The W. G. Diehl Distributing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1987

283 N.L.R.B. 524 (N.L.R.B. 1987)

524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The W. G. Diehl Distributing Company and Team-
•sters Union No. 348 , affiliated with the Interna-
tional, Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and
Lynn Stovall . Cases 8-CA-17626-1 and 8-CA-
18294
31, March 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 9 September 1986 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Respondent, the Charging Party, and the General
Counsel filed exceptions and supporting briefs, and
the Respondent and the General Counsel filed an-
swering briefs.1
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 briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions only to the extent consistent herewith.3
ORDER
The National Labor Relations Board orders that
the complaint in Case 8-CA-17626-1 is dismissed.
1 On 23 December 1986 the Board issued an Order granting the Gen-
eral Counsel's motion to sever and remand Case 8-CA-18294, which had
been consolidated with the above-captioned case, to the Regional Direc-
tor because the parties had arrived at a non-Board settlement in that case.
Thus, this decision is limited to resolution of the issues in Case 8-CA-
17626-I.
2 The Respondent, the Charging Party, and the General Counsel have
excepted to some of the judge's credibility findings. The Board's estab-
lished 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.
s The judge recommended dismissal of that portion of the complaint
which is presently before us in Case 8-CA-17626-1. We are adopting
that dismissal and, accordingly, our Order is limited to that case.
Steven D. Wilson, Esq., for the General Counsel.
Harry A. Tipping, Esq. (Roderick, Myers & Linton), of
Akron, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. On
charges filed 19 June 19841 by Teamsters Union 348 (the
Union), and on charges filed 23 May 1985 and amended
30 July 1985 by Lynn Stovall, the General Counsel
issued complaints on 30 July and 2 August 1985. A hear-
1 All dates are in 1984 unless indicated otherwise.
ing on the first charges was begun at Akron, Ohio, on 17
April 1985 but was adjourned for 8 months while the
parties discussed` settlement of these and additional= cases
in -litigation. The complaints were consolidated on 23
October 1985, , and were heard at Akron, Ohio, from 4
through 6 December and on 13 December 1985. Briefs
were thereafter filed on behalf of the General Counsel
and the Respondent.
The issues are whether John Jaber- and Frank Cutright
were refused employment in- violation of - Section 8(aXl)
and (3) of-the National -Labor Relations Act (the Act)
and whether the employment of Lynn Stovall was termi-
nated in violation of Section 8(a)(1) of the Act.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. JURISDICTION
The W. G. Diehl Distributing Company (Respondent)
of Akron, Ohio, operates as a wholesale beer distributor.
It is stipulated and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
H. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Kohn Beverage Company (Kohn) was a wholesale
beer distributor in Akron. It was owned and operated by
members of the Kohn family, including Gary W. Diehl
(Diehl), who joined the Company in 1970 and became
vice president and general manager at some later date.
Kohn warehousemen, driver-salesmen, and helpers had
been represented by the Union since at least 1957, and
there was a bargaining agreement in effect from 1 June
1980 through 31 May 1983, providing for a union shop.
Kohn's union employees engaged in what has been de-
scribed as a "wildcat strike," and all unit employees who
refused to report to work on 9 October 1981 were dis-
charged on that date and subsequently replaced by new
employees who were not members of the Union. Diehl
advised the new employees that under the existing bar-
gaining agreement they were required to become union
members, and even physically took them to the office of
the Union to see that they joined. The Union, however,
for purposes not pertinent to this proceeding, refused to
permit the new employees to join the Union.
Jaber and Cutright were employed by Kohn as driver-
salesmen at the time of the wildcat strike, both since
1957, and both were members of the Union. At the time
of the strike Cutright was on sick leave and Jaber was on
vacation. Mailgrams were sent to them as to other em-
ployees, terminating their employment for failure to
return to work on 9 October 1981. However, they pre-
sumably later demanded the right to return to work be-
cause their failure to report to work was due to proper
absence for illness or vacation. Jaber apparently went on
sick leave prior to the end of his vacation leave. Kohn
283 NLRB No. 76
W. G. DIEHL DISTRIBUTING CO.
permitted them to return to work after examination by a
company-appointed doctor. Outright returned to work in
late October or early November 1981, and Jaber re-
turned in March 1982. On their return they were Kohn's
only union employees. __
B. Failure to Rehire Jaber and Cutright
Diehl caused the incorporation of Respondent in May
or June 1983 with no specific plan to engage in the
wholesale distribution of beer, but'in the fall of that year
decided to assume Kohn's operations, which he did in
February as sole owner and operator. Applications for
employment were distributed to and returned by all of
Kohn's employees and all were employed by Diehl for
Respondent but for one Stanley Knepper, Jaber, and
Cutright. Knepper had been hired by Kohn after the
wildcat strike and had not been a member of the Union.
