Alpha Resins Corp.

National Labor Relations Board - Board Decisions

Jul 10, 1992

307 N.L.R.B. 1219 (N.L.R.B. 1992)

1219
307 NLRB No. 182
ALPHA RESINS CORP.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 363 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Further, the Respondent contends that the judge was prejudiced
and biased and that his credibility resolutions and findings reflect his
preconceived conclusions. We find this contention to be without
merit. On our full review of the record and the judge’s supplemental
decision, we perceive nothing in his findings, conclusions, and rec-
ommendations which indicates that the judge prejudged this matter
or that his findings, conclusions, and recommendations demonstrate
prejudice and bias against the Respondent.
2 Allen testified that, at the end of the December 16, 1988 meet-
ing, he stated, ‘‘The best thing for me to do is get up and get out
of here before I wind up saying something and I’ll regret it and I’ll
kick your ass and I’ll get fired.’’ We find that this remark states
what Allen would do to avoid further confrontation. In addition, the
remark was unaccompanied by any physical gestures. In these cir-
cumstances, the remark does not convey a threat of actual physical
harm and was not so egregious as to render his concerted activity
unprotected. See Leasco, Inc., 289 NLRB 549 fn. 1 (1988).
3 In addition to the reasons stated by the judge for finding that
Allen was engaged in protected concerted activity at the December
16, 1988 meeting, we note that Allen, in voicing complaints, consist-
ently used the pronouns ‘‘we’’ and ‘‘us,’’ thereby evidencing that
Allen was speaking on behalf of himself and other employees. See
Oakes Machine Corp., 288 NLRB 456 (1988), enfd. in pertinent part
897 F.2d 84 (2d Cir. 1990).
4 It should be noted that, even though the judge found that Allen
made these remarks, he further found that under the circumstances
these remarks did not render unprotected Allen’s concerted activity.
1 All dates are in 1988 unless otherwise specified.
2 As stated in brief, Respondent’s counsel did request that E. Exh.
7 be placed in the rejected exhibit file. The exhibits of record should
Continued
Alpha Resins Corporation and Richard Allen. Case
26–CA–12971
July 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 8, 1992, Administrative Law Judge Rob-
ert A. Gritta issued the attached supplemental decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, as explained below, and to adopt the rec-
ommended Order.
On remand the judge specifically credited the testi-
mony of employee Richard Allen regarding what Allen
said at his December 16, 1988 meeting with Super-
visor Walter Morialli and Plant Manager George
Sutch, and the judge specifically discredited the testi-
mony of Morialli and Sutch. As noted above, we find
no basis for reversing his credibility findings.
The judge, however, in his analysis made some fac-
tual findings inconsistent with Allen’s credited testi-
mony. In this regard, the judge stated that Allen ‘‘did
on several occasions during the [December 16] meet-
ing tell Morialli that he would ‘whip his ass.’’’ The
judge also found that Allen characterized Morialli as a
‘‘liar.’’ Allen in his testimony denied making these re-
marks, and the judge credited this denial. Morialli and
Sutch testified as to these remarks, and the judge dis-
credited their testimony. In light of the judge’s credi-
bility findings, it is clear that these factual findings of
the judge are erroneous, and we find that Allen did not
make these remarks.2 These erroneous findings, how-
ever, do not affect our affirmance, based on Allen’s
credited testimony, of the judge’s ultimate finding that
Allen at the December 16, 1988 meeting was engaged
in protected concerted activity3 and that he was dis-
charged because of this activity.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Alpha Resins Corporation,
Piperton, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Grace Speer, Esq. and Melvin L. Ford, Esq., for the General
Counsel.
Fletcher L. Hudson, Esq. and Kenneth D. Henderson, Esq.
(McKnight, Hudson, Lewis, Henderson & Clark), of Mem-
phis, Tennessee, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This case
was tried before me on September 27, 28, and 29, 1989, in
Memphis, Tennessee, based on a charge filed by Richard
Allen, an individual (Charging Party) on December 27, 1988,
and a complaint issued by the Regional Director for Region
26 of the National Labor Relations Board on February 6,
1989.1 The complaint alleged that the Alpha Resins Corpora-
tion (Respondent) violated Section 8(a)(1) and (3) of the Act
by discharging Richard Allen because he engaged in con-
certed activity by complaining to Respondent about wages,
hours, and working conditions and because Allen engaged in
union activity. Respondent’s timely answer denies the com-
mission of any unfair labor practices.
All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence,
and to argue orally. Briefs were submitted by the General
Counsel and Respondent. Both briefs were duly considered.2
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
therefore include ER–7 in the rejected exhibit’s file. Respondent
should supply all parties and the record with copies of ER–7.
My decision, JD(ATL–10–91), issued on March 27, 1991.
On November 4, 1991, the Board remanded the case to me
for the limited purpose of making findings of fact and credi-
bility resolutions regarding the statements allegedly made by
Richard Allen during his December 16, 1988 meeting with
Walter Morialli and George Sutch and, if appropriate, mak-
ing revised conclusions of law and recommendations regard-
ing Allen’s discharge. The Board further ordered that I pre-
pare and serve on the parties a supplemental decision setting
forth the resolution of such credibility issues, findings of
fact, conclusions of law, and recommendations, including a
rcommended Order.
On the entire record in this case and from my observation
of the witnesses and their demeanor on the witness stand,
and on substantive, reliable evidence considered along with
the consistency and inherent probability of testimony, I make
the following
FINDINGS OF FACT
I. JURISDICTION AND PRELIMINARY CONCLUSIONS
OF LAW
The complaint alleges, Respondent admits, and I find that
Alpha Resins Corporation is a Tennessee corporation en-
gaged in the manufacture of resins for fiberglass in Piperton,
Tennessee. Jurisdiction is not in issue. Alpha Resin Corpora-
tion, in the past 12 months, in the course and conduct of its
business operations, purchased and received at its Piperton,
Tennessee facility goods and materials valued in excess of
$50,000 directly from points located outside the State of
Tennessee. During the same period of time Alpha Resins
Corporation sold and shipped products from its Piperton,
Tennessee facility valued in excess of $50,000 directly to
points outside the State of Tennessee. I conclude and find
that Alpha Resins Corporation is an employer engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. OVERVIEW
The original industrial entity was Alpha Chemical Cor-
poration. In 1981 it became a holding company named Alpha
Corporation of Tennessee with headquarters at Piperton, Ten-
nessee. The assets of the holding company are the individual
companies housed in the area complex at Piperton. In addi-
tion to Alpha Resins Corporation, the facility involved in this
proceeding, there are Promi-Tech, which produces pigments;
Glass Steel Tennessee, which produces fiberglass panels; and
Glass Steel Industrial Laminates, which produces circuit
boards for industrial use. Each individual company has its
own premises within the area complex and the holding com-
pany has corporate headquarters and a lab in the same area
complex. Jerry Stauffer and George Carey are vice presidents
of the holding company as well as each individual company
comprising the area complex. Each individual company is
headed by a manager who has the freedom to operate and
administer on a daily basis. Stauffer and Carey exercise over-
sight of all the individual companies and the holding com-
pany in legal matters and personnel matters, respectively.
III. ISSUES
1. Whether Richard Allen was discharged because he en-
gaged in protected concerted activity constituting a violation
of Section 8(a)(1) of the Act.
2. Whether Richard Allen was discharged because of his
prior union activities constituting a violation of Section
8(a)(3) of the Act.
Pertinent testimony is restated below.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Richard Allen testified he is currently employed at Aragon
Trucking in Memphis, Tennessee, as a driver, trainer, and
safety supervisor. Allen was previously employed by Re-
spondent as a driver and driver trainer. He taught defensive
driving to all new drivers after becoming licensed as a trainer
in 1987. In August 1987, he and Morialli instructed all 14
drivers in defensive driving. During Allen’s employment
from June 1978 to December 1988, he was not disciplined.
In addition he received safety bonuses for 9 consecutive
years, i.e., no accidents or tickets.
In 1983 a union organizing campaign was conducted and
resulted in an election with a tally of 14 against the Union
and 1 for the Union. Following the election a company pic-
nic was attended by Allen and his wife. Allen met Carey at
the picnic and Carey stated, ‘‘I want the son-of-a-bitch that
voted yes.’’ Allen replied, ‘‘I don’t know who voted yes.’’
In 1985, Burriss, the president of Alpha Corporation, met
with Danny Lewis, Morialli, and Allen at the corporate of-
fices. Lewis, Allen, and Morialli complained to Burriss about
the dispatch of drivers. The seasonal use of outside drivers
was reducing the weekly mileage of regular drivers. Allen
told Burriss that the regular drivers wanted at least 2000
miles per week. Burriss checked some records and called
George Carey to the meeting. Burriss told Carey to straighten
out the problem. Carey told dispatch to give the senior driv-
ers 2000 miles per week. For 6 weeks everything was fine,
then the younger drivers complained they were not getting
enough miles. The dispatch was then changed to equal miles
with the senior drivers getting first pick on Monday and dis-
patch equalizing miles for all drivers by the end of the week.
In the fall of 1986 during a drivers’ meeting Carey said
the drivers were doing a good job and deserved a raise. The
drivers got a $1-an-hour increase on unloading time and 1
cent a mile but Carey eliminated any off-duty hour pay. At
first Allen thought the increases were good, but when he fig-
ured it out the increases came to $1500 a year but the loss
of off-duty pay was $3000. Allen met with Jake Allen and
Lewis. The three agreed that the so-called raise was in fact
a reduction and decided to talk to management. Jake and
Lewis told Allen to do the talking. Allen told Morialli,
‘‘Look, you all say that we can’t come in here raising Cain,
but the law says we can go to the Union anytime we want
to. Unless this is straight, that’s where we’re headed to.’’
Morialli called Plant Manager Sutch. Sutch told Morialli to
carry the drivers to Carey at the corporate offices. All four
went to Carey’s office and Allen explained the loss of pay
since the so-called raise. After a discussion Carey restored
the off-duty pay which resulted in a good pay raise.
In 1987 a drivers’ meeting was held in the conference
room. All the drivers, Sutch, Morialli, and Spud Sammons,
attended. Sutch opened the meeting by announcing that all
1221ALPHA RESINS CORP.
drivers would thereafter be dispatched on equal mileage.
Allen spoke up saying, ‘‘George, that’s not fair. You think
you’ve got us split up, that we can’t organize or do anything
about it but we’re going to fight you now.’’ Sutch re-
sponded, ‘‘I don’t think I’ve got you split up, I know I’ve
got you split up.’’ Allen did not say much after Sutch spoke.
Several of the drivers were irritated and also spoke up, but
Allen could not recall what they said. After the meeting the
older drivers, Danny Lewis, Jake Allen, Ronnie Nichols,
Steve Webb, Jimmy Tice, and Allen, discussed the situation.
Allen suggested that all drivers meet with Burriss who had
been a fair man in the past. The older drivers told Morialli
they wanted to talk to Burriss. Morialli said he would set it
up. A week later Morialli individually told each of the older
drivers that Carey said they had to go through him to get to
Burriss. The drivers never met with Burriss.
