Steere Dairy, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1350 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steere Dairy, Inc. and David L. Watkins. Case 6-CA-
10661
August 25, 1978
DECISION AND ORDER
BYN CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On June 2, 1978, Administrative Law Judge Rob-
ert A. Giannasi issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' and the General Counsel
filed an answering brief.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Steere Dairy, Inc.,
Meadville and Oil City, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
Respondent has requested oral argument. This request is hereby denied
as the record, exceptions, and briefs adequately present the issues and posi-
tions of the parties. For the same reason we also deny Respondent's motion
to reopen the record for receipt of further evidence.
2In view of our disposition of this case, we find it unnecessary to rule
upon the General Counsel's motion that Respondent President Busch's affi-
davit be stricken in its entirety from Respondent's exceptions.
3Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not 1o over-
rule an Administrative Law Judge's resolutions with respect to credihility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91
NLRB 544 (1950), enfd. 188 F.2d 362 IC.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNAsI. Administrative Law Judge: The
hearing in this case was held before me on March 23, 1978.
in Meadville, Pennsylvania. The General Counsel's com-
plaint, based on a charge filed October 21, 1977, issued on
December 21, 1977, and alleged that Respondent violated
Section 8(a)(1) of the Act by discharging and failing and
refusing to reinstate employee David L. Watkins because
he engaged in concerted protected activity by protesting a
change in working conditions and attempting to get other
employees to do likewise. The Respondent's answer denied
the critical allegations of the complaint. Both the General
Counsel and the Respondent filed briefs.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I JURISDICTION
Steere Dairy, Inc., a Pennsylvania corporation, main-
tains its principal office at Meadville, Pennsylvania, and
facilities at Meadville and Oil City, Pennsylvania. It is en-
gaged in the business of retail and nonretail distribution of
milk and other dairy products. During the 12-month period
preceding the issuance of the complaint, a representative
period. Respondent had gross revenues in excess of
$500,000 and received goods and materials valued in excess
of $50,000 at its Pennsylvania facilities directly from points
outside the Commonwealth of Pennsylvania. Therefore I
conclude that Respondent is, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II UNFAIR LABOR PRACTICES
A. The Facts
Respondent maintains facilities in both Meadville and
Oil City, Pennsylvania. During the relevant period, it em-
ployed three drivers at the Oil City plant-David Watkins,
Fran Gahr, and John Dickinson. Watkins, whose discharge
is at issue here, was hired on February 1, 1977,I by Guy
Cornmessar, his immediate supervisor. Watkins' duties as a
route driver consisted of making milk deliveries to Respon-
dent's customers. including stores and schools. The route
drivers were compensated on a commission basis; they
were paid 12 percent of retail deliveries, 7 percent of
wholesale deliveries, and 6 percent of school deliveries. In
addition, they received a monthly I percent bonus incen-
tive.
On Tuesday, October I1, Watkins arrived at work at
approximately 4 a.m. and went to the cooler where the
milk for his load was kept. He found that, at least in part,
paper half-gallon cartons were replaced by glass half-gal-
lon jugs. A note on the daily log from Cornmessar stated
that the glass jugs were for retail delivery. With the milk
itself there was a note to customers stating that the price
for the glass jugs was 86 cents for a half-gallon. Because
the paper half-gallons had sold for 94 cents and the drivers
were paid on commission, the change effectively meant a
Unless otherwise indicated. all dates are in 1977
237 NLRB No. 219
1350
STEERE DAIRY, INC.
within a week Watkins had a cleaner outfit. Cornmessar
cut in pay.
Driver Dickinson arrived shortly afterwards, and he and
Watkins engaged in a discussion about the unexpected
change. They mentioned the pay deduction, the increased
work of delivering heavier loads and collecting the return
bottles, the hazards of glass, and the fact that they received
no warning or notification of the change. Watkins then
called the third driver, Gahr, at home, told him about the
glass bottles, and asked him if he would like to discuss the
matter. When Gahr arrived, the three drivers went across
the street for a cup of coffee and discussed the implications
of the switch, primarily more work for less pay, and their
desire for some form of compensation. Upon returning to
the dairy, Watkins asked the others if he should call Corn-
messar about the matter. They agreed and Dickinson and
Watkins went to the phone in the office where Watkins
made the call. Watkins received no answer either at
Cornmessar's home or at the Meadville office, so he called
Charles Busch, president of Respondent, at home. Watkins
stated, "[TJhis is the Steere's drivers in Oil City, and we are
a little upset over the glass jugs." Busch replied that he was
the boss and if the employees did not like it they could "get
the hell out." Watkins told Gahr and Dickinson about the
phone call and informed them that he had earlier spoken
with Labor Board representatives and learned that they
could not be fired, though they could be replaced, for
walking off the job. He further suggested that if all three of
them walked out they would have some bargaining
strength. Watkins stated that he was not going to make
deliveries; Gahr decided to run his route and discuss the
matter with Cornmessar later; Dickinson was indecisive
but eventually ran his route. No supervisor was present
when Watkins walked out.
