Ronca's Exxon Service

National Labor Relations Board - Board Decisions

Feb 27, 1984

268 N.L.R.B. 1157 (N.L.R.B. 1984)

RONCA'S EXXON SERVICE
Louis Ronca d/b/a Ronca's Exxon Service and
Robert S. McQuiston, Jr. Case 6-CA-16045
27 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 6 September 1983 Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The General Counsel filed exceptions and a sup-
porting 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,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Louis
Ronca d/b/a Ronca's Exxon Service, Weirton,
West Virginia, its officers, agents, successors, and
assigns, shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge.
X The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
The judge found that the Respondent did not unlawfully discharge em-
ployee McQuiston as McQuiston voluntarily quit his employment. We
agree with this finding and find it unnecessary to rely on the judge's dis-
cussion of various theories of protected concerted activity set forth in
sec. II, B, of his decision.
Additionally, in adopting the judge's finding that the Respondent vio-
lated Sec. 8(a)(1) and (4) of the Act by failing and refusing to pay to em-
ployee McQuiston an amount of money owed him because he filed
charges with the Wage and Hour Division of the Labor Department, we
specifically note that no exceptions were filed to this portion of the
judge's decision.
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to pay employees amounts
found payable to them by the Labor Department's
Wage and Hour Division because they filed
charges with the National Labor Relations Board
or the Wage and Hour Division.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make immediate and full payment to
Robert McQuiston of the amount found due him
by the Labor Department's Wage and Hour Divi-
sion.
LoUIS RONCA D/B/A
EXXON SERVICE
RONCA'S
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge:
This case was tried in Weirton and Wheeling, West Vir-
ginia, on June 16 and 17, 1983. The complaint alleges
that the Respondent violated Section 8(aX)() of the Act
by discharging employee Robert McQuiston for engag-
ing in protected concerted activity, more specifically, for
complaining about work-related matters on behalf of
himself and other employees, and by threatening to file
charges against the Respondent with the Labor Depart-
ment's Wage and Hour Division. The complaint also al-
leges that the Respondent violated Section 8(aX4) and (1)
of the Act by discharging McQuiston because he sought
the assistance of the National Labor Relations Board and
that the Respondent violated Section 8(aXl) of the Act
by threatening McQuiston with discharge for engaging in
protected concerted activities. An amendment to the
complaint also alleges that the Respondent violated Sec-
tion 8(aX4) and (1) of the Act by withholding benefits
due McQuiston after a Labor Department investigation
and audit because McQuiston had filed charges with the
NLRB and the Wage and Hour Division. The Respond-
ent denies the essential allegations of the complaint. The
parties filed briefs which I have read and considered.
On the entire record, including the testimony of the
witnesses and my observation of their demeanor, I make
the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a sole proprietorship with places of
business in Weirton, West Virginia, and in Wheeling,
West Virginia, where it is engaged in the retail sale of
gasoline and related products and the service and repair
of automobiles. During a representative l-year period,
the Respondent derived gross revenues in excess of
$500,000 and purchased and received at its facilities
products, goods, and materials valued in excess of
$50,000 directly from points outside the State of West
Virginia. Accordingly, I find, as the Respondent admits,
268 NLRB No. 171
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. The Facts
The Respondent operates two service stations, one lo-
cated in Wheeling, West Virginia, where the owner,
Louis Ronca, has an office and a staff of two employees,
and another in Weirton, West Virginia, the facility in-
volved in this proceeding. The Respondent employed six
people at the Weirton station in December 1982. The
manager was Marvin Davis. Two employees, John Hoyt
and Richard Byers, worked daytime hours and were paid
on a salary basis. Bill Leasure, a mechanic, was paid $5
per hour and also worked daytime hours. Robert
McQuiston and Pete Brogdon were paid $3.50 per hour
and worked mostly afternoon and evening hours.
McQuiston, who had been working for the Respondent
for about I year, worked from 3 p.m. to midnight on
Fridays, Saturdays, and Sundays; during the week he
worked from 4 to 7 p.m.