1. Diehl's union animus
a. Antiunion meetings
Although Kohn was still in operation there was an
election held to decertify the Union. Knepper, then a
Kohn employee not later hired by Respondent, testified
that about five monthly meetings were held among Kohn
employees prior to the election, with -notice only by
word of mouth and, "on rare occasions," by notes left on
the timeclock, at which the subject matter was, without
further description, "antiunion." Diehl- was present at
most of these meetings and the speakers ;were "a select
group of people that were very close to Gary Diehl."
Jaber and Cutright testified they were never given notice
of these meetings . Knepper also testified that Kohn re-
moved from the bulletin board a union notice of a pizza-
and-beer "prounion" meeting.
Cutright testified that early one morning, about a week
prior to the decertification vote, he unexpectedly walked
into a meeting and heard Diehl "mention something
about the Union," that when the other employees saw
him there was "dead silence," and that Diehl merely
said, "Remember what we talked about," and the meet-
ing broke, up. Jaber testified he arrived immediately
afterwards and, in response to his question of 'what was
going on, Cutright responded that he did not know.
Knepper was at the meeting and testified that it was the
"usual" statements by employees,, that it was "antiunion,
don't vote for the union because if you do your, money is
going to end up with the Mafia,,and so on and so forth,"
and that when Cutright appeared the 'unidentified speak-
er changed the topic to "sales." ,$nepper also identified
this as an evening, rather than a morning, meeting.
Brian Ross, at various times , a warehouseman, driver-
helper, and driver-salesman for Kohn, was later hired by
Respondent as a warehouseman , but he was discharged-
about a month prior to giving testimony. He testified
that at an employee meeting attended by Diehl, Dave
Weaver, a driver salesman for Kohn since 1981 ,who was
hired by Respondent to take over Cutright's route, said
that it was a "bad idea to hang around with" Jaber and
Cutright "and if they get their jobs back or if we go
union they'd-we'd lose our jobs and the other guys
525
would come back, things like that "2 Ross also testified
that Weaver stated °Jaber and Cutright were coming back
to Kohn to cause trouble "and stuff like that." Weaver
testified there were no "antiunion" meetings at Kohn,
but he was not questioned as to the alleged statements
described by Ross. Ross also testified that Kohn's em-
ployee meetings before decertification were at first ar-
ranged by word of mouth and later by notices on the
bulleting board. He also testified that Cutright walked
into one such morning meeting in 1981 and that Jaber
also came in, "and - everything got quiet and then the
meeting just came to a halt and we all went back to'
work." He could not recall the topic of that meeting.
Diehl specifically denied holding any antiunion meet-
ing or barring Jaber and Cutright from any meeting. He
admitted that when employees in groups asked questions
he would attempt to address them.
As later discussed, there were a number of sales meet-
ings held for driver-salesmen and driver-helpers during
this period which Jaber and Cutright did not attend.
b. Exclusion from social affairs
Kohn held Christmas parties annually for its employ-
ees. Jaber and Cutright testified that prior to the wildcat
strike of 1981 notices of the parties were posted on the
bulletin board and they would attend, but that from then
on they were not notified of and hence could not attend
such parties. Knepper testified that in 1981 and 1982 no-
tification of the parties was "verbal ,"3 but that in 1983 ' it
was by a mailed, written invitation.
Diehl testified ` that starting in 1981 notices of the par-
ties were posted on the bulletin board , and in the last
year they were distributed to employees , including Jaber
and Cutright, by hand. He stated that Jaber and Cutright
were never excluded from the parties . James Stanford, a,
driver-salesman hired by Kohn after the wildcat strike
and later hired by Respondent , testified that he believed
notices of the 1981-1983 parties were distributed along
with paychecks , and that posters and maps were dis-
played on the bulletin board . Gary 'E., Maddy, also a
driver-salesman for Kohn since 1981 and then hired by
Respondent, testified that invitations were by word of
mouth from Diehl , and that posters and ,maps'also. were
placed on the bulletin board.
c. Prejudicial assignment of vehicles
Kohn had several different types of vehicles available
for assignment to driver-salesmen . Knepper testified that
Kohn's general manager, and Diehl, told warehousemen
to use trucks 27, 28, and 29, "obsolete" vehicles without
power steering and with nonstandard storage bins, for
Jaber and Cutright; He further testified that these vehi-
cles were assigned to Jaber and Cutright regularly
though other, newer and better vehicles were available.
