Mr. Potty, Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1993

310 N.L.R.B. 724 (N.L.R.B. 1993)

724
310 NLRB No. 124
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of the 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 The judge, in the text of his decision, found that the Respond-
ent’s discharge of employee Mitch Sanders violated Sec. 8(a)(5), as
well as Sec. 8(a)(3) of the Act. However, in the Conclusions of Law,
the judge inadvertently failed to note that the discharge violated Sec.
8(a)(5). Accordingly, we shall modify Conclusion of Law 3 to read
as follows: ‘‘By discharging Mitchell Sanders on February 11, Re-
spondent engaged in an unfair labor practice within the meaning of
Sec. 8(a)(1), (3), and (5) of the Act.’’
3 We agree with the judge’s finding that the Respondent violated
Sec. 8(a)(5) of the Act by unilaterally discontinuing the bonus pro-
gram. Therefore, we shall order the Respondent, in addition to re-
instituting the bonus program, to make whole those employees, in-
cluding Mitchell Sanders, who may have lost earnings or benefits as
a result of the Respondent’s unlawful unilateral change as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), or Ogle Protection
Service, 183 NLRB 682, 683 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), depending on the individual employee’s employment situation
with the Respondent, with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). We have modified the rec-
ommended Order and Notice to Employees accordingly.
Mr. Potty, Inc. and Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local 631, affiliated
with International Brotherhood of Teamsters,
AFL–CIO. Case 28–CA–11331
March 16, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue in this case is whether the Respondent
violated Section 8(a)(5), (3), and (1) by discharging an
employee and by making changes in the employees’
working conditions without prior bargaining with the
Union.
On October 23, 1992, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed cross-exceptions, a brief in
support of the judge’s decision, and an answering brief
to the Respondent’s exceptions.
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,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mr.
Potty, Inc., Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(b) and
reletter the subsequent paragraphs.
‘‘(b) Reinstitute its bonus program discontinued on
January 1, 1992, making whole those employees, in-
cluding Mitchell Sanders, who may have lost earnings
or benefits as a result of the discontinuance of the pro-
gram; rescind its requirement that employees furnish
periodic updates of their official Nevada driving
records until the Union is given notice and an oppor-
tunity to bargain concerning any proposals about either
matter.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 discriminate against em-
ployees in order to discourage membership in Team-
sters, Chauffeurs, Warehousemen and Helpers, Local
631, affiliated with International Brotherhood of Team-
sters, AFL–CIO or any other labor organization.
WE WILL NOT alter employee benefits or other terms
of employment without providing the Union prior no-
tice and an opportunity to bargain concerning such
matters.
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 reinstitute our driver bonus program and
maintain it in effect until any change thereto is nego-
tiated with the Union; WE WILL make whole those em-
ployees, including Mitchell Sanders, who may have
lost earnings as a result of our discontinuance of the
program; and WE WILL recind our requirement that
drivers furnish us with periodic updates of their official
725MR. POTTY, INC.
1 Unless shown otherwise, all dates which follow are in 1992.
2 The General Counsel alleges no independent 8(a)(1) conduct.
3 In the 12-month period preceding the filing of the charge, Re-
spondent’s gross revenues and direct inflow each exceeded the
Board’s dollar volume standards established for exercising its statu-
tory jurisdiction over retail and nonretail enterprises. Respondent ad-
mits that it is an employer engaged in commerce within the meaning
of Sec. 2(2), (6), and (7). Jurisdiction over this dispute lies with the
NLRB.
Nevada driving record until the terms of any such re-
quirement are negotiated with the Union.
WE WILL offer Mitchell Sanders immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, on February 11, 1992, less
any net interim earnings, plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge on February 11,
1992, and that the discharge will not be used against
him in any way.
MR. POTTY, INC.
Paul R. Irving, Esq., for the General Counsel.
James V. Fisher, President, American Labor Management
Association, of Las Vegas, Nevada, for the Respondent.
David R. Deitrich, Business Agent, of Las Vegas, Nevada,
for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Team-
sters, Chauffeurs, Warehousemen and Helpers, Local 631, af-
filiated with International Brotherhood of Teamsters, AFL–
CIO (Union) filed an unfair labor practice charge against Mr.
Potty, Inc. (Respondent or Company) on February 2, 1992.1
On March 18, the Regional Director for Region 28 of the
National Labor Relations Board (NLRB or Board) issued a
complaint alleging Respondent had engaged in unfair labor
practices within the meaning of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (Act).
Respondent timely answered the complaint on March 25
denying that it engaged in the unfair labor practices alleged.
The complaint was docketed for hearing before an adminis-
trative law judge.
I heard this matter on July 23 and 24 at Las Vegas, Ne-
vada. On consideration of the record, the witnesses’ de-
meanor, and the posthearing briefs filed by the General
Counsel and Respondent, I find Respondent engaged in cer-
tain of the alleged unfair labor practices, but not others,
based on the following
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The complaint alleges that the Union is the certified rep-
resentative of Respondent’s Las Vegas drivers and that Re-
spondent violated Section 8(a)(5) by unilaterally: (1) insti-
tuting rules on December 3, 1991, and January 19, which re-
quired management consent for employee-posted bulletin
board notices, and which required employee-provided De-
partment of Motor Vehicles (DMV) record updates each 6
months; (2) discontinuing an employee bonus program on
January 1; and (3) discontinuing benefits and merit wage in-
creases on January 26.
