Empire Gas, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 626 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Empire Gas, Inc. of Denver and James W. Nearen,
Jr. Case 27-CA-6238
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 8, 1980, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Empire Gas,
Inc. of Denver, Commerce City, Colorado, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
i Member Penello notes that finding a violation herein is not incom-
patible with his belief that an employer may lawfully discharge or other-
wise discipline a supervisor for engaging in union or concerted activit.
Indeed, had Respondent merely discharged Gray alone for such activity,
no violation would have attached. See, eg., Stop and Go Foods. Inc., 246
NLRD 1076 (1979); David-Anna Corporation d/b/a Snyder Bros. Sun-Ray
Drug, 208 NLRB 628 (1974). However, Member l'enello is of the view
that Respondent's conduct herein "exceeded the bounds of legitimate
conduct intended to discourage union activity among its supervisors"
DRW Corporation d/b/a Brothers Three Cabinets, 248 NLRB 828, 829
(1980). Respondent's conduct here, in addition to reflecting a general dis-
regard for the rights of employees guaranteed by the Act, has created an
atmosphere of coercion requiring restoration of the status quo ante in
order to dissipate the effects of such unlawful conduct. Accordingly, re-
instatement of all those affected includinig the discharged supervisor, is
both lnecessary and fully warranted under the circumstances of this case
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were given an
opportunity to present evidence and argument, it
has been determined that we violated the law by
committing an unfair labor practice. In order to
remedy such conduct, we are being required to
post this notice. We intend to comply with this re-
quirement, and to abide by the following commit-
ments.
WE WILL NOT discharge employees because
they have concertedly demanded favorable
resolutions with respect to separate but identi-
cally based grievances previously presented, or
take comparable adverse action against any su-
pervisor or employee in circumstances consti-
tuting interference with, or restraint or coer-
cion of, employees with respect to their exer-
cise of rights which Section 7 of the National
Labor Relations Act, as amended, guarantees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL recompense Dolan Gray, Lorinda
Wilvers, Elwyn Green, John R. Smith, Dale
Carpenter, and Leonard Imes for any loss of
earnings or other monetary losses which they
may have suffered specifically by reason of
their unlawful discharges, plus interest.
EMPIRE GAS, INC. OF DENVER
DECISION
STATEMENT OF THE CASE
MAURICE M. M II.IER, Administrative Law Judge:
Upon a charge and amended charge filed on June 1 and
July 13, 1979, respectively, and duly served, the General
Counsel of the National Labor Relations Board caused a
complaint and notice of hearing dated July 13, 1979, to
be issued and served on Empire Gas, Inc. of Denver,
designated as Respondent within this Decision. Therein,
Respondent was charged with a commission of unfair
labor practices within the meaning of Section 8(a)(1) of
the National Labor Relations Act, 61 Stat. 136, 73 Stat.
519, 88 Stat. 395. When this case was heard, the General
Counsel's representative proffered certain amendments
with respect to his complaint's jurisdictional allegations.
Respondent's answer, duly filed-which was modified
when this case was heard to comport with the General
Counsel's complaint changes-reflects concessions with
respect to certain factual matters set forth within the
General Counsel's complaint, but denies the commission
of any unfair labor practice.
Pursuant to notice, a hearing with respect to this
matter was held on October 30, 1979, in Denver, Colora-
do, before me. The General Counsel, complainants, and
Respondent were represented by counsel. Each party
was afforded a full opportunity to be heard, examine and
cross-examine witnesses, and to introduce evidence with
respect to pertinent matters. Since the hearing's close,
254 NLRB No. 76
626
EMPIRE GAS, INC. OF DENVER
briefs have been received from the General Counsel's
representative and Respondent's counsel. These briefs
have been duly considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses. I
make the following findings of fact:
1. JURISDICTION
Empire Gas, Inc. of Denver is a Colorado corporation,
which maintains its principal office and place of business
in Commerce City, within that State. Throughout the
period with which this case is concerned, the firm was
engaged and continues to engage in the wholesale and
retail sale and distribution of propane gas, and related ap-
pliances, within the State of Colorado, solely. In the
course and conduct of its business operations, within
Colorado, Respondent purchases and receives goods and
materials valued in excess of $50,000 yearly, directly
from out-of-state sources. Respondent sells gas and mate-
rials valued in excess of $500,000 yearly within the State
designated. With matters in this posture, I conclude-
consistent with Respondent's formal concession-that the
firm was, throughout the period with which this case is
concerned, and remains an employer within the meaning
of Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce within the
meaning of Section 2(6) and (7) of the statute. Further,
with due regard for presently applicable jurisdictional
standards, I find assertion of the Board's jurisdiction in
this case warranted and necessary to effectuate statutory
objectives.