Cutright testified that from the time of his- return after
the wildcat strike he was never assigned one of the
2 The "other guys" referred to apparently were the Kohn employees
fired during the wildcat strike, who had grieved their discharges.
a I assume the witness meant that notification was oral, i.e., by word, of
mouth, rather than verbal, by means of words.
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
newer vehicles , and Jaber testified that he "mostly had
the old trucks," which were harder to work with. The
record does not clarify whether Jaber and Cutright were
also assigned those vehicles prior to the wildcat strike.
James Morrison, sales supervisor for both Kohn and
Respondent, testified that vehicles were assigned to driv-
ers on the basis of capacity , to match quantities sold by
the driver-salesman, and that trucks 28 and 29 were still
in use. He stated that diesel trucks were not assigned to
city routes, such as Jaber's and Cutright 's, because the
advantage in using them was over greater distances out
of town. Diehl denied that the assignments to Jaber and
Cutright were "intentional," pointing out that there were
six vehicles in all without power steering , and that be-
cause, of an-increased chance of mechanical breakdown
the older vehicles were rotated among the driver-sales-
men whose routes, like those of Jaber and Cutright, were
closer to the warehouse.
2. Respondent's grounds for not hiring
Decisions on hiring for Respondent were made solely
by Diehl, who testified that his criteria were "eagerness,
competency ... [and] aggressive salesmanship" as he
observed them while the applicants had worked for
Kohn.
a. Failure to attend sales meetings
Kohn had regular , monthly as well as special sales
meetings , for driver-salesmen, which driver-helpers also
sometimes attended . Attendees were not paid for attend-
ance, and though attendance was expected it was not a
requirement and no one was discharged or disciplined
for failure to attend.
Cutright testified that prior to the 1981 wildcat strike
notices of the meetings were always posted and he'usual-
ly attended, but that after his return to work after the
strike the notices were never posted and he never attend-
ed the meetings because he "knew nothing about them
until after they was [sic] over."4 Jaber also testified that
prior to the wildcat strike meeting notices were posted
and the general manager would ask "whether you were
coming,"s and that he attended "some of them ." After
the wildcat strike the meetings continued, but Jaber did
not attend because "nobody mentioned it, there was
nothing put on the bulletin board."6 Knepper, a ware-
houseman until shortly before his discharge, testified that
he attended "a couple" of sales meetings , learning of
them by word of mouth except for "very rare
occasion[s]" on which a notice was posted.
Sales Manager Morrison testified that he posted no-
tices of all sales meetings on the bulletin board. Mark
Bonchu and Michael George, driver-salesmen and helper
for Kohn and Respondent, testified' that notices of meet-
ings were posted , and that attendance was necessary. Mi-
4 Two exceptions were one meeting he was told about in advance be-
cause brewery representatives were coming and the meeting referred to
earlier on which he and Jaber unexpectedly walked in.
s I am not certain whether Jaber here referred to being asked about
attending a regular- sales meeting on the premises or an off -premise party
sponsored by a brewer , but the point is not determinative.
s An exception was Jaber 's stumbling into a meeting right after
Cutrigbt did , described above.
chael George attended the meetings even when working
as Jaber's helper, and testified that when he tried to get
Jaber to also attend Jaber told him he ` had gone to such
meetings when he was paid for attendance, and intimated
he would do so again only if paid.'
b. Failure to participate in contests
Among the means fostered by individual brewers and
conducted by Kohn - as sales aids were contests awarding
prizes to driver-salesmen, and sometimes to their helpers,
over and above normal commissions or salary . Diehl,
General Manager Granata, and driver salesmen Bonchu
and Weaver testified' that participation by driver-sales-
men in such contests was required, but the admitted fail-
ure of Jaber6 and. of Cutright9 to participate did not
result in their censure, discipline , or discharge. Knepper
specifically testified that the salesman for whom he
worked as helper also failed to participate in at least one
contest.
c. Poor job performance
Respondent declared that the alleged discriminatees
did not properly perform their work at Kohn by failing
to build "displays," which are generally attractive, cus-
tomer-convenient physical placements of merchandise, at
retail outlets, by "turning in stops," which are notations
of failure to make service calls on the route, and by fail-
ing to make special deliveries after completing their
routes when requested to do so.
Displays are built by a driver-salesman, by his sales su-
pervisor, or by both. In some stores, particularly chain
outlets, permission to build displays had to be obtained at,
higher management levels and was beyond the power of
a driver-salesman to obtain. At other such stores bargain-
ing agreements -with employees restricted -a driver-sales-
man from performing such work in the retail outlet.
There is nothing in the record to indicate warnings to or
discipline of the alleged discriminatees, other driver
salesmen, or any sales supervisors for failure to build dis-
plays.