At the end of the working day on October 11, Supervisor
Cornmessar asked Gahr and Dickinson about Watkins' ac-
tions. Dickinson told Cornmessar that Watkins was pro-
testing the change to glass jugs and that the employees had
had discussions about the matter early in the morning.
Gahr told him that Watkins had attempted to get the other
employees to walk off the job, but that they had resisted,
deciding to go ahead with their deliveries and to discuss the
problem with management later.
Since Wednesday was his regularly scheduled day off,
Watkins did not report for work on Wednesday, October
12. However, he called the dairy at about 4:30 p.m. and
was told that Busch and Cornmessar would return about 6
p.m. At 6 o'clock, Watkins went to the dairy and met with
them in the office. Also present was Albert Hughey. a re-
tired milkman who had apparently been called to help with
deliveries that day. Watkins apologized for the manner in
which he had handled the situation and told Busch and
Cornmessar that he was willing to return to work uncondi-
tionally on Thursday morning. Busch poked his finger in
Watkins' chest and told Watkins that he was the boss and
that Watkins had no right to try to talk the other drivers
into quitting their jobs. Watkins replied that Busch had no
right to push him and repeated his offer to return to work
unconditionally. Busch refused, stating that he did not
want any part of Watkins, and instructed Watkins to turn
in his key. Busch then left the office.
Watkins repeated to Cornmessar that he was willing to
work unconditionally and asked again if he could come
back to work the next day. Cornmessar said he would have
to speak to Busch. Watkins followed Busch out to the truck
in the allely and spoke with him for half an hour on a
variety of topics concerning the Company. Watkins once
more asked it there was any way he could return to work.
Busch said that he would have to speak to Cornmessar
about it and went back into the dairy to do so. Watkins
waited outside. Cornmessar came out and told Watkins he
could not come back to work and requested that he turn in
his key. Watkins returned the key and left the premises.
Since that time he has not been reinstated.2
B. Analvsis and Conclusions
The General Counsel contends that Respondent violated
Section 8(a)( ) by discharging Watkins because he engaged
in concerted activity protected under Section 7. Respon-
dent defends the allegation by arguing first, that Watkins
quit his employment voluntarily and, second, that Watkins'
request for "rehire" was turned down because of legitimate
complaints about him as an employee. I agree with the
General Counsel that Respondent violated Section 8(a)(1)
of the Act by unlawfully discharging Watkins.
On the morning of October II, because of his concern
over a change in the pay and working conditions of the
route drivers, Watkins encouraged his two coworkers to
protest the switch to glass milk jugs. These drivers were
sufficiently disturbed about the switch to delay their deliv-
eries while they joined Watkins to discuss it over a cup of
coffee. On behalf of all the employees, Watkins then made
a telephone call to President Busch about the problem.
When Busch refused to discuss the matter, Watkins tried to
persuade Dickinson and Gahr to walk out in protest.
Driver Dickinson testified that after wheeling his milk out
onto the floor, he put it back into the cooler because he
was thinking about joining Watkins in walking out. Gahr
decided to wait until the afternoon to talk to Cornmessar
about the problem. Despite their refusal to accompany
him, Watkins walked out alone.
Watkins' conduct was protected concerted activity. The
change to glass containers was a group concern of the driv-
ers, and they engaged in group action up to the point when
Watkins walked out alone. Watkins' attempt to convince
Gahr and Dickinson to walk out in protest of the change in
working conditions was in itself protected concerted activi-
ty, despite the fact that they refused to join him. It is essen-
tial that this threshold action to induce group action be
protected if the protection of concerted activity is to be
meaningful.) Indeed, even the individual protest of Wat-
kins acting alone was protected because it involved a group
concern-the pay and working conditions of all employ-
ees.4
1 he above account is based primarily on the testimony of Watlkins
whom I credit as a reliable witness His testimony was clear and detailed.
