The Hoytuck Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1987

285 N.L.R.B. 904 (N.L.R.B. 1987)

904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Hoytuck Corporation and Jesse ' J. Cline Jr.
Case 16-CA-12418
18 September 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 23 April 1986 Administrative Law -Judge
Hutton S. Brandon issued the attached decision.
The Respondent filed exceptions and 'a supporting
brief. The General Counsel filed limited exceptions
and a brief in support of the limited exceptions and
in support of the judge's decision.
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 fthe exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
1 The Respondent has excepted to some of the judge's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
In par. 13 of the portion of the.judge's_decision entitled "3. Arguments
and conclusions," the judge stated that the Respondent's solicitation of
Loving to quit violated Sec 8(a)(1) of the Act. We correct this inadvert-
ent error by substituting Cline's name for that of Loving.
2 In the absence of exceptions, we adopt, pro forma, the judge's find-
ing that the Respondent did not violate Sec 8(a)(1) when its assistant
manager interrogated employees Denadio and Spencer regarding an em-
ployee petition
8 We agree with the judge that employee Cline's conduct in preparing
and circulating an employee petition that complained of the conduct of
the Respondent's cook and kitchen supervisor, Whitaker, towards em-
ployees and that further sought his discharge is protected activity here
because it is evident that Whitaker's conduct had an impact on employee
working conditions We further note that the finding that an employee
protest regarding the selection or termination of a supervisor who has an
impact on employee working conditions is protected is consistent with
longstanding Board precedent See, e.g, Dobbs Houses, Inc., 135 NLRB
885, 888-889 (1962), enf denied on other grounds 325 F 2d 531 (5th Cir
1963); Guernsey-Muskingum Electric Cooperative, 124 NLRB 618 fn. 1
(1959), enfd 285 F.2d 8 (6th Cir 1960). We wish to make it clear, how-
ever, that cases involving employee concerted activity regarding the se-
lection or termination of a supervisor who has an impact on employee
working conditions are distinguishable from cases in which employee
concerted activity is designed solely to effect or influence changes in the
management hierarchy. In the latter cases, the Board has found that such
conduct does not constitute protected activity See, e.g , Retail Clerks
Local 770, 208 NLRB 356, 357 (1974) Member Stephens agrees with the
proposition that campaigning for changes in the executive hierarchy that
are unrelated to working conditions does not constitute protected activi-
ty, but he takes no position on whether Retail Clerks was correctly decid-
ed
In adopting the judge on this matter of employee protected activity,
we do not rely on Puerto Rico Sheraton Hotel, 248 NLRB 867 (1980) (enf.
denied 651 F.2d 49 (1st Cir. 1981)), overruled on other grounds in
Parker-Robb Chevrolet, 262 NLRB 402, 404 fn. 20 (1982) We note, how-
ever, that in denying enforcement in Puerto Rico Sheraton Hotel, the court
disagreed with the Board's finding that the protest in that case involved
protected activity in that it was not directed toward employee concerns
Rather, it found that the protest was a dispute among managers and that
the action of the general manager, who was the subject of the protest,
did not have sufficient direct impact on the working conditions of em-
Conclusions,2 as modified,? to modify. his remedy,4
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, The Hoy-
tuck Corporation, Tulsa, Oklahoma, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order. -
ployees to characterize it as protected activity within the meaning of
cases such as Guernsey=Muskingum,Electric Cooperative,, above. NLRB Y.
Puerto Rico Sheraton Hotel, above, 651 F.2d at 53.
In concluding that Cline's petition seeking the discharge of a supervi-
sor was protected activity, we find the language of In 3' of Holiday Inn,
274 NLRB 687 (1985), indicating that an employee- protest of a supervi-
sor's termination is not protected, is dicta because the finding was not es-
sential there to the 8(a)(1) discharge violation found.
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1' January 1987 shall be
computed at the "short-term Federal 'rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S.C. § 6621, Interest on
amounts accrued prior to 1 January 1987,(the effective date of the 1986
amendment to 26 U S C. § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977)
Olivia Garcia, Esq., for-the General Counsel.