The General Counsel also alleges that Respondent violated
Section 8(a)(3) by: (1) warning Mitchell Sanders in writing
on December 3, 1991, for misusing a company bulletin
board; (2) denying Sanders’ bonus on January 1; and (3) ter-
minating Sanders on February 11.2
As noted, Respondent denies the substantive allegations of
the complaint but admits the Union’s representative status
and the appropriateness of the certified drivers unit.
B. Facts
1. Background
Respondent, a Nevada corporation with an office and place
of business in Las Vegas, Nevada, rents and services portable
toilets, and provides other septic services to commercial and
residential customers.3
Wayne Thompson acquired ownership of the Company in
March 1990. At that time, Walter Kirk became the Com-
pany’s comptroller, responsible for all accounting and per-
sonnel matters. Michael Thompson served as the Company’s
operations manager from March 1990 until July 1991; Jimmy
Ellis succeeded him and has been operations manager since.
Early in his tenure, Ellis assured drivers that they could look
to him exclusively as their supervisor.
The Company’s drivers deliver, service, and pick up port-
able toilets, and otherwise service commercial and residential
septic tanks. Typically, four to six drivers are employed at
Las Vegas. Driver turnover is high.
In May 1991, the Union began organizing the drivers. Ac-
cording to Sanders, the driver whose termination is at issue
here, Richard Hillebrandt, a driver whose active employment
ceased in September 1991 due to job injury 4 months earlier,
initiated the union organizational effort. Early in the cam-
paign, the Union wrote to the Company disclosing the names
of an employee union organizing committee. Both
Hillebrandt and Sanders (as well as nearly all other employ-
ees) were identified as union supporters in the Union’s May
letter to the Company.
That campaign culminated in an NLRB election and the
Union’s certification as the drivers’ representative on August
26, 1991. Following the Union’s certification, the drivers se-
lected Hillebrandt as the employee representative on the
union bargaining committee.
Bargaining between the Company and the Union com-
menced in October 1991. Wayne Thompson and Kirk rep-
resented the Company at the initial session which involved
little other than the submission and review of union pro-
posals. Kirk and Ellis appeared at a brief November session
to present the Company’s response rejecting the initial union
proposals. In early December 1991, James Fisher became the
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 For example, Sanders said that drivers frequently posted bulletin
board notes about hard-to-locate units when routes changed. In addi-
tion, drivers often posted copies of latrine humor they encountered.
Company’s principal negotiating representative. Since then,
Fisher and Kirk have represented the Company at all ses-
sions. No agreement had been concluded by the time of the
hearing.
Hillebrandt assisted the union representatives at the first
three bargaining sessions. His service on the union negoti-
ating committee ended on December 16 when his employee
status ceased due to his disability. In mid-December 1991,
the employees selected Sanders to succeed Hillebrandt on the
union committee.
As this case involves claims that the Company unilaterally
changed certain established policies without prior notice to
the Union, a summary of the relevant policies and their ori-
gins follows.
2. Pertinent company policies and practices
a. DMV reports
As noted, the turnover rate among the Company’s drivers
is unusually high. The Company recruits drivers primarily
through newspaper classified section. Its standard ad reads:
‘‘DRIVER/SERVICE PORTABLE TOILETS—$240 per
week + bonus. Must bring a clean DMV to [the employment
interview].’’ All drivers who testified furnished their personal
DMV record when interviewed for employment.
According to Kirk, the Company established a policy in
May 1990 requiring employees to furnish yearly updates of
their DMV record. The DMV update policy, he said, grew
out of an insurance carrier’s suggestion that the Company
maintain current DMV records for its drivers.
In response, Kirk drafted and caused a notice to be posted
in late May 1990 requesting the drivers to obtain and submit
current DMV records by the Friday following the posting.
Shortly thereafter, a new notice was posted, perhaps in early
June 1990, deleting the deadline reference because, according
to Kirk, of the turmoil surrounding a concurrent office move.
Records available at the time of this hearing disclose that
at least three employees responded to the May and June 1990
notices by providing updated DMV records. Driver Lewis,
hired in October 1989, submitted a report dated July 3, 1990;
driver Schumacher, hired in June 1989, submitted a report
dated September 11, 1990; and driver Yoder, hired in Feb-
ruary 1990, submitted a report dated June 28, 1990. Save for
Lewis whose employment may have briefly overlapped with
Sanders, none of these three drivers remained in the Re-
spondent’s employ during the tenure of the drivers employed
at times relevant here.
The Company next requested DMV updates in January
and February following the Union’s certification. By that
time, the Company employed a new crew of drivers unfa-
miliar with the earlier request.
b. Employee compensation
In addition to a weekly salary and bonus referred to in the
ad, drivers receive a commission on additional portable toi-
lets or services they rent or sell to existing customers. The
weekly wage, bonus payment, and commissions are reflected
separately on employees’ periodic paystubs.
The Company adjusts employee wages essentially on a
merit basis. Sanders, for example, was hired at $200 per
week on September 24, 1990, and received three increases
between that time and January 21, 1991, bringing his weekly
salary to $320. Sanders’ last increase—to $345 per week—
was effective June 24, 1991, at the same time most other ac-
tive drivers received increases. June 24 aside, no regular pat-
tern of wage increases is discernable.
