Midtown Service Center

National Labor Relations Board - Board Decisions

Aug 17, 1984

271 N.L.R.B. 1061 (N.L.R.B. 1984)

MIDTOWN SERVICE CENTER
Midtown Service Center, Inc. and James Wayne
Wagner. Case 10-CA-19120
17 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 21 October 1983 Administrative Law Judge
J. Pargen Robertson issued the attached decision.
The Respondent filed exceptions and a supporting
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 brief and has
decided to affirm the judge's rulings, findings,t and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Midtown Service Center, Inc., Atlanta,
Georgia, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
Substitute the following for paragraphs 2(e) and
(f).
"(e) Post at its Atlanta, Georgia facility copies of
the attached notice marked "Appendix." 3 Copies
of the notice, on forms provided by the Regional
Director for Region 10, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
Chairman Dotson and Member Hunter find it unnecessary to pass on
whether the Board's discretionary standard for asserting jurisdiction has
been met in this case because the approach to Sec. 8(a)(4) generally has
been a liberal one to achieve that section's remedial purposes. The Board
has held that, whenever a respondent is alleged to have violated Sec.
8(a)(4) of the Act, jurisdiction may be asserted on a showing sufficient to
demonstrate the presence of legal jurisdiction beyond de minimis limits
although the Board's discretionary standard may not have been met A.A.
Electric Co., 177 NLRB 504, 507 (1969), enf denied 435 F.2d 1296 (8th
Cir. 1971), revd. 405 U.S. 117, 124 (1972), enfd. on remand 80 LRRM
3055, 68 LC ' 12,733 (8th Cir. 1972). See Pickle Bill's, Inc., 224 NLRB
413, 414-415 (1976).
In adopting the judge's finding of a violation here, we find it unneces-
sary to rely on Hi-Craft Clothing Co., 251 NLRB 1310 (1980), enf, denied
660 F.2d 910 (3d Cir. 1981).
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
2 We shall modify the Order to require that the Respondent post the
notice to employees immediately upon receipt, and that it notify the Re-
gional Director in writing of its compliance efforts
271 NLRB No. 170
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
"(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard in Atlanta, Georgia, on August 1
and 8, 1983. The complaint which issued on May 12,
1983, is based on a charge which was filed on March 29
and amended on May 3, 1983. The complaint alleges that
Respondent discharged employee James Wayne Wagner
on March 25, 1983, in violation of Section 8(a)(1) and (4)
of the Act.
On the entire record, and from my observation of the
witnesses, and after due consideration of the briefs filed
by the General Counsel and Respondent I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and Respondent admits that at
all material times it is, and has been, a Georgia corpora-
tion maintaining an office and place of business in Atlan-
ta, Georgia, where it is engaged in the operation of an
automobile service facility and convenience store. The
record demonstrated that Respondent is engaged in the
retail sale of groceries and related items in its conven-
ience store plus the retail sale of gasoline on consignment
from Russell Corporation. Additionally, Respondent per-
forms mechanical repairs to automobiles in its garage.
The General Counsel contends that Respondent's gross
sales exceed $500,000 per year. In that regard the parties
stipulated (not direct quotes):
(I) That the garage's gross volume for the preceding
12-month period was approximately $122,122 in sales.
(2) That during the preceding 10-month period its con-
venience store operations (which Respondent started on
August 31, 1982) had a gross volume of sales of approxi-
mately $189,034.
(3) That the parties expect the gross sales from the
convenience store to continue at approximately the same
rate shown over the last 10 months.
(4) That Respondent sold gasoline on consignment
from Russell Corporation during the preceding 12-month
period in the gross amount of $463,880.33. Respondent
received a commission for the 12-month sale of gasoline
of $15,251.86. During that period Respondent operated
under a consignment agreement with Russell Corpora-
tion. That consignment agreement provided that owner-
ship of all consigned products, including gasoline, was to
pass directly from Russell Corporation to each respective
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
buyer without passing to Respondent. All sales prices
were set by Russell Corporation. Respondent, pursuant
to its agreement with Russell Corporation, deposited
daily all moneys received from the sale of gasoline and
all other products of Russell Corporation. Respondent
sold the Russell Corporation products from its conven-
ience store operation and received a commission of 50
percent of the net profit on all Russell Corporation sales.