In November 1987, Allen called Carey to set up a meet-
ing. They met and Allen said there is a problem. The dis-
patch is not fair. Carey asked, why? Allen said drivers are
not running equal miles. Some drivers are running high on
miles and then siting at home for 3 or 4 days while the other
guys catch up with them. When you look at the total miles
it appears to be equal. Carey called Sammons, the dispatcher,
and Morialli, the supervisor, to the office. All four discussed
the dispatch system for some period of time and Carey told
Sammons to return to work. Carey then told Allen and
Morialli, ‘‘You-all got a personality problem. You-all can
straighten it out or I will straighten it out.’’ As Morialli and
Allen were leaving the office, Carey said to Allen, ‘‘I’ll be
back with you in couple of weeks after I check with the driv-
ers and see what they think about the dispatching.’’
About 2 weeks later Carey called Allen to his office.
Carey told Allen he had checked with a majority of the driv-
ers and they think the dispatch is fair. Allen stated, ‘‘The
majority you checked with, George, was the bottom six driv-
ers. You didn’t talk to not one older driver. You talked to
the bottom six drivers.’’ Carey said, ‘‘Well, the older guys
are not running dispatch anymore. You get back up there and
keep your mouth shut.’’ Allen told Carey, ‘‘George, I tell
you what, if you’ll just treat me halfway right from now on,
you won’t hear nothing else out of me. You done proved
you’re not going to treat me right, but if you treat me half-
way right, you won’t hear nothing else out of me.’’ Allen
stated that over the years at the drivers’ meetings he did
most of the talking. Although on occasions other drivers
would also speak up. Allen told the other drivers he was
looking for another job, and they needed to start speaking up
because when he was gone they were going to have to speak
for themselves. Allen told the other drivers that he was going
to be quiet around the facility. He thought that by being
quiet things might go smoother but they didn’t.
On several occasions in mid-1988 Allen spoke to Morialli
about the propriety of having a union. Most of the time
Morialli did not respond to Allen, however, on one occasion
Morialli agreed saying, ‘‘Just between me and you I think
you do to.’’ The union conversations usually occurred in the
drivers’ room.
In October 1988, all drivers attended a meeting with Sutch
and Morialli in the drivers’ room. Clem Clark was intro-
duced to the drivers. Clark explained that his job was to im-
prove the relationship between employees and management.
He discussed employees and management working together
and illustrated the theme by using Xs and Ys on the bulletin
board. As a result of the X and Y testing by Clark, Allen’s
group won. McClure told Allen, ‘‘That’s why it is. You’re
always looking out for yourself.’’ McClure and Allen had
wagered on the outcome of the test.
The following month, November 1988, another meeting of
all drivers, management, and Clark was held. As the drivers
came into the meeting room, they were split into two groups.
One group was to list complaints and the other group was
to list improvements. Allen was in the improvement group.
Clark instructed the groups to turn in their list. The improve-
ment group did not list anything. The complaint group listed
dispatch and truck assignments. The dispatch was not equally
distributing the miles among the drivers. The truck assign-
ments were not permanent. If a driver’s truck was on the
yard not being used, another driver would be assigned the
truck to make a run. A situation known to drivers as ‘‘slip
seating.’’ Sutch spoke up and said there will be no more slip
seating. If a driver is off, his truck will sit on the yard unless
there is an emergency of extra runs needed. In that emer-
gency the double teams will be split up and the idle truck
will be used for one of the extra runs. The meeting ad-
journed. For the better part of a month, there was no slip
seating, but it did start again.
In December 1988 Allen made a trip to Knoxville, Ten-
nessee. While driving he spoke on the CB radio with Steve
Webb, another driver. Allen asked Webb if he would accom-
pany Allen to see management about the dispatch and truck
assignment problems. Webb told Allen he would go with
him but his religious beliefs would not allow him to say
much, but he would go for support. Allen and Webb in-
tended to talk to the other drivers so all could get together
to talk to management. Allen and Webb also discussed the
new trucks due to arrive soon and who should get the new
trucks. Allen told Webb that he thought there was a grudge
between him and Carey. Carey was picking on Allen and all
had to suffer.
On December 16, 1988, Allen made a run to Nashville,
Tennessee, and talked to Larry Burchette on the CB radio.
The two talked about the dispatch for the following week.
Allen asked Burchette if he thought the dispatch was fair and
Burchette said, ‘‘No.’’ Allen told Burchette, ‘‘when I get
back, I’m going to go see management about it. They’re not
dispatching by equal miles like he’s supposed to be.’’
Burchette said, ‘‘while you’re in there, see if you can get
them to change dispatch back to a seniority dispatch the first
of the week.’’ Allen said he would do that. Allen did not ask
Burchette to go with him to see management. When Allen
got back to the plant he went to see Morialli. Allen testified:
A. I went into Morialli’s office and asked him, I said
‘‘I need to talk to you.’’ He said, ‘‘About what?’’ I
said, ‘‘The way you’re dispatching. You’re dispatching
unfair and you’re showing favoritism to the bottom of
the board.’’ He said, ‘‘You’re a liar.’’ I said, ‘‘No, I’m
not. I can prove it.’’ I said, ‘‘It’s right here in black
and white.’’ He said, ‘‘You’re a liar.’’ I said, ‘‘Well,
let’s go talk to George about it. Ain’t no need in me
talking to you. I can’t talk to you.’’ So, we went to see
George.
. . . .
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The reference to McDonald’s relates to the shooting at a McDon-
ald’s in California which resulted in several deaths at the hands of
a lone gunman.
A. I walked on up front and asked the receptionist
where George was. She said, ‘‘I don’t know. I’ll page
him.’’ She paged George and George answered the
page and she said, ‘‘George is back in Morialli’s office.
If you want to see him, come back there.’’ I started out
of there, up through the hall in the break room, and
there was a window in the break room where you could
see all the way down the hall toward Moe’s office.
George was headed up toward the front. So, I said,
‘‘Well, I’ll wait on him.’’ I was waiting in the cafeteria
there. He never did show up, so I went back up front.
I figured he might come around the side. He never did.
About 15 minutes or so, and I never did see him, and
I started to leave the plant and got in the yard and got
to my truck, and I thought, ‘‘Maybe he’s got up there.’’
So, I turned around and walked back. When I walked
back, he was in the office talking to Don Mooney.
When he got through talking to Don Mooney, he got
up to get his coat to leave out of the office, and I said,
‘‘Wait a minute. I need to talk to you.’’ He said, ‘‘All
right,’’ and Morialli was outside then. We walked in
his office, and I said, ‘‘George, when are you going to
quit screwing with us for something we done four or
five years ago?’’ He said, ‘‘What do you mean?’’ I
said, ‘‘The way you’re assigning runs, the way you’re
favoring the bottom of the board and assigning trucks.’’
I said, ‘‘You-all are going to keep on that you-all are
going to mess around and fool with somebody one of
these days and you’re going to piss them off and
they’re going to come in here and it’s going to be
worse than the McDonald’s deal out yonder. They’re
going to wind up killing all of us.’’3
Q. Do you recall anything else said there?
A. Moe Morialli looked at me and he said, ‘‘You’re
going to keep on till you piss me off.’’ I said, ‘‘Moe,
I don’t care about you getting pissed off. I’ve been
pissed off six months about the way things are going.’’
I said, ‘‘The best thing for me to do is get up and get
my coat before I wind up getting mad and say some-
thing that I’ll regret and wind up getting fired.’’ I start-
ed to get up and George pointed his finger and said,
‘‘Sit back down. We’re going to talk about this.’’ I sat
back down and I said, ‘‘Moe, you’re saying it’s not fair
for us to pick our runs, yet you’re sitting here and the
teams are picking their runs the first of the week.’’ He
said, ‘‘You’re a damn lie.’’ I said, ‘‘Joe McClure said
they picked their run the first of the week.’’ He said,
‘‘Joe McClure is a damn lie and if you keep on, you’re
going to piss me off.’’ I said, ‘‘I can’t talk to you-all.’’
I sat there a minute and I asked about—I said, ‘‘You-
all said that we wasn’t going to—you wasn’t going to
do no more slip seating. In the last meeting we had
there wouldn’t be no more slip seating. Now, you’ve
got four or five runs next week and you’ve got a bunch
of drivers off and you’re splitting up your teams and
they’re running 1,500-mile trips and we’re running 400-
mile trips.
Q. We? Who was ‘‘we’’?
A. The rest of the older drivers, what was left.
George said, ‘‘Moe, why are you doing that?’’ He said,
‘‘To give them more miles.’’ I said, ‘‘Well, if you want
to give them more miles, why didn’t you put them on
the run I just been on? They been sitting at home since
Wednesday.’’ He said, ‘‘Because I want to and if you
keep on, you’re going to piss me off.’’ I said, ‘‘The
best thing for me to do is get up and get out of here
before I wind up saying something and I’ll regret it and
I’ll kick your ass and I’ll get fired.’’
Q. Do you recall saying anything else?
A. I told George Sutch, I said, ‘‘George, I think you
are a fair man I appreciate you listening to me. It ain’t
done a bit of good. If you can’t see what went on here,
if you can’t see this, then you don’t want to see noth-
ing. But, I appreciate your time of listening to me.’’ I
walked out the door.
Allen denied saying Morialli, ‘‘was sorry’’ or calling
Morialli a ‘‘mother f—king liar.’’ Allen also denied telling
Morialli he would ‘‘whip his ass like a stepchild.’’
Later that afternoon Morialli called Allen at home to in-
form him there would be no Nashville run on Monday but
rather he should report to the office at 9 a.m.
The morning of December 19 Allen arrived at 8:30 a.m.
He checked in with Morialli who called Sutch to report Al-
len’s presence. The two went to Sutch’s office. Allen testi-
fied:
A. I walked in George’s office and he was standing
behind his desk and he said, ‘‘Today is the day.’’ I
said, ‘‘For what?’’ He said, ‘‘I fired you.’’ I said,
‘‘You’re kidding.’’ He said, ‘‘No. You’re terminated as
of now.’’ I said, ‘‘On what grounds?’’ He said,
‘‘Threats to fellow employees.’’ I said, ‘‘I didn’t threat-
en nobody.’’ He said, ‘‘You threatened Moe.’’ I said,
‘‘No, I didn’t. I didn’t threaten Moe. I had to get out
of here before I did.’’ He said, ‘‘It don’t matter. You’re
fired anyway.’’ He said, ‘‘Have you got anything to get
out of your truck?’’ I said, ‘‘Yeah, but what about my
doctor bills? I’ve already been to the doctor one Satur-
day, and what about my doctor bills?’’ He said,
‘‘You’ll have to take it up with the corporate office. I
ain’t got nothing to do with that.’’ I said, ‘‘What about
my safety bonus?’’ He said, ‘‘We’re going to pay that
to you but you don’t deserve it.’’ Then he said, ‘‘Have
you got anything to get out of the truck?’’ I said,
‘‘Yeah, I got to get my personal stuff out.’’ And him
and Moe walked me to the truck. On the way to the
truck, I said, ‘‘right here at Xmas time you fire me.’’
He said, ‘‘Yeah, it’s a bad time for all of us.’’ I went
out to the truck and got my stuff out of the truck, put
it in my bag, turned around and looked at Moe—Walter
Morialli and George Sutch and said, ‘‘I’ll see you in
court.’’