Stops are turned in by all driver-salesmen, and can be
caused by any number of circumstances beyond the con-
trol of the driver-salesman, such as vehicle malfunction,
excess time required by other customers, or the stop not
being open when called on. The record does not disclose
specific instances , the number, frequency , or reasons for
stops turned in by the alleged discriminatees nor the-rela-
tionship of these instances compared to other drivers.1 ti
4 George had given the same testimony at a hearing on Jaber's com-
plaint to the Ohio Civil Rights Commission of age discrimination, dis-
cussed below.
8 Jaber explained that his failure to participate was first the result of
not being advised of the contests There is sufficient contrary evidence to
overcome the assertion , but because Jaber admits -he did not participate
even after learning of the contests a credibility-determination is not called
for. _
9 By the testimony of Yoder , his helper.
10 Except that former driver-salesman Knepper testified that the
driver-salesman with the worst record , who was not one of the alleged
discriminatees, turned in three times as many stops as anyone else.
W. G. DIEHL DISTRIBUTING CO. 527
The record also reveals no discipline of any driver-sales-
men for turning in stops.
Customer complaints regarding the alleged discri mina-
tees existed, some actual and at least one refuted by cus-
tomer testimony. There are also instances of proven cus-
tomer satisfaction . The record again contains no method
of judging customer complaints in terms of number, fre-
quency, or services or of comparing the records of the
alleged discriminatees with those of other driver sales-
men. There is no record of any discipline of driver-sales-
men due to such complaints . General Manager Granata
testified regarding some complaints , but added, "It's kind
of hard for anybody to have a rapport with every cus-
tomer."
3. Other proceedings
Though the charge on their behalf in this proceeding
was filed by the Union, Cutright and Jaber themselves
had filed complaints with the Ohio Civil Rights Commis-
sion on 17 February 198411 charging age discrimination.
Both complaints state: "I believe I have been unlawfully
discriminated against due to -my age (57) because ...
[djespite my years of experience, Mr. Diehl refused to
hire me opting instead , for younger, less experienced
workers. At the present time all of the driver salesmen
working for the company are in their twenties or early
thirties . I believe my age was a factor in the company's
refusal to hire me."
Discussion
Section 8(a)(3) of the Act proscribes "discrimination in
regard to hire . . . to encourage or discourage member-
ship in any labor organization" and it is clear that any
refusal to hire based on union affiliation constitutes viola-
tion of both that section and of Section 8(a)(1) of the Act
as well. -
The General Counsel proved that Cutright and Jaber
were the only union members to be retrained - by Kohn
after the wildcat strike and two of the only three Kohn
employees not hired -by Diehl for Respondent . I consider
that a prima facie case has been made by such showing
alone that the failure to hire was based on union mem-
bership.
I do not credit inferences that Respondent conducted
meetings which were unlawfully "antiunion" in nature.
Knepper was an obviously prejudiced witness , having
been, though not a union member,, also not rehired by
Diehl for Respondent . I do not credit his testimony that
meetings were held without general notice , particularly
in view of the contrary testimony by Morrison , Bonchu,
and George, even though the alleged discriminatees sup-
ported Knepper's statements as , to a general lack of
notice of meetings. The only evidence of antiunion senti-
ment expressed at-such meetings is Knepper 's bare state-
ment , that they were antiunion . When Cutright unexpect-
edly walked into a meeting , all he could testify to was
that Diehl "said something about the union ." Particularly
because this was during the period prior to the decertifi-
cation election it is clear that there would be nothing per
se improper in a meeting at which "something" is said
about the Union.
I do not credit testimony by Cutright and Jaber that
they were purposely excluded from Christmas parties as
an indication of union animus . Contrary testimony was
presented that notice was posted and/or written invita-
tions extended . It is much more in the nature of the atti-
tude, discussed below, of Cutright and Jaber not to par-
ticipate in contacts with fellow empoyees, that they
knew of such functions and voluntarily absented them-
selves.
Although I credit testimony by Outright and Jaber
that the equipment assigned for their use did not have
automatic transmissions or power steering , that per se is
insufficient to draw any inference of union animus. It
was proven that other, similar equipment was assigned to
other driver-salesmen who were not union members.
Having determined that there does,' however, exist a
minimal showing that the alleged discrimiriatees were re-
fused employment because of their union membership, it
is necessary to consider whether Respondent has demon-
strated by a preponderance of the evidence that it would
have failed to rehire Cutright and Jaber even had they
not been union members.
