Squier Distributing Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1195 (N.L.R.B. 1985)

SQUIER DISTRIBUTING CO.
Squier Distributing Company and Local 7, Interna-
tional Brotherhood of Teamsters ,* Chauffeurs,
Warehousemen . and Helpers of America. Case
7-CA-20571
30-September 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
. BABSON
On 21 October 1983 Administrative Law Judge
Robert T. Wallace 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,' and
conclusions • and to - adopt , the recommended
Order. 2 -
ORDER •
The National Labor Relations Board adopts the.
recommended ' Order of the administrative law
judge and orders that the Respondent, -Squier Dis-
tributing Company, Sturgis, Michigan, 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.
I In adopting the judge 's, finding that the Respondent discharged the
employees for engaging in protected concerted activity, we note that the
Board 's recent decion in Meyers Industries, 268 NLRB 493 (1984), rejects
the concept of constructive concerted activity and returns to an objective
standard . The employees in this case viewed their concerted cooperation
with the sheriff as the best method of safeguarding their jobs, which, as,
the judge suggests , bears a relationship to employees ' interests as employ-
ees and is therefore protected activity Eastex, Inc v. NLRB, 437 U S
556 (1978). Further, the record does not establish that the employees
were motivated by a desire to -affect the Respondent 's management
policy Cf. Good Samaritan Hospital, 265 NLRB 618 (1982) (employees'
activity attempting to affect managerial policies not protected).
8 We'shall attach a notice including 'an expunction statement to corre-
spond with the judge 's recommended Order.
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.
Section 7 of the Act gives employees these rights.
276 NLRB No. 133 '
1195
To. organize
To form, join, or assist any union; •
To-bargain collectively through. representa-
tives of their, own choice -
To act together for- other mutual aid or pro-
tection -
To choose not to--engage in any of these
protected concerted activities. . .
WE WILL NOT discharge, or fail and refuse to re-
instate, any employee in the . exercise of these
rights. .
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of these-rights. - , . • • -
WE WILL offer' employees Michael Fisher, Ber-.,
nard Kuhl, Sharon Roberts, and Lonnie Rowe im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to' their se-
niority or any other rights or privileges previously
enjoyed and ,-WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest. _
WE WILL rescind all -adverse personnel actions
issued to the above-named employees as a result of
-the discrimination practiced against them, and WE
WILL expunge from our records, including person-
nel files, any reference- thereto and notify them this
has been done and that the expunged material will
not be used as the basis for future personnel actions
against them. _ - '
.
SQUIER DISTRIBUTING COMPANY
Glen M. Price, Esq., for the General Counsel.
William P. Marks, Esq. (Dresser, Marks, Svendsen, Oster
& Bird), Sturgis, Michigan, for the Respondent.
DECISION
STATEMENT _OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. On
a charge filed -by Local 7, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, a complaint was issued wherein it is alleged
that Squier Distributing Company (Respondent) violated
Section 8(a)(1) of the National Labor Relations Act by
discharging employees Michael Fisher, Bernard Kuhl,
Sharon Roberts , and Lonnie- Rowe for giving affidavits
-to a--sheriff in connection with a charge that'its vice
president (Larry El Henicky, aka Ellis) had embezzled
funds belonging to Respondent . The charge arose out of
a criminal complaint filed by Respondent's president
(Robert El Henicky , Larry's brother) in a district court
of the State of Michigan.
This case was tried before me at Kalamazoo , Michi-
gan. On the entire `record, including my observation of
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the demeanor of the witnesses, and after due consider-
ation of oral argument of the General Counsel and Re-
spondent, I make-the following - -
FINDINGS OF FACT
1. JURISDICTION
Respondent , a Michigan corporation , is a wholesale
distributor of alcoholic beverages operating out of a fa-
cility in Sturgis , Michigan . During the year ending De-
cember 31, 1981, a representative period , Respondent
purchased goods in excess of $50,000 at points located
outside the State of Michigan, ' which goods were trans-
ported from those points - to its plant in Sturgis . It admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background ,
At all:pertinent times herein Respondent had a com-
plement-of 10 employees, including- a -bookkeeper/clerk
(Roberts), a managerial assistant (Wegner), and 8 dri-
ver/salesmen some of whom had been with the Compa-
ny for over 30 years.
