American Truck Stop, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1038 (N.L.R.B. 1975)

1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Truck Stop, Inc. and Patricia A. Heinz,
Margaret Dryer, Nellie Herron, Ella Moore, and
Phyllis Norman . Case 6-CA-7826
June 30, 1975
DECISION AND ORDER {
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On March 28, 1975, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
post this notice and to keep the promises that we
make in this notice:
WE WILL NOT threaten employees that they will
be discharged if they refuse to give up their right
to engage in a work stoppage in support of their
demand for an immediate meeting with manage-
ment officials.
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against our employees
because they have indicated that they would not
work until after management officials met with
them to discuss their grievances.
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their rights under
Section 7 of the National Labor Relations Act.
WE WILL reinstate Patricia Heinz, Margaret
Dryer, Nellie Herron, Ella Moore, and Phyllis
Norman to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
with full backpay covering the earnings they lost
because we unlawfully terminated them.
AMERICAN TRUCK STOP,
INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, American Truck
Stop, Inc., Bentleyville, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order, except that the
attached notice is substituted for that of the
Administrative Law Judge.
1 The Respondent has requested oral argument . This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and positions of the parties.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Ina, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had an oppor-
tunity to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act and has ordered us to
218 NLRB No. 152
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard on January 24, 1975, in Pittsburgh,
Pennsylvania, upon a charge filed on October 11, 1974,
and a complaint issued on December 13, 1974, alleging
that Respondent violated Section 8(a)(1) of the Act by
threatening to discharge, and thereafter discharging and
refusing to reinstate upon their unconditional offer to
return to work, employees Patricia A. Heinz, Phyllis
Norman, Margaret Dryer, Nellie Herron, and Ella Moore
because they engaged in concerted activities with other
employees for the purpose of collective bargaining and
other mutual aid and protection. In its duly filed answer,
the Respondent denied commission of any unfair labor
practices. After close of the hearing, briefs were filed by the
General Counsel and the Respondent.
Upon the entire record in this proceeding, including my
observation of the witnesses while testifying and considera-
tion of the posthearing briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation engaged
in the retail and nonretail sale of fuel and in the retail sale
of food from its facility located in Bentleyville, Pennsyl-
vania. During the 12-month period preceding the issuance
of the complaint, a representative period, Respondent sold
and distributed products, the gross value of which
exceeded $500,000, and received goods and materials
AMERICAN TRUCK STOP 1039
valued in excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and I fmd that
the Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
This case involves no union nor effort on the part of
employees to engage in collective bargaining or organiza-
tional activity. The sole issue involved relates to the right of
unrepresented employees to engage in concerted activity
pursuant to Section 7 of the Act. There is no dispute as to
the underlying cause of the threatened discharge, ultimate
termination, and refusal to reinstate the Charging Parties.
Thus, all were admittedly prompted by the Charging
Parties' declared intention that they would refuse to work
their regularly scheduled shift unless Respondent agreed to
an immediate meeting , so that they could air their
complaints to certain of Respondent's officials. Therefore,
since motivation is not in dispute, the allegations of the
instant complaint turn on the limited question of whether
the threatened refusal to work constituted concerted
activity of the type protected by the Act, as the General
Counsel contends, or as Respondent contends conduct so
unreasonable and indefensible as to furnish Respondent
good cause for dismissal of the five employees involved.
B. The Facts
Respondent operates two truckstops in Washington
County, Pennsylvania, with that involved here located in
Bentleyville. Thomas Cooper is the Respondent's presi-
dent, and his wife, Ruth, its vice president. Stock
ownership in the Respondent is held by the Coopers and
Coen Oil Company. The secretary of Respondent is
William Brooks; Brooks is also a vice president of Coen
Oil.
Thomas Cooper is engaged in immediate overall man-
agement of both truckstops, with the exception of
restaurant facilities, which are managed by Mrs. Cooper.