Allen recalled that about 8 months before he was fired Joe
McClure was in the vicinity of the dispatch office. Sammons,
the dispatcher, said something to McClure. McClure stated to
Sammons, ‘‘I’m tired of your smart-ass mouth. If you open
it one more f—king time, I’m going to shut it for you.’’
Allen could not recall any particulars of an oral encounter
between him and W. G. Pierce which occurred a long time
ago. Allen did deny that he ever threatened to fight or simply
1223ALPHA RESINS CORP.
threatened another employee or a supervisor. Allen recalled
hearing that other drivers were upset because the Company
was using Pierce to test truck fuel mileages and he was get-
ting better mileage than most drivers had achieved. Allen
stated that it had nothing to do with him because he always
had top mileage.
On cross-examination, Allen admitted that in years past he
used various drugs to extend his driving capabilities, even to
the extent of violating DOT regulations. In recent years how-
ever, he has not had any need for using drugs of any kind.
Allen owns two large caliber deer rifles and a 357 mag-
num handgun. The handgun he has only fired once. During
past deer seasons, Allen has transported a .22 caliber rifle in
his pickup to the company parking lot as have many other
employees. Allen and the others stopped the practice before
1988 due to thefts of the guns from the company packing lot.
Allen admitted that he was convicted of assault and battery
and fined $25 several years ago.
Allen stated that his motivation for the December 16 meet-
ing was the effect of the dispatch on the senior drivers. He
was upset by what was happening to the group. His com-
plaint of his mileage was not about the week of December
16 but the following week as shown by the posted schedule.
Allen uses ‘‘mother f—ker’’ frequently but denies using
‘‘mother f—ker and asshole’’ to Morialli on December 16.
Admittedly he used ‘‘f—k’’ although he was no more upset
than usual. Morialli was the only supervisor to whom he
said, ‘‘If I don’t get out of here I’m going to have to kick
your ass and might get fired.’’ Allen denied that Sutch told
him to calm down in the December 16 meeting. The meeting
was held in a conversational tone with no one mad.
Allen was surprised when he was fired on December 19.
He had a perfect record and did not think there was any
chance he would be terminated. Allen thought no more than
a warning for his conduct. If he knew he would be fired for
what he had to say, he would not have gone in. After his
discharge he did not tell any other drivers what happened.
Allen did on one occasion overhear one driver tell another
that Morialli said Allen threatened to kill people. Allen told
the driver, ‘‘that’s not so.’’
Walter Morialli has been employed by Respondent for 9
years with the last 7 years as transportation supervisor and
director of transportation safety. He supervises 10 drivers, 3
truck mechanics, and 3 yard employees that spot and wash
trailers. Morialli’s responsibilities include the DOT records
and drivers files and daily accumulations of trip information.
Morialli has the authority to hire and fire employees and has
in the past exercised such authority.
Morialli participated in the events leading to Allen’s dis-
charge beginning with the meeting of December 16, 1988, in
Sutch’s office. Morialli testified:
A. I’m going to say it was approximately around
1:30. I was sitting in my office figuring out the sched-
ule for the next week, and I saw Richard coming up the
sidewalk—actually, it’s a ramp for forklifts—coming in
off a run. There was another driver in the same prox-
imity of him, Larry Burchett. Richard walked in and
said, ‘‘I need to see you.’’ I said, ‘‘Well, come on in.’’
Q. Well, let me ask you this: What did he complain
about? What was he complaining about?
A. Okay. At that time he told me that he was getting
f—ked on his runs.
Q. Did he say why?
A. He mentioned something about double teams get-
ting shown favoritism, possibly something—if I recall
correctly, he’d had to make three runs that week. And
at that time I showed him the schedule for the upcom-
ing week, and offered to show him the mileage chart.
He said, ‘‘I can see I’m not going to get any place with
you.’’ I said, ‘‘Well, would you like to talk to
George?’’ And he said ‘‘yes—’’ I got up from my desk
and walked over and I told George, I said, ‘‘George,
Richard is here and he’d like to see you. He’s upset
about his mileage and some other stuff.’’ I didn’t go
into—I just basically told George mileage. George says,
‘‘No problem. I’m busy right this minute. Tell him I’ll
be up front as soon as I can.’’ I even paged up front
to try to get Richard to answer the page to let him
know that I had made arrangements for him to see
George. Nobody picked up the page. I walked up to the
front office. When I walked up to the front office, I
saw Richard standing in the hallway talking to some-
body. I don’t remember who it was. I walked on up
front and took care of what I went up there for. Walked
back to my office again. George Sutch paged me. He
said, ‘‘Why don’t you get your stuff together and come
on up. Pick Richard up with you on your way.’’ Rich-
ard was in the break room. I think he was talking to
Gene Harris. I said, ‘‘Richard, come on. George is
ready to see us.’’ We went in the office and sat down
and Richard closed the door, and started stating his
gripes that he had. I don’t remember which one he stat-
ed first.
A. What’s the best you recall of what he said? You
say you don’t remember what he said first?
Q. I don’t remember his first statement. He told
George he was getting f—ked around. I had a summari-
zation of the mileage. I had a couple of three or four
weekly trip sheets. One thing that sticks out in my
mind, he made a issue that a double driver had taken
like a four or five-hundred mile run, like a Nashville,
Tennessee run on a Monday. He didn’t think that was
right. I pointed out that it was a slow week. For that
double team to equal the miles he would get, they’d
have to run over 4,000 miles. They were able to pull
that short run and come right back in and drop one
trailer and hook up to another one and go on, say, ap-
proximately a 1,500-mile run. That was my explanation.
Q. Did George—say anything in response to your
explanation?
A. George Sutch thought it was the right thing to do,
that it was done properly. Richard didn’t seem to—it
didn’t seem to please him any that I did it that way.
In regards to his getting f—ked around on miles, I
pointed out the fact to him that he was the No. 2 man
on miles for the new fiscal year which started up Octo-
ber 1. I also pointed out that he had run approximately
2,300 miles that week. In the middle of December is
our very slow season. I probably had two drivers off
on vacation deer hunting at the time. I had basically of-
fered vacation time to anybody that wanted it that still
had vacation time left. It didn’t seem to matter to him
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he had run 2,300 miles and that he was No. 2 man
on miles. That’s when he brought up the fact that I was
f—king him around because I was letting—I believe
Paul Crestman—I was arranging it so he could be home
and off on weekends. I told Richard that I was not
doing that, that if he happened to be home on week-
ends, it just fell that way. Our drivers are normally
home on weekends anyway. Sometimes they might not
get in until Saturday morning, possibly Saturday after-
noon.
Q. This is what you told him?
A. Correct.
Q. Did he say anything in response to that?
A. Nothing I said—he would call me liar. He shoved
my paperwork back. He accused me—He said, ‘‘The
only thing you show George is what you want George
to see.’’ He made the statement that when George had
dispatched while I was on vacation, it was done right.
When I dispatched, I was f—king him around. And I
don’t have but one set of papers and the mileage sheet
stays on my desk at all times. The weekly schedule is
public knowledge. It’s posted at least three places in the
plant. From that point on, things got to where ‘‘You’re
a liar. I’m going to whip your mother f—king ass. Shut
up, boy. I’m talking.’’ After the third time.
Q. (Interposing) Third time of what?
A. Threatening to whip my ass like a mother f—king
stepchild, I did make the statement ‘‘That might not
necessarily be so, but that’s not what we’re here for.’’
Q. Did he use the word ‘‘mother f—ker’’ any more
than one time?
A. Yes.
Q. How did he use the word?
A. He either called me a mother f—king liar or a
lying mother f—ker. One of the two. I don’t remember
per se which.
Q. After you made your statement about ‘‘That may
not necessarily be so, but that’s not what we’re here
for,’’ or something to that effect, what happened from
that point?
A. After that—Shortly after that is when he made the
statement about the McDonald’s style killing. He said,
‘‘If management don’t quit f—king me around—upper
management don’t quit f—king me around, there’s
going to be a McDonald’s style killing. There’s going
to be dead bodies laying everywhere.’’ He made the
statement in the front office. He stood up. That’s when
I told him I was really and truly sorry he felt the way
he felt.
Following the meeting with Sutch on December 16
Morialli recommended to Sutch that Allen be terminated.
Allen was subsequently discharged. Morialli testified to the
reason for Allen’s discharge:
A. Mr. Allen was discharged for threatening to whip
my ass like a mother f—king stepchild, calling me a
liar. He threatened to whip my ass like a mother f—
king stepchild at least three times. He also made a
statement that if management didn’t quit f—king him
around that front office would look like the McDon-
ald’s killing that happened in, I believe, San Diego,
California.
Q. Is that it? That’s the reason he was fired?
A. Well, there was—you want to know the reasons
he was fired. That’s primarily—insubordination and di-
rect threats to a supervisor is the reason he was termi-
nated.
Q. The insubordination was what?
A. Insubordination is when George Sutch asked him
on several different occasions to calm down and quit
making threats and let’s talk about the issue at hand.
Q. That was the insubordination?
A. That’s what the insubordination at that par-
ticular—at this time, yes.
Q. When you say ‘‘this time,’’ what do you mean?
A. I mean at the confrontation on the 16th. That’s
the insubordination I’m talking about right now.
Q. Well, was there other acts of insubordination on
the 16th?
A. On the 16th, no.
Q. And the threats to supervisor?
A. Threat to myself. Directly that he would whip my
ass. The second threat, the mass killing. He made the
statement there would be dead bodies laying all over
the front office.
Q. Dead bodies would be laying all over the front
office? That’s what he said?
A. Yes, sir.
Q. And he said that if management did not change
their ways toward him?
A. He said if management didn’t quit f—king him
around.
Q. Did Mr. Allen make any other comments to you
or directed at you or about you during the conversation
on December 16th?
A. Yes.
Q. Okay. What were the other comments?
A. At one time during the conversation after he had
threatened to whip my ass at least twice, he told me to
‘‘Shut up, boy,’’ on numerous occasions, ‘‘I’ll slap the
piss out of you.’’ At this stage of the game, I was be-
ginning to get a little concerned, and I just basically re-
arranged myself in my seat. Mr. Allen was sitting on
the edge of his chair and he made motions with his
hands. He said, ‘‘Come on. Come on. Hit me. I want
you to hit me. I’ll get you fired.’’ I told him, I said,
‘‘Richard, that’s not going to happen.’’
Q. Did Mr. Allen stand up when he did that?
A. He didn’t stand up. He moved closer to the edge
of his chair and made motions with his hands.
Q. Did Mr. Allen make any more statements or com-
ments to you, or about you during this conversation?
A. He called me a liar, threatened to whip my ass
like a mother f—king stepchild. He said we should go
across the road. Once again, he threatened a McDon-
ald’s style killing, mass killing. And towards the end of
the conversation, I told Mr. Allen, I said, ‘‘Richard, I’m
really and truly sorry you feel this way.’’ At this time
he had stood up. He was leaving. As he left, he said,
‘‘You’re sorry, all right.’’ And that was the end of the
conversation.
Q. Did you ever point out to Mr. Allen when he was
threatening you that perhaps he couldn’t carry out that
threat?
1225ALPHA RESINS CORP.