Larry El Henicky first became involved with Re-
spondent when he became its general manager on De-
cember 1, 1980, shortly after he moved to Sturgis from
Illinois. He took that position as part of an agreement
(Exh. R-1) which anticipated transfer to him of-all out-
standing stock -of Respondent at such time as he had'
completed 1 year of residency in Michigan (thereby be-
coming eligible under the laws of that State to hold more
than a 10-percent interest in a corporation dealing in al-
coholic beverages) and had the attendant liquor license
reissued in his name In effect, he would have to wait
about 18 months before he would become record owner
of the stock because licenses were reissued only once a
year on May 1.
Larry soon became impatient with the delay and, by
May 1, 1981, he had had the stock transferred into the
name of his brother Robert, a longtime resident of
Michigan; and on that date the liquor license was re-
issued in Robert's name . As - part of . the arrangement,
Robert became president of the company on June 1, and
he was assigned responsibility for managing the office
and maintaining good. relations with customers. For his
part, Larry made himself vice' president and took -charge
of overall operations. -
During a typical workday Robert, a trained psycholo-
gist, spent 2 or .3-hours at the facility doing things such
as dialoguing with employees and signing payroll checks.
On the other hand, Larry was a task master often work-
ing 12 or more hours. -
The arrangement ended acrimoniously- 6 months' later
when Larry became disenchanted- due, among other
things, to Robert's failure to abide by his alleged promise
to invest in the Company. Robert was relieved of his
duties as of December 31, 1981; and pursuant to agee-
ments (Exhs.- R-2 and R-3) signed on January 14, 1982,
he delivered the stock certificates, signed in blank, to an
escrow agent. for transfer to Larry when the Michigan
Liquor Control Commission approved the agreements
and- had reissued the pertinent license in Larry 's name.
Those events occurred about May 1, 1982, and until that
time Robert retained his position as president with,
among other things, the right to approve or veto any
capital investment of the Company in excess of $5000.
About January 21, 1982, Larry told the assembled em-
ployees that Robert's absence was due to the fact that he
was no longer involved in the day-to-day operations of
the Company,-and at that meeting and at several held on
subsequent Fridays he emphasized a need for keeping ex-
penses down to an essential minimum stating that the
Company was in bad financial shape. -
B. Check Cashing
Sharon Roberts had occasion- to call Robert El Hen-
icky about January 27, 1982. She had worked in the
office for nearly 5 years and was concerned because ear-
lier in the month Larry had told her to stop making jour-
nal entries in regard to amounts due from an account
(Owens-Illinois , Inc.) for periodic purchases of crushed
glass; i and because on the day before, and at two other
times during the month, he had had her give him cash (a
total of $3034.85) for checks made payable to the compa-
ny by Owens-Illinois, and he had put the money into his
wallet while, on one occasion, remarking in an ,apparent:
ly humorous vein that "it was the boss' skim." After ex-
pressing concern, Robert urged her to set up-a meeting
at which he would talk to the employees about the situa-
tion. She did so, and the meeting was held at her home
on February 21. By that time she had given Larry an ad-
ditional $2017.75 in exchange for two more Owens-Illi-
nois checks. -
The meeting was attended by all but three of the em-
ployees.2 Sharon told them of Larry's check-cashing ac-
tivities, and Robert opined that as president and -sole
stockholder of record he might be held responsible if his
brother Larry was stealing money from the Company.
Also, he expressed concern that his own ability to obtain
a liquor license in the future might be impaired because
his signature was on the Company's license. For their
part, the employees' reaction (as typified in the testimony
of driver/salesmen Fisher, Rowe, -Covey, and Goude-
seune) was one of fear for their jobs in the event Larry's
actions were to cause the Company to fail financially or
to lose its liquor license, coupled with anger at Larry's
preachments about austerity; and they discussed a per-
ceived need for acting together for 'mutual protection,
perhaps by joining a union . The meeting ended with
Robert stating that he was going to talk to the sheriff
about the matter. -
Another meeting was held at Sharon's home 3 weeks
later (on March 14). Again all employees except three3
' Production and sale of crushed glass (cullet) was a subsidiary activity
of the Company initiated by Larry El Henicky in June 1981
2 One employee (Kuhl) was on vacation, another (Palmer) declined to
attend , and the third (Wegner) claims not to have been invited.