I do not credit testimony of Respondent's witnesses
that Cutright and Jaber did not successfully complete the
work functions of overall sales, of covering their routes,
of turning in excessive stops, of failing to make special
deliveries, of failing to build displays or engage in con-
tests, or of improperly, servicing or improperly dissatisfy-
ing customers . The testimony presented on such - points,
all contested, is completely lacking in sufficient detail to
consider it, if at all, as more than vague feelings or sub-
jective attitudes, rather than as demonstrated fact.
As to the activities and attitudes of the alleged discri
minatees regarding interacting with other personnel in
the employer-sponsored sales meetings and activities, I
fail to credit the 'testimony of Knepper, Outright, or
Jaber that prior notice of the meetings was withheld.
Even Knepper, a witness clearly prejudiced against Re-
spondent for not being rehired, testified that on at least
"rare" occasions notice of meetings was posted.` Of
greater weight is the fact that the alleged ' discriminatees
knew by long experience in the field and with the Em-
ployer that sales meetings and programs would be held.
Jaber even discussed with his helper his reason for not
attending meetings . The helpers attended sales meetings
and were aware when and.where they were to be held.
Still, Cutright and Jaber, if they are to be believed, made
no effort to learn of the meetings and programs or to
participate in them.
In failing to credit the testimony on-these points of, the
alleged discriminatees, I must credit Diehl's uncontra-
dicted testimony that he made his hiring decisions on ' the
basis of eagerness and aggressive , salesmanship in addi-
tion to competency, and that he did not hire the alleged
discriminatees because of a perceived lack of eagerness
11 Knepper, then age 41, also filed a similar charge on 30 March 1984.
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and aggressiveness, and not because they were members
of the Charging Party Union. r 2
C. Stovall's Discharge
Stovall was employed by Kohn as a sales supervisor,
and was not a member of the bargaining unit represented
by the Union. He was hired by Respondent in the same
position, but after later being placed on probation for 60
days, about May 1984, was moved to the position of
warehouseman and, at times, driver-helper.
On 11 April 1985 Diehl gave Stovall a "warning
letter" referring to three alleged instances of negligent
damage occurring on 18 February and 3 and 8 April
1985. The letter concluded with the following:
These incidents of repeated negligence resulting
in damage to company property will not be tolerat-
ed. You are hereby warned that any further occur-
ances [sic] of negligence and disregard of company
property will not be tolerated and will result in
your termination of employment with this company.
Stovall testified that while working in the warehouse
he became aware of the lack of power Respondent's em-
ployees had in dealing with management. He discussed
common work problems with fellow employees Brinley,
Ross, Sigman, and others. With their approval he went
to the offices of the Union to inquire about getting their
representation and was given authorization cards which,
however, he had not attempted to distribute. There was
an elected "committee" of employees, one function of
which was to help employees take care of grievances,
but Stovall did not approach them. In addition to having
the committee, Diehl also conducted "issue meetings" on
request, during which employees could raise work com-
plaints either directly or, if they preferred anonymity, by
putting a note into a hat that was passed around. Stovall
suggested to fellow employees that they raise their com-
plaints in an "issue" meeting, and they agreed.
There was a sales meeting scheduled for 6 May 1985
and Stovall decided to ask at-that time for an issue meet-
ing. He decided to make the request at that meeting be-
cause, first, he wanted the assembled employees to know,
that an issue meeting was to be held at a specific time
and place, and, second, because he was afraid that Diehl
would refuse to hold a meeting if asked privately. Pre-
cisely what happened at that meeting is the subject of
some dispute.
The meeting was scheduled by Sales Manager Morri-,
son for 7 a.m., though due to tardiness it did not begin
until about 7:10 a.m. The regular workday began at 7:30,
a.m., and employees were not paid for attending sales
meetings . Morrison described this meeting as one of the
two most important of the year as it began the summer
sales season. Morrison's highlight of the meeting was a
promotion for Stroh's beer.
Stovall testified that about 7:30 am., Morrison was
"summing up" and called for questions. Stovall deter-
12 Allegations by Jaber and Cutright to the Ohio Civil Rights Commis-
sion that their not being hired was due to age are not considered rele-
vant, as claimants are free to make alternative and even conflicting claims
in different forums.
mined that there were no questions, and then-raised his
hand. When Morrison acknowledged -him, Stovall rose
and said to Morrison, "We have some issues that we
would like to talk about." Morrison responded that the
meeting was for sales, not for issues, and Diehl stated
that he would get together with Stovall and the three
committee members. Morrison then "spoke a -little bit
more," and, thinking the meeting was over, Stovall
raised his hand and was recognized by Morrison a
second time. Without rising, Stovall queried when the
issue meeting would be held, to which Diehl responded
that he would "get in touch with" him. Stovall did not
raise his voice during either period, and the meeting con-
cluded about 7:40 a.m.