In October 1990, Mike Thompson instituted the monthly
bonus program. Under that program, eligible drivers received
a $25 bonus paid within 2 months following the eligibility
period. To qualify, drivers had to comply with substantially
all of the 39 bonus criteria established by Thompson. Each
element related directly to the manner in which employees
performed their job. Bonus terms were rigidly enforced.
When the program was discontinued 15 months later, only
two drivers had qualified for bonus payments. Sanders re-
ceived a bonus every month but one and another driver re-
ceived four or five bonus payments.
Although he came to feel the nearly unattainable bonus
standards made the program unfair, Ellis continued to grant
bonuses albeit he relied more on his own judgment and
somewhat less on Thompson’s qualification list.
c. Bulletin board policy and practices
Each employee receives a copy of the Company’s Em-
ployee Policy Manual at the time of hire, at least for perusal.
This four-page document, as last revised in August 1991, de-
scribes a variety of company policies and benefits. An entire
page is devoted to 28 specific rules plus a catchall introduced
with the admonition that ‘‘violations . . . will not be toler-
ated and are grounds for dismissal’’ and concluding with the
assurance that ‘‘if possible we will give warnings prior to
discipline and terminations.’’ One rule prohibits ‘‘[p]osting,
removing or altering any information posted on the bulletin
boards or company property.’’
Respondent maintains a drivers’ room with a bulletin
board designed for posting information relevant to its drivers.
In addition, each driver has a locker with a place to hang
their clipboard.
Over time, the drivers have posted numerous messages on
this bulletin board without prior management approval. Some
driver postings related to work; others were strictly for enter-
tainment.4 Occasionally, drivers leave their trip sheets and
messages on their locker clipboards which management offi-
cials check from time to time.
Sanders, in particular, frequently communicated with other
drivers and management officials with handwritten notes
posted on the drivers’ room bulletin board or attached to a
driver’s clipboard hung on his locker. His penchant for writ-
ten communication is not frivolous; he apparently is afflicted
with a physiological speech impairment manifested by severe
stammering.
3. The alleged unilateral changes
The General Counsel believes Respondent’s policy of per-
mitting employees to post bulletin board notes abruptly
changed on December 3, 1991. On the day before, Sanders
posted a bulletin board memo addressed to his fellow driver,
Mark Taylor. It criticized Taylor for purportedly denigrating
certain drivers, including Sanders, because of their cushy
route assignments. Sanders obviously felt Taylor’s comments
727MR. POTTY, INC.
5 Kirk’s January 20 memo denying Sanders’ pay increase requests
explains that Sanders’ $25-per-week premium over the hourly pay
ceiling was for preventative maintenance work arranged by Mike
Thompson. Even that work, Kirk wrote, was being reviewed and if
‘‘the agreed upon procedure is not being performed to our satisfac-
tion we reserve the right to eliminate the additional $25.00 per week
incentive.’’ Kirk also advised Sanders to ‘‘bring these matters to the
Union’s attention [in the future], so that we are not in conflict with
on going negotiations.’’
were inappropriate since, as Sanders put it, ‘‘[y]ou are not
our [supervisor] nor will you ever be our [supervisor].’’ He
further asserted that ‘‘all the drivers would like to see you
mind your own business.’’
The next day Ellis issued written reprimands to both Sand-
ers and Taylor. The Taylor memo was attached to Sanders’
reprimand. Ellis threatened to terminate Sanders if he caused
‘‘such a problem’’ in the future. As Ellis saw it, the Taylor
memo undermined his authority to determine who would or
would not be a supervisor.
Following a heated discussion with Sanders over the rep-
rimand and a subsequent conference with Kirk, Ellis re-
drafted the reprimand. The newly drafted reprimand warned
Sanders that he would be discharged ‘‘[i]f you ever post any-
thing on the bulletin board without management prior per-
mission’’ or ‘‘[i]f you write another note in this context, or
threaten any employee.’’
Later that month, driver Ness posted a Christmas cartoon
which Ellis removed. When Ness saw Ellis with the cartoon,
he asked why Ellis had removed it. Ellis told Ness that he
had to have permission to post matters on the bulletin board.
Ness then requested to post the cartoon, Ellis promptly con-
sented and Ness reposted the cartoon.
Dietrich responded to Sanders’ December 3 reprimand in
a January 24 letter which asserted that the reprimand lacked
merit. Dietrich wrote that Sanders ‘‘understands the company
has the right to name anyone they wish as management and
withdraws any statements to the contrary.’’ In addition,
Dietrich’s letter asserts that the Company had not theretofore
warned employees, or threatened their termination, for post-
ing notes on the bulletin board and asked Kirk to contact him
if he wished to discuss the matter further. Apparently Kirk
did not as no evidence shows that this matter was later pur-
sued in bargaining.
Kirk and Ellis acknowledge that Respondent discontinued
the driver bonus program at the end of December 1991 with-
out prior notice to the Union. Sanders received his last bonus
payment in February, apparently for the month of December;
Ellis told him on February 5 that no further bonuses would
be paid.