The Weirton employees were required to attend
weekly 1-hour meetings at the station. The meetings
dealt with work-related issues such as sales techniques
and repairs. The meetings usually began at 7 p.m, a time
at which some employees were not scheduled to work.
This necessitated that they make a special trip to the sta-
tion to attend the meetings. The employees, however,
were not specifically paid for the time spent at the meet-
ings.
At the meetings, which were run by Manager Davis,
and in separate conversations with Davis and owner
Louis Ronca, McQuiston complained about a number of
work-related matters. Some were problems involving
only himself; some affected all employees. He com-
plained, for example, that the employees were not paid
for attending the meetings and that Davis was often late,
thereby extending the length of the meetings. He also
complained that the employees were not paid for time
spent after the change of shifts when they performed ad-
ministrative duties. Davis' response to these complaints
was basically that this was part of the job, and, if he did
not like the job, McQuiston could quit.
McQuiston also complained about not being paid com-
missions he asserted were due him on tires he allegedly
had sold early in his employment. Owner Ronca met
with McQuiston on this matter, which was the subject of
incessant complaints by McQuiston. Ronca went through
his sales records and found no proof that the tires were
in fact sold. He told McQuiston that he could not pay
the commission without pertinent sales tickets; McQuis-
ton apparently could not verify that the sales were made
even though, on one occasion, Ronca brought numerous
sales tickets to the Weirton station so that McQuiston
could review them. McQuiston also complained about
not being paid for turning credit cards into the Respond-
ent, as promised, and that he and other employees had
cash shortages, for which they were responsible, deduct-
ed from their pay.
McQuiston aired his complaints at practically every
weekly meeting. Except on one matter, there is no evi-
dence that any other employees complained about work-
related problems at these meetings. The one exception is
that Peter Brogdon complained about the meetings not
starting on time.
McQuiston testified that he talked about his complaints
to the other employees, although the evidence is sketchy
as to what was said. There is no evidence that any other
employees openly supported his position or authorized
him to speak on their behalf. The two salaried employees
specifically told McQuiston they were not concerned
about being paid for the meetings or time spent working
after a change in shifts.
On December 3, 1982, McQuiston called the Pitts-
burgh, Pennsylvania Regional Office of the NLRB about
his work-related complaints. He was referred to the
Labor Department's Wage and Hour Division in Pitts-
burgh. An official in that office advised him that employ-
ees were entitled to be paid for the meetings on work
premises and work after shift changes and that shortages
were not to be deducted from paychecks. He was told
he could file a charge but that it would have to be filed
with the Wheeling, West Virginia office.
When McQuiston reported for work that day, he told
three of his fellow employees in separate conversations
about the result of his calls and that he intended to file
charges against Respondent. There is no evidence as to
what was said by any of the employees in response to
McQuiston, except in Brogdon's case. Brogdon did not
say he was supporting McQuiston but he did advise
McQuiston to speak first to Manager Davis before filing
the charges. McQuiston agreed. McQuiston apparently
spoke to Leasure on the next day, a Saturday. McQuis-
ton testified that Leasure agreed that the employees
should be paid for the meetings but he did not testify
that Leasure agreed with his plan that he would file
charges if the Respondent did not pay what he believed
was owed to the employees. Leasure testified that
McQuiston simply informed him of his plan and that he
made no response. Because Leasure impressed me as an
honest and impartial witness, I credit his testimony over
that of McQuiston.
On Monday, December 6, 1982, McQuiston talked by
telephone to a Mr. Hall in the Wheeling office of the
Wage and Hour Division. He received confirmation of
the Respondent's liability and told Hall that he did not
wish to file a charge until he talked with the Respond-
ent's officials. When he arrived at work shortly before 3
p.m., he approached Davis in the outside bay area of the
station. McQuiston conceded that he was "hot" because
he received confirmation that his complaints were valid
and because he realized that, in his words, the Respond-
ent was "cheating" him and the other employees. He
told Davis that he received confirmation from the Wage
and Hour Division that the Respondent owed the em-
ployees money for attending the meetings and working
after shift changes. At this point, Byers, who was within
hearing distance of McQuiston and Davis, interjected
that he did not want "any of that money." It is unclear
whether, at this point, McQuiston repeated his personal
complaints about not being paid commissions or amounts
due for turning in credit cards.