Brooks, apparently, does not exercise day-to-day supervi-
sory responsibilities with respect to the truckstops, but
visits the Bentleyville location irregularly, about 4 times
weekly, signs payroll checks, along with Thomas Cooper,
and has attended meetings with employees to explain tax
1 Unless otherwise indicated, all dates refer to 1974.
2 Each shift was responsible for preparation of certain food items for
ensuing shifts. As I understood the credited testimony of Phyllis Norman,
the, issue concerning supply problems related to the second shift's failure to
provide ample supplies for the third shift.
3 This related to the complaint by third-shift employees that rank-and-
file employees on other shifts were giving them orders.
4 In this respect the employees were complaining about the fact that only
four employees, rather than the customary five, were assigned to the kitchen
on Monday nights. Respondent had previously made this arrangement to
facilitate a six-man crew on weekends.
5 Although Mrs . Cooper was questioned as to communications between
herself and Norman in this time period , she related that the "last time" she
(Cooper) called Norman, the latter stated that everything is fine and that
"since you (Cooper) took that red-head from me we don't have any
problems." This was an obvious reference to Mrs. Cooper 's transfer of an
and wage-hour changes of interest to them. The evidence
does not identify any individuals other than Thomas
Cooper, Ruth Cooper, and William Brooks who would be
identified as having managerial responsibility at the
truckstop.
The restaurant at Bentleyville is a round-the-clock, 7-day
operation, manned by three shifts. Prior to their discharge,
the Charging Parties were kitchen employees assigned to
the 11 p.m. to 7 a.m., or third, shift. As such, they, like
kitchen employees on other shifts, performed grill work,
dishwashing, food preparation, and cleaning. However, the
bulk of the cleaning is expected to be completed during the
third shift.
The kitchen employees on the third shift were subject to
the direction of Phyllis Norman, a nonsupervisory employ-
ee, apparently clothed with lead authority, who is one of
the Charging Parties. Ruth Cooper, who, prior to the
instant hearing, had not been at the restaurant during the
third shift for some 4-5 months, generally relayed instruc-
tions to the kitchen employees assigned to that shift
through the restaurant cashier.
The Charging Parties were terminated on October 5,
1974.1 Prior thereto, they had expressed dissatisfaction to
Mrs. Cooper concerning working conditions. Thus, in
May, at the request of these employees, Mrs. Cooper met
with them concerning certain of their grievances, including
supply problems,2 harassment by kitchen employees on
other shifts,3 equalizing the work crew on Monday nights,4
and exhaust fumes, emanating from the garage, which were
reaching the kitchen area. In consequence of this meeting
Mrs. Cooper assured the employees that they would be
given ample supplies, that nobody would give them orders
other than herself, and that the fumes would be checked.
The kitchen employees were satisfied with this disposition.
However, according to the credited testimony of Phyllis
Norman, conditions affecting the third shift began to
deteriorate again several weeks prior to October 5. In this
connection, a few days before October 4, Norman called
Mrs. Cooper in a further effort to straighten the other shifts
out. Because Norman felt this could be accomplished
through the phone call, no meeting was requested at that
time.5
On October 4, Mrs. Cooper left the Bentleyville area on a
trip to New York. Before leaving, she wrote a note which
was to be given Norman by the cashier . The note
contained the following:
employee named Peggy Bailey, who was not favored by third-shift kitchen
employees, to a job during daylight hours. In any event , while Cooper's
testimony in this respect may imply a denial of the conversation described
by Norman, which is set forth in the above text, Cooper does not directly
contradict Norman in this respect . Nonetheless , Mrs. Cooper 's penchant for
nonresponsive and evasive answers left me unimpressed with the reliability
of her testimony generally and she is discredited to the extent that her
testimony relates to matters in controversy. The testimony of Peggy Bailey,
in response to leading questions , to the effect that during her assignment on
the third shift she was aware of no "serious" problems with respect to the
Employer is regarded as of no consequence . Bailey was transferred from the
third shift 2-3 weeks before October 4, and hence she would have no
knowledge of the reoccurrence of the complaints related by Norman.