Fisher notified Dietrich in writing on January 26 that, as
the parties had commenced negotiations, ‘‘[a]ll benefits and
merit wage increases that were given to [Respondent’s] em-
ployees in the past will be discontinued and [Respondent
will] maintain the status quo during negotiations.’’ Fisher ex-
plained that the Company was taking this action to avoid un-
fair labor practice charges and because it would be ‘‘disad-
vantageous to the Company during negotiations to give bene-
fits.’’
Dietrich sought clarification of Fisher’s letter at least at the
February 6 bargaining session. On February 7, Fisher wrote
Dietrich to explain that the Company would continue to
grant merit wage increases where warranted and that all ben-
efits then under negotiation would not be unilaterally
changed. By the time of the hearing, Dietrich interpreted
Fisher’s January 26 letter to mean only that the Company in-
tended to discontinue the bonus program.
Only one driver received a merit wage increase following
the Union’s certification. In January, Sanders made two re-
quests for a wage increase. Kirk turned down those requests
on the ground that Sanders’ wage rate already exceeded the
driver pay ceiling.5
In the meantime, Ellis posted a notice on the drivers’ room
bulletin board on January 17 pertaining to the DMV record
matter. This notice stated that the Company’s insurance car-
rier required that current DMV reports be kept for all active
drivers and that updated reports were required each six
months. As it had been more than 6 months since the drivers
had furnished a DMV record, the notice asked each driver
to furnish an updated report by Friday, January 31.
Some drivers promptly complied with the request in Ellis’
notice; others, including Sanders, did not. In fact, Sanders
began contacting drivers after work apparently to suggest
that the requirement should properly be negotiated with the
Union. On February 5, Kirk telefaxed another DMV notice
to Dietrich and posted his notice on the drivers’ bulletin
board the following day at an unspecified time. Kirk’s notice
stated that ‘‘[y]early’’ DMV updates were required and
warned that ‘‘[t]hose of you who have not responded to the
above request by 6AM Tuesday February 11, 1992 will not
be allowed to work until the report is furnished to the com-
pany.’’ [Emphasis added.]
4. Sanders’ termination
Sanders, employed since September 1990, was the Compa-
ny’s most senior and, judging from his pay and bonuses, its
most proficient driver. At the relevant times, Sanders worked
a Tuesday through Saturday schedule each week. As noted
above, Sanders was also an early supporter of unionization.
Although not yet on the bargaining committee, Sanders at-
tended the brief November bargaining session. He stood in
the doorway of the meeting room waiting to speak with
Hillebrandt at the conclusion of the meeting. Both
Hillebrandt and Sanders claim that Kirk, on noticing Sanders,
remarked to Ellis, ‘‘What’s Mitch doing here. Don’t tell me
we have to worry about him, too.’’ Kirk and Ellis deny that
such an exchange occurred.
Union Representative Dietrich claims that he verbally noti-
fied the Company of Sanders’ selection as the employee-
member of the Union’s negotiating team at the January bar-
gaining session. Dietrich said that he attempted to schedule
afternoon bargaining sessions with the company representa-
tives to accommodate Sanders’ work schedule but never met
with success because of the inconvenience to Kirk’s com-
muting schedule.
After Ellis posted his January 17 DMV notice, Sanders
discussed the notice with other drivers. When he arrived at
work on February 6, Sanders presented a note to Ellis signed
by himself and two other drivers which states: ‘‘Please be
advised that ‘all new company policies’ (such as having
DMV reports @ 6 mths.) need to be presented to our busi-
ness agent—Mr. Dave Dietrich, for ‘bargaining.’’’ Sanders
said that Ellis read the note in his presence, and then told
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Ellis claimed that he found the note on a table in the drivers’
room and did not speak with Sanders about it. I found Sanders over-
all to be the more convincing witness while testifying and credit his
testimony where it conflicts with other witnesses save for the vari-
ance between his testimony and Dietrich’s noted below.
7 Contrary to Dietrich’s testimony, Sanders asserted that he also at-
tended the January bargaining session. As Sanders attended several
bargaining sessions following his termination, I conclude that Sand-
ers is confused on this incidental point.
him sternly that the matter was none of Sanders’ business as
he would run the Company ‘‘anyway I want to.’’6
Everyone agrees that Sanders attended the February 6 bar-
gaining session at the union hall which began between 9 and
9:30 a.m.7 Kirk promptly objected to Sanders’ presence be-
cause he had not been excused from work. Sanders asserted
that he was using his lunchbreak to attend the meeting. Kirk,
however, insisted that Sanders return his assigned truck to
the company terminal and return in his own vehicle if he
wanted to attend the meeting. Dietrich ended this dispute by
instructing Sanders to go back to work.
Following Sanders’ departure, the negotiators addressed
certain pending issues, including the meaning of Fisher’s
January 26 letter and the DMV record requirement. Accord-
ing to Dietrich, the company representatives asserted that the
driver DMV records were required to comply with the re-
quirements of the Company’s insurer but when Dietrich re-
quested to see the insurer’s instruction, the Company de-
clined to provide it to him. No resolution was reached on the
DMV matter.
Sanders claims that he first noticed Kirk’s revised DMV
notice on Saturday, February 8. As Ellis does not work on
Saturdays and Sanders was not scheduled to work on Mon-
day, February 10, Sanders left a note on his driver clipboard
along with his route sheets which begins: ‘‘What in the
world is going on?’’ The note continues by pointing out the
variance between the Ellis and Kirk notices followed by
these two terse questions: ‘‘Who is Who and What is What?