A. At one time after about the third time he told me
he was going to whip my ass, I said, ‘‘It might not nec-
essarily be that way, but that’s not what we’re here
for.’’
Q. How many times did Mr. Allen make the
McDonald’s threat in the meeting?
A. One time.
Q. Mr. Allen is not the only driver who’s com-
plained about the run assignments or mileage out there,
is he?
A. Repeat that question. I’m hard of hearing.
Q. All right. Mr. Allen is not the only driver at the
company who made complaints about their runs or their
mileage and so forth, is that correct?
A. No.
Q. Not correct?
A. Other drivers have complained about runs.
Q. That has been, from time to time, sort of an on-
going dispute with the drivers, isn’t it?
A. From time to time, yes.
Q. Particularly since—you can answer this better
than I can—particularly since the company has gone to
this system of trying to have equal mileage for all driv-
ers, regardless of seniority?
A. The topic would come up from time to time after
we went to equal miles, yes.
Following the meeting and after Allen had left, Sutch
asked Morialli what he thought. Morialli told Sutch that
Allen should be terminated. Sutch told Morialli, ‘‘I basically
agree with you.’’ Morialli did not call the plant security
guards or alert them in any way that Allen had made threat-
ening remarks.
Morialli did call Allen that afternoon at home and told him
to come to the office on Monday at 9 a.m. Allen came in
Monday and met with Sutch and Morialli. Sutch told Allen
he was discharged. Allen said he had been set up and would
see them in court.
Later that day Morialli was told by Stauffer to write a
memo of what occurred in the meeting with Allen and Sutch.
Morialli did so but the memo did not mention, ‘‘whip your
ass like a stepchild’’ or ‘‘mother f—king stepchild.’’
Morialli in additional testimony stated he did not call
Allen a liar in the December 16 meeting. He stated that Al-
len’s reference to McDonald’s came at the last of the meet-
ing. During the meeting Morialli spoke in a normal tone
without anger; however, Allen spoke in a loud tone and was
angry. After Allen left the meeting Sutch and Morialli spent
some 3–5 minutes together. During this time Morialli felt
that Allen was capable of carrying out his threat based on
Morialli’s knowledge of past threats made by Allen. Morialli
stated that he felt Allen was capable of hitting him or maybe
even killing him, albeit Morialli did not really think Allen
could ‘‘whip his ass.’’ During the December 16 meeting with
Allen, when Allen stated he would whip Morialli’s ‘‘ass,’’
Morialli told Allen, ‘‘that’s not necessarily so.’’
The past threats by Allen considered by Morialli involved
W. G. Pierce, a county constable, and mechanic Mike Likes.
The constable incident resulted in a physical assault charge
against Allen which Morialli was aware of. The Likes inci-
dent resulted from a dispute over a truck repair or a failure
to repair a truck several years ago. Morialli heard that Allen
threatened to whip Likes, but an investigation failed to con-
firm anything. Morialli recalled that the Pierce incident oc-
curred in 1986. Pierce was assigned various trucks to drive
so fuel consumption could be checked by the company.
Pierce was a good driver and always saved fuel no matter
which truck he drove. In effect Pierce made some drivers
look bad on fuel consumption. Morialli heard that Allen
threatened to take Pierce ‘‘across the street.’’ Morialli inves-
tigated the incident. Allen denied making any threat to
Pierce. A witness to the incident, James, did not confirm that
a threat was made or that a threat was not made. Morialli
told Pierce and Allen, ‘‘Why don’t you-all just try, if you’ve
got personal problems, try and settle them and be friends.’’
Morialli also recalled that Allen, in 1985 or 1986, was
talking with he and Sammons. Allen remarked that he was
too old to fight and if anybody ever backed him into a cor-
ner, he would just shoot them. Morialli knew Allen owned
several guns and had brought one into the facility. Allen
showed a handgun to Morialli in the office at some point in
time when Morialli had an interest in purchasing such a
handgun. Morialli knew also that other employees owned
firearms. He himself owns 20 guns including large and small
bore handguns.
George Sutch testified he has been plant manager of Alpha
Resins Tennessee since 1982 having begun employment in
the California Resin plant in 1978. As plant manager he di-
rected the operations of a production department a mainte-
nance department and a transportation department and has ul-
timate authority to hire and fire employees. Pursuant to his
authority he participated in the discharge of Richard Allen.
The incident leading to the discharge occurred Friday, De-
cember 16, 1988, and the discharge occurred Monday, De-
cember 19. Although Sutch has authority to discharge em-
ployees he had direct orders from George Carey not to se-
verely discipline truckdrivers without his expressed consent
and knowledge. Carey gave Sutch the order sometime after
the union campaign among drivers was concluded in 1983.
There is a disciplinary policy at the facility but it is not writ-
ten. It’s basically a three-step procedure: oral interview with
the employee explaining the infraction, a writeup explaining
the infraction, and recorded in the employee’s personnel file
and if repeated the employee could receive a further writeup
or be discharged. The number of steps in a particular case
is determined by the severity of the infraction. This discipli-
nary policy is supported by a number of plant rules which
although not announced to or disseminated among employees
when hired, should be understood by all employees going
into a place of business. Sutch believes people have a clear
understanding when they go into a place of business, there
are certain things they can do and certain things they can’t
do.
Allen had more than 10 years’ seniority and was one of
the three most senior drivers. There has been an ongoing dis-
pute among the most senior and less senior drivers about
how the runs should be dispatched. For several years the
drivers were allowed to chose their runs based on seniority
but in November 1987 the dispatch was changed to an equi-
table distribution of mileage among all drivers. Most drivers
drive by themselves but there are double teams for long runs.
All drivers have the option to double team, but none of the
senior drivers ever exercise the option. Generally the less
senior drivers must be assigned to the double teams. The
double team was designed for long distance runs so the vehi-
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cle could drive more continuously than it could with a single
driver. The double teams would split the pay for the run. On
occasion only one long run was available so the double team
would also be dispatched on short runs to equalize mileage
among all drivers.
With regard to the program instituted in 1988 and taught
by Clem Clark Sutch testified:
The purpose of the meeting was to establish a com-
munication link between management and employees,
to gain an open channel to them so we could under-
stand some of the things they wanted and some of the
things we wanted to do, have them do, to solve any
problems that they had, how to deal with situations
with customers, if they were angry or whatever. But,
the bottom line of the whole exercise was to have a
more smoother running plant where we wouldn’t have
problems or if we did have problems, we would be able
to resolve them in an expeditious manner.
On December 16, 1988, Sutch met with Moe Morialli and
Richard Allen. Allen was complaining that double team driv-
ers were getting preferred assignments so they could be
home on weekends and also compile good mileage whereas
he was getting less mileage. Allen also had general com-
plaints about the system operation.
The meeting started when Morialli came to Sutch’s office
with Allen. Sutch testified:
A. Moe told me that Richard wanted to have a con-
versation and I went to my office and contacted Moe
and asked him to bring Richard to the office. Richard
came in and asked if he could close the door. I said,
‘‘Go ahead and close the door. That’s fine.’’ He sat
down and the first thing that he said was, ‘‘I’m being
f—ked. I’ve kept my mouth shut for 11 months or 12
months, and I’m not going to take any more shit.’’ And
I said, ‘‘What do you mean? What’s your problem?’’
And he said that he was getting f—ked on mileage, that
he was not getting the miles that he wants to get or he
needs to get. And I turned to Moe and I asked Moe,
‘‘Have you got your mileage sheets with you?’’ And he
said he did. I said, ‘‘Well, let’s see what the mileage
numbers are.’’ And he went to put the papers in front
of Richard and Richard reached out and pushed the pa-
pers aside and said, ‘‘You’re a lying mother f—ker.
Whatever’s on those papers are wrong.’’
Q. And Mr. Morialli hadn’t said anything yet in the
conversation?
A. Other than to present, ‘‘Yes, here are the numbers
and let me show you where you stand. You’re the num-
ber two man on miles right now. I don’t understand
what you’re complaining about.’’
Q. Now, do you recall if he did say that before Mr.
Allen made his statement about him being a liar?
A. As I said, this is to the best of my recollection.
He called him a lying mother f—ker for some reason.
Q. By Mr. Ford: Do you recall—Well, I’ll ask it like
this: Do you recall Mr. Morialli saying anything di-
rectly to Mr. Allen before Mr. Allen called him a liar,
a lying mother f—ker?
A. Just to greet him, say ‘‘Hello, Richard. Come on
in. Sit down. Let me show you the numbers,’’ and as
soon as the ‘‘number’’ word came up, as I recollect, he
said, ‘‘You’re a lying mother f—ker. Those numbers
aren’t right.’’
Q. And that’s the first time that Mr. Allen called.
A. (Interposing) That he called him a lying mother
f—ker?
Q. Yes.
A. Yes.
Q. Had Mr. Allen made any other bad statements—
had he threatened Mr. Morialli before he called him a
lying mother f—ker?
A. I don’t recall.
Q. You don’t recall? When do you recall Mr. Allen
first threatening Mr. Morialli?
A. When?
Q. Yes, sir, when in the conversation.
A. When he initially showed Richard the numbers,
mileage sheets that recapped where Richard stood on
mileage, as I said, he immediately pushed that aside,
the numbers aside, the paperwork aside, and called him
a lying mother f—ker.
Q. But when did he threaten physical violence
against Mr. Morialli?
A. Further into the conversation.
Q. How many times did he threaten to whip Mr.
Morialli’s ass?
A. At least three times.
Q. At least three times. How long was the conversa-
tion?
A. I believe it was about 15 to 30 minutes.
Q. Did you take the opportunity to advise Mr. Allen
or admonish Mr. Allen that his conduct either was
breaking a company rule or was close to breaking a
company rule and he could be subject to discipline?
A. I told Richard each time that he said a statement
such as that when he made a direct accusation or told
him that he was going to whip his ass, I said, ‘‘Calm
down, Richard.’’ But Richard completely ignored that.
Q. So, you did not admonish Mr. Allen that ‘‘You’re
breaking a rule here,’’ or ‘‘You’re close to breaking a
company rule?’’
A. No, I did not.
Q. And, ‘‘You will be subject to discipline?’’
A. No, I did not.
Q. How many times did he, Mr. Allen, call Mr.
Morialli a lying mother f—ker?
A. Three or more times.
Q. Do you remember how many more than three?
A. No, I do not.
Q. You definitely remember three?
A. I don’t definitely remember it, but I’d say at least
three times.
Q. How did the California statement come up, the
McDonald’s in California statement come up?
A. He had gone—We had gone through all the items
that he had complained about, how he was being
screwed on mileage, demonstrated to him with numbers
that that wasn’t true. We had demonstrated to him with
an explanation of how a double team was dispatched
and why it was dispatched, and he was—he was uncon-
vinced, and repeatedly threatened to whip his ass. And
I said, ‘‘Richard, there’s nothing wrong with it. You’re
1227ALPHA RESINS CORP.
not being picked upon,’’ as he had claimed. And at that
point in time, Richard said that ‘‘If this company
doesn’t stop f—king with me, there’s going to be dead
bodies laying everywhere just like McDonald’s in
Southern California. Dead bodies everywhere.’’