J. Daniel Morgan, Esq. (Gable & Gotwals), of Tulsa, Okla-
homa, for the Respondent.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was tried at Tulsa, Oklahoma, on 3 March
1986. The charge was filed on 6 December 1985,1 and
the complaint based on the charge was issued on 23 Jan-
uary 1986. The primary issues are whether The Hoytuck
Corporation (Respondent or the Company) violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the
Act), by (a) coercively interrogating employees regard-
ing an employee petition relating to working conditions,
(b) coercively threatening to fire employees for signing
such a petition, (c) coercively encouraging an employee
to quit due to involvement in circulation of the petition,
and (d) discharging its employee Jesse J. Cline Jr. for in-
volvement in concerted activities protected under the
Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
1. JURISDICTION
The Company is an Oklahoma corporation doing busi-
ness as West Tulsa Travel Lodge and Girlie Pancake
House with a place of business in Tulsa, Oklahoma,
where it is engaged in the hotel and restaurant business.
i All dates are in 1985 unless otherwise indicated.
285 NLRB No. 120
HOYTUCK CORP.
The complaint alleges, Respondent at the hearing admit-
ted, and I find that during the calendar year preceding
issuance of the complaint, Respondent, in the general
course and conduct of its business, derived gross reve-
nues in excess of $500,000, and during that same period
of time Respondent purchased and received at its Tulsa
facility products, goods, and materials valued in excess of
$50,000 directly from suppliers located outside the State
of Oklahoma. The complaint further alleges, Respondent
at the hearing admitted, and I further find that Respond-
ent is an employer within the meaning of Section 2(2) of
the Act engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Material Facts
1. Interrogation and threats
This case has its genesis in events occurring at Re-
spondent's place of business on 29 November. On that
day -Jerry Whitaker, Respondent's kitchen manager and
cook, chastised employee Patricia Cline, wife of the
Charging Party, for an incorrect price entry on a phone-
in order she had taken. She took offense at Whitaker's
remarks, which she perceived to constitute cursing. She
became upset and immediately quit her employment. As
a result, Cline, the Charging Party who was a night desk
clerk and auditor for Respondent since February 1980,2
prepared and began to circulate on 1 December a peti-
tion protesting Whitaker's alleged verbal attacks and al-
leged "unrestrained profanity 'in a malicious manner" di-
rected at employees in the presence of "customers and
co-workers." The petition asked that Whitaker be re-
moved from his position immediately "to avoid any fur-
ther reoccurences [sic] of harassment." Cline signed the
petition on 1 December as did a customer.' Beyond that,
and aside from obtaining the signature of an additional
employee, Rodney Haynes, on 2 December, Cline met
with little success in securing employee signatures on the
petition. Nevertheless, it is the General Counsel's posi-
tion that it was Cline's efforts in preparing and circulat-
ing the petition that resulted in Cline's discharge on 3
December.' It was the questioning of employees about
the petition by Debbie Loving, Respondent's assistant
manager and the daughter of Whitaker, and alleged
threats about the petition that provided the basis for the
other violations alleged in the complaint.
Thus, former waitress employee Juanita Cheek, who
had declined Cline's request that she sign the petition on
1 December, testified that she had a conversation with
Loving in the restaurant's kitchen on 2 December.
Loving had initiated the conversation by an inquiry of
Cheek about whether Cheek had accused: Whitaker of
having stolen things from the kitchen. Cheek denied that
she had done so. In leaving, Loving asked Cheek if she
had signed Cline's petition. Cheek testified that she told
2 Cline had one break in his employment of about 1-month duration in
the spring of 1985 when he quit.
9 From Cline 's testimony , uncontradicted in this regard, it appears the
customer's signature was unsolicited.
905
Loving she had not, and Loving responded, "Well, the
ones that did won't have no jobs."
Loving did not deny the conversation related by
Cheek, and when asked if she asked Cheek about Cline's
petition, Loving testified, "Not that I can remember."
She did deny, however, that she stated that anyone who
signed the petition would not have a job.
Employee Joyce Spencer testified that on 2 December,
in a discussion among several employees in which
Loving participated, questions were asked about whether
the employees had heard of the petition and what it said.