What Are The Employees To Think?’’ [Emphasis in the
original.] His note concluded with an inquiry about Kirk’s
presence along his route on February 6.
When he reported for work on Tuesday, February 11, Ellis
immediately asked Sanders for his DMV record and Sanders
responded that he had not yet obtained the report. Ellis left
and Sanders proceeded to his truck to warm the engine.
While there, Ellis and Taylor—by then the operations super-
visor—approached. Ellis handed Sanders his check and ter-
mination notice, and told him to clean out his truck because
he was terminated. The termination notice states that Sanders
was guilty of insubordination by refusing to provide a DMV
report ‘‘since the 17th of January.’’
Ellis said Sanders was terminated solely for his failure to
provide the Company with a DMV report. He asserted that
only Sanders failed to submit the report and that he had de-
cided on the evening of February 10 that Sanders would be
terminated if he failed to report to work the following morn-
ing with an updated DMV record. To this end, Ellis re-
quested that Kirk prepare a final check for Sanders on Feb-
ruary 10. Kirk prepared the check (which only he could sign)
and the termination notice given to Sanders.
Sanders testified that he was shocked about his termination
for failing to submit a DMV report because Kirk’s notice had
merely warned that drivers who failed to submit the report
would not be allowed to work.
C. Further Findings and Conclusions
1. The alleged unilateral changes
Section 8(a)(5) of the Act mandates that an employer must
‘‘bargain collectively with the representatives of his employ-
ees.’’ Section 8(d) defines the duty to bargain collectively as
as ‘‘the mutual obligation of the employer and the represent-
ative of the employees to meet at reasonable times and con-
fer in good faith with respect to wages, hours, and other
terms and conditions of employment.’’
Matters within the broad ambit of ‘‘wages, hours, and
other terms and conditions of employment’’ are deemed
mandatory subjects of bargaining. NLRB v. Borg-Warner
Corp., 356 U.S. 342 (1958). Subject to certain exceptions not
relevant here, the Act requires an employer to provide its
employee representative with notice and an opportunity to
bargain prior to instituting changes in any matter which con-
stitutes a mandatory bargaining subject. NLRB v. Katz, 369
U.S. 736 (1962).
Here, I find that the General Counsel has proven that Re-
spondent violated Section 8(a)(5) as alleged with respect to
its admitted discontinuance of its bonus program at the end
of December 1991 and by failing to bargain concerning the
duties and penalties related to furnishing updated DMV
records. The General Counsel failed to prove his allegations
concerning the use of the bulletin board, and the January 26
wage and benefit changes alleged.
a. The bulletin board issue
Respondent has always maintained a rule against bulletin
board postings without prior management approval. How-
ever, it has not enforced the rule against employees who
posted work related notes and harmless humor on the driv-
ers’ room bulletin board without prior management consent.
General Counsel, in effect, assumes that Respondent’s ‘‘no
harm-no foul’’ enforcement policy effectively repealed the
existing posting rule and that Sanders’ December disciplinary
notice established a new prior consent rule which required
union notification and bargaining. I do not agree.
I am not satisfied that the character of the December 3 dis-
ciplinary notice to Sanders, when considered in its entire
context, represents any departure from Respondent’s com-
monsense bulletin board practices. Rather than some broad
rule change applicable in all circumstances, Sanders’ Decem-
ber 3 reprimand is nothing other than discipline for his dis-
ruptive memo.
No showing was made that Respondent permitted unre-
stricted driver access to its bulletin board. No controversial
matter, other than the Taylor memo, was called to my atten-
tion in an effort to show that Sanders’ conduct fell within
the scope of any past practice related to bulletin board use.
Obviously, Ellis felt that the Taylor memo, as well as Tay-
lor’s purported conduct addressed therein, fell outside the
bounds of useful exchange appropriate for the bulletin board
or anywhere else in a productive workplace so he took ap-
propriate disciplinary action. The fact that his revised rep-
rimand addressed the future use of the bulletin board by
Sanders is not inconsistent with the past bulletin board utili-
zation.
729MR. POTTY, INC.
8 I find it of no significance to determine whether or not the up-
dated records are mandated by Federal law, an explicit demand of
Respondent’s insurance carrier, or merely Respondent’s own sense
of caution. A significant business justification resides even in the lat-
ter.
9 NLRB v. Nello Pistoresi & Son, 500 F.2d 399 (9th Cir. 1974).
10 NLRB v. Wonder State Mfg. Co., 344 F.2d 210 (8th Cir. 1965).
11 Benchmark Industries, 270 NLRB 22 (1984).
Certain employer rules are obviously designed to assure
the use of a business facility consistent with the general busi-
ness interest of an enterprise. Perceived in this sense, a har-
mony is evident between the failure to enforce a rule in situ-
ations congenial to an employer’s direct business interest, or
at least not detrimental to it, and the enforcement of a rule
in situations potentially harmful to that interest. Viewed oth-
erwise, the essence of a rule, such as Respondent’s no-post-
ing rule, becomes the rule itself with the resultant squan-
dering of productive time in permission-getting and permis-
sion-giving exercises unbecoming to adults. But unabated,
matters similar to the Taylor note could easily grow into em-
ployee strife extremely damaging to productivity and harmful
to an employer’s overall business purpose.