II. RESPONDENT'S BUSINESS AND MANAGERIAL
STRUCTURE
Respondent conducts its business operations conjointly
with a sizeable group of similar enterprises, separately in-
corporated, which maintain "affiliations" with Empire
Gas Corporation of Lebanon, Missouri, presumably their
parent corporate entity. That Missouri corporation pro-
vides day-to-day direction and maintains general supervi-
sion, inter alia, with respect to Respondent's business,
managerial, and labor relations policies. Such direction
and supervision was (throughout the period with which
this case is concerned) directly provided by Bob Wool-
ridge, the Missouri corporation's vice president for sales,
and Harry Harris, that corporation's regional manager.
Both Woolridge and Harris maintain their principal of-
fices within the Missouri corporation's headquarters fa-
cility. Subordinate to Harris, Merle Nelson functions as
the Missouri corporation's division manager. e main-
tains his principal office and place of business within Re-
spondent's Commerce City, Colorado, facility, but like-
wise supervises four similar business enterprises within
his northern Colorado divisional territory. Respondent
concedes, herein, that Harris and Nelson were, and
remain, supervisors within the meaning of Section 2(11)
of the statute, functioning in Respondent's behalf.
In Commerce City particularly, before May 25, 1979,
Dolan Gray functioned as Respondent's man-in-charge,
with the title of retail manager; he was, concededly,
vested with authority, inter alia to hire and discharge Re-
spondent's employees. Corporate policies with respect to
compensation for Respondent's employees were, howev-
er, formulated within its parent Missouri corporation's
headquarters, where their pay was computed and their
paychecks were prepared.
Respondent's personnel, throughout the period with
which this case is concerned, were employed pursuant to
formal contracts. Thus, Retail Manager Gray when hired
had signed a printed "Management Employment Agree-
ment" form, which Merle Nelson had likewise signed,
specifically in Respondent's behalf. The contract in ques-
tion provided, among other things, that Gray would be
supplied with a book designated "Empire Gas Operation-
al Policy Manual" which-should he be terminated-was
to be returned to Respondent's Missouri parent, or its au-
thorized representative.
Subordinate to Gray, throughout the period prior to
May 25, Respondent had five employees. Lorinda
Wilvers, Respondent's office manager, and Elwyn
Green, the firm's part-time yard man, provided services
pursuant to signed "Hourly Pay Plan" employment con-
tracts, with identical terms, save for their separately
stated hourly pay rates and dates of execution. These
contracts had been signed by Merle Nelson. specifically,
in Respondent's behalf; Wilvers and Green had witnessed
each other's signatures. John Smith, Leonard Imes, and
Dale Carpenter served as Respondent's delivery truck
drivers, and sometime salesmen, pursuant to so-called
"Even Pay Plan" employment contracts, with respect to
which U.S. Department of Labor, Division of Minimum
Wage and Hour Standards, approval had previously been
granted.
In addition to their contractually prescribed compensa-
tion, Respondent's employees were considered eligible
participants, with respect to a regularly maintained
"growth bonus" plan which Respondent's Missouri
parent corporation provided. Bonus payments thereunder
were computed and paid (three times yearly) whenever
Respondent's retail sales, within a recently concluded
four-month period, showed improvement over the firm's
similar sales within a precisely comparable period during
the previous year.
III. UNFAIR LABOR PRACTICES
A. Facts
The situation with which this case is concerned devel-
oped following Respondent's April 1979 delivery of
bonus checks, computed for the firm's Commerce City
personnel, based upon Respondent's sales within the
prior November 1978-February 1979 period.
Routinely, regular paychecks for Respondent's person-
nel are prepared and dated on Tuesdays; they cover a 2-
week period ending on the Saturday immediately preced-
ing their preparation. The checks are distributed, within
Respondent's Commerce City facility on Fridays, direct-
ly following their biweekly preparation and receipt from
Respondent's Missouri parent corporation.