E One of the absentees (Barone) was sick and the others (Palmer and
Wegner) had declined an invitation
SQUIER DISTRIBUTING CO - 1197
were present The purpose of the meeting was to bring
everyone up to date. Robert El Henicky and Sharon ad-
vised the group that they had given statements to the
sheriff 3 days earlier; and Goudeseune told them that he
had cashed an Owens-Illinois check out of his collection
receipts, that Larry put the cash ($1119.65) in his pocket,
and that Goudeseune had given a statement to that effect
to the sheriff. on March 12. On hearing Goudeseune,
other drivers present (including Fisher, Rowe; Covey,
and Kuhl) experienced with him an increased concern
(fear) for the fate of the Company because up to that
point none of them ever had been asked to cash checks
payable to the Company. They, together with Sharon,
again discussed ways whereby they might protect their
jobs through mutual help, and they readily agreed with
Robert's suggestion that they cooperate with the sheriff
in the event Larry asked them to cash more checks.
The latter eventuality came to pass when, between
March 15 and March 25, drivers Fisher, Rowe, and Kuhl
complied with Larry's requests for a total of $2178.46 in
return for nine checks,4 all of which were payable to the
Company. On March 27, after discussing the matter with
Sharon and at her suggestion, they went together to the,
sheriffs office where they described in affidavit form
their respective experiences in cashing the checks.
About 10 a.m. on April 5, three sheriffs deputies ap-
prehended Larry at the company office and, after arrest-
ing him for embezzlement, they put-him in handcuffs and
bore him off to jail where he languished for several
hours until released on-bail with instructions to appear in
court on April 13 for pretrial examination.
That evening, driver Goudeseune appeared at Larry's
home. He had been hired by Larry about a year earlier
and, shocked by the arrest, he proceeded to relate "the
whole story of what had happened"; and during the
course of that recitation he gave Larry the names of the
four other employees who had given statements to the
sheriff. -
On April 13, a Tuesday, Larry met-with the county
prosecutor and as a result of that conference all charges
against him were dropped. At the end of the workday on
the following Friday, drivers Kuhl, Fisher, and Rowe
found in their pay envelopes slips which advised them
that. as of that date. their services were no longer re-
quired.5 They were not given any reason, either written
.or oral, for their termination. But. they were not sur-
prised. In that regard, they describe their relationship
with Larry- after his arrest as one of mutual coolness
with conversation limited to a minimum necessary to get
their jobs - done.6 Notwithstanding dismissal of the
4 Of these, one was drawn by Owens-Illinois in the amount of $955 15,
and the remaining checks were drawn by Miller Brewing Co (four
drafts), Milwaukee Recycling Service (two drafts), and-one each were
from Wm C Roney & Co and CEF Money Portfolio
5 The three drivers had been employed by the Company for 33, 5, and
2 years, respectively - -
6 Rowe, however, states that he went to the office about 2 or 3 days
after the arrest and said "Larry, if you're gonna fire me, I want you to
fire me now", that Larry replied quickly and irritably - " I don 't want to
talk to you about it What the hell do you want from me", and that
Larry came up behind him as he was leaving and said . "If you go out out
there and tell them I fired you, I 'll deny it, I'll deny it."
charges, they continue to believe that Larry stole money
from the Company. -
Sharon' found a copy of the same discharge note in her
pay envelope when she returned to the office on
Monday, April 19, following a 2-week vacation. Some-
time later she learned that the Company claimed to have
discharged her for "disloyalty" in a statement sent to an
agency charged with administering unemployment com-
pensation claims.