Q. Did he repeat that statement more than once?
A. He repeated ‘‘dead bodies everywhere’’ twice.
Q. What about ‘‘McDonald’s in California,’’ did he
repeat that more than once?
A. Not to my knowledge.
Q. Did you testify that you felt that Mr. Allen had
threatened you and other office employees?
A. Are you asking me that when he threatened to kill
the front office staff and turn it into dead bodies every-
where type situation?
Q. That’s what you said. You said he threatened to
kill the front office staff.
A. He said—He threatened to turn the front office
staff and management—the management of this com-
pany—into something that looks like McDonald’s in
Southern California with dead bodies everywhere. And
I included myself in the management and the office
staff, yes.’’
Sutch’s response to Allen’s McDonald’s statement was,
‘‘there’s nothing we can do to resolve your problem. I don’t
know what your real problem is.’’
After Allen left the meeting Sutch asked Morialli, ‘‘What
do you think of this conversation.’’ They talked for a few
minutes and concluded that they thought Allen should be ter-
minated. Sutch stated he had decided that Allen had to be
discharged for two reasons: (1) the repeated threat to whip
his supervisor’s ‘‘ass,’’ and (2) the threat to kill people in
the front office as at a McDonald’s restaurant, coupled with
dead bodies laying everywhere. Notwithstanding the nature
of the threats Sutch did not know where or what Allen did
when he left the meeting. Sutch assumed Allen went home
about 2:30 p.m. Sutch did not alert security or call the police
about Allen’s threats.
In additional testimony of the December 16 meeting with
Allen, Sutch stated that Morialli did not call Allen a liar.
Morialli spoke during the meeting in a civil tongue whereas
Allen was angry and spoke loudly. Allen’s reference to
McDonald’s was broached in the latter part of the exchange.
Sutch stated he took Allen’s McDonald’s statement seriously
because it was said in a threatening manner and Allen was
dead earnest. Allen’s tone was angry but he spoke calmly
and very serious. Allen also complimented Sutch as a fair
minded person. Sutch did not lock his or any other door. He
did not escort Allen from the premises or alert the security
guards. He did not ask Morialli if he wanted protection nor
did he notify the local police of Allen’s statement.
Sutch expanded on the December 19 meeting with Allen.
Sutch at the outset read the discharge slip to Allen. The stat-
ed reason for termination was gross insubordination and
threats to fellow employees. Sutch also told Allen the termi-
nation was based on actions and things said by Allen at the
December 16 meeting. Sutch denied stating to Allen, ‘‘today
is the day I’m going to fire you.’’ Following the termination
Sutch and Morialli escorted Allen through the plant and to
his personal vehicle. Sutch told security that Allen was ter-
minated and to call police if they saw him again.
Sutch lacked authority to discipline drivers so he called
Carey, but he was out of the office. Sutch then called
Stauffer telling him that there had been a confrontation with
Allen and he wanted to talk about it. Sutch reported to
Stauffer that Allen had threatened his supervisor, used highly
abusive language in doing so, and threatened to kill people
in the front office and management. Sutch reported Allen
using ‘‘mother f—ker,’’ ‘‘liar,’’ and words to that effect.
Following the report Sutch and Stauffer agreed that Allen
should be discharged but not that day. It was suggested that
Morialli should contact Allen telling him to come to the of-
fice Monday morning when he reports for work. Allen would
at that time be discharged. Sutch stated that Morialli was in-
structed to have a police presence on Monday morning when
Allen came to work. Morialli did talk to Allen that day about
4:30 p.m. No one notified the plant security of Allen’s
threats nor were the guards alerted to Allen’s requested pres-
ence on Monday.
Sutch acknowledged that he and Morialli prepared memos
of the encounter with Allen at Stauffer’s request following
the management decision to discharge Allen. His memo does
not contain any statement by Allen threatening to kill the
front office staff and the management of the company. Nei-
ther does his statement contain any use of the phrase, ‘‘lying
mother f—ker’’ by Allen to Morialli. Further, Sutch’s memo
made no mention of ‘‘whip him like a stepchild’’ or ‘‘to
come go across the street.’’
Sutch knows that employees in the plant have, among
themselves and to supervisors, made statements such as, ‘‘I’ll
get your butt’’ or ‘‘I’ll kick your ass’’ and other similar col-
loquialisms or vulgarities. If reported they are investigated.
In such instances the employees have not been disciplined.
Sutch was not aware of the frequency of such statements, but
he acknowledged that it was the regular course of business
to have profanity on occasion. He could not recall any spe-
cific instance involving an employee and a supervisor or be-
tween employees which were investigated. Any threat by one
employee to another is a violation of the work rules but also
is difficult to investigate. Sutch stated that the threat to
Morialli by Allen was the first time he had witnessed such
a threat.
Jeffy Stauffer testified he has been employed by Respond-
ent for 11 years as general counsel of the corporation and
has been vice president for 6 years. As vice president he has
oversight responsibility for personnel matters and employee
relations at several different corporate subsidiaries. George
Carey, vice president of operations, requires that all drivers’
discipline involve him. Generally, Stauffer is involved in the
discipline of all other employees. There are roughly 12 driv-
ers and 300 other employees at the facility. The facility is
supervised by a plant manager, sales manager, and a tech
service manager. The company policy is to supervise with a
three-part management team. George Sutch is the plant man-
ager at Alpha Resins and he enjoys considerable authority
with respect to the daily operations and control of the work
force. Walter Morialli supervises the drivers at the facility.
Stauffer, Sutch, and Morialli conferred about Richard Allen’s
conduct on Friday, December 16, and the consensus was to
discharge Allen. Sutch had requested that Stauffer join in the
consideration of Allen’s discipline. Carey was out of town so
Stauffer elected to join the plant management in the meeting.
In addition, Stauffer had Bonnie Long present to process any
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
personnel paper requirements. Stauffer stated that Allen was
discharged for cursing his supervisor, for threatening to whip
his supervisor several times, and threatening to make the fa-
cility look like McDonald’s if things were not changed to his
satisfaction. Stauffer had no firsthand knowledge of Allen’s
December 16 statements but all had been reported to him by
Sutch and Morialli. Stauffer stated that Allen would have
been terminated even in the absence of any reference to the
McDonald’s tragedy. Stauffer also stated that the cursing and
threat to whip his supervisor were individually not sufficient
to cause Allen’s discharge. Stauffer added that only if the
threats to whip a supervisor and kill the front office people
were in ‘‘earnest’’ could they result in discharge. Stauffer’s
conclusions about Allen’s conduct were drawn from the de-
meanor of Sutch and Morialli as they reported the incidents
to him. Sutch looked a little shocked and Morialli was agi-
tated and upset. Sutch reported that Allen called Morialli a
‘‘lying mother f—ker’’ and threatened to whip Morialli
physically more than once. Allen also made a comment that
he would make the place look like McDonald’s. Sutch stated
that Allen was upset throughout the meeting with him and
Morialli.
Morialli reported to Stauffer that Allen had returned from
a run and the two got into a discussion. Allen was angry and
Morialli felt he could not handle the situation. Allen said he
was tired of getting ‘‘f—ked’’ and insisted on seeing Sutch.
Morialli asked Sutch to join them. The three discussed Al-
len’s complaint and during the discussion the alleged threats
and cursing accrued. Although Morialli told Stauffer that he
took Allen seriously when Allen threatened to whip him, he
did reply to Allen, ‘‘I don’t think that’s necessarily so.’’ The
three continued the discussion following the alleged threats
and the cursing and finally Morialli told Allen, ‘‘I’m sorry
about this.’’ Allen then left telling Morialli, ‘‘you are sorry.’’
Following the reports by Sutch and Morialli, Stauffer
asked Sutch what would be an appropriate action. Sutch re-
plied, ‘‘termination.’’ Stauffer said he agreed. Stauffer stated
that Sutch did not need permission to discharge employees,
he could have terminated Allen on his own. Stauffer agreed
to discharge not because he was very concerned or fearful
about Allen’s ‘‘McDonald’s’’ threat, but because he was
concerned enough not to take a chance. Stauffer did not
know if Allen would carry out the threat or not but he
thought Allen should be terminated and thereby denied ac-
cess to the facility. He did not ask either Sutch or Morialli
if they thought Allen was capable of carrying out the
McDonald’s threat or the threat to whip Morialli’s ‘‘ass.’’
The facility is guarded by two contract security people who
check employees coming into and leaving the facility.
Stauffer did not alert the guards to Allen’s threat nor did he
alert either of the two local enforcement authorities. He did
tell Sutch and Morialli that as a result of the heat of the mo-
ment in the December 16 meeting with Allen it would be ad-
visable to inform Allen on Monday morning. Stauffer also
suggested that the sheriff’s department be asked to have a car
in the area on Monday when Allen came in. No one alerted
the plant guards for Allen’s entrance on Monday nor was any
type of escort determined to be necessary on Monday for
Allen.
Shortly after the supervisors’ report of the December 16
discussion with Allen, Stauffer asked each to make a written
report of the events for him.
Stauffer did not personally interview Allen before the dis-
charge nor did he review Allen’s personnel record or em-
ployment history. Stauffer does not know what discipline
system is used at the facility nor how Sutch in the past dealt
with employee discipline. Stauffer only once before was in-
volved in a plant discharge, in California several years ago.
He did know that the facility in 1988 hired a consultant on
employee relations but that was the extent of his knowledge
of the situation.
Charles Stephen Webb testified he has been a driver for
Respondent since 1976. Webb recalled a drivers’ meeting in
October 1987 with all the drivers, Morialli, Sammons, and
Sutch, present. Sutch informed the drivers that the seniority
dispatch would be discontinued and the dispatch thereafter
would be equal miles. A few drivers spoke up objecting to
the change but Webb did not recall any reference to a split
among the drivers relative to the dispatch system. After the
meeting several drivers discussed the situation and decided to
set up a meeting with Burriss. The purpose was to see if a
dispatch system based on seniority and some changes that
would favor the less senior drivers could be worked out. The
equal miles dispatch was very objectionable. The meeting
was never held because they learned that they had to meet
with Carey instead. Webb learned of the Carey meeting from
Morialli. Morialli also told Webb that it would look better
on his record if he did not side with Allen. Carey did in fact
talk with several drivers individually, but he did not talk with
Webb. Webb did not know whether Carey spoke to any of
the senior drivers.
Webb attended a driver meeting in the fall of 1988, but
he does not recall the month. Most drivers and Sutch and
Morialli were present. Clem, a consultant hired to show us
how to function better by communications between employ-
ees and management, chaired the meeting. He divided the
drivers into groups and each group got a piece of paper.
Each group selected a member to go outside and discuss the
paper among themselves. When the individuals returned to
their groups they were asked by Clem to pick an X or Y.
The groups alternated until all individuals had participated in
the outside discussion. The Xs and Ys were tallied and Al-
len’s group won. A few of the drivers had figured out what
was going on and how to play the game. McClure said,
‘‘that’s why we can’t get along with each other.’’ One driver
said, ‘‘Richard [Allen], you’re just out for yourself.’’ Allen
replied, ‘‘Yes, that’s right. I am out just for myself.’’
