K-M art Corp.

National Labor Relations Board - Board Decisions

Nov 10, 1983

268 N.L.R.B. 246 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K-Mart Corporation and Walter C. Spencer. Case
17-CA-11121
10 November 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 28 February 1983 Administrative Law Judge
Gordon J. Myatt 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 delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
At par. 12 of the "Concluding Findings" section of the judge's deci-
sion, Comet Fast Freight, Inc., is miscited. The correct citation is 262
NLRB 430 (1982).
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge: Upon
a charge filed by Walter C. Spencer (hereafter called
Spencer) against K-Mart Corporation (hereafter called
the Respondent), the Regional Director for Region 17
issued a complaint and notice of hearing on September 8,
1982.' In essence, the complaint alleges that Spencer was
warned, subsequently suspended, and later discharged for
discussing job-related problems with fellow employees.
The complaint asserts that, in discussing his problems
with other employees, Spencer was engaged in protected
concerted activity and that his suspension and discharge
violated Section 8(a)(1) of the National Labor Relations
Act, as amended, 29 U.S.C. § 151, et seq. (herein called
the Act). The Respondent filed an answer in which it ad-
mitted certain allegations of the complaint, denied others,
and specifically denied committing any unfair labor prac-
tices.
A hearing was held in this matter in Kansas City,
Kansas, on October 7 and 8, 1982. All parties were rep-
resented by counsel and afforded full opportunity to ex-
amine and cross-examine witnesses and to present rele-
vant material evidence on the issues involved. Briefs
were submitted by the parties and have been duly con-
sidered.
I Unless otherwise indicated, all dates herein refer to the year 1982
268 NLRB No. 30
Upon the entire record in this case, including my ob-
servation of the witnesses while testifying, I make the
following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a corporation engaged in the retail
sale of merchandise and maintains various facilities
throughout the States of the United States, including a
distribution center located in Lawrence, Kansas. During
the course of its business operation within the State of
Kansas, the Respondent annually purchases goods and
services valued in excess of $50,000 directly from sources
located outside the State of Kansas. In addition, the Re-
spondent annually derives a gross volume of business in
excess of $500,000 from its business operations within the
State of Kansas. On the basis of the above, I find the Re-
spondent is an employer within the meaning of Section
2(2) engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE AI. LEGED UNFAIR LABOR PRACTICES
A. Background Facts
The record discloses that Spencer had been an em-
ployee working at the Respondent's distribution center
for a number of years. At the time of the events herein,
Spencer was working as a truckdriver or hostler in the
shipping department. His duties principally involved
driving an Ottawa tractor2 and transporting trailers into
and out of the shipping dock area of the distribution fa-
cility. The Respondent operates two shifts at the distri-
bution center with a third shift limited solely to work
performed by a maintenance crew. There is one truck-
driver per shift operating the Ottawa tractor and Spen-
cer worked on the first shift.
The Respondent has established personnel policies and
regulations governing the relationship between it and the
employees. These policies and rules are set forth in an
employee's handbook. (See G.C. Exh. 5.) Under the rule
relating to written warnings issued to employees, the
handbook provides:
A total of three written warnings for any type of
violation of company policy within a twelve-month
period is cause for termination ....
B. Warnings Issued to Spencer Prior to His Suspension
and Discharges
The warning issued on December 11, 1981: The record
discloses that Spencer was given a written warning by
2 The Ottawa tractor was constructed so that the cab would only ac-
commodate the driver of the vehicle.
3 Spencer received two written warnings on December 11, 1981, and
March 10, 1982, respectively. It is not alleged, nor does the General
Counsel contend, that the warnings were issued in violation of the Act.
Rather, the circumstances surrounding the issuance of these written
warnings were detailed in the record to provide "background evidence"
for the operative events herein, and also to establish that Spencer had re-
ceived three written warnings within a 12-month period at the time of his
discharge.
246
K-MART CORP.
Gary Spreer, the personnel manager, on December II
for "uncooperative attitude and conduct." (See G.C.