The General Counsel contends that gross volume
should include the 12-month gross from the garage of
$122,122, the projected 12-month gross from the conven-
ience store of $226,840.80, and the 12-month gross from
gasoline and other Russell Corporation products of
$463,880.33. Obviously, if the General Counsel is cor-
rect, the above total figure will exceed the Board's retail
jurisdiction guideline of $500,000. However, without the
gross sales of Russell Corporation products, the $500,000
figure will not be satisfied.
The Board standard for retail establishments requires a
gross business volume of $500,000 per year and substan-
tial purchases from, or sales to, other States on a direct
or indirect basis. (Carolina Supplies & Cement Co., 122
NLRB 88 (1958); Dominick's Finer Food, 156 NLRB 14
(1965), enf. denied on other grounds 368 F.2d 781 (7th
Cir. 1966)). In determining gross sales the net profit is ir-
relevant, regardless of whether the volume is achieved
on consignment or otherwise (see McFarling Bros. Mid-
state Poultry Co., 120 NLRB 1576 (1958)). I find that Re-
spondent's gross volume must include its total received
from its garage, convenience store, and gasoline sales.
Therefore, its gross volume exceeds $500,000 per year.
As to the question of whether Respondent had sub-
stantial purchases from or sales to other States on a
direct or indirect basis, the parties stipulated that Re-
spondent made purchases during the immediately preced-
ing 12-month period from the following suppliers whose
invoices bear an out-of-the state of Georgia address, even
though each supplier also has a local address with local
distributors.
Golden Flake Company
Warren Candy Company, Inc.
New England Business Service, Inc.
Frito-Lay Company
Harbor Freight Salvage Company
$ 935
1,522
264
1,433
225
I find that the above evidences substantial purchases
from other States on a direct or indirect basis (Pet Inn's
Grooming Shoppe, 220 NLRB 828 (1975); Marty Levitt,
171 NLRB 739 (1978)).
Additionally, the General Counsel argues that, in cases
involving Section 8(a)(4) of the Act, it effectuates the
policies of the Act to assert jurisdiction even though the
Board's discretionary standards have not been met.
As stated in Clark & Hinojosa, 247 NLRB 710, 713
(1980):
(The] Board has held, with judicial concurrence,
that whenever a respondent has violated Section
8(a)(4) of the statute appropriately proscriptive and
remedial directives may be promulgated-based
upon record showings sufficient to demonstrate the
presence of legal jurisdiction beyond de minimis
limits-though relevant discretionary standards may
not have been satisfied. Robert Scrivener, d/b/a AA
Electric Co., 177 NLRB 504 (1969), affd. 405 U.S.
177 (1982), enf'd. on remand 80 LRRM 3055, 68 LC
Para. 12, 733 (8th Cir. 1972). See, likewise, Pickle
Bill's, Inc., 224 NLRB 413, 414-415 (1976). Com-
pare Modern Linen & Laundry Service, Inc., 110
NLRB 1305 (1955), reversed and remanded sub
nom. Eugen Pedersen v. NLRB, 234 F.2d 417 (2d
Cir. 1956), decision on remand 116 NLRB 1974
(1957), in this connection.
Therefore, I recommend that the Board accept juris-
diction in this matter especially in view of my finding
below that Respondent engaged in action violative of
Section 8(a)(4) and (1).
II1. THE MERITS OF THE ALLEGATIONS
The issues are simple and straightforward. The Gener-
al Counsel contends that James Wayne Wagner was dis-
charged by Respondent on March 25, 1983, because
Wagner threatened to go to the Labor Board because
Respondent had discharged a friend of his on the previ-
ous Monday. The crux of the General Counsel's case is
found in the following testimony of James Wagner:
Mr. Nix told me that George had told him I had
made a statement the previous night that I should
go to the Labor Board and see what could be done
about another employee's firing that same week.
And Mr. Nix told me that-ask me if I had made
the statement. I said, "Yes, I did make that state-
ment."
Mr. Nix said, "Well, I'll have to let you go be-
cause I can't have anybody working for me that
threatens me."