Morrison's testimony was that Stovall's first statement
came early in the meeting when he had covered the as-
pects of pricing, job duties, and displays of Stroh's and
was looking for questions as to those topics before going
on to other brands. Stovall stated that "he had some
issues to discuss" and Morrison responded that this was a
sales meeting and that "[i]f -you have any questions or
grievances, I'm sure that Mr. Diehl will be more than
glad to meet with you after the meeting or at a later
date, as soon as possible." Stovall kept going on about
having issues to discuss and wanting "to discuss them
now" and refused to sit down though Morrison- again as-
sured him that Diehl would meet with him later. Stovall
repeated his message two or three times, and then "final-
ly did sit down." Morrison attempted to continue the
meeting, but first again asked for questions on Stroh's
products. Stovall again rose, turned to face Diehl, and
said, "Mr. Diehl, we have to talk about these issues now.
I want a date now when we can meet, and all you're
doing is putting this off." Morrison again asked him to sit
down, and Diehl said to him, "Lynn, I'll be glad to meet
with you after the meeting or later in the day after the
job is done and discuss any problems you have." Stovall
remained standing and in a loud voice stated, "I want to
discuss them now.-Feeling that the meeting was entirely
disrupted Morrison decided to adjourn and to speak to
the driver-salesmen individually.
Diehl's testimony regarding the meeting was that as
Morrison was into his presentation Stovall raised his
hand and, when recognized by Morrison, said while
seated, "I have some issues I would like to address:"
Morrison told him it was a sales meeting, "And if you
have any issues you should get with Mr. Diehl, and he'll
talk and discuss those with you at that time." The meet-
ing continued for 5 minutes, when 'Stovall "jumped up
[and] .. said `I want a date and time, right now, to dis-
cuss these issues."' Diehl told him that he "would get
with the committee, and we will set up a date and time,
and we will do that. But this is a sales meeting and it's
for sales matters." Stovall, however, remained standing,
though Morrison attempted to continue his presentation.
Finally, Morrison adjourned the meeting.
Other of Respondent's employees at the meeting also
testified. Yakovazzi testified that Stovall asked,, near the
end of the meeting when the floor was open to ques-
tions, "if he could address some issues at this time"; that
on being told by Morrison that the meeting was only for
W. G. DIEHL DISTRIBUTING CO.
sales Stovall sat down, but after a short time, when the
meeting was nearly over, he raised his hand again and
when recognized asked "if a date could be given as far
as scheduling a meeting where the issues could be ad-
dressed"; and that Stovall did not raise his voice during
the meeting, but Yakovazzi's attention was diverted from
the sales aspect of the meeting. Weaver testified that it
was a motivational sales meeting , "And Lynn stood up I
think, I don't know, approximately three times, you
know, and interrupted the meeting to bring a point
across to Gary about something. I don't really know
what he was talking about." Weaver did not recall Mor-
rison speaking to him later about the Stroh's promotion.
The interruption of the meeting was, in Weaver's opin-
ion, disruptive. Stanford testified that during the sales
presentation the floor was opened to questions, "And
Lynn stood up and said he had a couple of things he
wanted to settle and he wanted to get them off his chest.
And it was told that it was not the, time, that it was a
sales meeting . . . and that it would be handled at a later
date, to get with someone and they'd set up some kind of
meeting." They attempted to get back into the sales
meeting, "And Lynn stood up and said he wanted it set-
tled now and a time set now for the hearing." They at-
tempted again to get back to sales, "and Lynn stood up
for the third time and, you know, said that he wanted
this settled or a time that it would be settled." Stovall's
voice at these time was firm but not really loud. Gary
Maddy testified. that Stovall "stood up, like, two or three
times and [Morrison] kept telling him [Stovall], you
know we'd do it [have an issues meeting] at a later date."
Maddy had no idea what Stovall was talking about, and
Diehl also did not know. Mark Bonchu testified that
during the meeting Stovall "raised his hand and stood up
and told Gary that he wanted-that a meeting should be
called to discuss the issues"; that Diehl responded "he
would set something up and that it would be up to the
committee -to set up a date that they would try to work
something out"; that Stovall remained' standing for a
while, and then said that he wanted a definite date right
then as to a meeting and "he was, you know, persistent
about getting a date and it sort of went back and forth a
little bit, as far as I recall." Bonchu considered that the
meeting had been disrupted.