C. Respondent's Evidence
Larry claims that there was no basis for employee con-
cern over his check-cashing activities. In that regard he
.points out, correctly, that Sharon knew he was maintain-
ing a personal file containing a list of Owens- Illinois
checks together with photo copies thereof; and he asserts
that he kept his accountant fully informed of the
amounts involved.' He explains that he had the employ-
ees give him cash for those checks so that he could accu-
mulate a fund sufficient to meet emergencies such as an
away-from-home breakdown of the company's tractor-
trailer unit and to enable him to buy a dump vehicle in
response to auctions announced on short notice. In his
view, his brother Robert misled the employees in order
to gain their support in implementing a nefarious scheme,
i.e. to make him ineligible by virtue of a criminal convic-
tion to hold a controlling interest in the Company.8
Larry first felt a sense of estrangement from employ-
ees in mid-March 1982 when they exhibited a coolness
and lack of interest during a seminar given at the facility
by a representative of the Miller Brewing Co. But he did
not find out what the problem _ was all about until the
evening of his arrest (April 5) when Goudeseune told
him what transpired at the two meetings of employees
and gave him the names of the•four employees who had
given statements to the sheriff. He disclaims having dis-
charged the four for giving those statements, adding that
he fired Kuhl, Fisher, and Rowe because, unlike Goude-
seune and other employees, they did not come to him
after his arrest and explain their motivations despite his
waiting 10 days for them to do so; and he viewed their
failure in that regard, along with other things," as mani-
festing intolerable attitudes of unfaithfulness and disloyal-
ty toward management and ownership. Sharon, however,
was on vacation throughout that period, and he claims to
r He makes no references , however, to the moneys received for checks
drawn by companies other than Owens-Illinois, and as to the checks of
that company, his accountant (Carmichael) is not sure whether he re-
ceived the listing before or after the date of Larry's arrest Nor could he
recall whether the amounts reflected by the Owens-Illinois checks were
included in the financial report he prepared for Respondent covering the
first quarter of 1982
8 Employees Wegner and Goudeseune also testified at some length
concerning what they perceived to be self-serving' motives harbored by
-Robert -
9 Larry claims that shortly after his arrest . (1) Kuhl rebuffed his invita-
tion to talk by "vehemently " pointing a finger at him and saying "you
ain't nothin here , your days 'are numbered," and then uttered "a couple of
vulgar, obscene remarks", and (2) Fisher may have directed an obscene
gesture ("a raised middle finger") toward him just as he Larry turned
away after speaking to a group of employees Also, he asserts that Rowe
during the entire 10-day period "avoided me absolutely If he saw me
coming, he walked the other way "
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have decided to fire her only after she made no attempt
"to_tell her side of the story" when she returned to the
office on the morning of April, 19.10
'Analysis -
I find that all four employees were discharged because
they gave statements to the sheriff in connection with his
investigation of possible embezzlement of corporate
funds, by Respondent's vice president, Larry El Hehicky.
In that respect I regard as involving a distinction with-
out any material difference, the latter's assertion that he
fired them not for giving the statements but because they
subsequently manifested "disloyalty" by their reticence
and-failure to come to him and explain what prompted
them to give the statements. i i - ,
- Further, I find that in giving the "statements the em-
ployees were "acting concertedly for, their "mutual aid or
protection" as that term is "used in Section 7 of the Act.
As manifested by their two after-hours meetings, it is -
clear that virtually all of Respondent's employees were
apprehensive about possible failure of the Company and
consequent loss of their jobs in the event that Larry El
Henicky was stealing corporate funds, and that they
viewed cooperation with the sheriff as the best available
method for protecting themselves through concerted
action. Recourse of that type consistently has been held
to constitute protected" activity. See Eastex, Inc. v.
"NLRB, 437 U.S. 556,'- 566 (1978);, Operating- Engineers
Training Fund, 265 NLRB, 988 (1982); Ambulance Serv-
ices of New Bedford, 229 NLRB 106, 109 (1977), enfd. per
curiam sub, nom. NLRB v. Ambulance Services of New
Bedford, Inc., 564 F.2d 88 (1st Cir. 1977). Moreover, em-
ployees are under no-duty to seek redress from-the com-
pany before resorting to "channels outside" the immediate
employee-employer relationship." Eastex, supra. See also
American Hospital Association, 230 NLRB 54, 55 (1977).