Initially, Spencer, who is still employed by ' Respondent,
could not clearly recall who asked these questions, but
after having her recollection refreshed with a prehearing
statement dated 19 December given by the Board inves-
tigator, Spencer testified that it was Loving who had
asked if the petition had any signatures on it. Moreover,
Spencer's prehearing statement, which Spencer conceded
was given when things were "fresher" in her mind, also
attributes to Loving a question about the content of the
petition, i.e., what did the petition say.
Loving, in her testimony, admitted she asked Spencer
what the petition said, and could not recall if she asked
her if it had signatures on it.
Although employee Barbara Denadio was identified by
Spencer as a participant in the discussion noted above
and although Denadio was called as a witness by the
General Counsel, Denadio testified about an apparently
different incident on 2 December. Thus, according to
Denadio, a niece of Whitaker, when she came to work
Loving asked her if she had seen or heard about a peti-
tion. Denadio replied she had heard of it but thought it
was just "talk." Loving replied that this was -not the first
time she had heard of it that day.
Loving testified generally that she did not initiate the
employee discussions about the petition and claimed spe-
cifically that Denadio had volunteered the information
about the petition.
Cline testified he did not talk to Loving about the peti-
tion until the morning of 3 December when he was leav-
ing work. At that time, Loving asked him how his peti-
tion was going. He responded that it was not going well
because employees were afraid that if they signed it they
would lose their jobs. Loving replied, "They will." She
then asked Cline what the petition said and Cline testi-
fied he told her about Whitaker's actions and profanity.
Loving replied by asking, "Well, if you don't like the
way things are around here, why don't you just quit."
Cline responded she would have to fire him but he did
not want to lose his job. Then Loving asserted that Whi-
taker had not cursed Cline's wife. Cline replied that it
was a' lie. Loving protested that she was not a liar and
Cline responded that she was. She replied that he was
getting "smart-mouthed" and he told her to fire him if
that was the way she felt. Cline, in the same conversa-
tion, admittedly accused Whitaker of having taken a
roast out of the restaurant for a meal on Thanksgiving
Day. Loving thereafter asserted that she had heard Cline
accuse her of stealing cigarettes, and he replied, "Well, it
is true isn't it that you do," and Loving answered that it
was her job to take cigarettes out of the machine every
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
week. At that point, according to Cline, Loving dropped
the, subject and told Cline to go ahead and leave. He did
so.
Loving conceded in her testimony that she had asked
Cline on 3 December how the petition was coming. Al-,
though she could not recall Cline asking her about
whether people would be fired for signing the petition,
she remembered that she told him that she would not
fire people for signing, but she would like ,to. Loving ad-
mitted that she asked Cline if he was so unhappy why he
did not quit, After that she claimed he "got in her face"
and asked her why she did not fire him. She testified that
Cline had made the accusations about theft a "couple of
days" prior to the petition, being initiated.
2. The discharge of Cline
Cline testified that around 7 p.m. the evening of 3 De-
cember, he telephoned Loving and told her that employ-
ee Rodney Haynes had signed the petition.4 Loving said
she was not interested and hung up.
Cline reported for work, about 11 p.m. Loving told
him not to clock in. He asked if that meant he was fired
and she replied affirmatively. He asked her why and she
responded she did not have to tell him. He also asked
her to put it in writing, but she declined. Cline went
ahead and clocked in, but Loving told him not to make a
scene or she would have him arrested. Cline then
marked out his timecard and left.
Loving's testimony and that of Denadio, who was also
present , is in accord with Cline's on the discharge ex-
change. Loving testified that she had decided to dis-
charge Cline after their conversation that morning. She
testified that same morning that she talked to the owner
of Respondent, Don Tucker, and advised him that Cline
was unhappy, and some of the other employees and a
few customers were complaining about Cline's attitude.
She told Tucker she thought Cline should be discharged
because of 'his attitude. Loving further testified that
Tucker agreed and told her to do what she thought best.
After thinking about it further that day, she decided that
evening to fire him. Asked by Respondent's counsel If
Cline's calling her a liar and a thief was part of his "atti-
tude" problem, Loving answered ambiguously, " Some-
times, yes." Asked further if that was part of the attitude
problem for which he was discharged, Loving responded
affirmatively.