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RONCA'S EXXON SERVICE
Davis and McQuiston continued their discussion inside
the station with no one else present. At some point,
Davis spoke on the phone with Ronca who was at his
office in Wheeling. McQuiston later got on the phone
and spoke to Ronca. According to McQuiston, he told
Ronca that he had talked to the Wage and Hour Divi-
sion and learned that the Respondent was in violation of
the law. He also complained about money he was owed
from having sold four tires and from turning in credit
cards. He told Ronca that if the Respondent did not pay
the money owed him and other employees he would file
charges with the Wage and Hour Division and the
Labor Board. He also said that Ronca "was screwing ev-
erybody out of the money." McQuiston testified that,
during the course of the conversation, Ronca said, "turn
me over to your government friends and you look for
another job" and when McQuiston asked if that meant
he was fired, Ronca said, "take it the way you want."
According to McQuiston, he returned the phone to
Davis and started to leave but was told by Davis to stay.
Shortly thereafter, McQuiston and Ronca resumed their
telephone conversation. McQuiston testified that he told
Ronca, "If I didn't get the money, find out when we
were going to get the money, that I was going to turn
him in to the Labor Relations Board and Wage Hour."
Ronca then repeated that, if McQuiston reported the
matter, McQuiston could "look for another job."
McQuiston then "threw the phone" at Davis, and
walked out of the office, slamming the door. He then
went to where Hoyt was sitting, "threw the keys down
on the desk," and announced to Hoyt and Leasure that
he was fired. He also said he would return his uniforms
on Friday when he picked up his paycheck. He did
return the uniforms and picked up his check on Friday.
McQuiston testified that his second conversation with
Ronca was "just a repeat of the same conversation
except I didn't ask him again if I was fired." McQuiston
did not leave after the first conversation because Davis
told him to stay. He did leave after the second conversa-
tion because, according to McQuiston, Ronca "told me
that I wasn't gonna get the money that I had coming and
no one else was, he didn't owe anybody any money and
that if I turned him in to the Labor Relations Board, to
look for another job and I planned on turning him in, but
I took it if I turned him in, I'm fired."
Although Davis and Ronca offered different versions
of their conversations with McQuiston, the main discrep-
ancy is in Ronca's testimony that he did not fire McQuis-
ton and that he specifically answered McQuiston's ques-
tion as to whether he was fired by stating, "hell no,
you're not fired." Ronca's testimony was that McQuiston
had wide-ranging complaints about his job, not limited to
the Wage and Hour Division complaints, including the
fact that McQuiston was still being carried as a part-time
employee. It is clear from Ronca's testimony, however,
that McQuiston did threaten to file charges against the
Respondent with the Wage and Hour Division and the
National Labor Relations Board. Ronca answered this
point by stating, "fine, do whatever you need to do ...
I stand behind my records and I stand behind what I
have paid you." Ronca described the 20- to 25-minute
conversation between him and McQuiston as "one of ac-
cusations and attempted explanations to try to resolve
the problem." Ronca testified as follows about the cru-
cial part of the conversation:
At one point I said to Bob, I said, you know, if
you're that unhappy with your job with me, you
know, because he was bringing this thing in about
not being a full-time employee, I said, if you're that
unhappy with your job with me, I said, you go find
a job, you know, that you'll be happy with, you
know. And, you know, this again went back and
forth for a little while and, you know, finally I said
to him, I went through the whole thing again as to
why he wasn't full-time, you know, why I didn't
feel that he's been cheated, why I wasn't paying
them for the meetings, the whole thing and finally I
said to him, again, you know, if you're that unhap-
py go get another job, you know, that you're going
to be happy with. And he said to me-
Q. What did he say?
A. He said to me, does that mean I'm fired? I
said, Hell no, it doesn't mean you're fired. If you
want to go get another job that's your business, you
know, but no, no it doesn't mean you're fired.