Exh. 2.) This warning was issued to Spencer because of
his conduct during a meeting between the shipping de-
partment employees and members of management on De-
cember 10. Spencer testified that the shipping depart-
ment employees had been called to a meeting that day
by Frank Evans, then manager of the shipping depart-
ment.4 The purpose of the meeting was to allow the em-
ployees to vote on whether to retain or do away with
the practice of having sectional seniority apply in bid-
ding for jobs at the distribution center.
According to Spencer, the employees relations repre-
sentative (apparently one of the rank-and-file workers)
informed the shipping department employees that the
elimination of sectional seniority would not impact on
the "back-up" jobs which existed in the shipping depart-
ment. But Evans then told the employees that the posi-
tions would in fact be affected if they voted to do away
with sectional seniority. 5 Spencer, along with several
other employees, insisted that Johnson, the production
manager, come to the meeting and explain the impact of
the decision before the employees took a vote. Evans
placed a call for Johnson but Spreer came in his place.
As Spreer proceeded to discuss the matter with the em-
ployees, Spencer insisted that the employees wanted to
talk directly with Johnson and not with Spreer. Accord-
ing to the testimony of Spreer and Evans, while other
employees expressed concern over the issue, Spencer
kept interrupting Spreer and insisting in a loud tone that
the employees wanted Johnson to speak with them
rather than Spreer. Spreer stated that, during the meet-
ing, Spencer was pointing his finger in his (Spreer's) face
and told him that he was not wanted there. Spreer insist-
ed that the employees take a vote on the issue even
though Spencer continued to demand that more time be
given to the employees to discuss the matter. The fol-
lowing day, Spreer issued a written warning to Spencer
because of his disruptive conduct at the meeting. 6
The warning issued on March 10, 1982: The second
written warning issued to Spencer involved an incident
arising out of a directive to switch a trailer that was
blocking merchandise in the shipping dock area. Spencer
testified he received a directive over the two-way radio
in the cab to move two trailers which were blocking
merchandise needed by the case-pack department to fill a
rush order. According to Spencer, as he drove the trailer
into the "moat,"7 he saw employee Charles Russell and
I The Respondent followed a practice of periodically rotating its man-
agers and assistant managers through each of its various departments.
I The shipping department was the only department at the distribution
center which had backup positions where employees could bid on jobs to
replace regular employees when they were absent or ill.
e Spencer's unrefuted testimony reveals that, several weeks after this
incident, the Respondent changed its policy regarding matters on which
employees were permitted to vote concerning their working conditions.
According to Spencer, employees are now allowed 3 days to discuss a
given issue before a vote is required.
This was the term used by the witnesses when refernng to the ship-
ping dock area. In addition to the doorway through which the tractor
driver moves the trailers in and out of the facility, it is apparent from the
testimony that there is a ramp leading down from the shipping dock to
the area where the trailers are parked. This ramp is used by the operators
of motorized forklifts to pick up skids or flats of merchandise needed by
the various departments to fill orders
asked which trailer Russell wanted moved. Russell re-
plied that he did not want anything moved and, at that
moment, employee Leann Barnhart drove her forklift
down the ramp and stopped. Spencer stated that she
stopped approximately 125 feet away from his tractor.
Russell yelled at her to determine if she wanted a trailer
moved and Barnhart pointed in the direction of two
trailers which were at the platform. Spencer testified that
when he looked in that direction he did not see that the
trailers were blocking any merchandise. Spencer then re-
ceived another call on the two-way radio directing him
to pull two loaded trailers out from the shipping dock
area into the yard area. Spencer responded to the second
directive and had to wait some time in order to receive
the seals to put on the loaded trailers. In the meantime,
Ron Arnold, the assistant manager of the case-pack de-
partment, was complaining to Larry Oelschlaeger, the
assistant manager of the shipping department, about
Spencer's failure to move the trailers blocking the mer-
chandise needed for the rush order. Although the state-
ments of the witnesses vary, it is apparent that Spencer
did not move the offending trailers until 30 to 40 minutes
had elapsed from the time he first received the directive
to do so.
When Spencer returned to the moat area, he was con-
fronted by Arnold, who complained about the delay.