It,is undisputed that Respondent, through Molly Price
in its payroll department, advised the Oklahoma employ-
ment security commission by letter dated 11 December
that Cline was discharged for "misconduct" and ex-
plained
He got mad at the assistant manager because she
wouldn't fire a cook who got in an argument with
his wife who was also employed. When his wife
was hired it was explained to both of them that
they were each working on their own and could
not interfere with each other. He came into the res-
taurant when he was off work and tried to get other
'' The record contains no explanation about why Cline made this reve-
lation.
employees and customers to sign a paper demand-
ing that the cook be fired. When the assistant man-
ager asked him about this -he dared her to fire him
and said the place couldn't run without him. This
was done in front of other employees and she felt
she had no recourse but to let him go.
Price testified that the -letter was based on information
telephonically related to her by Loving. According to
Price, however, Loving did not mention Cline's calling
her a liar or a thief.
3. Arguments and conclusions
Briefly stated, the General Counsel contends that
Cline's activity in connection with the petition to dis-
charge Whitaker was protected under the Act, that Lov-
ing's questions of employees about the petition constitut-
ed'interference with Section 7 rights in violation of Sec-
tion 8(a)(1), that Loving's threats to discharge employees
for signing the petition likewise constituted unlawful in-
terference, and that Cline's discharge violated Section
8(a)(1) of the Act because it was, based on his involve-
ment in the preparation and circulation of the petition.
Respondent defends initially on the basis that Cline
was not discharged for his circulation of the petition but
rather for nondiscriminatory reasons, his "deteriorating
attitude and insubordinate conduct." Second, Respondent
asserts that even if the petition had been a factor in the
discharge, Cline's involvement in the petition was unpro-
tected conduct because the petition was directed toward
securing the discharge of a supervisor.'Respondent rely-
ing, inter ' " on 'Volt Information Sciences, 274 NLRB
308 (1985), contends ' employees may not be protected
under Section 7 of the Act when engaged in activities
designed to influence changes, in management hierarchy.
Finally, Respondent contends that no threats of dis-
charge were made in this case ' and that any questioning
of employees by Loving about the petition was innocu=
ous and noncoercive.'
This case turns largely on the credibility of Loving as
opposed to that of not only Cline but also of the other
General Counsel's witnesses. Considering both demeanor
factors and the record as a whole, I credit Cline and the
others where they contradict Loving. Cline impressed
me as very candid, and he was as accurate and detailed
in his recall as Loving was vague. Moreover, Loving's
claimed disinterest in Cline's petition, based on the fact
that Whitaker, prior to preparation of the petition, had
already given notice that he intended to quit, was under-"
mined by her admission that she told Cline she would
like to fire those who signed the petition., Her contention
that she, made the remark in a laughing and joking
manner was unconvincing. Her claimed disinterest in the
petition or its subject was rendered even less credible by
her familial relationship with Whitaker.
Spencer and Denadio, although apparently reluctant
witnesses, gave testimony that could be perceived as ad-
verse to Respondent. This circumstance buttresses their
HOYTUCK CORP.
testimony , that received further support from certain of
Loving's admissions .5 I find them credible.
The credibility ' of Cheek was impugned by the exist-
ence of the basis for bias against Respondent . Cheek had
been discharged subsequent to the events in issue here
for an offense she claimed she did not commit . Neverthe-
less, Cheek testified in a credible manner and I observed
in her no guile. Further , the remarks she attributed to
Loving were not out of line with those attributed to
Loving, by the other witnesses found credible above and
Loving's admitted remarks. Thus, even Loving conceded
that she had once stated she would like to fire those who
signed the petition . Given Loving's disposition in this
regard, Cheek 's testimony that Loving said she would
fire those who signed becomes very credible. I credit
Cheek over Loving.
The Board has previously held employee concerted
activity to protest the discharge of a supervisor was a
matter of their legitimate interest and thus protected in-
asmuch as it was substantially related to and affected
their terms and conditions of employment. Abilities &
Goodwill, 241 NLRB 27 (1979), enf. denied 612 F.2d 6
(1st Cir, 1979); Plastilite Corp., 153 NLRB 180 (1965),
enfd . as modified on other grounds 375 F.2d 243 (8th
Cir. 1967); Dobbs Houses, Inc., 135 NLRB 885, 888
(1962). See also NLRB v. Guernsey-Muskingum Electric
Cooperative, 285 F.2d 8 (6th Cir . 1960). As said in Dobbs
Houses, above at 888.