Q. Was there any more to the conversation?
A. Well not much, you know, a little of back and
forth and I finally said, I said Bob, I can't do any-
thing for you and we hung up.
Ronca's testimony that he specifically told McQuiston
that he was not fired was supported by two of Ronca's
office employees who overheard his end of the conversa-
tion. The two employees, Wilda Flanegin and Wanda
Glaser, were close enough to Ronca in the rather small
office they all shared to overhear Ronca's remarks. I
found them both to be honest witnesses. I also found
Ronca to be a particularly candid witness. I therefore
credit Ronca's testimony and that of the two office em-
ployees. In particular, I find that Ronca specifically told
McQuiston during the course of their December 6 tele-
phone conversation that he was not fired.
I also find that, in the December 6 telephone conversa-
tion, McQuiston complained about more than simply
those matters which he was advised violated the wage
and hour laws. He himself testified that he complained
about not being paid for his tire commissions and for
turning in credit cards. Indeed, Glaser overheard Ronca
talking about commissions owed to McQuiston. In ana-
lyzing his testimony, I had the distinct impression that
McQuiston was more concerned about the money owed
him personally than what was owed to the group of em-
ployees. It is thus likely that he complained about other
aspects of his job, including the fact that he was still
being treated as a part-time employee, as Ronca testified.
The General Counsel attempts, in his brief, to attack
the credibility of both Ronca and Glaser because, he al-
leges, their testimony was inconsistent with pretrial affi-
davits given to a representative of the General Counsel.
This position is without merit. First of all, there is no at-
tempt to attack Flanegin's testimony which supports that
of Ronca and Glaser. Indeed, Flanegin was not even
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-examined. Secondly, the so-called inconsistency in-
volving Glaser was not significant. Glaser testified that
she believed that there was more than one phone call
and that one call was incoming and the other was placed
by Ronca. In her affidavit, Glaser stated that "[A]s I
recall, Ronca was talking to someone on the phone and
then Ronca called the station in Weirton and asked to
talk to Bob McQuiston." I fail to see how this discrepan-
cy constitutes a significant inconsistency or reflects ad-
versely on Glaser's testimony. Indeed, McQuiston him-
self testified that these were two distinct conversations
between him and Ronca.
The General Counsel's attempt to impeach Ronca is
also ineffective. The General Counsel showed Ronca his
pretrial affidavit which stated that, in response to
McQuiston's question as to whether he was fired, Ronca
simply said "no." At the hearing, Ronca, testified that he
said, "hell no, you're not fired." This is hardly an incon-
sistency. The point is that Ronca and two other wit-
nesses testified essentially that Ronca denied he was
firing McQuiston. Indeed, when the full context of
Ronca's affidavit is considered, I believe it offers further
support for other aspects of his testimony. For example,
both in his testimony and in his affidavit, Ronca stated
that he told McQuistan that if he were unhappy "he
should find himself a job that he would be happy with."
Thus Ronca's reliability as a witness is enhanced by
virtue of the consistency between his testimony and his
pretrial statement.
After McQuiston left the station, Brogdon was called
at home and told to report early because McQuiston had
left. According to Brogdon, he spoke to Davis about
what had happened earlier that day. Davis said that "the
only name that came out of [McQuiston's] mouth was
Pete [Brogdon] was the only one that supported him."
Brogdon responded, "I don't know what you're talking
about . . . I had nothing to do with this and that this is
Bob doing this himself."
On December 9, 1982, McQuiston did file a written
complaint with the Labor Department. After an audit,
the Labor Department made a determination that the Re-
spondent owed moneys to its employees for time spent at
the meetings and for work beyond the change of shifts.
All employees but McQuiston were paid amounts in sat-
isfaction of the Labor Department determination.