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime early in April 1979, Respondent's retail
manager and five subordinates received separate state-
ments-bearing Monday, April 2, dates-from Respon-
dent's Missouri parent corporation; these statements pur-
portedly showed Respondent's retail sales for both the
November 1977-February 1978 and November 1978-
February 1979 bonus periods. Based upon those records,
their respective "growth bonus" shares were computed
and reported for the period last designated.
The six statements in question, which contained rel-
evant sales figures and derivative bonus calculations set
forth in typewritten form, had, however, been revised par-
tially with several handwritten entries which reflected
lower sales within a particular sales category. The record,
herein suggests-though, for present purposes, no defini-
tive finding with respect thereto need be made-that
bulk sales to three particular Denver area customers had
been deleted from Respondent's gross sales figures, as ini-
tially reported, on the ground that those sales should
have been considered wholesale, rather than retail sales,
on the basis of which bonus shares should be computed.
The downward revisions noted had consequently pro-
duced significantly reduced bonus calculations, for each
employee concerned.
No definitive determination would be warranted with
respect to precisely when these bonus calculation state-
ments were received and distributed. However, when
Respondent's personnel, subsequently or concurrently,
received their bonus checks-which carried Friday,
April 13, dates, and which had presumably been pre-
pared separately from their previous Tuesday, April 3,
and forthcoming Tuesday, April 17, biweekly pay-
checks-they discovered that their bonus payments had
been computed therein, consistent with the revised hand-
written figures which had been shown on their April 2
statements; their payments actually received were there-
fore considerably below the bonus share figures which
had originally been typed therein. Respondent's employ-
ees, consequently, received bonus payments which-so
Wilvers and Gray testified-amounted to "less than half"
of the sums which they had respectively expected to re-
ceive.
Wilvers, speaking both for herself and Respondent's
four other employees-together with Retail Manager
Gray, who was likewise entitled to receive a bonus
share-thereupon conferred on several occasions with
Nelson, their firm's division manager. The latter suggest-
ed his concurrence-on one occasion while Gray,
Wilvers, and two drivers were present-with their reiter-
ated belief that larger bonuses should have been paid; he
suggested, further, that they should pursue the matter
and discuss their problem with National Labor Relations
Board personnel or seek legal counsel.
Gray, during a subsequent meeting sometime during
this period with his five subordinates, suggested that they
might consult Robert W. Baker, a Denver attorney
whom his wife had previously consulted. On April 20,
therefore, Respondent's active Commerce City comple-
ment-five or six of them, one driver may have been on
vacation-visited Baker's office. On the basis of informa-
tion which Wilvers and Gray supplied, he prepared a
letter directed to Respondent herein (with a Lebanon,
Missouri, address) on behalf of Respondent's personnel.
Therein, the attorney noted that Respondent's employ-
ees had, collectively, retained him with regard to their
dissatisfaction over the firm's final bonus program calcu-
lations; that Respondent's computation revisions, with re-
spect thereto, had reportedly been based upon "some
theory" which his clients did not comprehend; and that
he could not, himself, determine from Respondent's
bonus plan whatever basis there may have been for ex-
cluding certain bulk sales from gross retail sales totals,
when the firm's bonus calculations were made. The at-
torney requested a reply; however, none was ever subse-
quently vouchsafed.
Thereafter, from time to time both Retail Manager
Gray and Office Manager Wilvers, together on some oc-
casions with other Commerce City employees, discussed
Respondent's reduced bonus payments further with
Nelson, with Regional Manager Harris, and-once at
least-with Woolridge, their Missouri corporate parent's
vice president for sales.
Respondent's three delivery drivers normally spent
most of their working time on delivery and service calls,
away from their firm's Commerce City facility. They
could not therefore be present each and every time when
Gray and Wilvers together discussed their common
"bonus payment" problems with Respondent's various
management representatives. The record, however, clear-
ly warrants a determination that, when Gray and
Wilvers discussed bonus matters with their several cor-
porate superiors, they did so specifically on behalf of
themselves and their fellow employees, while seeking
some resolution of their commonly shared dissatisfaction
for their mutual benefit. In this connection, I note that,
when Driver Smith subsequently went on vacation, he
specifically authorized Retail Manager Gray to pursue
the bonus question in his behalf and to take whatever
action their situation might require to resolve matters.