Some employee discord in the workplace almost always
occurs. But that does not mean that an employer must pro-
vide a forum for it. Neither the scope nor the context of the
Taylor memo posting can be stretched into the realm of con-
duct protected by law requiring a judgment about competing
lawful uses of the bulletin board. Sanders’ reprimand did not
result from his use of the bulletin board to advance a union
cause or some other matter of moment to the interests of em-
ployees as employees; this is a situation where one employee
used the bulletin board to sound off against another em-
ployee.
For these reasons, I have concluded Respondent did not
unilaterally alter its posting rule or practices by reprimanding
Sanders for posting the Taylor memo and, hence, it had no
duty to bargain before issuing that reprimand.
b. The DMV records issue
Although I find Respondent has always required employ-
ees to furnish DMV reports whenever required, other more
pertinent aspects of its policy, such as any disciplinary sanc-
tions for failing to timely comply and the intervals at which
a demand for updated information would be made, were un-
certain or nonexistent. To the extent that these matters affect
the terms and tenure of employment, they are bargainable
subjects.8
Since the Respondent requires its employees to obtain the
reports rather than ordering them itself, the import to em-
ployees of the frequency Respondent requires updated reports
and potential sanctions attached to any failure to comply are
evident. Were it not for the fact that this Company requires
its employees to provide the DMV reports, no bargainable
element would be present. Put another way, if Respondent
exercised its available option to purchase its drivers’ records
directly from the Nevada DMV, it would have no duty to
bargain with the Union over how often it chose to do so and
no question of employee compliance would exist.
All agree that drivers were required to furnish a DMV re-
port when they were hired and a preponderance of the evi-
dence shows that on the only other occasion when Respond-
ent asked for DMV records, at least some incumbent em-
ployees were required to furnish them. Thus, Respondent has
consistently burdened its drivers or applicants with the task
of procuring their own DMV record whenever the Respond-
ent required it.
However, the clarity of Respondent’s prior DMV record
policy stops there. When Respondent previously required re-
ports from incumbent drivers, the period permitted for com-
pliance was lengthy and the intervals at which such reports
would be required were uncertain even to its own officials
as evidenced by the difference in the Kirk and Ellis notices
this year. Equally evident is the fact that the sanction im-
posed for current noncompliance turned on little other than
the caprice of Respondent’s officials.
Kirk seemingly recognized the significance of his February
6 notice fixing a deadline and establishing a sanction for em-
ployee noncompliance as he telefaxed an advance copy to the
Union on February 5. Although the subject was discussed at
the February 6 bargaining session, no evidence of a resolu-
tion or impasse exists.
Accordingly, by establishing and enforcing a deadline, Re-
spondent effectively imposed a unilaterally determined policy
while purportedly bargaining about the DMV issue. For this
reason, I find Respondent violated Section 8(a)(5) as alleged
with respect to its DMV record requirement. See Alfred M.
Lewis, Inc. v. NLRB, 587 F.2d 403 (9th Cir. 1978).
c. The bonus and Fisher’s January 26 letter
Respondent concedes that it discontinued the employee
bonus. Citing the Ninth Circuit’s treatment of the Nello
Pistoresi9 case, Respondent argues it bore no obligation to
bargain about discontinuing its bonus program as, legally
speaking, that program was a gift. I cannot agree.
In Nello Pistoresi, the company unilaterally discontinued
its Christmas bonus claiming, in effect, that it was a gift
rather than a form of compensation which required prior bar-
gaining. The facts there reflect that the bonus had only been
paid twice, at Christmas time in 2 calendar years. Moreover,
the amount of individual bonuses varied from $25 to $150,
the size being determined by a company manager who con-
sidered each employee’s customer relations performance,
diligence and, to some extent, seniority but not the employ-
ee’s salary.
Observing that the Pistoresi Christmas bonus had only a
‘‘short history and indefinite nature,’’ the Ninth Circuit
agreed with the company’s claim. In so doing, the court cited
the Eighth Circuit’s decision in Wonder State,10 another
Christmas bonus case, with approval and distinguished con-
trary holdings in other cases.
Pointing to the Board’s subsequent decision in Benchmark
Industries,11 which purports to follow the court decisions in
Nello Pistoresi and Wonder State, the General Counsel ar-
gues that Respondent’s bonus is a bargainable subject and
not a gift. More particularly, the General Counsel contends
in his brief that these ‘‘bonuses were consistently paid
(monthly); the bonus was uniform in amount ($25.00); the
bonuses were linked to remuneration received by employees;
the bonus was not linked to the financial condition of the Re-
spondent; and, critically, the bonus was inextricably linked
to, and based upon, job performance.’’
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel’s analysis is sound and I adopt it.
Nello Pistoresi and other similar Christmas bonus cases are
inapposite. In those cases, the Christmas gift-giving element
unquestionably colors the character of the bonus involved.
By contrast, Respondent’s bonus program lacked any connec-
tion to a seasonal or other celebratory event involving a tra-
dition of gift giving; it related solely to the degree of perfec-
tion in job performance.
The fact that Thompson’s notes concerning the establish-
ment of Respondent’s program reflects management’s right
to summarily discontinue the bonus lends no support to Re-
spondent’s gift argument. That aspect of the program formu-
lation merely recounts the Company’s common law right to
unilaterally set wages, hours, and terms of employment
where employees are unrepresented.