McQuiston was deemed entitled to $31.50 in back
wages. '
B. Discussion and Analysis
The General Counsel asserts that McQuiston engaged
in concerted protected activities basically under three
theories. The first is the traditional definition of concert-
ed protected activity that includes work-related com-
plaints to an employer which further a group interest
rather than the gripes of a particular employee. See
Comet Fast Freight, 262 NLRB 430 (1982); Steere Dairy,
237 NLRB 1350 (1978). The second is derived from the
notion that even individual protests to governmental
agencies, such as the Labor Department's Wage and
I It is unclear whether the S31.50 due is less deductions for taxes with-
held. The other employees were due more money than was McQuiston.
Hour Division, are protected because the statutory rights
invoked deal with matters of general employee concern.
See Alleluia Cushion Co., 221 NLRB 999, 1000 (1975);
Triangle Tool & Engineering, Inc., 226 NLRB 1354, 1357
(1976). The third theory is that McQuiston, prior to his
discharge, tried to invoke the aid of the National Labor
Relations Board and, if he were discharged for this
reason, the Respondent would have violated Section
8(a)(4) and (1) of the Act. See Mitsubishi Aircraft, 212
NLRB 856, 865-866 (1974); General Nutrition Center, 221
NLRB 850, 855 (1975).
The Respondent denies that McQuiston was engaged
in concerted protected activity under any of the above
theories and vehemently denies that he was discharged
because of any protected activity. The Respondent as-
serts that McQuiston was not discharged at all, but
rather that he quit voluntarily.
I turn first to the question of whether McQuiston was
engaged in protected concerted activity. His expressed
intention to file charges with the Wage and Hour Divi-
sion was clearly protected concerted activity even
though he undertook this project alone and was not spe-
cifically speaking for other employees. Also protected,
although not concerted, was McQuiston's attempt to seek
aid from the National Labor Relations Board. Employer
retaliation for such activity is unlawful. See Triangle
Tool, supra, and Mitsubishi Aircraft, supra.
The third point, whether McQuiston's complaints
about job-related matters-apart from his attempt to
bring them to the attention of government agencies-
were properly considered group action or individual
gripes, is a close question. I have some doubts on this
score because many of McQuiston's complaints involved
his own problems and none of the other employees
openly voiced their support for his complaints or author-
ized him to speak on their behalf. Brogdon's limited sup-
port for the proposition that the meetings should start on
time is hardly strong evidence of concerted activity. On
the other hand, McQuiston's complaints about being paid
for time spent at meetings and time worked after the
change of shifts did affect all employees, as shown by
the Labor Department's ultimate resolution of the
charges filed by McQuiston. And the evidence here
shows that another employee at least shared McQuiston's
concerns. Manager Davis implied as much when he told
Brogdon that McQuiston said that Brogdon supported
his efforts. Although after McQuiston's discharge, Brog-
don told Davis that he "had nothing to do with this," he
did advise McQuiston to talk to Davis before filing a
complaint and he testified that he agreed with McQuis-
ton's actions if "we were being cheated out of the
money." Thus, here, unlike in Comet Fast Freight, supra,
the evidence does not clearly show that no employees
shared the complaining employee's concerns. In Comet
Fast Freight, supra, the employee's own testimony was
construed to mean that his complaint about an allegedly
unsafe truck was "of moment to him alone." According-
ly, although the issue is a close one on this point, I find
that McQuiston's complaints about being paid for time
spent at meetings and work after the change of shifts in-
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RONCA'S EXXON SERVICE
voked a group concern and thus were both protected
and concerted.
Thus, McQuiston could not be punished for complain-
ing to his Employer about being paid for time spent at
meetings and work after the change of shifts as well as
for invoking the aid of the Labor Department and the
Labor Board.