There was another meeting of drivers before the end of the
year. The same people attended. Clem split the drivers into
two groups. One group was instructed to list all things that
hindered a driver in his performance. Webb was in this
group. The other group was to list all changes made since
the first meeting that resulted in improvements. Webb’s
group listed truck assignments, dispatching, and several other
things that hindered performance. The dispatch complaint
stemmed from the two-driver teams. Because of the equal
mile dispatch the teams did not go out as often as the single
drivers. The teams had to take the long runs to build up
miles while some single drivers were held back from short
runs until the teams caught up with the mileage. The truck
assignment problem resulted from the company selling sev-
eral tractors causing a shortage of tractors. In the past new
or better tractors were assigned by seniority but with the
shortage, the better tractors with larger sleepers were as-
1229ALPHA RESINS CORP.
signed to two-man teams. The driver who lost the better trac-
tor to the two-man team was assigned another tractor. Allen
was in the other group and they had not listed any improve-
ments.
Around December 13 or 14, Webb and Allen each had a
run to Knoxville, Tennessee. While driving they discussed
the dispatch and truck assignments on the CB. Allen wanted
one of the newer trucks when the teams were broken up.
Sutch had stated previously that he did not think Allen de-
served one of the newer trucks. Sutch also stated that the
teams had done a good job and a team member should keep
the newer truck if drivers went back to singles. Allen said
he thought he would not get a new truck because of his con-
flicts with Carey in the past. Carey said a couple of drivers
had not gotten a new truck since they hired on and it was
time they too got a new truck. Newer trucks got better fuel
mileage so the driver would get a larger fuel bonus. Truck
assignments were imminent because during deer season a lot
of drivers take vacation. That would leave a lot of trucks idle
in the yard unless the teams were broken up and all drivers
made single runs.
Webb and Allen also discussed going to see Burriss, but
Webb did not want to go. Allen suggested getting a group
of drivers to go because the more drivers that go the more
impressive it would look. It would not look like just one
driver has a complaint. Webb agreed to be part of the group,
but he did not want to say anything. Webb preferred silence
due to his religious beliefs. He also did not use curse words,
but he was aware of vulgarity among the drivers and super-
visors.
Webb stated that in 1986, 1987, and 1988 Allen was the
most outspoken driver in the meetings. Anything that was
not fair to the drivers, Allen would bring up at the meetings.
Webb, in the past, has seen several pickups in the company
parking lot with rifles in the racks. However, after several
thefts, the drivers quit carrying their guns in pickups driven
to work.
In 1988 senior drivers in order were: Danny Lewis, Webb,
Richard Allen, Ronnie Nichols, and Jake Allen. On occasion
Lewis would voice his opinion but Allen spoke up more for
the drivers than anyone.
In Webb’s opinion Allen was entitled to a new truck be-
cause not only was he a senior driver but he had in the past
run as many double miles as any other driver. As a senior
driver he should get the new truck with better fuel mileage
and a higher fuel bonus. Webb himself had not requested a
new truck, but in March 1989 he did get one of two new
trucks that came in.
On cross-examination Webb stated that he told Allen dur-
ing a CB radio conversation in December that he thought the
senior drivers should get the trucks which are more fuel effi-
cient. Webb recalled that during the period of seniority dis-
patch, fall of 1986 to fall of 1987, the senior drivers got
more mileage than the juniors. That’s why the juniors fa-
vored equal miles dispatch.
The Company began buying new trucks in 1979. Drivers
got the new trucks in accord with their seniority. Lewis got
the first, Webb got the second, Yeager was in line for the
third, but it was a conventional Kenworth and he wanted a
cab-over. Yeager passed to wait for a cab-over. Allen got the
conventional Kenworth. Thereafter each driver got a new
truck when his turn came. Whenever a junior driver sepa-
rated from employment, the drivers could, by seniority, opt
to take the truck left unassigned, because it would be newer
than those of most senior drivers.
Webb stated that not all drivers complained about the
miles attained under the equal miles. Allen did complain
about the miles he got and the manner of dispatch.
Webb was aware of the directive to drivers about cursing
the dispatcher under threat of discharge. He knew that some
drivers had cursed the dispatcher, but he never heard Allen
curse Morialli. Webb did hear Allen call Morialli a ‘‘gutless
wonder.’’
Ronald Edward Nickels testified he has driven for Re-
spondent for 11-1/2 years. He recalled the last drivers’ meet-
ing that Allen attended was in November 1988. All the driv-
ers, Sutch, Morialli, and Clem, the consultant, attended. The
drivers were divided by subject matter. Half the drivers were
to list problems and the other half were to list improvements.
Nickels was in the problem half. His group listed dispatch,
communications with management, truck assignments, slip-
seating, and equal mileage. In the discussions among the
group, Nickels said the dispatch should be by seniority be-
cause the senior driver should make more money than new
hires. Webb was the secretary of the problem group and he
wrote down all the problems. After the list was completed,
Webb read the list to all present at the meeting. All drivers
then discussed the problems listed. During the discussion
Webb and Lewis stated that they should get the two new
trucks due in soon because they were most senior and all
drivers had in the past gotten a new truck. It was time to
go back to one and start again. Sutch told Webb and Lewis
he would get back to them. Sutch also told the group that
slip-seating would stop. Only in an emergency, such as a
truck breakdown, would an assigned truck be used by some-
one else to make a run. Nickels also recalled the drivers’
meeting in the fall of 1987. Sutch informed the drivers that
the dispatch would no longer be by seniority. Thereafter, dis-
patch would be by equal mileage. Allen spoke up and said
that management thought the drivers were split up. Either
Sutch or Carey said they did not think the drivers were split
up, they knew the drivers were split up.
Allen spoke up at all the meetings. Allen always spoke
about the conditions that drivers have to face. Allen was con-
cerned about himself, but he had the drivers at heart, too.
Nickels never spoke up because between Allen and Lewis,
all that could be said was already said. It was not unusual
for drivers to discuss something among themselves and then
Allen would speak up at the meetings informing management
of the problem. Allen would usually speak up before Lewis
or anyone else. Lewis and the others required more time to
ready themselves to engage in any discussion. Most of the
senior drivers were dissatisfied with the dispatch and Allen
usually told management. One specific incident involved the
loss of pay for meal stops. Allen and Lewis went to Carey
to complain that the takeaway was a mistake. As a result of
the meeting, Carey reinstated pay for meal stops.
Nickels was surprised when Allen was discharged. Allen
had a good driving record, never had a wreck, and had never
been disciplined. Nickels never knew Allen to instigate a
fight. If Allen was in a heated discussion with anybody, be-
fore he would fight he would leave the room. He’s a lot
smarter guy than that.
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Michael Likes testified he was a mechanic in the truck
shop at Respondent’s facility. Likes knew Allen and recalled
that drivers always talked to Allen about work problems. Just
about everything from safety bonuses to fuel bonuses to what
driver got what run assigned. Allen was kind of the spokes-
man for the group, particularly the senior drivers. Likes also
recalled that everyday talk in the shop and around the dis-
patcher was crude. He specifically recalled that McClure was
angry because he did not get a certain run one week and
McClure told Sammons he would kick his ‘‘little wormy
ass.’’ McClure was not disciplined for the remark.
Several years ago Likes and another mechanic were in the
dispatch office when Allen was discussing a driver problem
with Morialli. Allen left the office and Morialli said, ‘‘If
Richard didn’t quit stirring things up, the company was liable
to get rid of him.’’ Morialli, as transportation supervisor, on
one occasion said if the drivers keep complaining the Com-
pany will get rid of the trucks and go to common carriers.
This occurred a couple of years before his discharge.
On cross-examination, Likes stated that he and another
mechanic were discharged by Sutch for failing to follow es-
tablished procedure in cleanup. Likes knew the cleanup was
wrong and held no ill will toward the Company for his dis-
charge. He stated that in the circumstances he would have
done the same thing if he was Sutch.
Likes did not recall any threat from Allen stemming from
a truck repair that Likes had performed. Although Likes at-
tended several drivers’ meetings as the truck mechanic, he
could not recall any incident of drivers cursing Sammons, the
dispatcher, and management telling the drivers to tone down
and quit abusing Sammons. Likes worked as a mechanic for
6-1/2 years and was terminated about 2 years ago.
Joe McClure testified that he is a driver at Respondent’s
facility and is related to Richard Allen. He is seven on the
seniority list. McClure recalled an incident between him and
Sammons 3, 4, or 5 years ago in which both used curse
words toward each other. McClure could not remember any
specifics of the encounter. He did remember that several
months later the Company made a rule against cursing the
dispatcher.
The Company has always had an open door policy and en-
couraged drivers to come to them with complaints. In every
drivers’ meeting, problems were discussed whether they were
raised by management or not. McClure has gone to Morialli
with a problem and if Morialli couldn’t help he went to
Sutch and if needed he went to Carey. McClure could not
recall any specifics, but he did recall it was a personal matter
and not a problem common to other drivers. McClure did not
make a habit of complaining about work or what he had to
work with.
McClure was not aware of Allen’s discharge until Morialli
told him what happened. A week or two after the discharge,
Larry Burchette told McClure that he had talked with Allen
on the CB that Friday while both made a run. Burchette said
Allen was upset and he tried to get Allen to wait until he
cooled down before going to management.
McClure stated that Allen talked to management more
than the other drivers and Allen talked to them a lot.
McClure agreed that something was wrong with the dispatch
system and that the dispatch should be by seniority, particu-
larly during the slow season.
Larry Burchette testified he has driven for Respondent
about 7 years. On December 16 he was returning to the facil-
ity about the same time as Allen. The two talked on the CB
radio about dispatching. Allen said the dispatch was not fair,
and he was going to talk to management when he got back.
Burchette suggested that Allen not talk to them when he re-
turned but wait until a later date when Allen was not upset.
Allen told Burchette he was probably right about waiting.
Burchette was on vacation within the 2-week period after
Allen’s discharge and does not recall any conversations with
Joe McClure about Allen’s discharge or the events leading
up to it.
Analysis and Conclusions
The General Counsel’s complaint alleges a discriminatory
discharge and, alternatively, a discharge caused by the con-
certed activity of the employee. The determination of the ul-
timate fact, in either case, therefore turns on Respondent’s
motivation. The causality test of Wright Line, 251 NLRB
1083 (1980), applies. The test as explicated by the Board is
‘‘First, we shall require that the General Counsel make a
prima facie showing sufficient to support the inference that
protected conduct was a ‘motivating factor’ in the employ-
er’s decision. Once this is established, the burden will shift
to the employer to demonstrate that the same action would
have taken place even in the absence of the protected con-
duct.’’
To sustain its burden of proving discrimination, the Gen-
eral Counsel must at least show that Richard Allen engaged
in union activity, that Respondent had knowledge of Allen’s
union activity, that Respondent displayed animus against
unions or Allen, and that Respondent’s action against Allen
was triggered by his union activity.