Complaint paragraph 6(d) alleges that Respondent also un-
lawfully discontinued benefits and merit wage increases on
or about January 26. In support, General Counsel argues that
Fisher’s January 26 letter to the Union unlawfully announces
unilateral changes in wages and benefits. Although that letter
could be read as Respondent’s announcement discontinuing
benefits and merit wage increases, its further reference to
maintaining the ‘‘status quo’’ confuses the intent or, at least,
creates an ambiguity.
General Counsel points to no additional evidence showing
Respondent discontinued merit wage increases or any other
benefits apart from the bonus program. For this reason, and
as Fisher’s February 7 letter clarifies his January 26 letter by
assuring the Union that the Respondent would continue
granting merit increases where warranted and would not uni-
laterally change benefits, I find General Counsel’s claim
about Fisher’s January 26 letter without merit.
For the foregoing reasons, I conclude Respondent violated
Section 8(a)(5) as alleged by unilaterally discontinuing its
bonus program but did not violate the Act as alleged in com-
plaint paragraph 6(d).
2. Sanders’ discharge and the other 8(a)(3) allegations
Employer ‘‘discrimination in regard to hire or tenure or
any term or condition of employment to encourage or dis-
courage membership in any labor organization’’ is an unfair
labor practice under Section 8(a)(3) of the Act. Discrimina-
tion cases under the Act are governed by the following prin-
ciples, summarized by the Board in Hunter Douglas, Inc.,
277 NLRB 1179 (1985):
The Board held in Wright Line, 251 NLRB 1083
(1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied.
455 U.S. 989, that once the General Counsel makes a
prima facie showing that protected conduct was a moti-
vating factor in an employer’s action against an em-
ployee, the burden shifts to the employer to dem-
onstrate that it would have taken the same action even
in the absence of the protected conduct. The employer
cannot carry this burden merely by showing that it also
had a legitimate reason for the action, but must ‘‘per-
suade’’ that the action would have taken place absent
the protected conduct ‘‘by a preponderance of the evi-
dence.’’ Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984); NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983). If an employer fails to satisfy its
burden of persuasion, a violation of the Act may be
found. Bronco Wine Co., 256 NLRB 53 (1981).
General Counsel met his burden of making prima facie
showing that Sanders’ discharge was motivated by his pro-
tected conduct. Thus, General Counsel established that Sand-
ers supported unionization almost from the start and later
succeeded Hillebrandt on the union negotiation committee. In
effect, Sanders became the employees’ liaison and on-the-job
spokesperson for the Union.
Sanders’ February notes to Ellis concerning the DMV
record requirement represented his first effort to assert him-
self as an employee spokesperson. When he asserted in his
February 6 note—signed by two other drivers—that the
DMV update requirement should be discussed with the
Union, Ellis obviously reacted in a hostile manner.
By Ellis’ own account, the decision to terminate Sanders
if he failed to comply with the deadline in Kirk’s DMV no-
tice occurred on the same day that Sanders’ second note
about the DMV updates came to his attention. Gauging by
Ellis’ reaction to Sanders’ first DMV note, the tenor of his
December reprimand of Sanders, and the point made early on
about the exclusive nature of his supervisory authority over
the drivers, Sanders’ second note undoubtedly irritated Ellis
even further.
In these circumstances, Respondent’s purported motive for
discharging its most diligent employee becomes extremely
questionable especially where, as here, Kirk’s notice gives no
hint that such an extreme penalty would result from failing
to meet the February 11 deadline. Instead, General Counsel’s
claim that this discharge resulted from Sanders’ persistence
about resolving this issue at the bargaining table becomes ex-
tremely plausible. Thus, I am satisfied that the General
Counsel’s prima facie case was sufficient to shift the burden
of persuasion to Respondent under the analytical framework
of Wright Line.
Respondent failed to persuasively show that Sanders’ dis-
charge would have taken place absent his protected conduct,
i.e., his assertion that management negotiate about the DMV
update matter and his criticism of management’s conflicting
notices on this subject. Indeed, Respondent provided no ex-
planation at all for the sudden and surprising decision to ter-
minate Sanders as opposed to not permitting him to work
until he complied with the requirement as announced in
Kirk’s notice. Hence, Respondent’s reason for taking this
more drastic step in light of Kirk’s contrary indication is still
unknown.
Respondent also argues that it lacked knowledge of Sand-
ers’ union activity. This argument deserves no serious con-
sideration; the Union’s May 1991 notice to Respondent dem-
onstrated Sanders’ early support for the Union and the sub-
stance of his February 6 note demonstrated Sanders’ contin-
ued support for the collective-bargaining process and man-
agement’s duty to consult with the duly selected employee
representative. This palpably incredible claim actually de-
tracts further from Respondent’s position that Sanders was
discharged for cause and lends credence to the General
Counsel’s assertion that he was fired for his union activity.
Golden Day Schools v. NLRB, 644 F.2d 834, 838 (9th Cir.
1981).
Moreover, in the course of attempting to establish that the
DMV update requirement preexisted unionization, Respond-
731MR. POTTY, INC.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
ent introduced evidence reflecting that on the previous occa-
sion when it requested DMV records of incumbents, two of
three employees failed to comply for lengthier periods than
Sanders—one took nearly 3 months—without any known
discipline.