After the meeting was concluded Stovall returned to
the warehouse to load the truck to which he was as-
signed. Diehl approached him there, and precisely what
happened is also subject to some dispute. Stovall testified
that Diehl asked if he had a problem, and he responded
that he had issues, not a problem; that Diehl insisted,
"getting louder and louder," that Stovall had a problem;
and that Diehl finally stepped back "and yelled at me to
get back to work in a very loud voice." Diehl testified
that he merely said to Stovall, "Lynn, what is your
urgent problem here?" and that Stovall replied, "I don't
have a problem. You have a problem.... I don't have a
problem. I have issues. You have a problem." Diehl then
told Stovall to "just go about your job" and went into
his office, Yakovazzi testified that he saw Stovall work-
ing and Diehl following him, that their attitudes ap-
peared confrontational, and that though he could not
529
hear what was said both appeared to be speaking exci-
tedly and loudly.
At the end of the workday the members of the em-
ployee committee, and Stovall, were called into Diehl's
office. With no objection from the committee., Stovall
was given the following dismissal letter:
Your continued disruption of the scheduled sales
meeting held on 5-6-85 was inappropriate, uncalled
for and inexcusable.
That meeting was a scheduled sales meeting for
sales matters . You were told by Jim Morrison that
another meeting would be arranged to discuss any
other matters. You again interrupted the meeting
and thus caused considerable attention to be taken
away from important sales presentations.
This, type of behavior and disregard for company
scheduled meetings will not be tolerated. As a result
of these actions and those which occurred within
the previous months, you are terminated, effective
immediately, as an employee with this company.
Stovall filed his charge with this Board on 23 May
1985 . On 6 June 1985 he also filed a complaint with the
Ohio Civil Rights Commission stating that he believed
the reason given for his discharge to be pretextual and
retaliatory for his having testified in March 1985 in
Jaber's complaint to that Commission . Stovall's com-
plaint to that Commission was found to be without merit.
Discussion
The General Counsel alleges that Respondent violated
Section 8(a)(1) of the Act by discharging Stovall for en-
gaging in a concerted and protected activity. Respondent
denies the allegation, and argues that the activity was not
concerted and was not protected under the Act. It is un-
denied that Stovall was discharged, and that the cause of
discharge, together with allegations of prior negligence,
was Stovall's actions at the meeting of 6 May 1985.
Both parties recognize that the issue of concert is gov-
erned by the relatively recent decision in Meyers Indus-
tries, 268 NLR$ 493 (1984), remanded sub nom. Frill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), which overruled
the prior Board policy as enunciated in Alleluia Cushion
Co., 221 NLRB 999 (1975), and its "progeny." Although
the prior policy was issue oriented, determining whether
an; issue addressed by a single employee "ought" to have
been of concerted interest to a number of employees, the
current policy is factually oriented and considers wheth-
er other employees had indeed expressed their concerted
interest to the single employee who took the action. As
expressed' in Meyers, supra at 497, we must determine
whether an objective review shows the conduct of the
single employee to actually have been "engaged in with
or on the authority of other employees, and not solely by
or on behalf, of the employee himself."
Whether Diehl or other individuals were aware of it,
it is uncozitroverted that Stovall discussed both union af-
filiation and complaints regarding the conditions of em-
ployment with several other employees, and obtained
their agreement to raising these complaints at an issues
meeting. Both management, represented by Diehl and
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
others, - and the employees recognized that issues meet-
ings related to labor disputes involving a number of em-
ployees, and not the complaints of a single employee. I
find-that though Diehl may not have known the specific
issues which were to have been raised , as in fact we do
not know from the record the exact nature of those
issues, he recognized the call for an issues meeting as a
demand to consider concerted complaints ., In addition,
Stovall made the demand before an assemblage of em-
ployees so that all would be advised of the time and
place of such meeting . As stated by the appellate court,
"The activity of a single employee in enlisting the sup-
port of his ' fellow employees - for their mutual aid and
protection is as much `concerted activity' as is ordinary
group activity."1 a
To satisfy the test set out in Meyers, supra at 479, it
must also be shown that the concerted activity was also
protected under the Act. Although we are not aware of
the precise complaints sought to be raised at the issues
meetings, it is clear that they arose from the concerted
discussions of Stovall with the ' others regarding terms
and conditions of employment, and hence fall within the
purview of the Act . It can also be argued that the appeal
to fellow workers to meet for support , mutual aid, and
protection, as enunciated in Owens-Corning, in addition to
being concerted 'must have related to such , matters of
mutual employment as to be protected by Section 7 of
the Act.