During the confrontation, Spencer heatedly told Arnold
that his duties were to move trailers in and out of the
facility and not to accomodate the wishes of the case-
pack department. He also stated that merchandise was
not supposed to be placed in the shipping department. As
a result of this incident, Oelschlaeger issued a written
warning to Spencer for displaying an "insurbodinate atti-
tude." (G.C. Exh. 3)8
C. The Events Leading to the Suspension and
Discharge of Spencer
Although the record is not clear as to the precise
dates, it is evident from the testimony that, some time
during the latter part of June or July, Spencer encoun-
tered two separate problems at work which caused him
concern. The first of these involved grease on the air-
hoses and in the cab of the tractor. As noted, there was
only one truckdriver operating the tractor on each of the
two working shifts. Spencer began to find that, when he
reported to work in the morning, the airhoses of the
tractor were coated with grease and that grease was also
in the cab of the tractor. The first time this occurred he
cleaned it off, but the condition continued to persist. He
then resorted to leaving notes for the second-shift driver
but to no avail. Spencer testified that he brought the
matter to the attention of his department manager, Ray
King. He complained that the grease caused him to get
his hands and clothes dirty. However, according to
Spencer, no corrective action was taken by King. Spen-
cer then spoke to an employee on the second shift to
find out if some conflict, about which he was not aware,
existed between him and the second-shift driver. In the
s In each instance that Spencer received a warning, he refused to sign
247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of doing so, he ascertained that the driver was a
new individual. Since the problem remained unresolved
despite Spencer's complaints, he went to Martha Eng-
nehl, then acting production manager, on July 20. Spen-
cer expressed his concerns about the grease problems to
her. He told Engnehl that he had brought the matter to
the attention of his immediate supervisor but nothing had
been done to correct the problem.
Apparently at the same time the grease problem was
occurring Spencer experienced another problem involv-
ing his operation of the tractor and the operation of a
forklift by a particular employee in the shipping dock
area. Spencer testified that Barnhart continuously refused
to "show courtesy" in the moat area by failing to yield
the right of way to the tractor when he was moving
trailers in and out of the facility. Spencer stated that a
sign posted at the foot of the ramp required the forklift
operators to yield to incoming traffic. Despite this, ac-
cording to Spencer, Barnhart failed to yield to his rig
and, on one occasion, he had to swerve to avoid hitting
her when he was bringing a trailer into the area. Spencer
testified that he complained to Manager King and Assist-
ant Manager Arnold as well as to Pettingill, the safety
manager. Spencer testified that Pettingill promised to
have a meeting with the employees of the case-pack and
nonconveyable departments regarding safety in the moat
area and the allowance they had to make for the oper-
ation of the tractor in that vicinity.
Spencer stated that, despite his complaints to manage-
ment about Barnhart, nothing was done to resolve the
problem. The same day that he spoke with Engnehl
about the grease problem, he went to her a second time
and told her of his problem with Barnhart in the moat
area. He testified that he explained to Engnehl that he
had brought the matter to the attention of his supervi-
sors, but nothing had been done to remedy the situa-
tion." Engnehl promised Spencer that she would look
into his complaints and try to work something out.
The following day Spencer reported to work early in
order to earn some overtime. He was informed by Eng-
nehl that the matters which were causing him problems
were being taken care of. At approximately 10 a.m. that
day, Spencer was summoned to the conference room for
a meeting with Clinton White, the general manager of
the distribution center. Spreer, Engnehl, and King were
also at this conference.
According to the testimony of Spencer, he was told by
White not to discuss his problems with other employees
because management did not want ill feelings created be-
tween the day- and night-shift workers. Spencer was
questioned about his conversations with the employee on
the second shift when he sought to ascertain whether
some conflict existed between him and the second-shift
truckdriver. Spencer testified that he responded to White
by saying, "You can't tell me that I cannot talk to other
employees." Spencer also told White that he had
brought the grease problem to the attention of his man-
ager but nothing had been done about it. Engnehl told
Spencer that Barnhart reported that she ignored Spencer
B Engnehl confirmed that Spencer told her he had discussed the matter
with King and Arnold. The employee complained that nothing was done
because they were "drinking buddies" of Barnhart.
when he drove in the moat area because he attempted to
"crowd her out" with the tractor. Spencer was also told
that employee Russell stated he was afraid of the speed
at which Spencer operated the tractor in the moat area.