For the foregoing reasons, I conclude that Sanders dis-
charge resulted from his aggressive assertions that Respond-
ent was obliged to bargain about the DMV record require-
ment. Having previously concluded that the requirement was
unlawfully promulgated, I find that Sanders’ discharge vio-
lated Section 8(a)(3) and (5) of the Act.
General Counsel also alleges that Respondent unlawfully
discriminated against Sanders by the issuance of the Decem-
ber 3 reprimand and by denying Sanders a bonus after De-
cember 1991. I find both allegations lack merit.
In his brief, the General Counsel asserts that the disparity
between Ellis’ treatment of Sanders’ December 2 posting and
Ness’ Christmas cartoon posting establishes the discrimina-
tory character of Sanders’ reprimand. I disagree. As dis-
cussed above, the two employee postings are clearly distin-
guishable from the perspective of maintaining workplace
order. For this reason, the claim that an inference of unlawful
motive is suggested because Sanders was disciplined for his
posting and Ness was not lacks merit. Sanders’ posting posed
a serious threat to harmony; Ness’ posting was essentially
harmless.
No direct evidence supports the claim that Respondent dis-
continued its bonus program essentially to retaliate against
Sanders. Although Sanders benefited by the program far
more than other employees, Respondent’s assertion, in effect,
that the benefit eluded most employees is unassailable. As
the program was obviously designed as a motivational tool
and as it obviously failed to motivate most employees, an
equally compelling inference could be made in the absence
of more direct evidence to the contrary that Respondent dis-
continued the program for legitimate business reasons. That
being the case, General Counsel failed to carry his burden
on this allegation.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with Respondent’s business operations, have a
close, intimate and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act and is the certified representative
of Respondent’s driver employees in Las Vegas, Nevada,
within the meaning of Section 9(a) and (e) of the Act.
3. By discharging Mitchell Sanders on February 11, Re-
spondent engaged in an unfair labor practice within the
meaning of Section 8(a)(1) and (3) of the Act.
4. By unilaterally discontinuing its bonus program, and by
unilaterally promulgating a requirement with sanctions for
noncompliance that incumbent employees furnish updated
DMV reports within a certain time period, and by thereafter
enforcing the DMV record requirement with more severe
sanctions, Respondent engaged in unfair labor practices with-
in the meaning of Section 8(a)(1) and (5) of the Act.
5. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended Order requires Re-
spondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
Respondent must reinstitute its bonus program and main-
tain it in effect until any modification is negotiated with the
Union or an impasse in bargaining is reached. Respondent
must also recind its DMV record update requirement until
the terms of any such requirement are negotiated with the
Union or an impasse in bargaining is reached.
To remedy Sanders’ unlawful discharge, Respondent must
immediately offer in writing to reinstate Sanders to his
former position or, if that position no longer exists, to a sub-
stantially equivalent position without prejudice to his senior-
ity or other benefits. Respondent must also make Sanders
whole for the loss of pay and benefits suffered by reason of
the discrimination against him.
Backpay, if any, shall be computed on a quarterly basis as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). Contributions due to any trust fund
account on behalf of Sanders shall be determined in accord
with Merryweather Optical Co., 240 NLRB 1213 (1979).
Computation of backpay shall give due consideration the
probability that Sanders would have received bonus pay-
ments during the backpay period under Respondent’s unlaw-
fully discontinued program.
Respondent must further expunge from any of its records
any reference to Sanders’ February 11 discharge and notify
Sanders in writing that such action has been taken and that
any evidence related to that discharge will not be considered
in any future personnel action affecting him. Sterling Sugars,
261 NLRB 472 (1982).
Finally, Respondent must post the attached notice to in-
form employees of their rights and the outcome of this mat-
ter.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Mr. Potty, Inc., Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees in order to discourage member-
ship in a labor organization.
(b) Discontinuing benefits or imposing new conditions of
employment without providing the Union prior notice of
such changes and an opportunity to bargain about them.
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 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.’’
(c) In any like or related manner interfering with, restrain-
ing, or coercing, or discriminating against employees because
they exercise rights guaranteed by the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Bargain in good faith with the Union concerning
wages, hours, and other terms or conditions of its drivers.
(b) Reinstitute its bonus program discontinued on January
1, 1992, and recind its requirement that employees furnish
periodic updates of their official Nevada driving records until
the Union is given notice and an opportunity to bargain con-
cerning any proposals about either matter.
(c) Immediately offer to reinstate Mitchell Sanders and
make him whole for all losses incurred as a result of his Feb-
ruary 11, 1992 discharge in the manner specified in the rem-
edy section of the decision in this matter.
(d) Expunge from its records any reference to Mitchell
Sanders’ discharge on February 11, 1992, and notify him in
writing that such action has been taken and that this dis-
charge will not be used in any future personnel action in-
volving him.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine the
propriety of any offers of reinstatement, backpay, and trust
fund reimbursements due under the terms of this Order.
(f) Post at its Las Vegas, Nevada office and terminal cop-
ies of the attached notice marked ‘‘Appendix.’’13 Copies of
the notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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 notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that all complaint allegations not
sustained by the administrative law judge’s decision in this
case are dismissed.