The record evidence evinces a union election at Respond-
ent’s facility in 1983. There is, however, no evidence of any
union activity by any employee prior to, during, or after the
election. The General Counsel offered only a single state-
ment by Respondent’s vice president uttered at the Com-
pany’s victory party following the election. Albeit Allen was
the recipient of the statement, it was not directed at Allen
nor did Allen in response declare any union affiliation. In ad-
dition to the remoteness of the remark there is simply no
substance of individual activity or Respondent’s knowledge
of any. At the most the General Counsel’s offer shows a lim-
ited animus toward the Union engaged in the election. Fur-
ther, there is no evidence of any subsequent union activity
by anyone. The General Counsel did offer a quizzical remark
by Allen at the start of the December 16 meeting which pre-
cipitated the decision to discharge Allen. Notwithstanding the
opinionated nature of the remark there was no response nor
was any discussion initiated by it. The remark stands alone
and is insufficient to support any material fact of union activ-
ity requiring proof by the General Counsel. The General
Counsel therefore has failed to show a prima facie case of
discrimination in the discharge of Richard Allen.
What remains is the complaint allegation of ‘‘concerted
activity.’’ The General Counsel must prove that Allen was
engaged in concerted activity and that Respondent was moti-
vated to discharge by that concerted activity.
Meyers Industries, 281 NLRB 882 (1986) (Meyers II), de-
fines concerted activity. ‘‘In general, to find an employee’s
activity to be concerted, we shall require that it be engaged
1231ALPHA RESINS CORP.
in with or on the authority of other employees, and not sole-
ly by and on behalf of the employee himself.’’ The Board
in Meyers stated that the question of whether an employee
has engaged in concerted activity is a factual one based on
the totality of the record evidence. When the record evidence
demonstrates group activities, whether ‘‘specifically author-
ized’’ in a formal agency sense, or otherwise, we shall find
the conduct to be concerted.
The analysis of the General Counsel’s evidence of motiva-
tion is subject to the causality test of Wright Line, supra.
The record shows that the method of dispatch, truck as-
signments, and accumulated miles by individual drivers were
points of contention for many years. Over this period Allen
and others voiced complaints to lower, midlevel, and upper
level management. Allen was, on several occasions, a
spokesman for the drivers, albeit mostly for those drivers
most senior. There was a division among drivers based on
relative seniority, but the numbers were basically equal. Half
were senior and half were junior. As one would expect each
group held opposing views toward the dispatch, the truck as-
signments, and the mileage accumulation. Seniors expected
to get the choice of runs, the newer trucks, and the most
mileage. Juniors expected an equalization of runs and mile-
age and to participate in new truck assignments. The dichot-
omy never changed. Management in an attempt to appease,
vacillated from one remedial extreme to the other. When the
pendulum swung in favor of the juniors discontent festered
among the senior drivers. Respondent’s attempt to show that
Allen was only one among several who brought complaints
to management thereby negating any spokesman or leader-
ship role for Allen is not availing. Neither is Respondent’s
attempt to paint Allen as an individual concerned only with
himself availing. Allen’s uncontroverted testimony of Carey’s
remark to him in November 1987, ‘‘keep your mouth shut,
the senior drivers aren’t running the dispatch anymore,’’
evinces both management’s opinion of Allen’s status among
the drivers and the root cause for the senior drivers’ unrest.
The evidence does show that drivers, other than Allen, spoke
up or raised complaints to management, but a quantitative
analysis of each driver’s role is not required. In certain cir-
cumstances ostensibly individual activity may in fact be con-
certed activity if it directly involves the furtherance of rights
which inure to the benefit of fellow employees. The exist-
ence of opposing factions among the employees does not
denigrate the proposition. Allen’s individuality notwith-
standing, the record manifests that Allen was a senior driver
who spoke out for conditions favorable to the senior drivers
and he was considered by the senior drivers as a leader. The
law does not require that he be the only leader. In my view,
Morialli’s quandary over Allen’s complaint about driver
mileage at the December 16 meeting is instructive of Allen’s
role. Morialli did not understand why Allen pursued a mile-
age complaint when he had the second highest mileage
among the drivers. Thus, at the December 16 meeting the
complaints made by Allen were for the good of the senior
drivers and not Allen’s benefit alone.
Allen not only had an exemplary record as a driver for his
10 years of employment, he also had a respectable working
relationship with Morialli, Manager Sutch, and Vice Presi-
dent Carey. Whether admittedly recognized or not, Allen’s
status among the drivers was more than simply, a driver.
Contrary to Respondent’s contention and Respondent’s evi-
dence, I conclude and find that it was Allen’s leadership sta-
tus and his excellent driving record, composed not only of
safety factors but economy factors as well, which precip-
itated management’s choice to have Allen train as driver in-
structor. Allen then trained other drivers in company-spon-
sored sessions. Moreover, Allen’s instructor status contrib-
uted to the esteem held by the other drivers for him. It is
most plausible that Allen considered himself a leader of the
senior drivers and assumed the role with the support of the
other drivers. Respondent argues that Allen’s complaint was
not ‘‘on the authority of other employees.’’ The record evi-
dence clearly shows that Allen’s complaint on mileage was
based in part on the weekly accumulation of mileage rather
than the annual accumulation as explained by Morialli in the
December 16 meeting. Whether Morialli understood the dis-
tinction or chose not to acknowledge does not change the na-
ture of the complaint. The mileage complaint was an out-
growth of Morialli’s assignment of runs which admittedly
was a concern of all drivers whether senior or junior and
Allen discussed the issues on the CB radio with various driv-
ers while on the road. The CB radio is the drivers’ forum.
Allen’s credited testimony shows clearly that he voiced com-
plaints that junior drivers were double teaming and getting
the longer runs which allowed them to be home on weekends
whereas the senior drivers were getting shorter runs requiring
several dispatches and consuming more than 5 weekdays,
which intruded on the weekends. Morialli admitted that the
longer runs assigned to double teams was a complaint raised
by Allen at the December 16 meeting. The law does not re-
quire that a group spokesman be specifically authorized by
the group to act in some formal declarative manner. In my
view neither is the spokesman’s action required to be con-
temporaneous with any given set of circumstances. Here, the
subject of the complaints by Allen and others was continuous
and spanned several years. Allen’s role as spokesman like-
wise was continuous over the same several year period In
fact an employee’s exercise of a spokesman role will endure
unless and until it is retracted by those employees benefiting
therefrom. Contrary to Respondent, I do not conclude from
the record evidence that Allen was acting solely by and on
behalf of himself. I therefore conclude and find that Allen
was engaged in concerted activity when voicing complaints
of dispatching, truck assignments, and mileage accumulation
for the several years proceeding his discharge and particu-
larly he was engaged in concerted activity during his two
meetings with management on December 16.
I further conclude and find that the complaints voiced by
Allen over the several years and particularly on December 16
in his meeting with Morialli and Sutch dealt specifically with
driver wages, driver hours, and driver working conditions
and therefore were protected by the Act.
In brief, Respondent places the onus of its knowledge of
Allen’s concerted activity on Allen himself as if to imply
that Allen must declare at the outset he is speaking on behalf
of other employees. Although some employees may make
such a declaration preparatory to engaging in a complaint
session the law does not burden an employee so directly. Nor
does the law exact such a burden of proof on the General
Counsel. The General Counsel must only show that Respond-
ent knew of the concerted nature of Allen’s activity from
whatever source. There is a wealth of evidence in the record
to support the inference that Respondent had knowledge of
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Allen’s concerted activity. Allen for years was at the fore-
front of the senior drivers’ battles for changes in the dispatch
system. His several encounters with higher level management
specifically to initiate changes in the drivers’ working condi-
tions were documented in the success of the missions and the
ultimate proscription against drivers dealing directly with
corporate management instituted by Vice President Carey.
Respondent attempted to credit a JAKE Allen with the origi-
nation of one such prior mission to higher management, but
the substance was too vague to do so. Oddly enough that
was the single reference to the other Allen, or any other driv-
er, as related to any concerted activity or leadership role of
a driver. The record references to Respondent’s policy of so-
liciting complaints from drivers in no measure diminishes the
role of a driver as spokesman for other employees. A spokes-
man for employees can exercise his role in response to solic-
itation as well as initiate discussions of issues. Viewing all
the evidence in the record, I am not persuaded that Allen is
less of a spokesman or leader than he testified he is. I am
persuaded that Allen on many occasions acted as spokesman
by presenting grievances for the senior drivers and when
doing so Allen was recognized as spokesman for the other
drivers and their grievances by Morialli, Sutch, and Carey.
I am also persuaded that the division among drivers, senior
and junior, was continuous and this division coupled with
Respondents vacillation in dealing with the various com-
plaints resulted in unresolved, or short-lived resolutions of,
grievances for each group, alternatively. I therefore conclude
and find that Respondent had knowledge of the concerted na-
ture of Allen’s activity on December 16 when meeting with
Morialli and Sutch. My previous finding of Respondent’s re-
gard for Allen, as manifested in his selection as driving in-
structor, strengthens my finding of Respondent’s knowledge
of Allen’s concerted activity.
Respondent stated that Allen was discharged as a direct re-
sult of his conduct in the December 16 meeting with Morialli
and Sutch. Respondent denies that the substance of Allen’s
complaints had anything to do with his discharge citing Re-
spondent’s long history of driver complaints and the lack of
any discipline associated with the complaints. Respondent
claims rather that it was Allen’s gross insubordination and
threats to fellow employees during the meeting which
prompted Allen’s discharge. In the alternative Respondent
contends that Allen’s use of abusive and threatening lan-
guage rendered his conduct unprotected.
The Board must strike a balance between an employer’s
right to govern the workplace and an employee’s right to en-
gage in concerted activities under protection of the Act.
Some leeway is accorded employees when exercising pro-
tected activity. Albeit the most desirable conduct for em-
ployer-employee relations would be temperate, the realities
of industrial life in such situations usually produces less than
desired conduct. The case at hand is no exception. For years
the management and the drivers had their differences over
the dispatch system, truck assignments, and the method of
accumulating individual mileage. Management recognized its
past failures in employee relations by hiring an expert in the
field of employer-employee relations. It was his job to help
employees to maximize communications with management
and thereby establish a less confrontational mode for dealing
with work-related complaints. The expert had approximately
5 months of service with the employee program when the
critical meeting between Allen and management occurred.
It is undisputed that Allen sought out management to reg-
ister complaints associated with driver dispatch. Morialli,
Sutch, and Allen testified that the double teams dispatch
versus the individual drivers’ dispatch as implemented by
Morialli was the subject of the December 16 meeting.
Morialli and Sutch state that Allen was upset and belligerent
during the meeting whereas they two were restrained and
calm. Although Allen denies that he directly threatened to
‘‘whip Morialli’s ass,’’ Morialli and Sutch state that Allen
made the threat at least three times during the 15–30 minute
meeting. With each threat Sutch told aIlen to calm down so
the issues at hand could be dealt with reasonably. Following
one of the threats Morialli responded to Allen: ‘‘It might not
necessarily be that way but that’s not what we’re here for.’’
Morialli also stated that Allen at one point, when Morialli
raised from the chair and shifted his sitting position said,
‘‘Come on hit me. I want you to hit me. I’ll get you fired.’’