Each case must turn on its facts. Where, as here,
such facts establish that the identity and capability
of the supervisor involved has a direct impact on
the employees' own job interests and on their per-
formance of the work they are hired to do , they are
legitimately concerned with his identity - Therefore,
strike or other concerted action which evidences
the employees' concern is no less protected than
any other strike which employees may undertake in
pursuit of a mutual interest in the improvement of
their conditions of employment.
The Board has extended this principle to concerted ac-
tivity of employees that is designed to effectuate the dis-
charge or replacement of a supervisor, See Puerto Rico
Sheraton , 248 NLRB 867 (1980), overruled on other
grounds, Parker-Robb Chevrolets 262, NLRB 402 (1982).
However, the principle appears to be applied generally
in cases involving lower-level supervisors who have
more direct contact with employees . Arid while the su-
pervisor who was the object of employee activity found
to be protected in Puerto Rico Sheraton, above, was a rel-
atively high-level one, other Board decisions suggest that
employee concerted activity designed to effect or influ-
ence changes in top management is not protected. See
Volt Information Sciences, above; State County Employees
Local 17, 250 NLRB 880 fn . 3 (1980); Retail Clerks Local
770, 208 NLRB 356, 357 (1974); Butchers Local 115, 209
NLRB 806 (1974).
5 The fact that an employee testifies adversely to his employer while
still employed supports the truthfulness of the testimony. See Georgia
Rug M0, 131 NLRB 1304 fn. 2 (1961)
907
In any event , the supervisor who was the subject of
the employee petition was a comparatively low-level
one. Insofar as this record shows , he directly supervised
the kitchen employees and the restaurant waitresses. His
contact with these employees appeared to be on a close
daily basis so that his conduct related directly to their
terms and conditions of employment . Accordingly, any
concerted employee protest over the treatment of em-
ployees by the supervisor, even to the extent of seeking
the discharge of the supervisor, was, I conclude, a pro-
test reasonably related to working conditions . I therefore
find that the activity by Cline in initiating the petition
among employees seeking Whitaker's discharge constitut-
ed protected activity under the Act.
Having found that the initiation and circulation of the
petition was protected, and having credited Spencer and
Denadio that Loving asked them about their knowledge
of the petition, I nevertheless conclude that Loving's
questions were not coercive and did not constitute inter-
ference with Section 7 rights. In this regard , it appears
that the questions were asked during informal conversa-
tions and in what appeared to be a noncoercive atmos-
phere. The questions were general in nature ' and did not
seek to identify any signers of the petition .6 Spencer and
Denadio appear to have given truthful responses and
their conduct does not suggest that they felt intimidated
by Loving 's questions . Denadio, in particular, would not
likely be intimidated by Loving 's questions because of
her family relationship to Loving . Finally, Loving's
questions to Spencer and Denadio were unaccompanied
by any threats or promises of benefits . Under all these
circumstances, I find the questions of Loving directed to
Spencer and Denadio were not coercive and Respondent
did not violate the Act through such questions. See
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Repco
Distributing, 273 NLRB 158 (1984).
The questioning of Cline and Cheek stands on a differ-
ent footing , for in her remarks to them , Loving, in effect,
threatened the petition signers with discharge. The ques-
tions, under these circumstances , cannot be considered
innocuous and I therefore find that they violated Section
8(a)(1) of the Act as coercive interference with Section 7
rights. Likewise, the threats to discharge the petition
signers were clearly coercive and therefore violative of
Section 8(a)(1).
Cline's preparation and circulation of the petition,
which related to a working condition, as already noted,
constitutes protected concerted activity. Loving's
threats, found above , her admitted desire to discharge
employees for signing the petition , and the ' timing of
Cline's discharge shortly after the petition was prepared
make up the elements of the General Counsel 's prima
facie case. It, therefore, becomes Respondent 's burden to
demonstrate that Cline would have been discharged even
in the absence of his involvement in the petition prepara-
tion and drafting . I find , for the following reasons, that
Respondent has not done so.
6 In any event, any signer of the petition would expect that in order
for the petition to be effective , his identity would ultimately be revealed
to The employer.