Harris, when queried, during one such conversation
with respect to whether Respondent's employees would
receive the balance of the bonus payments to which they
considered themselves entitled, had responded negative-
ly; however, he had contended-so Wilvers credibly tes-
tified-that he had tried to "get" their additional bonus
money paid, but had not been successful. And Vice
President Woolridge, when questioned on another occa-
sion by Wilvers personally, had likewise parried her re-
quest that Respondent's employees be granted "the rest
of' their respective bonuses. Respondent's retail man-
ager, office manager, yard man, and drivers remained
dissatisfied.
On Friday, May 18, Gray notified Respondent's divi-
sional manager orally that his firm's Commerce City per-
sonnel had discussed their situation, and decided that
they would "walk off the job" should Respondent fail to
resolve their dissatisfaction regarding the bonus matter,
by June 1 specifically. When, during a subsequent con-
versation later that day, both Wilvers and Gray reaf-
firmed the latter's prior declaration, and promised that
Nelson would be given a memo "to that effect" later,
Nelson declared that he would notify Respondent's Leb-
628
EMPIRE GAS. INC OF DENVER
anon, Missouri, home office. Respondent's office man-
ager thereupon typed a memo directed to Division Man-
ager Nelson, which she, Gray, and three other Com-
merce City employees signed; Gray, pursuant to Driver
Smith's proxy authorization, previously given, likewise
appended Smith's name as a signatory. The memoran-
dum read:
We the undersigned employees of Empire Gas Inc.
of Denver give notice on this date May 18, 1979,
that if the rest of our bonus is not paid in full by
June 1, 1979, we will all on that date walk off the
job.
On Monday morning, May 21, duplicate copies of the
memo were delivered. Previously-on Friday, May 18-
Respondent's division manager had telephoned Harris to
report the "oral" notice which Wilvers and Gray had
then personally communicated; Harris had forthwith di-
rected Nelson to find some "new" help and terminate
those who had given notice.
When questioned by complainant's counsel, Respon-
dent's regional manager conceded that prior thereto he
had-indeed--been cognizant of the common bonus pay
grievance which had "involved" his firm's entire Com-
merce City personnel complement; he acknowledged,
however, that "the fact that these six employees had a
grievance" had not contributed to his determination that
they should be terminated.
Thereafter, when Nelson finally received the employ-
ees' typed and signed memorandum on May 21, he for-
warded a copy to Harris forthwith by mail. Respondent's
regional manager, following his receipt of the memo,
told his subordinate-the day after, so the record
shows-that their firm's Commerce City employees
should be promptly terminated, specifically as of Saturday,
thereafter, which would mark the conclusion of Respon-
dent's then-current pay period.
On Friday, May 25, consistent with his superior's di-
rective, Nelson orally notified Respondent's retail man-
ager and Wilvers, Green, and the firm's three delivery
drivers that they had been discharged, and should vacate
Respondent's premises forthwith.
Sometime subsequently, however, Wilvers received a
telephone call from Respondent's division manager; she
was notified that a letter would be sent to her shortly
thereafter. Within 2 days, she received a letter, signed by
Nelson, wherein she was notified that she was being of-
fered reinstatement, and should report by August 6 spe-
cifically. Gray, together with Respondent's other termi-
nated employees, received similar letters.
B. Conclusions
With matters in this posture, the General Counsel's
representative and Respondent's counsel have presented
three questions which require disposition herein:
1. Were five of Respondent's Commerce City employ-
ees-specifically Wilvers, Green, Smith, Imes, and Car-
penter-discharged because of their jointly manifested
determination to bring their concerted pressure upon Re-
spondent, for some favorable resolution of their com-
plaint regarding the further bonus payments which they
considered themselves entitled to receive?
2. If so, should Lorinda Wilvers, particularly, be con-
sidered a supervisor within the meaning of the statute,
whose termination should raise no question requiring dis-
position herein, since supervisors cannot claim statutory
protection?
3. Should Dolan Gray, concededly a supervisor who
was terminated contemporaneously with the five persons
previously named, be considered nevertheless eligible for
statutory relief, because his termination constituted an in-
tegral part of Respondent's pattern of conduct calculated
to discourage employees from engaging in protected
concerted activity for the purpose of collective bargain-
ing or other mutual aid or protection?