Allen testified that toward the end of the meeting he told
Sutch and Morialli, ‘‘[Y]ou’re going to fool with somebody
one of these days and you’re going to piss them off and
they’re going to come in here and its going to be more than
that McDonald’s deal out yonder. They’re going to wind up
killing all of us.’’ Morialli testified that Allen’s statement
was, ‘‘if management don’t quit f—king me around—upper
management don’t quit f—king me around, there’s going to
be a McDonald’s style killing. There’s going to be dead bod-
ies laying everywhere.’’ Morialli testified to his response to
Allen, ‘‘I told him I was really and truly sorry he felt the
way he felt.’’ Although, while testifying to the substance of
the meeting, Morialli stated, ‘‘once again Allen threatened a
McDonald’s style killing, mass killing,’’ he later testified
that Allen only made one reference to McDonald’s. Sutch
testified that Allen on only one occasion during the meeting
said,‘‘If this company doesn’t stop f—king with me there’s
going to be dead bodies laying everywhere just like McDon-
ald’s in southern California. Dead bodies everywhere.’’
Sutch’s only response to Allen’s remark was, ‘‘there’s noth-
ing we can do to resolve your problem I don’t know what
your real problem is.’’ Sutch admitted that when the meeting
ended, Allen complemented him as a fair-minded person and
left the office. As Allen left neither Sutch nor Morialli es-
corted Allen from the premises or alerted the plant security
or local police of any threats by Allen during the meeting.
Sutch testified that he reported to Stauffer, Respondent’s
general counsel and vice president, that Allen had threatened
his supervisor using abusive language and threatened to kill
people in the front office and management. Sutch and
Stauffer then agreed that Allen should be discharged the fol-
lowing Monday. On Monday, Sutch told Allen he was being
discharged for gross insubordination and threats to fellow
employees which occurred in the December 16 meeting.
Stauffer instructed Morialli and Sutch to write a memo-
randum of what occurred in the meeting with Allen.
Morialli’s memo of December 20 states:
Allen said he was getting screwed on runs and mile-
age by Morialli letting double teams pick their runs;
Allen called Morialli a liar; Allen told Morialli he
would beat his ass at least 3 times and Allen stated, ‘‘If
management did not change their ways, there would be
1233ALPHA RESINS CORP.
a McDonald’s type killing, there would be dead bodies
everywhere.’’
Sutch’s memo of January 5, 1989, stated:
Allen said he was sick and tired of being f—ked;
Allen presented information about dispatches made to
other drivers which were incorrect; Allen threatened to
whip Morialli’s ass if he didn’t shut up; Sutch told
Allen nothing could be done to make a more fair dis-
patch system at which time Allen said, If people don’t
stop f—ing with him, there would be bodies every-
where, just like McDonald’s in California.
Sutch credibly testified that his response to Allen’s McDon-
ald’s reference was, ‘‘There’s nothing we can do to resolve
your problem. I don’t know what your real problem is.’’
The three principals disagreed on what Allen said at the
December 16 meeting, particularly the language used by
Allen when threatening to ‘‘whip Morialli’s ass’’ and the na-
ture of the reference to the McDonald’s California tragedy.
Today’s testimony of Morialli and Sutch is more colorful
than the contemporaneous written accounts of December 20,
1988, and January 5, 1989, with the frequent inclusions
‘‘lying mother f—er,’’ ‘‘whip him like a stepchild, or a
mother f—king stepchild’’ and Allen killing ‘‘the front office
employees’’ or ‘‘management employees’’ as part of the
McDonald’s reference. Additionally, Morialli and Sutch de-
scribe Allen’s reference to McDonald’s as a personal state-
ment by Allen whereas Allen’s testimony and Morialli’s
memo of December 20 describe the reference as impersonal.
The differences are not reconcilable as simply degrees of re-
call by several witnesses to the same event. One version is
less abusive and less personal than the other. The truth can-
not be both, it must be one or the other. In determining what
was said, or not said, the undisputed surrounding cir-
cumstances can be helpful. Allen impressed me as a forth-
right witness concerned with recalling the events as they oc-
curred and without defensive hesitation as he testified and I
credit his version of his remarks. On the other hand, Morialli
and Sutch accumulatively emphasized the abusive nature of
Allen’s remarks to Morialli by successively increasing the
use of foul language each time the event was recalled. They
also augmented the personal nature of Allen’s reference to
McDonald’s by adding to or intensifying the language consti-
tuting the alleged threat. I find Morialli’s memo of December
20 to be instructive in assessing Morialli’s testimony of Al-
len’s remarks and his own explanation of the differences in
his recall. The memo was written at a time less critical to
proof of the events and when the events would be subject
to greater recall. Also Morialli credibly testified that he told
Allen he was sorry for him as the meeting was breaking up.
The admitted facts that Morialli and Sutch remained re-
strained and calm in the face of the alleged threats as shown
by their live testimony lend credence to the limited substance
of the remarks contained in Morialli’s memo. It is most plau-
sible that any threats by Allen substantial enough to raise a
concern for safety of employees and management resulting in
a discharge would have at the time of utterance caused a
considerable amount of apprehension and fear. However, not
the slightest concern for safety of employees or management
was expressed or considered on December 16 following the
close of the meeting. I cannot and do not credit the testi-
mony of Morialli and Sutch with regard to the abusive nature
of the remarks made by Allen to Morialli or to Allen’s ref-
erence to McDonald’s. I conclude and find that Allen did on
several occasions during the meeting tell Morialli that he
would ‘‘whip his ass’’ but without the abusive and profane
frills and that Allen did make an impersonal reference to the
McDonald’s tragedy in California when describing the Com-
pany’s treatment of employees in the dispatch of runs.
Sutch’s testimony of his report to Stauffer of the Decem-
ber 1 meeting is in contrast to the admitted emotional state
of Sutch and Morialli at the close of the meeting whereas
both testified that Allen was upset and belligerent during the
meeting. Likewise, Stauffer’s testimony that Sutch and
Morialli were shocked, agitated, and upset when giving the
report is in contrast to the same admissions and testimony of
Allen’s behavior. I find it instructive that Stauffer when tell-
ing the events leading to the discharge stated that the
McDonald’s statement standing alone was not sufficient to
warrant discharge nor was any single threat to whip
Morialli’s ass in and of itself sufficient to support a dis-
charge. Further, Stauffer did not inquire of Sutch or Morialli
if they thought Allen was the type of person to carry out any
of the threats.
It is abundantly evident to me that what took place in the
December 16 meeting was later embellished to dramatic pro-
portions. The testimony of the change in character and emo-
tion for both Sutch and Morialli is obviously the result of
subsequent consideration and appraisal of the incident. There
is no other reasonable explanation for the baseless report of
a threat of mass killings in the front office and the later af-
front to the admittedly common place ‘‘whip your ass’’ state-
ments. Based on reasonableness of the circumstances and the
contemporaneous responses to Allen during the meeting, I
discredit Morialli’s testimony of his fear of Allen’s remarks
and I discredit Sutch’s opinion testimony of Allen’s manner
when making the remarks. Further, I discredit Sutch’s testi-
mony of his fear of Allen’s remarks and the testimony of his
predischarge report to Stauffer. Viewing all the record evi-
dence relating to the December 16 meeting and including the
the memoranda exhibits in the record, there is no plausible
explanation at trial for Sutch’s immediate enhancement of
what actually occurred. Sutch’s testimony of his report can
only be explained as the causal support needed at trial for
Stauffer’s decision to discharge Allen. As noted previously,
Stauffer stated that the threats attributed to Allen would only
result in discharge if they were made with the intent to carry
them out. However, Stauffer never determined prior to dis-
charge whether Allen was the type of person to make good
on such threat. If such threat had in fact been made and
taken seriously, any reasonable person would have imme-
diately sought the aid of enforcement authorities and taken
steps to protect the innocent employees threatened. Termi-
nation alone, several days later, would be wholly inadequate.
Here, absolutely no remedial steps were taken by Morialli,
Sutch, or Stauffer. It was business as usual—an incongruous
vignette in the face of what has been described as tantamount
to a killing field. It is not inconsequential that after discharg-
ing Allen for gross insubordination and threats to fellow em-
ployees, the Monday following the Friday (December 16)
meeting, the plant security, for the first time, was alerted to
Allen’s circumstances. Even then the alert was based solely
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment), shall be computed as
in Florida Steel Corp., 231 NLRB 651 (1977).
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
6 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
National 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.’’
on Allen’s nonemployee status and that he had no right to
be seen on the property again.
Based on the factual findings above, I conclude and find
that Allen’s use of the phrase ‘‘whip your ass’’ was not ac-
companied by any physical acts or threatening gestures
evincing an intent to cause one to be more apprehensive than
when commonly used among employees in the plant.
Morialli’s reaction to the phrase on December 16 is instruc-
tive to my finding. I also conclude and find that Allen’s
characterization of Morialli as a ‘‘liar,’’ whether accom-
panied by profane phraseology or not, is not so unusual
among plant employees as to require discipline, especially
the most severe form. Profane epithets among employees in
the plant were the norm. I further conclude and find that Al-
len’s impersonal reference to the McDonald’s tragedy was
more symbolistic than threatening and was not accompanied
by any physical manifestations of intent. Respondent’s prof-
fered reason for discharging Allen was not supported by sub-
stantial evidence and therefore was a pretext seized on to rid
itself of an employee spokesman who no longer fit into its
scheme of employer-employee relations. Allen’s concerted
activity on December 16 occurred at a time when Respond-
ent was actively pursuing a program designed to encourage
individual participation by all employees and not just the
verbalizing few.
Accordingly, I find that the record as a whole supports the
General Counsel’s complaint allegation that Allen was dis-
charged because he engaged in protected concerted activity.
I further find that Allen’s conduct in the critical meeting was
not so egregious as to cause him to lose the protection, of
the Act while engaged in concerted activity. Respondent’s
action of discharging Allen therefore violates Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. Respondent by discharging its employee Richard Allen
on December 19 because of his protected concerted activity
has violated Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
3. The General Counsel has failed to sustain his burden of
proof that Respondent discriminatorily discharged Richard
Allen because of his union activities.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designated to effectuate the policies of the
Act.
Having unlawfully discharged Richard Allen, the Respond-
ent must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of 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 New Horizons for the Retarded, 283 NLRB
1173 (1987).4
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Alpha Resins Corporation, Piperton, Ten-
nessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engaged in pro-
tected concerted activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Richard Allen immediate and full reinstatement
to the job from which he was discharged on December 19,
1988, or if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any earnings
he lost, plus interest, as outlined in the remedy section of this
decision.
(b) Expunge from its files any references to the discharge
of Richard Allen and notify him in writing that this has been
done and that evidence of this unlawful discharge will not
be used as a basis for future personnel action against him.
(c) Preserve and, on request, make available to the Na-
tional Labor Relations Board or its agents, for examination
and copying, all payroll records, social security payment
records, timecards, personnel records and reports and all
other records necessary to effectuate the backpay provisions
of this Order.
(d) Post at its offices in Piperton, Tennessee, copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being duly signed by Respondent’s authorized rep-
resentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other ma-
terial.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS ALSO RECOMMENDED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
1235ALPHA RESINS CORP.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge our employees because they en-
gaged in protected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Richard Allen immediate and full reinstate-
ment to the job from which he was discharged on December
19, 1988, or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and WE WILL make him whole for
any loss of earnings and other benefits resulting from his dis-
charge or discrimination less any net interim earnings, plus
interest.
WE WILL notify Richard Allen that we have removed from
our files any reference to his discharge and that the discharge
will not be used against him in any way.
ALPHA RESINS CORPORATION