and he was straightforward in his demeanor. To the extent that other testi-
mony is conflicting. I discredit it, as discussed more fulls hereafter
3See Rost Valley Savings & oI.an Assoclation, 94 NLRB 270, 276 (1971)L
Mushroom Transportation Comnpan Inc s N L R B. 330 F 2d 683. 685
(C.A 3. 1964)
4See Al.eluia C(ushon C(, Inc, 221 NI RB 999 (1975): Daw-son Cabinet
(,ntinued
1351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The reason for Watkins' termination was his concerted
protected activity. Respondent was required to file an em-
ployer's statement with the Bureau of Unemployment
Compensation after Watkins' dismissal. Busch personally
completed and signed the form dated October 14, on which
he stated the reason for Watkins' separation from employ-
ment as "walked off job also tyed [sic] to get the other
employees to quit." The document is in effect an admission
of an unlawful reason for Watkins' termination. Respon-
dent attempted to diminish the significance of the state-
ment on the form by maintaining that Busch had no
knowledge of Watkins' encouragement of his fellow drivers
to walk out until after Respondent had refused Watkins'
request to return to work. This contention, based on the
testimony of President Busch, is inconsistent with the facts
found and the inherent probabilities of the situation. In
any event, it is clear that Watkins was protesting what was
a group concern and Respondent clearly focused on this
protest of Watkins, as well as the attempted inducement of
others, when it terminated him.
Busch learned early on October 11 when Watkins tele-
phoned him that the drivers, as a group, were upset about
the change in containers. According to Watkins' testimony,
which I have credited, Watkins identified the protesters as
the "Steere's drivers in Oil City" and said 'we are upset."
Busch testified that Watkins identified himself personally
and said, "I don't want to peddle glass bottles." I discredit
Busch's version of the conversation. Watkins' account of
the conversation is inherently more believable. For Wat-
kins to speak in terms of all the drivers is more consistent
with the fact he had just engaged in a group discussion and
asked the other drivers if he could make the call. More-
over, Dickinson, who was present during the call, corrobo-
rated Watkins' version. Also, Busch's recollection is more
likely faulty since he was sleepy, having just been awak-
ened by the call at his home. Therefore, I find that Busch
was aware that the Oil City drivers objected to and were
trying to protest the change to glass milk jugs and that
Watkins spearheaded this protest.
Significantly, at the end of that day, Supervisor Corn-
messar definitely learned that Watkins was protesting the
switch to glass bottles and had tried to persuade Gahr and
Dickinson to join him in the walkout. Dickinson testified
that Cornmessar asked him about Watkins' activity, and
Cornmessar admitted he was told by Gahr and Dickinson
that Watkins had encouraged them to join him. Therefore,
Cornmessar, Respondent's agent, had knowledge of Wat-
kins' protected concerted activity on the afternoon of Oc-
tober 11. Although such knowledge is imputed generally to
the Respondent, it is also likely, because of the significance
of the walkout and the small size of the operation, that
such information was actually transmitted to Busch. This
further supports my view that Busch's denial that he knew
of the concerted nature of Watkins' protected activity is
not credible.
Moreover, on October 12, when Watkins offered to re-
Company, Inc.. 288 NLRB 290 (1977), enforcement denied 566 F.2d 1079
(C.A. 8, 1977). Randolph Division, Ethan Allen. Inc v. N.L.R.B., 513 F.2d
706. 708 (C.A. . 1975).
turn to work unconditionally, according to Watkins, Busch
told him that he had no right to try to talk other employees
into quitting. By this statement Busch essentially admitted
his knowledge of Watkins' protected concerted activity.
Both Busch and Cornmessar denied that Busch made the
statement on October 12, but I do not credit their denials.
Since Cornmessar admittedly had knowledge of Watkins'
actions to induce the others to join him, it may be inferred
that Busch learned this from Cornmessar. Further, given
both the phone call received by Busch and his response on
the unemployment compensation form, it seems highly
probable that Busch would have made this complaint to
Watkins.
In view of Respondent's unemployment compensation
statement, the phone call by Watkins to Busch, the conver-
sation of Cornmessar with Gahr and Dicksinson, and
Busch's response to Watkins' request to return to work, I
find and conclude that Respondent was fully aware of
Watkins' protected concerted activity. Given Respondent's
knowledge, I have no difficulty in concluding that Wat-
kins' protest of the switch to glass containers-a group
concern-and his attempt to convince Gahr and Dickinson
to join his walkout were the reasons behind Respondent's
decision to discharge him. This comports with the reasons
stated in the unemployment compensation form. The deni-
als of Cornmessar and Busch that these were factors in the
decision to terminate Watkins are self-serving and incon-
sistent with the probabilities and the documentary evi-
dence. My conclusion is holstered by the fact that the Re-
spondent offered reasons for Watkins dismissal at the
hearing which were not mentioned to him at the time of his
dismissal and which fail to withstand scrutiny.
Respondent's contention that Watkins in fact quit his
job as a route driver when he did not work on October 11
is unpersuasive. Watkins did not tell either his fellow em-
ployees or his supervisor that he was quitting. Indeed,
Cornmessar was informed by Gahr and Dickinson that
Watkins walked out to protest the change in working con-
ditions. Respondent also contends that because it was not
contacted by Watkins with respect to what his intentions
were until 6 p.m. on October 12, Respondent was justified
in assuming Watkins quit. However, it is clear that on Oc-
tober II Respondent knew Watkins had walked out in pro-
test of working conditions and on October 12 Watkins was
not scheduled to work; and Watkins came into the office
on October 12 to state his intentions to work the next day.