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent relies on Cline's bad attitude as justifying
the discharge. Loving's claim that "bad attitude" toward
employees and customers as revealed by "all the past
things'people had been saying" and his unhappiness with
his job was simply not substantiated by record evidence.
No specific prior difficulties with fellow employees was
ever detailed, nor was any specific complaints from cus-
tomers noted on the record. On the contrary, Spencer
testified she was not aware of any attitude problems
Cline had. Moreover, had Cline had existing attitude
problems, it is likely Respondent would have disciplined
him or counseled him earlier. Yet, Cline credibly denied
that Loving or any member of management had said
anything to him about his attitude.
Finally, that Cline had no preexisting attitude problem
is evidenced by Respondent's failure to allude to such a
problem in its letter to the employment security commis-
sion. Accordingly, I find Cline's attitude apart from his
preparation and circulation of the petition was not .an es-
tablished consideration in his discharge.
It is true, of course, that Cline's involvement in con-
certed activity otherwise protected under the Act would
not insulate him from discipline for misconduct in con-
nection with such activity. It is apparent on Cline's own
testimony that his conduct toward Loving on the morn=
ing of 3 December was at best disrespectful. However,
his challenge to her to fire him followed Loving's ques-
tions about the petition and why Cline did not go ahead
and quit if he was unhappy. The latter question in the
context of union activity would reasonably be viewed as
a threat to fire Cline. See, e.g., L. A. Baker Electric, 265
NLRB 1579, 1580 (1982); Rolligon Corp., 254 NLRB 22
(1981). Loving's question may be similarly viewed here.
Cline's responding challenge under these circumstances
appears less intemperate and insubordinate, particularly
because I do not credit Loving's testimony that other
employees and customers witnessed Cline's challenge.
Loving's testimony regarding the presence of customers
was never substantiated. No specific customers were
identified. No customers were related as being present in
Respondent's letter to the state employment security
office regarding Cline's discharge. And contrary to the
assertions in the same letter, Loving testified she was not
certain about the presence of employees during Cline's
remarks to her. Cline credibly denied that any employees
were present. Considering the foregoing, I find and con-
clude Cline's challenge to Loving to fire -him did not
remove him from-the protection of the Act. On the other
hand, I find Respondent's solicitation of Loving to quit
was an implied threat of discharge violative of Section
8(a)(1) of the Act.
Cline's accusations against Loving regarding theft and
his reference to her as a liar constituted intemperate and
reprehensible conduct. If discharged for this conduct,
such discharge could not be found to violate the Act
notwithstanding Cline's earlier involvement in activity
protected under the, Act. But the, existence of a legiti-
mate reason for discharge does not preclude the exist-
ence of a violation of the ' Act if the legitimate reason
was not relied on. Rose's Stores, 256 NLRB 550 (1981). I
conclude here that any insubordination on Cline's part
was not relied on as the basis for discharge. In reaching
this conclusion, I note first that Loving did not fire Cline
immediately after his intemperate conduct. She discussed
the matter with Tucker, but it appears she made no final
discharge decision. Clearly she made no effort to contact
Cline and advise him of any discharge. Nor did she so
advise him when he telephoned her around 7 p.m. that
same day prior to reporting for work to tell her that
Rodney Haynes had signed the petition. Moreover, con-
trary to her testimony that she had decided to fire Cline
earlier in the day, Loving's prehearing statement given
the Board investigator indicates that she only finally de-
cided to discharge Cline after his 7 p.m. call regarding
Haynes, which angered her. That statement also makes it
clear that she did not arrange to replace him with an-
other employee for that evening's work until 'after
Cline's 7 p.m. call. In view of this timing and in light of
Loving's anger at Cline's telephone call, it is reasonable
to infer that Loving was disturbed by the information re-
lated by Cline, i.e., that he had met with some success in
having another employee sign the petition, and Cline's
audacity in continuing with the petition following their
conversation earlier that morning. I conclude that it was
Cline's "attitude" problem related to his continued ef-
forts on the petition that was the actual basis for the dis-
charge decision.