Further, in view of the animosity which existed between Bailey and the
Charging Parties, and her unimpressive demeanor, I would descredit her
testimony even if viewed material.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phyllis
Please get your girls on the ball with the cleaning.
Be sure you prepare enough potatoes and onions
for 1st shift.
Thank you
Ruth
That evening when Norman read the note to the others
on the shift, all were angered at its content. In their view,
the third shift was doing all the work they could, there was
too much being pushed on them as it was, and they would
oppose what they construed as an attempt to plat more
work on them. All were of the mood to engage in a
spontaneous walkout. However, Norman persuaded them
to stay on and to meet the next day, Saturday, October 5,
at Norman's home.
On Saturday, October 5, that meeting was held and it
was then decided that Norman would call the restaurant
that evening before their scheduled work shift and demand
a meeting with Thomas Cooper and William Brooks.
Pursuant thereto, at about 9:45 p.m., that evening, Norman
called the restaurant and advised the cashier on duty,
Mary Patton, of their demand.6 Patton called Thomas
Cooper, who told Patton to tell the girls to come to work
tonight and we will try to iron this out next, week.
According to Patton, she called Norman back, asking her
to reconsider, mentioning the difficulties involved in
obtaining replacements at that late hour. She advised
Norman that next week "we would talk it over." 7 Patton
goes on to relate that Norman responded stating "no
meeting , no work because she was sticking by her girls."
Patton then called Cooper back. He'told her to advise the
girls that if they didn't work they wouldn't have a job. She
then called Norman back, again urging her to reconsider,
stating that if the girls don't come in "you know what this
means." Norman again indicated that the girls would not
be in . Patton then made her third call to Cooper, in which
Patton reported the final position of the girls. Cooper told
her to urge them to reconsider once more, and if they
refused to do so, to discharge them. Patton apparently
called Norman again, and effected the discharge.
• Thereafter, Norman and the four other dischargees on
Sunday, October 6, and Monday, October 7, picketed the
Bentleyville truckstop. Subsequently, on November 2, all
6 According to Patton, Norman at this time stated that "she was
reporting all the kitchen girls off on the 11 p.m . shift until they could have a
meeting with Mr . Cooper' and Mr. Brooks." Patton's version of what was
said is not regarded as creating a material conflict and , accordingly, it is
accepted.
r Norman contradicts Patton by denying that Patton ever indicated that
a meeting would be set up at any time . Furthermore , according to Norman,
when Patton initially called her, Patton advised that Cooper had said "he
would have a meeting in no way, that if we didn't report to work we were
fired." Although I regard these conflicts as immaterial, and shall rely upon
Respondent's version of the telephone conversation for purposes of my
analysis, were it necessary, however, I would credit Norman's account over
that of Respondent's witnesses. I regarded Norman as a more persuasive
witness than those offered by Respondent . From my observation of Thomas
Cowper, he did not impress me as the type who, after working all day at the
restaurant , and returning home at 9:30 p in . on a Saturday, would respond
to the employees ' demand for an immediate meeting before 11 p.m. that
evening, with the conciliatory expression that he and Respondent's
witnesses would have me believe he attempted to relay through Patton. I
believe it more likely that he regarded the demand for a meeting as
"unreasonable and indefensible " and reacted to it with the retort reflected
in Norman's testimony; namely, "that he would have a meeting in no way."
five unconditionally offered to return to work, but their
written requests were not acknowledged by Respondent.
In the interim, Respondent terminated the third shift at
the Bentleyville restaurant on October 13. According to
Thomas Cooper, the sole reason for the elimination of the
shift was his inability to obtain replacements willing to
cross the picket lines
C. Concluding Findings
As heretofore indicated, all of the unlawful conduct
attributed to Respondent in this case was concededly
motivated by the Charging Parties' expressed intention to
decline to work, unless first granted a meeting with
Respondent's president and secretary.
