra.9 Under that standard, Moneagle’s letter and
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ible witness with respect to her testimony about her union activity.
We note, however, that when Moneagle first discussed the warnings
she had received with Beard, who had also received a warning, she
offered to appeal his warning as well as her own. And, while Beard
later testified that he thought Moneagle’s letter was ‘‘garbage,’’ he
did not initially reject Moneagle’s idea out of hand. Indeed, he told
her he would consider supporting her efforts. Beard’s undisputed tes-
timony is that he later told Store Manager Weatherholt that
Moneagle was serious about ‘‘either trying to get a union or some
kind of employee support thing going in the store’’ and that he
thought that Moneagle’s letter was a ‘‘union letter.’’
Even assuming that the judge was correct in his speculation that
Moneagle’s objective in posting the letter was to insulate herself
against discharge for poor work, we do not find this fatal to the
General Counsel’s case. As the Board held in Ohio Valley Graphic
Arts, supra at 493, ‘‘. . . the fact that [an employee] may have acted
for personal reasons . . . does not affect the nature of his conduct.’’
The Board also stressed there that such conduct is ‘‘protected with-
out regard to the individual’s motivation.’’ [Footnote omitted.] The
language of the letter and Moneagle’s prior conversations with Beard
illuminate an objective that contemplates concerted action—a call for
the assistance of her fellow employees in improving terms and con-
ditions of employment. Where an employee’s objectives in taking
certain action may be mixed, and one supports a finding of
concertedness, we may not ignore it in favor of one that does not.
See NLRB v. Interboro Contractors, 388 F.2d 495, 499 (2d Cir.
1967), enfg. 157 NLRB 1295 (1966).
10 In dictum, the judge stated that the Respondent ‘‘had valid busi-
ness reasons’’ for discharging Moneagle. What those ‘‘reasons’’
were the judge does not explain. The Respondent argues, however,
that the day before Moneagle’s discharge, when Weatherholt showed
Freeman the September 21 letter, Weatherholt complained to Free-
man that Moneagle was not part of the team and was having a bad
effect on the employee team. Weatherholt did not explain what
Moneagle had done other than posting the letter to cause this ‘‘bad
effect.’’ While we do not consider this to be any more than an ex-
pression of Weatherholt’s concern about the September 21 letter, we
shall assume for argument’s sake that Weatherholt was also referring
to Moneagle’s prior work record. Moneagle had been cited for cash
shortages on three separate occasions, for having told customers and
other employees the store would close, and for a poor work attitude.
She had also been the subject of complaints extending over a period
of months by other employees who thought that she was not satis-
factorily completing the work on her shift, but was leaving it for
others on the next shift. While under the Respondent’s rules these
infractions might well have warranted the Respondent’s discharging
Moneagle, the Respondent had tolerated Moneagle’s foibles for at
least 5 months. Further, we note that in August 1989, a little over
a year before her discharge, Moneagle had received the Respond-
ent’s highest evaluation, ‘‘far exceeds standards,’’ and that thereafter
Moneagle was offered an assistant manager position, which she de-
clined. In any event, at trial the Respondent did not offer any exam-
ples of Moneagle’s poor work that were contemporaneous with her
discharge and that would have on September 26 tipped the scales
against retaining her. Accordingly, we conclude that, in the absence
of the letter, the Respondent would have retained Moneagle. See
Colders Furniture, 292 NLRB 941, 945 (1989), enfd. 907 F.2d 765
(7th Cir. 1990).
11 We find it unnecessary to reach the issue of whether Moneagle’s
discharge also violated Sec. 8(a)(3) of the Act, and do not pass on
the judge’s discussion or conclusions with respect to this issue.
comments to Beard plainly had an object of inducing
group action. That Beard and Moneagle’s fellow em-
ployees did not respond in a positive fashion to
Moneagle’s entreaties may demonstrate that Moneagle
misperceived her fellow employees’ interest in joining
together to improve conditions or their willingness to
follow her lead. But, this does not make her action any
the less concerted. See El Gran Combo, 284 NLRB
1115, 1117 (1987), enfd. 853 F.2d 996 (1st Cir. 1988).