According to Spencer, the meeting lasted for approxi-
mately an hour and a half. All of the management par-
ticipants at the meeting testified that White cautioned
Spencer not to discuss his problems during working time
with other employees.
After Spencer left the meeting he returned to his
duties on the tractor. John Parker, the security guard,
testified that at approximately 11:30 that morning Spen-
cer came to his guard shack at the gate. According to
Parker, Spencer was to pick up an incoming trailer, but
he had notified Spencer by means of the two-way radio
10 minutes earlier that the trailer had not arrived as yet.
Parker stated that Spencer pulled up to the guard shack
and got out of the tractor. Spencer said he wished man-
agement would get off of his back. He stated that he had
made two legitimate complaints and management had
been riding him ever since. Parker further testified that
the conversation lasted approximately 5 minutes and that
he made a notation of it in the guard's logbook. 'o
Dale Heston, assistant manager of the receiving de-
partment, testified that Spencer drove up in his area at
approximately 11:40 a.m. and turned off the motor of the
tractor. According to Heston, Spencer complained that
management had passed him over again in the selection
of group leaders. Heston stated that Spencer continued
to discuss his complaints for approximately 15 minutes
until the lunch bell rang. Heston also testified that,
during the course of his conversation with Spencer, the
employee was paged over the two-way radio several
times to move some trailers. Heston stated that Spencer
also mentioned he had been in a meeting with manage-
ment and had been "raked over the coals." When Heston
went to lunch he reported his conversation with Spencer
to White.
Spencer admitted that he saw Heston when he re-
turned to his tractor after the meeting with management
in the conference room. Spencer further confirmed that
he questioned Heston regarding the process of selecting
group leaders and complained that his application had
been rejected because of prior written warnings in his
record. He also confirmed that he told Heston about his
meeting with higher management and that he felt as if he
had been "raked over the coals" because of his justifiable
complaints. Spencer described the meeting with manage-
ment to Heston as an interrogation session which lasted
over an hour regarding matters which "should have been
taken care of in three or four minutes."
Spencer further testified that, after his conversation
with Heston, he returned to his duties until his lunch
break. After eating, he walked out in the yard area and
saw Russell, who was also on his lunch break. Accord-
ing to Spencer he asked if Russell had told management
that he was afraid of the speed that Spencer operated the
rig in the shipping dock area. Russell denied making this
i' During rebuttal testimony, Spencer stated that he had no recollec-
tion of speaking to Parker on July 21 about his meeting with manage-
ment.
248
K-MART CORP.
statement and told Spencer that he had informed man-
agement that he was afraid of the size of the rig but not
afraid of the manner in which Spencer drove it. Spencer
then told Russell about his meeting that morning with
management and repeated that he felt as if he had been
raked over the coals.
Russell also testified that he spoke with Spencer
during his lunch hour, which he stated was between
12:15 and 12:45 p.m. When Spencer questioned him
about his reputed statement, Russell denied making it. He
informed Spencer that he told management he was afraid
of the size of the equipment but not the manner in which
Spencer drove it. I
Russell further stated that at approximately 1:40 p.m.
he was informed by his then supervisor (Eubanks) to
report to White's office because it was the date of the
ninth anniversary of his employment with the Respond-
ent. 12 During the course of the congratulatory inter-
view, Russell was asked if he had any problems. Russell
took his opportunity to complain to White about his
statement regarding his fear of the size of the tractor
being misinterpreted by management as a fear regarding
the manner in which Spencer drove the equipment. He
revealed to White that Spencer had mentioned to him
that Spencer had been in a meeting that day with man-
agement in which he had been raked over the coals, and
that Russell was purported to have told management that
he was afraid of the speed that Spencer operated the
tractor in the shipping dock area. Russell told White this
was not true and asked him to clear the matter up be-
cause he was caught in the middle.