The question then becomes whether McQuiston was
fired for engaging in the above protected activity. I find
that, as a matter of fact, McQuiston was not fired. The
fact that McQuiston may have believed himself fired or
told other employees that he was fired is not determina-
tive. It is true, as the General Counsel asserts, that "the
fact of discharge does not depend on the use of formal
words of firing . . . it is sufficient that the words or ac-
tions of the employer would logically lead a prudent
person to believe his tenure has been terminated," quot-
ing from NLRB v. Trumbull Asphalt Co., 327 F.2d 841,
843 (8th Cir. 1964). However, it is not the subjective
view of the alleged discriminatee which governs. The
determination must be based on objective facts and
whether an ordinary person would have considered him-
self fired. See Ridgeway Trucking Co., 243 NLRB 1048,
1049 (1979), enfd. 622 F.2d 1222 (5th Cir. 1980).
Analyzing the objective facts in accordance with my
credibility determinations, I find that an ordinary person
would not have considered himself fired after the con-
versation with Ronca. I also find that, in fact, McQuiston
voluntarily quit his employment. First of all, Ronca spe-
cifically told McQuiston he was not fired. McQuiston
was told that Ronca was satisfied that he had not violat-
ed any laws and that McQuiston could file charges if he
wished. In light of other complaints McQuiston ex-
pressed dealing with his own working conditions, Ronca
also told McQuiston that he might be happier working
some place else. In view of Ronca's specific disavowal
that he was firing McQuiston, the above language could
not have caused an ordinary person to believe he was
discharged. McQuiston was not, however, an ordinary
person when he came to the station on December 6 and
spoke with Ronca. According to his own testimony, he
was very angry. His conduct after talking to Ronca con-
firmed this anger. He was ready to leave after his first
conversation with Ronca but Davis restrained him from
doing so. This is consistent with an act of impetuosity by
an angry young man who was ready to quit because he
did not get his way. Ronca did not agree to pay McQuis-
ton what he believed was due him and the other employ-
ees. Moreover, Ronca was not sympathetic to McQuis-
ton's other complaints which were uniquely personal
such as payment of his own commissions and working as
a part-time employee. Ronca and McQuiston spoke some
more and McQuiston, visibly angered, "threw the
phone" at Davis, turned in his keys, and said he would
be turning in his uniforms. This was undertaken by
McQuiston precipitously, without his being ordered to
do so by Ronca or Davis, according to McQuiston's own
version. 2
2 The facts in this case are thus distinguishable from those which might
support a finding that an ordinary person would believe himself dis-
charged. Compare, i.e., Caffe Giovanni, 259 NLRB 233, 242-243 (1981)
In addition, I must conclude, after having heard both
Ronca and McQuiston testify, that McQuiston's anger
was reflected in his demeanor as a witness, whereas
Ronca came across as a calm, albeit determined, man.
My view is that McQuiston flew off the handle after re-
alizing that Ronca was not going to capitulate and pay
the money McQuiston believed was owed and he put on
a childish display of pouting. He heard what he wanted
to hear rather than what was said. In short, McQuiston
was not fired but quit voluntarily.
Even assuming, however, that McQuiston could rea-
sonably have considered himself fired, I find that the Re-
spondent did not violate the Act by virtue of its termina-
tion of McQuiston. First of all, the evidence provides no
basis for finding that, in his discussion with Ronca,
McQuiston dwelt on his having invoked the aid of the
Labor Board. It appears that, prior to the December 6
conversation with Ronca, McQuiston talked only briefly
to the Labor Board's Regional Office and was immedi-
ately referred to the Labor Department. There is no evi-
dence that Ronca particularly focused on or was upset
by McQuiston's reference to the Labor Board or was
motivated in any way to punish McQuiston for his ap-
proach to the Board. Secondly, I find that Ronca would
have terminated McQuiston for reasons other than his
group complaints and his filing charges with the Labor
Department. According to Ronca's testimony, which I
credit, McQuiston's complaints dealt not only with group
concerns but also with his own uniquely personal com-
plaints. He objected to his status as a part-time employee
and to Ronca's failure to pay him commissions to which
he believed he was entitled. Ronca responded that if
McQuiston were not happy, he should look for another
job. McQuiston admitted that he raised individual com-
plaints with Ronca. He also admittedly was very angry
at this time. Ronca told him to do what he wanted with
respect to filing charges with the Wage and Hour Divi-
sion and that he stood by his records. In evaluating all of
the evidence, I conclude that McQuiston would have
been terminated for his expressed dissatisfaction with his
job even in the absence of his complaints about employ-
ees not being paid for time spent at meetings and work-
ing after shift changes and in the absence of expressing
his intention to file charges with the Wage and Hour Di-
vision of the Labor Department.3
Finally, I turn to the allegation that the Respondent
unlawfully withheld moneys due McQuiston as a result
of the Labor Department audit because he filed charges
with the National Labor Relations Board and with the
(employee told "you quit" and ordered off premises), A A D Davenport
Transportation, 256 NLRB 463, 465-466 (1981), (employee told "you
don't work here anymore" and ordered to leave); Ridgeway Trucking Co.,
supra, 243 NLRB at 1049 (employees ordered to leave premises.)