The legitimate interest of employees in seeking such a
meeting, and the statutory protection against reprisals or
intimidation where that right is asserted is firmly imbedded
in decisional precedent. Thus, as stated in N.L.RB. v.
Phoenix Mutual Life Insurance Co., 167 F.2d 983, 988 (C.A.
7, 1948), ". . . even though no union activity be involved,
or, collective bargaining contemplated ... [employees
have] . . . a legitimate interest in acting concertedly in
making known their views to management without being
discharged for that interest." Respondent lays no challenge
to this principle. Instead, the defense focuses upon the
overall conduct of the Charging Parties in furtherance of
their demand for a meeting, with Respondent contending
that the means employed were "unreasonable, indefensible
and not protected."
In considering Respondent's position it is necessary
initially to point out that this is not a case where the
pressures invoked by the employees either assumed, or
threatened to assume , that form of employee action
inherently beyond statutory protection, and which accord-
ingly would be a proper subject for discipline irrespective
of the worthiness of the underlying cause . Thus, all that
was involved here was a threatened refusal to work, which
did not contemplate a takeover of the plant9 or an
interference with the Employer's right to hire replacements,
or violence,10 or an effort to continue working in
disobedience of an employer' s instructions 11
Indeed Cooper's use of Patton as a go-between rather than to communicate
directly with Norman suggests that his mood was not one of conciliation. I
was also unimpressed with Patton, whose testimony in significant respects
was shifting and contradictory. My suspicion as to her veracity was
enhanced by my disbelief of Louisa Kubala, called to corroborate Patton's
testimony that Patton told Norman that the girls could talk over their
problems with Cooper next week . Kubala's testimony as to how she
happened to be in the cashier's area cannot be reconciled with Patton's
testimony as to this same subject matter . Thus, Patton relates that in
recognition of her problem she "called one of the girls (Kubala) in the
kitchen" to witness the conversation Patton relates that Kubala stood
beside her, while she called Norman back. According to Kubala, she was
not called at all but, out of coincidence, happened to go over to the cashier
station to obtain some keys while Patton's phone conversation with Norman
was in progress. In view of this conflict between a principal and
corroborating witness, as to so fundamental a fact, I regard the testimony of
both as totally unreliable.
8 As indicated, the picket lines were up for a brief 2 days and had been
removed several days prior to termination of the 11 p.m. to 7 a.m. shift.
9 N.L.RB. v Fansteel Metallurgical Corporation, 306 U.S. 240 (1938).
mo Southern Steamship Company v. N.L.RB., 316 U S. 31 (1942).
11 Elk Lumber Co., 91 NLRB 333 (1950).
AMERICAN TRUCK STOP
However, Respondent nonetheless claims that this case
should be resolved in accordance with the formulation set
forth in Dobbs Houses, Inc. v. N.L.RB., 325 F.2d 531, 538
(1963), where the Fifth Circuit reversed the Board and held
that a peaceful strike in protest of the employer's discharge
of a favored supervisor was unprotected. In doing so, the
court stated that: "The cause of the employees' grievance
must be considered in determining the reasonableness of
their course of conduct undertaken in protest ...." 12 and
employee conduct in quest of a matter of legitimate
concern to them will only be protected where "the means
be reasonably related to the ends sought to be achieved." 13
Upon application of this test the court concluded that a
mass quitting of work during a busy period in the
employer's restaurant operation was "not a reasonable
method of protest against the firing of a supervisor who
enjoys . . . [employee] . . . esteem."
Contrary to the Respondent, the court's decision in
Dobbs Houses is of no avail here. Well-established Board
policy collides with the court's view that otherwise
legitimate strike action, though invoked in quest of
legitimate employee demands, may nevertheless expose the
strikers to lawful reprisals if, in the circumstances, such
pressures disproportionately inconvenience the employer,
while lesser, more reasonable, means of employee expres-
sion are available. In Plastilite Corporation 14 the Board,
with court approval,15 specifically declined to adopt the
"reasonableness" test set forth by the Fifth Circuit in
Dobbs Houses 16 reiterating its adherence to the view that
employees do not forfeit statutory protection by backing
their otherwise legitimate demands with pressures which
might reflect "ill judgment or lack of consideration." 17 See
also N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 526
(C.A. 8, 1956). Consistent with that position, the Board, in
two recent decisions, has held that employers violated the
Act by discharging employees for engaging in work
stoppages to obtain a meeting with management officials.48
Accordingly, I regard Respondent's defense as legally
insubstantial under established Board policy.