White, on the other hand, testified that he had the an-
niversary interview with Russell at 11:35 a.m., shortly
after the conference with Spencer. 13 He stated that Rus-
sell questioned him about the problem between Spencer
and Barnhart. According to White, Russell said Spencer
had informed him that Spencer had just left the meeting
with management where he had been raked over the
coals and Russell's name was mentioned. White testified
he became irritated because he had just advised Spencer
not to discuss his problems with other employees during
working hours.
Barbara Button, a general maintenance employee
whose duties included cleaning up in the front office
area, testified that she saw Russell go into White's office
between 10:30 and 11:30 that morning. Button stated she
remembered the occasion because, in her words, "it was
unusual for warehouse employees to go into White's
office." On cross-examination, however, Button admitted
II According to Russell, in April 1981, Pettingill asked him if he were
afraid of the speed at which Spencer drove the tractor and his response
was the same as he had given Spencer. Again in March 1982 (after Spen-
cer's second written warning), Spreer asked the same question of Russell
who assured Spreer that he had no complaints about Spencer's driving
and demanded that the matter be cleared up. Russell further stated that 2
days before Spencer's suspension Engnehl asked him the same question
and he repeated that he was afraid of the size of the equipment but not
the manner in which Spencer operated it.
I2 White followed a practice of calling in each employee on the anni-
versary date of his or her employment with the Respondent for a con-
gratulatory interview.
'3 Eubanks was called as witness. He testified that he sent Russell to
White's office for the anniversary interview, before the eitiployee's lunch
hour. Eubanks fixed the time at 11:30 a.m.
that the Respondent employed close to 400 employees at
the distribution center and each at one time or another
goes into White's office for anniversary interviews or to
discuss problems with him. She also admitted that she
voluntarily offered to testify on behalf of the Respondent
because she "disagreed" with Spencer and the way he
acted at work.
At approximately 3 p.m., Spencer was called to the
conference room again by White. Engnehl, Heston,
King, and Spreer were also present. Spencer testified
that White asked if he had talked with any employees
since leaving the conference that morning and whether
he told them he had been raked over the coals. Spencer
admitted that he had. Then, according to Spencer, White
indicated that he knew Spencer had spoken to Heston
and Russell and he asked the employee why he felt he
had been raked over the coals. When Spencer explained
he felt that way because of the manner in which he had
been interrogated over two justifiable complaints, White
reminded him of the admonition not to discuss his prob-
lems with other employees. White thereupon told Spen-
cer he was suspended. Spencer testified that he requested
to have an employee relations representative present and
White replied that management would meet with an em-
ployee representative after Spencer left the premises. Ac-
cording to Spencer, White stated that as far as he was
concerned Spencer was terminated unless management
changed its mind. Spreer told Spencer not to return to
work unless he was notified to do so.
White and the management personnel attending this
second conference with Spencer testified that, when
questioned about discussing his problems with other em-
ployees, Spencer stated he would talk to "whomever he
wanted to whenever he wanted to."14 At this point, ac-
cording to White, he suspended the employee pending
further investigation of his conduct.
Russell was called to the conference room at approxi-
mately 3:45 p.m. that day. He was told that Spencer had
been suspended but that nothing Russell said had influ-
enced that decision. According to Russell, management
stated Spencer was suspended for discussing matters out-
side the conference room with other employees.
The following day Spencer was called at home and
told to report to Spreer's office. When he did so, Spreer
informed the employee that management had reviewed
the incident of the prior day and decided to give him a
written warning for "insubordinate and uncooperative at-
titude and conduct." (See G.C. Exh. 4.) After Spencer
protested, Spreer informed the employee that he was ter-
minated for having received three written warnings
within a 12-month period.
That evening, Spencer went to Russell's home. Ac-
cording to Russell, Spencer was quite upset over his ter-
mination and the statement that Russell was alleged to
have made about his driving in the shipping dock area.
Russell promised that he would go to management and
try to clear it up. The next day, Russell spoke with Eng-
nehl about his matter. He complained that management
had placed him in the middle regarding Spencer's dis-
4 Spencer denied making this comment, stating that he would not
have placed his job in jeopardy since he already had two "write-ups."