Respondent's president, Thomas Nix, testified as
lows regarding the discharge interview which he
with James Wagner on March 25, 1983:
A. Well, I told him why I was letting him go.
Q. Which was?
fol-
had
A. I had had customer complaints. I had had em-
ployee complaints about wanted to work with-not
wanting to work with him. And that we had given
him every opportunity to straighten up. To keep the
place stocked and help keep it clean, and that was
the very reason we were firing him.
Q. Right. When did anything about the Labor
Board come up?
A. After I had discharged him, he kept on asking
for his job back. Give him another chance. And I
said I couldn't do it. My decision had already been
made, there had been complaints. There had been
too many warnings. And I don't remember if he
brought the Labor Board up or I did, I really don't.
All I know is that I did say, "Here is a phone
number to the Labor Board. If you want to call
them over Mr. Wooster, because I'm not worried,
because he was fired for a legitimate reason."
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MIDTOWN SERVICE CENTER
Q. Okay, did you tell him, as he testified, that he
was being fired for threatening to go the Labor
Board?
A. No, I did not.
Q. Was he being fired for that reason?
A. No, he was not.
Earlier Nix testified as to the reason he discharged
Wagner:
I fired him for-for being nasty to the customers,
being nasty to the employees, and not doing his
duties.
III. FINDINGS
During his employment at Respondent from mid-Janu-
ary to March 25, 1983, James Wayne Wagner operated
Respondent's convenience store in mid-town Atlanta, be-
tween 11 p.m. and 7 a.m. Respondent offered evidence
that Wagner's job performance was unsatisfactory which
resulted in Wagner's discharge. In that regard Respond-
ent offered evidence that Wagner was rude to customers
and that on one occasion he cursed a female taxi driver.
Respondent offered testimony that Wagner violated
work rules by watching television and failing to keep the
convenience store restocked with merchandise. Addition-
ally Respondent contended that Wagner failed to moni-
tor activities on Respondent's premises causing its bur-
glar alarm to go off during the middle of the night.
However, it is apparent, and a fact Respondent's attor-
ney concedes in his brief, that none of the above prob-
lems resulted in Wagner's immediate discharge.
It is conceded by Wagner that his attitude toward Re-
spondent's management changed after Respondent dis-
charged Wagner's roommate, Michael Wooster, on
March 21, 1983. However, Wagner contended that he
performed his duties satisfactorily throughout his em-
ployment including the week of March 21 through 25,
1983. Wagner testified that, even though his attitude
changed, his behavior did not.
In consideration of the base question (i.e., Respond-
ent's motivation for its discharge of Wagner), I note first
that, although President Thomas Nix asserted that he dis-
charged Wagner "for being nasty to customers, being
nasty to the employees, and not doing his duties," none
of the alleged incidents supporting those allegations were
proximate to Wagner's discharge.
It is true that, shortly before his discharge, Wagner did
not attend an employee meeting called by Nix after
being phoned to attend. However, Wagner was not disci-
plined because he missed that meeting and Nix did not
contend that that action contributed to Wagner's dis-
charge.
As to the other alleged infractions, they did not occur
at a time proximate to the actual discharge and Wagner
was never disciplined for any of those alleged incidents.
As to the actual motive for Wagner's discharge, both
Nix and Wagner testified that the reasons were stated
during the March 25 discharge interview. I have deter-
mined that Wagner's version of that interview should be
credited and Nix's discredited. I base that determination
largely on my observation of the demeanor of Wagner
and Nix.
Additionally, I found certain statements by Nix re-
garding the interview to be incredible. Nix contended
that he was not upset or concerned with whether
Wagner went to the Labor Board. Nevertheless, Nix ad-
mitted that he told Wagner, during the discharge inter-
view, that Nix had been told that Wagner "was going to
the Labor Board because of his roommate having been
discharged."
Nix admitted that employees George Bradon, Diane
Hampton, and Mary Surber told him that Wagner threat-
ened to go to the Labor Board. Nix was asked by the
General Counsel if he was told that on the morning of
March 25 and Nix replied that was not true, that he was
told of Wagner's threat around "the 22nd, 23rd."