We find that Moneagle’s activity was ‘‘concerted’’ ac-
tivity for mutual aid or protection. Accordingly, we
find the General Counsel has established a prima facie
case that Moneagle’s discharge violated Section
8(a)(1).
We also find that Moneagle’s September 21 letter,
which we have found to be protected concerted activ-
ity, was the sole basis for Moneagle’s discharge. The
day before Moneagle’s discharge, Store Manager
Weatherholt had shown District Manager Freeman
Moneagle’s letter and had commented that ‘‘the situa-
tion had become ‘‘intolerable’’ and that ‘‘something
needed to be done about it.’’ The next day, imme-
diately after questioning Moneagle about whether she
had written the letter, Freeman summarily discharged
her. Other than the September 21 letter, Freeman did
not allude to any of Moneagle’s conduct during the
discharge interview.
According to the Respondent, Moneagle was dis-
charged for violation of a company rule that prohibits
employees from ‘‘threatening, intimidating, coercing or
interfering with other employees.’’ The language of the
rule itself is too general to be of assistance in identi-
fying the specific conduct on which the Respondent re-
lied to discharge Moneagle. But the words of
Moneagle’s final personnel action form leave no doubt
that Moneagle’s ‘‘interference’’ with other employees
under the rule was her September 21 letter, which was
attached to the form:
Charlotte was discharged according to rules of
conduct on p. 14 of the employee handbook
which states that threatening, intimidating, coerc-
ing or interfering with other employees [sic] vio-
lations will be adequate justification for discharge.
The attached letter was written by Charlotte.
[Emphasis added.]
At the time of the discharge and on its personnel
form the Respondent proffered no separate reason for
Moneagle’s discharge, other than the September 21 let-
ter.10 Since Moneagle’s protected concerted conduct—
the September 21 letter—was the sole motivating fac-
tor in the Respondent’s decision to discharge
Moneagle, we need not do the analysis required under
Wright Line, 251 NLRB 1083 (1980).
We find that the Respondent discharged Charlotte
Moneagle for making an initial call to group action on
matters of mutual concern to store employees.
Moneagle’s conduct therefore constituted protected
concerted activity and her discharge violated Section
8(a)(1) of the Act.11
935CIRCLE K CORP.
12 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. By discharging Charlotte Moneagle on September
26, 1990, the Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the
Act.
REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, we shall order the Respondent to
cease and desist and take certain affirmative actions
designed to effectuate the policies of the Act.
We shall order the Respondent to offer Moneagle
immediate and full reinstatement to her former job or,
if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or
other rights or privileges previously enjoyed, and to
make her whole for any loss of earnings and benefits
in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Circle K Corporation, Centerville and
Dayton, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because they engaged in
protected concerted activities for their mutual aid and
protection.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Charlotte Moneagle immediate and full re-
instatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed, and make her whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against her, in the manner set
forth in the remedy section of this decision.
(b) Remove from its files any reference to the un-
lawful discharge and notify Moneagle in writing that
this has been done and that the discharge will not be
used against her in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its place of business at 125 Spring Valley
Road, Dayton, Ohio, copies of the attached notice
marked ‘‘Appendix.’’12 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for activity protected by Section 7
of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Charlotte Moneagle immediate and
full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights or
privileges previously enjoyed and WE WILL make her
whole for any loss of earnings and other benefits re-
sulting from her discharge, less any net interim earn-
ings, plus interest.
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1990 unless otherwise indicated.
2 See the matters reported in Southland Corp., 267 NLRB 303
(1983), and Stop-N-Go, 279 NLRB 777 (1986).
WE WILL remove from our files any reference to the
discharge of Charlotte Moneagle and WE WILL notify
her in writing that we have removed from our files any
reference to her discharge and that the discharge will
not be used against her in any way.