3 In view of my findings set forth above and my credibility determina-
tions concerning the Ronca-McQuiston telephone conversation, I shall
dismiss the allegation that Ronca unlawfully threatened to discharge
McQuiston for prohibited reasons. The General Counsel alleges that,
even considering Ronca's testimony, his statement that McQuiston should
"find a job . . that you'll be happy with" was coercive. I disagree. This
statement did not constitute a threat of discharge nor did it suggest retal-
iation for McQuiston's having engaged in protected activity. McQuiston
had advanced numerous personal complaints which precipitated the state-
ment by Ronca.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wage and Hour Division. I find merit in this allegation.
McQuiston first filed a charge with the Board on Janu-
ary 5, 1983. Thereafter, Ronca entered into negotiations
with the Labor Department's Wage and Hour Division
and eventually paid all of his employees, except McQuis-
ton, amounts which were due them. The inference is
fairly clear that McQuiston was treated differently than
other employees due money under the Labor Depart-
ment's audit, and the only factor which would distin-
guish McQuiston from the others is his having expressed
his intent to pursue charges with the Labor Board and
the Labor Department. He did, of course, file charges
with both agencies prior to the Respondent's refusal to
pay McQuiston the money due him. The Respondent of-
fered no rebuttal of or explanation for this apparent dis-
crimination. By the time the Respondent was obligated
to pay McQuiston, he had already terminated his em-
ployment. Accordingly, I find that the Respondent vio-
lated Section 8(a)(4) and (1) of the Act by withholding
back wages from McQuiston because he filed charges
against the Respondent before the Labor Board and the
Labor Department.
CONCLUSIONS OF LAW
1. By failing and refusing to pay employee Robert
McQuiston the amount found payable to him by the
Labor Department's Wage and Hour Division because
he filed charges with the National Labor Relations
Board and with the Wage and Hour Division, the Re-
spondent violated Section 8(a)(4) and (1) of the Act.
2. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent violated the Act, I
shall order that it post an appropriate notice and make
the requisite payment due to McQuiston.
On these findings of fact and conclusions of law, I
issue the following recommended
ORDER4
The Respondent, Louis Ronca, d/b/a Ronca's Exxon
Service, Weirton, West Virginia, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to pay employees amounts
found payable to them by the Labor Department's Wage
and Hour Division because they file charges with the
National Labor Relations Board or the Wage and Hour
Division.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under the National Labor Rela-
tions Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Make immediate and full payment to Robert
McQuiston of the amount found due him by the Labor
Department's Wage and Hour Division.
(b) Post in conspicuous places at the Respondent's
Weirton, West Virginia service station copies of the at-
tached notice marked "Appendix." 5 Copies of said notice
on forms to be provided by the Regional Director for
Region 6, after being signed by the Respondent's repre-
sentative, shall be posted by-Respondent immediately
upon receipt and maintained for 60 consecutive days
thereafter in places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director in writing, within 20
days from the date of this Order what steps have been
taken to comply.
IT IS ALSO RECOMMENDED that the allegations of the
complaint which were found not to have been sustained
are hereby dismissed.
4 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.
6 If this Order is enforced by 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 Na-
tional Labor Relations Board."
1162