Respondent contends that its five Commerce City em-
ployees were terminated for a valid business reason,
since they were discharged-shortly following their con-
certed May 18 declaration, pursuant to contract, that
they would "quit" within 2 weeks-when Respondent
had "completed arrangements" for their replacement so
that business operations could continue. Further, Respon-
dent suggests that Wilvers should be considered a super-
visor, whose concerted activity with conceded employ-
ees could not properly be deemed statutorily protected.
Finally, Respondent contends that neither Wilvers nor
Gray should be considered qualified for relief, consistent
with the statute, since their terminations were not "inte-
gral parts of a pattern of conduct" calculated to penalize
employees for their exercise of statutorily protected
rights.
Respondent's contentions, within my view, carry no
persuasion.
Upon this record, there can be no doubt that, when
Respondent's Commerce City personnel conferred and
decided-conjointly-that they would request recompu-
tation of their November-February bonus shares and
supplementary bonus payments based upon such a re-
computation, they were engaged in concerted activity
for mutual aid and protection, statutorily protected. Re-
spondent's counsel proffers no contrary contention
herein.
He suggests merely that-when they jointly gave
notice that they would "walk off the job" should Re-
spondent fail or refuse to resolve their common bonus
grievances favorably, by June 1, specifically-the firm's
regional manager thought they were going to resign, and
consequently directed their termination, I week before
their prospective resignation date, when advised that Di-
vision Manager Nelson had "completed his arrange-
ments" for their replacement.
Contrary to counsel's suggestion, however, the May
18 memorandum notice which Respondent's Commerce
City grievants served on Division Manager Nelson, and
which he passed to Regional Manager Harris, did not
privilege the latter's consequent decision that they should
be forthwith terminated. In this connection, I note, en
passant, that, so far as the record shows, the factual situa-
tion which Respondent's regional manager purportedly
relies upon now to justify his definitive termination di-
rective-namely, Nelson's procurement of replacements
for Retail Manager Gray and his subordinates-had
never really developed. Harris testified that Nelson had
629
)DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first been instructed to "find a new crew." Then, when
prompted with a leading question, Harris further declared,
in substance, that Respondent's division manager had
been directed to terminate their firm's Commerce City
personnel when arrangements for a new crew's hire had
been completed. When cross-examined, however, Re-
gional Manager Harris finally conceded that-though
Nelson "couldn't find the people" quickly, who could re-
place Respondent's Commerce City personnel-he had,
nevertheless, directed their prompt termination, by the
Saturday following, when served with a copy of their
jointly submitted memorandum notice. In short, Harris
specifically directed the six terminations challenged
herein before some "preparations" or "arrangements" for
employee replacements had been made. Ergo Respondent
can hardly contend herein that Harris' final May 22 or
May 23 termination directive derived merely from "busi-
ness expedience" considerations.
It should be noted first that-when Respondent's
Commerce City personnel memorialized their common
determination to "walk off the job" should their bonus
grievances remain unresolved by June I-they were not,
in haec verba, declaring their intention to resign. And
nothing within the present record would otherwise per-
suasively warrant a determination that they really intend-
ed to quit. This Board has held that-even when employ-
ees submit a notice of prospective resignation, unless their
grievances have, in the meantime, been satisfied-such
action will not be considered a definitive voluntary ter-
mination of their employment relationship. Rather, it rep-
resents merely a threat to quit sometime in the future, de-
signed to induce their employer to act favorably with
regard to their grievances. Southern Pine Electric Cooper-
ative, 104 NLRB 834 (1953), enfd. 218 F.2d 824 (5th
Cir.). Herein, Respondent's Commerce City personnel,
certainly, did nothing more. Their joint memorandum's
submission, therefore, clearly constituted concerted ac-
tivity for their mutual aid and protection. When they
were terminated-not because of their persistence in press-
ing their bonus grievance, but specifically because of their
jointly signed memorandum's presentation-before their
"walk off the job" threat had been carried out and
before they had been replaced, Respondent interfered
with restrained and coerced them with respect to their
exercise of rights statutorily guaranteed. Compare Air-
craft and Helicopter Leasing and Sales, Inc., 209 NLRB
275 (1974), enfd. 90 LRRM 2615 (9th Cir.), in this con-
nection.