CIRCLE K CORPORATION
Patricia Rossner Fry, Esq., for the General Counsel.
Arnold Morelli, Esq., of Cincinatti, Ohio, for the Respondent.
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Dayton, Ohio, on March 12 and 13,
1991. Briefs subsequently were filed by the General Counsel
and Respondent. The proceeding is based on a charge filed
October 4, 1990,1 as thereafter amended, by Charlotte
Moneagle, an individual. The Regional Director’s complaint
dated November 19, 1990, alleges that Respondent Circle K
Corporation, of Dayton, Ohio, violated Section 8(a)(1) and
(3) of the National Labor Relations Act by discharging Char-
lotte Monegate because of her union or other protected con-
certed activities.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the retail operation of conven-
ience stores in a number of States and it annually purchases
and receives goods and materials at Dayton valued in excess
of $50,000 directly from points outside Ohio. It admits that
at all times material it has been an employer engaged in op-
erations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that General
Truck Drivers, Chauffeurs, Warehousemen and Helpers,
Local Union 957, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO (the Union), has been, and is now, a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Charlotte Moneagle was hired by Respondent as a part-
time salesclerk at its Centerville store on May 15, 1989. In
the fall of 1989, Moneagle requested a full-time position and
began working full-time in November. In April 1990,
Moneagle filed a charge in Case 9–CA–27428 alleging that
she had been denied training and promotion to an assistant
manager position because she had filed charges against other
employers.2 In May, that charge was dismissed by the Re-
gional Director. In June, after she had received two warnings
for cash shortages and been cited for ‘‘poor attitude’’ in her
evaluation, Moneagle filed a charge in Case 9–CA–27599 al-
leging that she had been harassed and discriminated against
in violation of Section 8(a)(4). That charge was also dis-
missed.
In August, Moneagle injured her foot at home and was out
of work for several weeks. Shortly after she returned to work
in September, Store Manager Sheila Weatherholt notified
Moneagle that she had another cash shortage which, when
combined with her prior warnings on shortages, was cause
for termination. With Weatherholt’s permission, Moneagle
reviewed the records and found the mistake that caused the
cash shortage. Weatherholt took no further action and subse-
quently Zone Manager Bob Herman confirmed to her that
she would not be disciplined for that particular shortage.
Moneagle told employee Ron Beard about her written
warnings. Previously, Beard had received a warning for hav-
ing a friend in the store and she offered to appeal his warn-
ing as well as her own in a letter she planned to write to
management; however, Beard declined her offer. In mid-Sep-
tember, Moneagle allegedly contacted a Teamsters Local 95
representative and another AFL–CIO union representative to
get information about organizing Respondent’s employees.
On September 21, 4 or 5 days after Weatherholt had told
her she could be terminated for any further financial discrep-
ancies, Moneagle composed the following letter to Circle K
clerks and assistant managers:
Do you have any concerns or ideas for improve-
ments about your job position and/or any of the fol-
lowing:
(1) Wages and/or wage increases, (2) working condi-
tions, (3) our performance evaluations, (4) job security,
(5) hours, (6) write-ups.
We as employees must counsel and stand together
concerning our employee rights.
If you have concern or problem or are interested in
more information about our protection contact me at
. . . .
The letter closed with Moneagle’s name, address, and tele-
phone number. Moneagle posted a copy of the letter near the
cash register at the Centerville store and left copies for each
employee. She also mailed copies to other Dayton area
stores. Moneagle told Ron Beard about the letter. Beard in-
dulged Moneagle and said he would consider supporting her
but declined to sign it. Beard then showed Weatherholt the
letter and told her that he had spoken to Moneagle about it
and said she was serious about getting a union or employee
support. Thereafter, on Tuesday, September 26, District Man-
ager Bill Friedman met with Zone Manager Bob Herman and
Moneagle, and asked Moneagle whether she had written the
above letter, then told her that she was terminated.