Respondent argues that the manner in which Stovall
conducted himself at the sales meeting stripped his ac-
tions from the protection of the Act in that he used in-
temperate language, disturbed the efficient operation of
Respondent's business, and was insubordinate . The Board
has certainly held that conduct or language can be so of-
fensive, defamatory , or opprobrious as to forfeit the pro-
tection of law. However, I find no such language or
action present in the record . Indeed, Stovall's language
was sufficiently temperate to be repeated in any Sunday
school without alarm, a distinct difference from the lan-
guage ordinarily heard during labor disputes.
The manner of Stovall 's actions also bespeaks a calm
reasonableness . I credit his testimony, supported by the
testimony of current employees of Respondent , that he
sought and received ' recognition , without interrupting
others, before he spoke out , and that while his voice was
"firm" it was not :overly loud nor his manner overly ar-
gumentative . Although the later meeting between Diehl
and Stovall was described as confrontational, with loud
and excited voices,'it was Diehl who followed Stovall to
the latter 's workplace and initiated the exchange, and not
Stovall leaving his work to confront Diehl.
There remains the question of whether Stovall 's choice
of time and place in making the' demand for an issues
meeting forfeited the protection afforded such action 'by
the Act. The sales meeting at which the demand was
made was planned for and conducted during a period
prior to the start of the workday . Although the unpaid
attendance at such meetings was expected by manage-
18 Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365 (4th
Cir. 1969), enfg. 172 NLRB 148 (1968), cited by- the Board 'in Hancor,
Inc., 278 NLRB 208, 216 (1986). -
ment, there is nothing in the record to indicate that fail-,
ure to attend ever resulted - in discipline . - On the other
hand, sales meetings were , normal in Respondent's busi-_
ness, and current employees testified that Stovall's inter-
ruption of the sales theme for a nonsales function inter-
fered , with the purpose - of the meeting . It is clear,
though , that . absent egregious harm to the employer's
business operations or damage to its premises , which I
find not to have here occurred , the time, place,- and even
the manner of conducting concerted and protected ac-
tivities will not alienate the employees from the protec-
tion of law. As the scholarly - decision of Administrative
Law Judge Brandon in the matter of Johnnie Johnson
Tire Co., 271 NLRB 293, 294-295 (1984), phrased it:14
It has long been recognized that employees have
a legitimate interest under .the Act in acting concer-
tedly in making known their views to management
without being discharged for that interest... .
Even the reasonableness of the method of protest
adopted does not decide the protected nature of the
concerted activity.... Accordingly, concerted ac-
tivity by nonrepresented employees to protest their
working conditions is normally held to be protected
regardless of the time of day it occurs or the impact
of such activity on production.
I find that Stovall's statements and actions during the
sales meeting , although interrupting - the planned purpose
of the meeting, were orderly, not overly damaging to
Respondent's business or premises , and did not result in
the loss of the Act's protection . They did, however, pin-
point Stovall as a speaker for concerted and protected-
activities, and motivated his discharge, in violation; of
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAw-
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Lynn Stovall , an individual, because
of his engaging in concerted activity protected under the
Act, Respondent engaged in , and is engaging in, unfair
labor practices affecting commerce within the meaning
of Sections 8(a)(1) and 2(6) and (7)`of the Act.
THE REMEDY
Having found that Respondent , engaged in certain
unfair labor practices, I fund it necessary to order Re-
spondent to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Respondent having unlawfully discharged , Lynn Sto -
vall, I find it necessary to order it to offer him immediate
and full reinstatement to his former job or , if such job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privi-
leges, and to make him whole for any loss of earnings
that he may have suffered by reason of the discrimina-
tion against him by payment to, him of a sum of money
equal to that which he' normally would have earned
14, citations not included, typographical error corrected.
W. G. DIEHL DISTRIBUTING CO.
from the date of his discharge to the date of a bona fide
offer of reinstatement, less net interim earnings during
such period. Backpay shall be computed on -a quarterly
basis as prescribed in F W. Woolworth Co., 90 NLRB 289
(1950), with interest to be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).16 Moreover,
consistent with the Board's decision in Sterling Sugars,
261 NLRB 472 (1982), I shall recommend that Respond-
ent be required to remove from its records any refer-
is See generally Isis Plumbing Co., 138 NLRB 716 (1962).
531
ences, to the unlawful discharge-of Lynn Stovall., provide
written notice to him of such action, and inform him that
Respondent's unlawful conduct will not be used as a
basis for future disciplinary action against him.
The General Counsel has requested a visitatorial
clause authorizing the Board to engage in discovery
under the Federal Rules of Civil Procedure. Because es-
tablishment of the rate of pay to which the' discriminatee
would have been entitled at various times from 6 May
1985 until compliance is finally achieved may be difficult
without Respondent 's cooperation , I grant the request.
[Recommended Order omitted from publication.]