Thus, the evidence fails to support Respondent's conten-
tion that Watkins quit his job, and Respondent obviously
knew Watkins desired to go to work on October 13. In
these circumstances, Respondent's attempt to characterize
protected activities as tantamount to quitting is legally in-
defensible. See N.L.R.B. v. Washington Aluminum Co., 370
U.S. 9 (1962).
Respondent also contends that Watkins was terminated
because of his poor work record. However, Cornmessar
testified that in general Watkins was a good worker and
that the quality of his work was not involved in the deci-
sion. Cornmessar pointed to some minor complaints about
Watkins. He testified that a school had complained that
Watkins' clothing was dirty, but the record also shows that
1352
STEERE DAIRY, INC.
also raised the fact that Watkins had had accidents, but
Cornmessar also mentioned complaints from two stores
about Watkins' attitude, but he also admitted that these
were never discussed with Watkins. Cornmessar also testi-
fied that after Watkins had said he wwould look for anoth-
er job during the summer, he and Busch had discussed
letting Watkins go, but Respondent had taken no steps to
replace Watkins. Further, after a change in routes, Watkins
told Cornmessar that he was no longer planning to quit.
None of these reasons advanced by Respondent at the
hearing was the cause of Watkins' dismissal. They are self-
serving, pretextual, undocumented and insubstantial. More
importantly, neither when Watkins' offer to return to work
was rejected in the office nor when it was again rejected
outside was he given these reasons for the refusal. This
further shows that these reasons, advanced for the first
time at the hearing, were not the real reasons for Watkins'
dismissal. Rather he was terminated for his protected con-
certed activity in violation of Section 8(a)( ) of the Act.
CONCLUSIONS OF LAW
1. Steere Dairy, Inc., is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Respondent violated Section 8(a)(1) of the Act
by discharging David L. Watkins on October 12, 1977, and
thereafter refusing to reinstate him because he had engaged
in concerted activity protected by Section 7 of the Act.
3. The Respondent's unfair labor practice is an unfair
labor practice within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in the
unfair labor practice set forth above, I will recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. The
Respondent will be ordered to reinstate David L. Watkins
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position of employment and to make
him whole for any loss of wages and other benefits he may
have suffered as a result of the discrimination against him,
with backpay to be computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and with
interest as set forth in Florida Steel Corporation, 231 NLRB
651 (1977).5
Based upon the foregoing findings of fact and conclu-
sions of law, the record as a whole, and in accordance with
Section 10(c) of the National Labor Relations Act, I
hereby issue the following recommended:
ORDER 6
The Respondent, Steere Dairy, Inc., Oil City, Pennsylva-
nia, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging or otherwise interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed by Section 7 of the National Labor Relations
Act.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed them by, Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to David L. Watkins immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for an)' loss of earnings in the manner set forth in
the section of this Decision entitled 'Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records and reports and all other documents necessary
and relevant to analyze and compute the amount of back-
pay due under this Order.
(c) Post at its Meadville, Pennsylvania, facility copies of
the attached notice marked "Appendix." 7 Copies of said
notice, on forms to be provided by the Regional Director
for Region 6. after being duly signed by the Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof and maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken to insure that said no-
tices are not altered, defaced, or covered by any other ma-
terial.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days of the date of this Order, what steps has
been taken to comply herewith.
See. generally. IoJi Plumbing & Heating Co, 138 NLRB 716 (1962)
In the esent no exceptions are filed as prosided by Sec. 102.46 of the
Rules and Regulatlmins of the National L abor Relations Board. the findings.
conclusions. and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings. cionclusions, and Order. and all objections thereto shall be
deemed wai.ed for all purposes.
In the event that this Order is enforced hb a judgment of the ULnited
States Court of Appeals. the words in the notice reading "Posted hb Order
of the National l abor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National L.ahor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the right to partici-
pate, it has been found that we have engaged in certain
conduct in violation of the National Labor Relations Act.
In order to remedy that conduct we are posting this notice
and we are giving our assurance to employees that we will
not interfere with the rights that they do have and that they
do have the following rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through representatives of
their own choosing
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things.
WE Wi .i Nor discharge or in any other manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7 of
the Act.
We w iiil offer immediate reinstatement to David L.
Watkins to his former job and make him whole for
any loss of wages or other benefits as a result of the
discrimination against him, plus interest.
Si11i Kit DAIRY IN(
1354