249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge. Engnehl assured Russell that he had nothing to
do with the decision to fire Spencer. She told Russell
that Spencer was discharged for insubordination because
he talked outside the conference room when manage-
ment asked him not to do so and "for complaining too
much."
One other witness testified in this proceeding on behalf
of the Respondent. Larry Shorter, supervisor of the gen-
eral maintenance crew and Russell's current supervisor,
testified that on September 22 Russell spoke to him about
Spencer. According to Shorter, Russell confided that he
was afraid of Spencer and that Spencer was a Vietnam
veteran. Shorter stated Russell not only indicated he was
in personal fear but also that he feared for the safety of
his family.
Russell was recalled as a witness and emphatically
denied Shorter's statements. Russell testified that he had
received a subpoena to testify at an unemployment com-
pensation hearing for Spencer. Since he did not have any
available leave time, he showed the subpoena to Shorter
and asked him to take it up with higher level manage-
ment in order to get authorization to go. Shorter re-
turned and told Russell that management said, "Do
whatever you think best." Russell then insisted on talk-
ing directly with White or Johnson. 15 Shorter then
asked Russell how he got involved in the matter and
Russell told him that Spencer was upset over losing his
job and that he was a Vietnam veteran. According to
Russell, Shorter wanted to know if Spencer had harassed
him or if he were afraid of Spencer. Russell replied,
"No. Not at all."
Concluding Findings
While the testimony detailed in this case far exceeds
that which is necessary to decide the issues involved, it
does present critical credibility questions which must be
resolved before reaching the ultimate question of wheth-
er a violation of the Act has been committed.
Foremost in this regard is the question of whether
Russell informed White prior to his lunch hour that
Spencer had discussed with him the conference that had
taken place with management that morning. Both Russell
and Spencer testified they did not discuss Spencer's
meeting with management until their lunch hour (be-
tween 12:15 and 12:45 p.m.), and Russell testified he did
not go into White's office for the anniversary interview
until approximately 1:40 p.m. Contrary to this, White tes-
tified he met with Russell at 11:30 a.m.-shortly after the
termination of the conference with Spencer. Testimony
from Eubanks and Button was offered to corrborate the
fact that White met with Russell before the employee's
lunch hour.
Considering not only the demeanor of the witnesses
testifying on this issue but also the inherent probabilities
and other objective factors, I find the testimony of Rus-
sell and Spencer to be more reliable and worthy of belief
than the testimony offered by the Respondent's wit-
nesses. First, while it was evident that Russell was a
friend of Spencer, this factor is far outweighed by the
1' Management subsequently gave Russell permission to leave work to
attend the hearing.
candid and forthright manner in which Russell testified
generally and about this event in particular. Equally im-
portant in the determination that Russell's testimony was
worthy of belief is the fact that he was still employed by
the Respondent at the time of the hearing and, as such,
was testifying against self-interest-a factor not to be
lightly disregarded. See Shop-Rite Supermarket, 231
NLRB 500 (1977); Southern Paint & Waterproofing Co.,
230 NLRB 429, 431 fn. 11 (1977); Astrosystems, Inc., 203
NLRB 49 (1973); Georgia Rug Mill, 131 NLRB 1304,
1305 fn. 2 (1961), enfd. as modified 308 F.2d 89 (5th Cir.
1962). The Respondent's ill-conceived attempt to show
that Russell's testimony was inspired by fear of Spencer
only serves to buttress the conviction that Russell was
accurately describing the events in which he played a
role. The testimony of Shorter, purporting to show that
Russell admitted fear of Spencer, was evasive, vague,
and completely unreliable. Furthermore, Shorter's testi-
mony was thoroughly refuted by Russell on rebuttal
when he gave a detailed recital of the circumstances in-
volving his conversation with Shorter. The fact that the
Respondent deliberately attempted to distort the plain
meaning of this conversation in an effort to discredit
Russell's testimony merely reinforces the conclusions
that the employee's testimony was a reliable account of
the events.