Based upon the foregoing, I find that the action of the
employees in declaring their intention to refuse to report
for work until afforded an opportunity to voice their
grievances in the presence of Thomas Cooper and William
Brooks constituted concerted activity, protected by Section
7 of the Act. It follows therefrom that Respondent's threat
to terminate the Charging Parties if they declined to report
for work, as well as the discharge and refusal to reinstate
the Charging Parties, constituted unfair labor practices
violative of Section 8(a)(1) of the Act.
12 325 F.2d at 539.
i3 325 F.2d at 538.
14 1153 NLRB 180 (1965).
15 N.L.R.B. v. Plastilite Corporation, 375 F.2d 243, 249-250.
16 153 NLRB at 183, 185.
17 This is the most that could be said of the factors relied on by
Respondent in support of its factual claim that the Charging Parties
declared intention to strike was "unreasonable and indefensible ." In this
regard the fact that the underlying complaints herein did not involve the
urgency called for by the employees, the fact that other informal means for
complaint resolution were available to them which were effective in the past
and which Respondent, through Mrs . Cooper, had always honored, and the
fact that the demand came only an hour before the threatened strike was to
CONCLUSIONS OF LAW
1041
1. American Truck Stop, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. By threatening employees with discharge in the event
they engaged in protected concerted activity, by discharg-
ing and refusing to reinstate Patricia A. Heinz, Margaret
Dryer, Nellie Herron, Ella Moore, and Phyllis Norman, in
reprisal for their declared intention to engage in protected
concerted activity, Respondent has violated Section 8(a)(l)
of the Act.
3. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
discharged the above-named employees, I shall recom-
mend that it be ordered to offer them full reinstatement,
with backpay computed on a quarterly basis, plus interest
at 6 percent per annum, as prescribed in F. W Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), from the date of the
discharge to the date reinstatement is offered.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 19
The Respondent, American Truck Stop, Inc., Bentley-
ville, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from interfering with, restraining,
and coercing employees by threatening discharge if they
engage in protected concerted activity, or by discharging,
refusing to reinstate, or otherwise discriminating against
employees because they have engaged in, or have declared
an intention to engage in, activity protected by Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Patricia Heinz, Margaret Dryer, Nellie
Herron, Ella Moore, and Phyllis Norman immediate and
take place, do no more than reflect what the Act, as construed by the Board,
in a fashion consistent with the weight of court authority , condones as an
excusable offshoot of the emotion-filled atmosphere under which employees
who feel aggrieved , select the means for effective-redress.
18 Magna Visual, 213 NLRB No. 29 (1974); Crenlo Division of GF
Business Equipment, Inc., 215 NLRB No. 151 (1974).
19 In the event no exceptions are filed as provided by Sec 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
full reinstatement to their former jobs or, if their jobs have
been eliminated by reason of legitimate economic consid-
erations unrelated to the instant labor dispute, to substan-
tially equivalent positions, without loss of seniority or other
rights and privileges, and make them whole for any loss of
earnings they may have suffered in the manner set forth in
the section of this Decision entitled "The Remedy:'
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to ascertain the backpay due under the terms of
this order.
20 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
(c) Post at its truckstop in Bentleyville, Pennsylvania,
copies of the attached notice marked "Appendix." 20
Copies of the notice, on forms provided by the Regional
Director for Region 6, immediately upon receipt thereof,
shall be signed by Respondent's authorized representative
and posted by the Respondent and maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing, all places where notices to employees are customarily
posted.' Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.