This is particularly so when, as here, the official of the
company to whom the employees 'normally would -ex-
press their concern was himself the object of their con-
cern.
Accordingly, there being no question that -Larry El
Henicky ' (through :driver Goudeseune) had prior knowl-
edge that the four, employees had acted in concert when
they gave statements to the sheriff, I conclude that his
action in firing them was motivated by a desire to punish
them for engaging in a protected activity. Compare Air
Surrey, Inc. v. NLRB 601, F.2d 256 (6th Cir. 1979).
In so'concluding, I have found it unnecessary to deter-
mine whether ,the concerns which prompted the action
taken by those employees were meritorious since, on this
record, I cannot find that they acted maliciously or with-
1° Concerning the fact that Sharon 's discharge documents (final check
and "pink slip") had been prepared prior to that time , Larry allows that
"it was possible that they would not have been used , depending on what
happened when she came in."
11 Although the incidents relating to employees Kuhl and Fisher de-
scribed in fn. 9, supra, are cited as additional reasons for their discharges,
I decline to find that they in fact occurred Indeed , as to the incident in-
volving Fisher , Larry El Henicky appeared doubtful himself as to wheth-"
er any act of insubordination had occurred, and, in regard to the one in-
volving Kuhl, I credit his denial having found him to be guileless as a
witness Also, I note that there was no mention of either incident at the
time Kuhl and Fisher were fired.
out some foundation' in fact. Pioneer Finishing Corp. v.
NLRB, 667 F.2d 199 (1st Cir. 1981), -Wagner-Smith Co.,
262 NLRB 999 (1982).
CONCLUSION OF LAW
For the reasons stated, I find that Respondent violated
Section 8(a)(1) of the Act in discharging Michael Fisher,
Bernard Kuhl, Sharon Roberts, and Lonnie Rowe;
THE REMEDY
Having found Respondent to have engaged' in an
unfair labor practice, I find it- necessary to order it to
cease and desist therefrom and from further- infringing
upon employee rights in any like or related manner,"and
to-take certain 'affirmative action which will effectuate
the policies of the Act. Such affirmative action will in-
clude an offer to reinstate the four above-named employ-
ees to their former position (or to substantially equivalent
jobs in the event those-positions no longer exist) and to
.make them whole for any loss of earnings or other bene-
fits they may have suffered as a result of the discrimina-
, tion practiced against them, in accordance with the prin-
ciples set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977);
see generally Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions" of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The Respondent, Squier Distributing Company; Stur-
gis, Michigan, its officers, agents, successors, and assigns,
shall -
1. Cease and desist from "
(a) - Discharging or otherwise discriminating -against
employees because they participate in concerted activity
for the purpose of mutual aid or protection.
(b) In any- like or related manner interfering with, re-
straining, or coercing • employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate-ttie policies of the Act.
(a) Offer Michael Fisher, Bernard Kuhl, Sharon Rob-
erts, and Lonnie Rowe immediate and full reinstatement
to their former jobs or, in the event such jobs no longer
exist, to substantially equivalent- jobs, and make them
whole for any loss of. pay they may have suffered by
reason of Respondent's action in discharging them, in the
manner set forth in the section of this decision entitled
"The Remedy."
(b) Rescind all adverse personnel actions issued to the
above-named" employees as a result of the discrimination
.here found to have been practiced against them, and ex-
punge from Respondent's records, - including personnel
files, any references thereto and notify said employees, in
18 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
SQUIER DISTRIBUTING CO. 1199
writing , that such actions have been accomplished and
that the expunged materials will not be used as a basis
for future personnel actions against them.
(c) 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 , as well as other records
necessary or useful in analyzing and computing the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Sturgis, Michigan , copies of
the attached notice marked "Appendix." 13 Copies of the
notice, on forms provided by the Regional Director for
Region 7,.after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 Na- of the United States Court of Appeals Enforcing an Order of the Nation-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment al Labor Relations Board."