Nor does the testimony of Button and Eubanks serve
to alter this finding. Button was admittedly biased against
Spencer because she did not approve of the manner in
which he conducted himself at work. For this reason,
she volunteered to assist management in any way she
could regarding the matter involving Spencer. More-
over, her testimony was less than precise in that she
placed Russell in the "front office" area some time be-
tween 10:30 and 11:30 the morning of July 21. She was
only certain that it occurred before her lunch hour.
However, she admitted she cleaned up in the same area
in the afternoon and, further, that it was not unusual, as
she first stated on direct examination, to see warehouse
employees come into White's office. Similarly, Eubanks'
testimony that he directed Russell to report to White's
office at 11:30 a.m. appears to be contrived and fabricat-
ed solely to support the claim that Russell met with
White before his lunch hour. For these reasons, I com-
pletely discredit the testimony of Button, Eubanks, and
Shorter.
Finally, I also find that White's testimony that Russell
spoke to him about Spencer prior to the employee's
lunch break to be less than convincing. By his own ad-
mission, White was irritated over the fact that Spencer
continued to complain to others about his problems after
having been admonished by White at the morning con-
ference not to do so. It is highly improbable that White
would have waited until 3 p.m. that afternoon to call the
employee in to confront him with evidence of the failure
to follow his instructions. I find this to be all the more
improbable since, according to White, he possessed
knowledge of this disregard of his instructions prior to
the end of the lunch hour. White's explanation that he
had to turn his attention to other matters is hardly per-
250
K-MART CORP.
suasive in view of his admitted strong irritation over
Spencer's apparent willful disregard of his directives.
In sum, I credit the testimony of Spencer and Russell
as to the time Russell informed White that Spencer had
complained about his meeting with management on July
21. Thus, I find that it was during the noon lunch hour
that White gained knowledge that Spencer had com-
plained to Heston and that it was some time after 1:40
p.m. before he became aware that Spencer had also com-
plained to Russell about his conference with management
that morning.' 8
On the basis of the above, the credited facts become
condensed to the following: (1) that Spencer complained
to a second-shift employee and to management about the
problem he was experiencing with grease on the airhoses
and inside the tractor; (2) that Spencer complained to
management about the problem he was experiencing in
the shipping dock area with Barnhart over her failure to
"show courtesy" by yielding the right of way of his trac-
tor; (3) that, during the morning conference with man-
agement on July 21, White warned Spencer not to dis-
cuss his problems with other employees during working
time;' 7 (4) that, after the morning conference, Spencer
complained to Assistant Manager Heston about his fail-
ure to be selected as a group leader and about his feel-
ings regarding the earlier conference with high-level
management that morning; (5) that during their lunch
hour Spencer told Russell of his feelings regarding the
conference he had concerning his complaints with man-
agement, and that he questioned Russell concerning a
statement Russell was alleged to have made about the
manner in which Spencer drove the tractor in the ship-
ping dock area; (6) that, at approximately 1:40 p.m., Rus-
sell informed White that Spencer had discussed the
morning conference with him, and that Russell com-
plained because he felt his statements about his fear re-
garding the size of the equipment had been misconstrued
by management in their dealings with Spencer; (7) that
Spencer was called to a second conference with White at
3 p.m. and confronted with the statements he made to
Heston and Russell about the morning conference; (8)
that during this second conference Spencer told White
"[he] would talk to whomever [he] wanted, wherever
[he] wanted";' 8 and (9) that, after Spencer's comment,
1' It is apparent from the testimony that White did not mention the
purported conversation with Parker in the guardhouse shack when he
confronted Spencer during the second conference that day. Therefore, I
do not find it necessary to resolve any conflict in the testimony as to
whether this conversation took place.
'7 Although Spencer testified that White said not to discuss his prob-
lems with other employees and did not limit the admonition to working
time, I do not credit him in this regard. I find that this portion of his
testimony was carefully tailored to buttress his position in these proceed-
ings. However, this does not cause me to find that Spencer's testimony
was unreliable in all respects. Indeed, "nothing is more common in all
kinds of judicial decisions than to believe some and not all of a witness's
testimony." Durango Bootr, 247 NLRB 361 fn. 2 (1980), citing Judge
Learned Hand's observation in NLRB v. Universal Camera Corp., 179
F.2d 749 (2d Cir. 1950).