Respondent's contention that Wilvers' participation in
concerted activity, with her fellow Commerce City em-
ployees, should not be considered statutorily protected
because of her nominal "supervisory" status, merits re-
jection. Within his brief, the General Counsel's represen-
tative notes, cogently, that:
[Wilvers] was hired as office manager, was hourly
paid, and was employed on the same contract as
other hourly-paid employees. She did bookkeeping
. . and general office work. When the truck driv-
ers called in, she gave them information as to cus-
tomers who needed immediate attention. She was
paid less than some of the drivers. She took credit
applications from customers, but only the retail
manager, Gray, could approve credit. The employ-
ees' checks came to Gray and were distributed by
him.
These observations have record support. Respondent's
contrary contention-that Gray spent most of his time
out of Respondent's office, servicing customers, and that
Wilvers routinely functioned as his surrogate, having
been granted "a complete range of authority, duty and
responsibility" which required her to exercise purported-
ly "independent" judgment, while discharging functions
comparable with those described disjunctively, within
Section 2(11) of the statute-rests solely upon Regional
Manager Harris' testimony, which I find unworthy of
credit, in this connection.
With respect to several matters canvassed by Respon-
dent's counsel, Harris waffled when giving his testimony.
Much of that testimony, further, was generalized; Re-
spondent's regional manager merely cited "possible" situ-
ations which Wilvers might conceivably face. Several
patently conclusionary comments were vouchsafed, par-
ticularly when Respondent's counsel proffered blatantly
leading, or subtly leading, questions. The regional man-
ager's testimony-when prompted-that Wilvers should
she be confronted with certain theoretical situations,
would be required to exercise independent, rather then
routine judgment, smacked of fatuity. Within my view,
Harris displayed a pervasive determination to testify-re-
gardless of the facts-consistent with his conception of
Respondent's needs; he was not a prepossessing witness.
Wilvers' testimony-that she had never been autho-
rized to hire workers or effectuate discharges, that she
had never recommended job applicants for hire, and that
she had never been told she could make such recommen-
dations-merits credence. Without belaboring the point
with particularized references to the record, I am satis-
fied that whatever functions Respondent's office manager
may have performed-which might conceivably be con-
sidered comparable in some respects with those which
Section 2(11) lists-were functions which required
"merely routine or clerical" exercises, but did not require
her use of genuinely "independent" judgment.
Considered in totality then, the present record war-
rants a determination that Wilvers was, throughout the
period with which this case is concerned, merely a statu-
tory "employee" whose Section 7 rights, like those of
Respondent's yardman and delivery drivers, have been
infringed, restricted, and denied.
With respect to Respondent's contention, however,
that Dolan Gray's termination should not be considered
statutorily proscribed or properly subject to correction
through some Board remedial directive-because of his
conceded supervisory status-further discussion would
seem required.
Consistently with the statute, Section 2(11) supervisors
clearly cannot be considered-per se-protected from
discharge or some other form of discipline for engaging
in concerted activity, on behalf of their employer's rank-
and-file employees for the purpose of mutual aid or pro-
tection. Thus, whenever some concerned employer-mo-
tivated by a legitimate desire to discourage presumptive
630
EMPIRE GAS, INC. OF DENVER
disloyalty within its managerial team-has discharged a
supervisor, and such action may rationally be considered
"reasonably adapted" to promote that permissible objec-
tive, this Board has found such conduct privileged, and
beyond Section 8(a)(1)'s proscriptive reach. See, e.g.,
Stop and Go Foods, Inc., 246 NLRB 1076, 1082 (1979); L
& S Enterprises, Inc., 245 NLRB 1123 (1979), in this con-
nection.
The mere fact that employees of the concerned em-
ployer-who have not themselves been affected directly
by their employer's action-may fear that a similar fate
would befall them, should they engage in similar activity,
will not suffice to transform that employer's otherwise
lawful conduct into statutorily proscribed interference,
restraint, or coercion. See DR W Corporation, d/b/a
Brothers Three Cabinets, 248 NLRB 828 829, fn. 4 (1980),
citing Nevis Industries, Inc., d/b/a Fresno Townehouse,
246 NLRB 1053, 1058 (1979) (Member Penello concur-
ring) in this connection.
However, whenever a record preponderantly warrants
a determination that some concerned employer's con-
duct-considered in totality, including actions taken against
supervisors-was motivated by a desire to discourage sta-
tutorily protected activities among its employees general-
ly, that employer's actions will be found to have exceed-
ed the parameters of legitimate conduct intended to dis-
courage participation in concerted activity by supervi-
sors particularly.