III. DISCUSSION
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ee’s union or other protected, concerted activities were a
motiviating factor in the employer’s decision to terminate.
Here, the record fails to show that the alleged discriminatee
engaged in open union activity. In this connection, I cannot
find that Moneagle was a credible witness (it was shown that
she lied on her employment application and in making cer-
tain other statements). Her claim that she contacted the
937CIRCLE K CORP.
Teamsters Union stands uncorroborated and she took no ac-
tion consistent with her asserted union contact, such as ob-
taining or distributing authorization cards. Moreover, it is in-
herently implausible that this Union had any role in this mat-
ter inasmuch as it was established that the provisions gov-
erning its readmission into the AFL–CIO specifically prohib-
ited it from organizing store employees. Finally, Moneagle’s
letter to other employees makes no mention of unions, and,
accordingly, I cannot find that Moneagle was engaged in any
union activity.
In Meyers Industries, 268 NLRB 493 (1984), the Board
held that:
in general, to find an employee’s activity to be ‘‘con-
certed,’’ we shall require it be engaged in with or on
the authority of other employees, and not solely by and
on behalf of the employee himself. We thereby over-
ruled those cases which held that the individual asser-
tion of a matter of common concern to other employees
constituted protected concerted activity.
Here, it is not shown that Moneagle acted other than in
her own interest. Moreover, to the extent that she attempted
to portray her actions as being in the interest of matters of
common concern to others, this assertion is rebutted by the
testimony of other employees who persuasively show that
Moneagle was acting only on her own behalf.
Specifically, Moneagle’s fellow employees, Jack
Applewhite and Ron Beard gave credible testimony that they
persisted in making complaints to management against her
and, in fact, threatened to quit if something was not done
about her adverse effect on their own work. Applewhite,
Beard, and other employees, including Assistant Manager
Wanda Dougherty, considered Moneagle’s letter nothing but
a joke and thought that it was just an attempt by Moneagle
‘‘covering her ass.’’ Under these circumstances, I conclude,
as they did, that the letter was not prepared in a good-faith
effort to help employees, but an attempt by Moneagle to as-
sist her own personal agenda of avoiding termination by set-
ting up circumstances that could be used as a basis for an
approach to the Board that might forstall any employer exer-
cise of its managerial rights.
Here, it is clear that Moneagle did not act in concert with
other employees and otherwise it is not shown that any other
employee had ever been sufficiently concerned about work-
ing conditions to complain to the Respondent, except to com-
plain about Moneagle.
Based on the complete record, which essentially refutes
the testimony relied on in the General Counsel’s prima facie
presentation, I find that the General Counsel has not met her
initial burden by presenting a prima facie showing, sufficient
to support an inference that employee’s union or other pro-
tected concerted activities were a motivating factor in Re-
spondent’s decision to terrinate. Accordingly, the record need
not be evaluated in keeping with the criteria set forth in
Wright Line, 251 NLRB 1083 (1983), see NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983), to consider
Respondent’s defense. It is clear, however, that the Respond-
ent is shown to have had valid business reasons not incon-
sistent with company rules and practices for discharging
Moneagle and it otherwise not engage in any acts consistent
with the illegal motivation asserted by the General Counsel.
Specifically, it is shown that Store Manager Weatherholt tes-
tified in Moneagle’s behalf in a prior proceeding before the
Board that resulted in a favorable award to Moneagle and
that she had consistently made efforts at Respondent’s store
to give her every opportunity to pursue her continued em-
ployment. Accordingly, I find that Respondent’s conduct re-
futes rather than supports, the allegations against it and,
under all these circumstances, I conclude that the General
Counsel has failed to prove that Respondent violated Section
8(a)(1) and (3) of the Act in these respects, as alleged.
CONCLUSIONS OF LAW
1. Circle K Corporation is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Respondent has not violated Section 8(a)(1) and (3)
of the Act as alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]