"I Although Spencer denied making this comment, I do not credit him.
This statement was consistent with his past conduct when confronted by
supervisors regarding his actions. For the reasons cited in fn. 17, supra, I
find his explanation as to why he would not have made such a comment
to be unpersuasive.
White suspended the employee and the following day
White caused a third written warning to be issued which
resulted in his termination.
This brings into focus the central issue involved in this
case. This question is whether Spencer was involved in
protected concerted activity when: (1) he spoke to the
second-shift employee about the problem he was experi-
encing with the grease on the tractor equipment; (2) he
talked with Heston prior to lunch about management's
failure to select him as a group leader and the fact that
he had been in a meeting with management in which "he
had been raked over the coals"; and (3) he spoke to Rus-
sell during their lunch hour about the meeting he had
with management concerning his complaints, and ques-
tioned Russell about his purported fear over the speed
which Spencer operated the tractor in the shipping dock
area. On the basis of the record here, I find that Spencer
was not engaged in conduct which falls within the pro-
tection of the Act.
As the Board has stated in the relatively recent case of
Mills Patrol Service: 9
In order for activity to be protected by Section
8(a)(1), it must be concerted in nature. Where it is
shown that an employee is acting for his own indi-
vidual benefit without the support of his co-work-
ers, there can be no finding of concerted activity.
In the instant case, it is evidence that Spencer was
acting solely for his own individual benefit and that he
was doing so without the support of his coworkers. That
the matter of the grease in the tractor and on the air-
hoses was distasteful to him is without question. But
there is no indication whatsoever that his complaints or
comments to fellow employees were intended to induce
group activity by having the hearer of the complaints
make common cause with him over the matter. Nor was
the resolution of the grease problem a situation which
would benefit other employees. See Koch Supplies v.
NLRB, 646 F.2d 1257 (8th Cir. 1981).
In a similar vein, Spencer's complaint over what he
considered to be Barnhart's failure to "show courtesy"
by yielding to the tractor when he drove in the shipping
dock area was also a personal complaint which was not
calculated to benefit other employees. Granted, it may be
said that safety in the manner in which vehicles were op-
erated in the shipping dock area was a matter of concern
for all employees, it is clear from the testimony that
Spencer's main concern was to cause Barnhart to yield
the right of way to his vehicle when he was in the area.
It is equally evident, that Barnhart took the position that
she had as much right to operate her vehicle there as did
Spencer and that she felt he deliberately attempted to
crowd her out. Therefore, Spencer's complaint related to
what he perceived as being the courtesy due the opera-
tor of the tractor as opposed to the operation of the mo-
torized forklift truck by Barnhart. Thus, it is clear that
Spencer was not seeking to get his coworkers to make
common cause with him concerning this issue but,
rather, he was attempting to enforce a right he felt he
19 264 NLRB 323 (1982).
251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was entitled to enjoy when operating the tractor in the
shipping dock area.
When Spencer spoke to Heston and Russell after his
meeting with management on July 21, he was simply
continuing to complain about problems which related
solely to him. Accordingly, I find that Spencer was not
engaged in any activity which could be construed as
being protected by the Act. In short, Spencer was press-
ing his grievances and complaints for his own personal
benefit, and such conduct does not rise to the level of
protected concerted activity. Mills Patrol Service, supra;
Koch Supplies v. NLRB, supra. Cf. Comet Fast Freight,
260 NLRB 377 (1982).
CONCLUSIONS OF LAW
1. The Respondent, K-Mart Corporation, is an em-
ployer within the meaning of Section 2(2) of the Act en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Respondent did not violate Section 8(aXl1) of
the Act by instructing Walter C. Spencer not to discuss
his problems with employees during working time or by
suspending, issuing a written warning to, and subsequent-
ly terminating Spencer for refusing to comply with these
instructions.
On the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Sec-
tion 10(c) of the Act, I issue the following
ORDER2 0
The complaint herein is dismissed in its entirety.
20 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order herein shall, as provided in Sec. 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all pur-
poses.
252