This Board has considered discharges or disciplinary
action, directed against supervisors-when so motivat-
ed-part of a pattern of conduct calculated to interfere
with, restrain, and coerce employees with regard to their
exercise of statutorily protected rights. In this connec-
tion, see DR W Corporation, d/b/a Brothers Three Cabi-
nets, supra at fn. 6, and cases cited therein. At various
times, this Board has characterized discharges or disci-
pline directed against supervisors-when motivated by a
desire to discourage concerted activity by employees gen-
erally-as an "integral part" of the concerned employer's
"general pattern of conduct" or "plan" or "scheme" or
"total effort" purposed to "discourage" or "stifle" statu-
torily protected concerted activity, to "penalize" em-
ployees specifically for their resort to concerted action,
or to "rid" the concerned employer's facility of those
employees who may have pursued concerted action-
with a supervisor's support or participation-for mutual
aid or protection. Despite such variant verbal formula-
tions, this Board's basic concept-with respect to when a
supervisor's discharge will be considered violative of em-
ployees rights-seems clear.
More particularly, this Board has found that when su-
pervisors have been terminated, under circumstances
which point to their employer's pursuit of some plan or
program clearly designed to impact upon such supervi-
sors' subordinates, those employers have thereby created
a pervasive atmosphere of coercion intentionally wherein
employees cannot be expected to perceive the distinction
between their employer's statutorily-conceded right to
prohibit participation in concerted activity by supervi-
sors, and their statutorily guaranteed right to engage
freely in such activity themselves. Within this context,
the coercive impact upon employees, resulting from dis-
charge or disciplinary action taken against a supervisor,
cannot be viewed as simply "unavoidable" or merely
"incidental" to the unprotected individual's termination.
Thus, in recognition of the pervasive atmosphere of
coercion-which the concerned employer's total course of
conduct has, presumably intentionally, generated-and that
conduct's direct effect upon employees, this Board has
found complete restoration of the status quo ante re-
quired in such cases to fully dissipate its coercive impact;
such a restoration, when directed, must necessarily en-
compass the reinstatement, with appropriate reimburse-
ment, of all persons affected, including supervisors.
Herein, the record preponderantly warrants a determi-
nation that Dolan's discharge, like Respondent's contem-
poraneously related conduct herein found violative of
law, was motivated by Regional Manager Harris' desire
to penalize Respondent's employees generally for their
concertedly reached May 18 decision to present a joint
"walk off the job" threat, together with his clearly con-
comitant desire to foreclose Respondent's possibly
"forced" shutdown thereafter-through a threatened
June walkout's consummation-by their May 25 termi-
nations. The contemporaneous discharge of Respondent's
retail manager, I find, constituted part of the firm's pat-
tern of conduct, designed to achieve Regional Manager
Harris' designated objectives.
Respondent's counsel suggests, within his brief, that
Dolan's termination should not be considered "part of a
pattern of conduct" calculated to penalize Respondent's
employees, since Regional Manager Harris' challenged
discharge directive constituted "one single act" rather
than part of a pattern. The suggestion-though presum-
ably not proffered frivolously-surely merits character-
ization as captious. True, this Board has sometimes found
supervisors' discharges statutorily proscribed when they
have been effectuated as part of some "widespread pat-
tern of misconduct" directed against employees and su-
pervisors alike. See, for example, DR W Corporation, d/b/
a Brothers Three Cabinets, supra. However, nothing
within this Board's decisions, with respect to the ques-
tion now under consideration, suggests that supervisors'
discharges will never be found violative of law save
when they have been effectuated within the context of
multifarious unfair labor practices directed against em-
ployees generally. To the contrary, see Downslope Indus-
tries, Inc. and Greenbrier Industies, Inc., 246 NLRB 948,
949 (1979); Southern Plasma Corporation, 242 NLRB
1223, 1226-28 (1979). Counsel's suggestion that Dolan's
termination should be considered beyond Board interdic-
tion, because Harris did nothing more than direct the si-
multaneous discharge of Respondent's Commerce City
personnel complement, deserves rejection.
While a witness, Regional Manager Harris conceded
substantially that Respondent's retail manager and his
subordinates had not been dismissed because of their pro-
tests-severally and collectively presented-with regard
to Respondent's bonus payments. Their separately gener-
ated, but shared dissatisfaction with Respondent's revised
calculation of their respective "growth bonus" entitle-
ments had previously been discussed with their Missouri
parent corporation's management representatives-
631
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nelson, Harris, and Woolridge-several times, within a
5- or 6-week span; though their repeated protests had
been vouchsafed short shrift, no indications had ever
been given that Respondent's protesters might be penal-
ized, face discipline, or suffer reprisals for pressing their
"economic" grievances, or requesting further bonus pay-
ments.