However, Nix's testimony was in direct conflict with
that of another of Respondent's witnesses, Assistant
Manager Diane Hampton. Hampton testified that it was
her recollection that James Wagner told her on the night
before his discharge that he was upset and was going to
the Labor Board over his roommate's discharge. Hamp-
ton testified that she told Nix about Wagner's threat the
next morning (March 25). I was impressed by Hampton's
demeanor. She appeared to testify truthfully. I am con-
vinced and find that her testimony is correct. None of
Respondent's other witnesses supported Nix's testimony
that he learned of Wagner's threat to go to the Labor
Board on March 22 or 23. Therefore, I discredit that tes-
timony.
Additionally, Nix's version of his terminal interview
with Wagner appears incredible on its face. Nix testified
that after he discharged Wagner, Wagner kept asking for
his job back. Then, according to Nix, he told Wagner,
"Here is a phone number to the Labor Board. If you
want to call them over Mr. Wooster, because I'm not
worried." Nix does not explain why Wooster's discharge
came up in the context of Wagner repeatedly asking for
his own job. I am convinced that Nix's version is illogi-
cal. It does not seem reasonable that Wagner would turn
his plea to another's discharge in the context of asking
for his own job.
In view of the above and on the entire record, I find
that Thomas Nix discharged James Wagner immediately
on Wagner reporting for work on March 25, the day Nix
learned that Wagner had threatened to go to the Labor
Board. Further, I find that Nix told Wagner that he was
being discharged because of his threat to go to the Labor
Board.
The record shows that the grounds asserted by Re-
spondent for Wagner's discharge were pretextual. The
record illustrates that Wagner would not have been dis-
charged on those grounds. Wagner would not have been
discharged absent his comment that he was going to the
Labor Board over his roommate's discharge by Respond-
ent.
The Board has continually held that Section 8(a)(4) of
the Act extends the Act's protection to employees be-
cause they threaten to seek the Labor Board's assistance.
Overseas Motors, 260 NLRB 810 (1982); Hi-Craft Clothing
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., 251 NLRB 1310 (1980), enf. denied 660 F.2d 910 (3d
Cir. 1981); Borden, Inc., 248 NLRB 1228 (1980).
Therefore, I find that James Wayne Wagner was dis-
charged by Respondent in violation of Section 8(a)(1)
and (4) of the Act.
CONCLUSIONS OF LAW
1. Midtown Service Center, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. By discharging its employee James Wayne Wagner
on March 25, 1983, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(l) and (4) of
the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. As I
have found that Respondent unlawfully terminated em-
ployee James Wayne Wagner, I shall recommend that
Respondent be ordered to offer Wagner immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges. I shall further recommend that Respondent be or-
dered to make Wagner whole for any loss of earnings he
may have suffered as a result of the discrimination
against him. Backpay shall be computed with interest as
described in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).'1
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Midtown Service Center, Inc., At-
lanta, Georgia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging and thereafter refusing to reinstate its
employees because they state they will go to the Nation-
al Labor Relations Board.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Offer immediate and full reinstatement to James
Wayne Wagner to his former position or, if that position,
no longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights and
privileges.
I See generally Isis Plumbing Co., 138 NLRB 716 (1962).
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) Make James Wayne Wagner whole for any loss of
pay he may have suffered as a result of the discrimina-
tion against him in the manner set forth in the section of
this decision entitled "The Remedy."
(c) Expunge from his file any reference to the termina-
tion of James Wayne Wagner and notify Wagner in writ-
ing that this has been done and that the evidence of his
unlawful termination will not be used as a basis for
future personnel action against him.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Atlanta, Georgia facility copies of the at-
tached notice marked "Appendix." 3 Copies of the notice,
on forms provided by the Regional Director for Region
10 after being signed by Respondent's authorized repre-
sentative, shall be posted for 60 consecutive days in con-
spicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
3 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
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 protect-
ed concerted activities.
WE WILL NOT discharge or refuse to reinstate our em-
ployees because they state they will go to the National
Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
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MIDTOWN SERVICE CENTER
WE WILL offer immediate and full reinstatement to
James Wayne Wagner to his former position or, if that
position no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or other rights
and privileges.
WE WILL make James Wayne Wagner whole for any
loss of earnings he may have suffered by reason of our
discrimination against him with interest.
WE WILL expunge from our records any reference to
the termination of James Wayne Wagner and WE WILL
notify him in writing of our action in that regard.
MIDTOWN SERVICE CENTER, INC.
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