The above , conclusion is buttressed by Respondent's
failure to refer, in its letter to the state employment secu-
rity office regarding Cline's discharge, to any specific
acts of alleged insubordination unrelated to his circula-
tion of the petition to secure Whitaker's discharge. No
other "attitude" problems were alluded to, nor was there
any reference to Cline's accusations against Loving of
theft and lying. Furthermore, based on Respondent's wit-
ness, Molly Price, who prepared the letter on the infor-
mation given her by Loving, Loving did not tell Price of
Cline's accusations. While the letter may be inaccurate
with respect to details of Cline's conduct in the circula-
tion of the petition, and with respect to the presence of
employees during the confrontation between Loving and
Cline on that subject, it nevertheless reflects, I believe,
the true basis relied on by Respondent in discharging
Cline, i.e., his protected concerted activity under the
Act. Accordingly, I conclude that Respondent has not
demonstrated -that Cline would have been discharged in
the absence of his activity protected under the Act.
Considering all the foregoing and the record as a
whole, I am fully persuaded that Respondent ' has failed
to rebut the General Counsel's prima facie case that
Cline was discharged, because of his involvement in the
preparation and circulation of the petition to discharge
Whitaker, an activity protected under the Act. By dis-
charging Cline, I conclude Respondent violated Section
8(a)(1) of the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent, The Hoytuck Corporation , is an em-
ployer engaged in commerce within the meaning of -Sec-
tion 2(2), (6), and (7) of the Act.
2. By coercively interrogating employees regarding a
petition prepared and circulated among them relating to
their working conditions and by threatening to fire em-
HOYTUCK CORP.
ployees for signing such a petition, Respondent violated
Section 8 (a)(1) of the Act.
3. By discharging Jesse J. Cline Jr. on 3 December
1985 because of his preparation and circulation among
employees of a petition relating to employee working
conditions, Respondent has violated Section 8(a)(1) of
the Act.
4. The violations of the Act found in paragraphs 2 and
3 above constitute unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that -Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and ; to take, certain affirmative actions
designed to effectuate'the policies of the Act.
The Respondent, having unlawfully discharged Jesse
J. Cline Jr., must offer him reinstatement and make him
whole for -any loss of earnings, or other benefits comput-
ed on a quarterly basis from the date of his discharge to
the date of a -proper, offer of reinstatement, less any net
interim earnings, as -prescribed in F ; W. Woolworth Co.,
90 NLRB 289 (1950), plus interest, as computed in Flori-
da Steel Corp., 231 NLRB 651 (1977).'
On these findings of fact and conclusions of law and
on the entire' record, I issue athe' following recommend-
ed"
ORDER
The Respondent, The-,Hoytuck Corporation, Tulsa,
Oklahoma, its officers, agents, successors, and assigns,
shall
1, Cease and desist from
(a) Threatening employees with, discharge, discharging
them, or otherwise dispriminating against them for en-
gaging in concerted activity with other employees pro-
tected under Section 8(a)(1) of the Act.
(b) Coercively" interrogating any employees about their
involvement in concerted activities protected under the
Act. '
(c) In any, like or related manner ' interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed, them by Section 7 of the Act.
2. Take the following'affirniative action necessary to
effectuate the policies of the Act.'
(a) Offer Jesse J. Cline Jr. immediate and full reinstate-
ment 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 privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the remedy
section of the decision.
4 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
8 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
909
(b) Remove from its files any reference to the unlawful
discharge and notify, the employee in writing that this
has been done and that the discharge- will not be used
against him in any way.
(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, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Tulsa, Oklahoma, copies of
the attached notice marked "Appendix."9 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being signed by the ° Respondent's au-
thorized representative, shall lbef posted by the Respond-
ent immediately upon receipt ^ and maintained for 60' con-
secutive 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.'.
9 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 Nation-
al 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."
APPENDIX'
NOTICE To EMPLOYEES
POSTED BY ORDER` O] THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations, Board has found that we
violated the National Labor Relations Act and -has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees-these rights=
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT threaten you with discharge, discharge
you, or otherwise discriminate against you for your in-
volvement in concerted activities protected under the
Act.
WE WILL NOT in any other manner restrain or coerce
you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer Jesse J. Cline Jr. immediate and full re- WE WILL notify him that we have removed from our
instatement to his former job or, if that job no longer files any reference to his discharge and that the dis-
exists, to a substantially equivalent position , without prej - charge will not be used against him in any way.
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for THE HOYTUCK CORPORATION
any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings , plus interest.