The record, rather, reveals beyond peradventure of
doubt that Harris decided to terminate Retail Manager
Gray, concurrently with his Commerce City subordi-
nates, contingent upon their replacement, promptly upon
being notified that they had concertedly decided to pre-
sent Respondent's management with a definitive "walk
out" threat, herein found statutorily privileged. Later,
however-when provided with a copy of their jointly
signed memorandum-the Respondent's regional man-
ager "accelerated" his responsive reaction; he directed
their termination, concurrently with the completion of
Respondent's current pay period, without waiting for
confirmation that their replacements had been procured.
Upon this record then, there can be no doubt that Gray
was not terminated because he had "served as spokesper-
son" for his subordinates, in connection with their
wholly economic grievances. Compare L & S Enterprises,
Inc., supra; Long Beach Youth Center, Inc., a/k/a Long
Beach Youth Home (formerly Trailback, Inc.), 230 NLRB
648, 650 (1977). Respondent's retail manager, further,
was never notified that he was being discharged because
Respondent's management representatives considered his
participation in his subordinates' concerted action-spe-
cifically, his participation in their jointly presented walk-
out threat-incompatible with continued reliance on him,
as a member of Respondent's supervisory team. Compare
Stop and Go Foods, Inc., supra. In short, the record
herein will not warrant a determination that Gray's ter-
mination was motivated by his own activity, or Respond-
ent's concern about his participation particularly in con-
certed activity with other Commerce City personnel.
Rather, Respondent's discharge decision-which, inter
alia, compassed Gray's termination, contemporaneously
with his subordinates-clearly derived from Respond-
ent's overriding determination to penalize "employees"
for their concerted threat, specifically; Respondent's
retail manager, then, was caught within his regional su-
pervisor's broadly drawn "field of fire" without differen-
tiation, and without cognizable manifestations of some
specially "privileged" purpose to discourage participa-
tion in concerted activity, particularly by supervisors.
Having discharged a calculated broadside, whereby
employee perceptions-particularly regarding the distinc-
tion between their employer's statutorily conceded right
to prohibit any participation in concerted activity by su-
pervisors and their statutorily guaranteed right to engage
freely in such activity themselves-had been significantly
blurred or precluded, Respondent cannot now claim per-
suasively that Gray's termination, inter alia, had no statu-
torily proscribed thrust.
Consistent with the General Counsel's contention,
therefore, I find that Dolan Gray's discharge, like the
contemporaneous May 25 discharges of his subordinates, im-
pacted directly upon the statutorily protected rights of
Respondent's employees; conventional remedial direc-
tives, framed to effectuate statutory objectives, both with
respect to him and his subordinates, should therefore be
considered required.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's course of conduct set forth in section III,
herein, since it occurred in connection with Respondent's
business operations set forth in section I, herein, had and
continues to have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the sev-
eral States; absent correction, such conduct would tend
to lead to labor disputes burdening and obstructing com-
merce, and the free flow of commerce.
In view of these findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
I. The Respondent, Empire Gas, Inc. of Denver, is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce, within the meaning of Section 2(6) and (7) of
the Act, as amended.
2. Respondent's regional manager-when he directed
the discharges of Dolan Gray, Lorinda Wilvers, Elwyn
Green, John R. Smith, Dale Carpenter, and Leonard
Imes because they had engaged in concerted activity for
mutual aid and protection-interfered with, restrained,
and coerced employees with respect to their exercise of
statutorily guaranteed rights, in violation of Section
8(a)(1) of the Act, as amended.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended.
REMEDY
Since I have found that Respondent has committed,
and has thus far failed to remedy, a specific unfair labor
practice which affects commerce, I shall recommend that
it be ordered to cease and desist therefrom and to take
certain affirmative action, including the posting of appro-
priate notices, designed to effectuate the policies of the
Act, as amended.
Specifically, since I have found that Section 8(a)(l) of
the statute was violated when Respondent's regional
manager, Harry Harris, directed the discharges of Dolan
Gray and Respondent's Commerce City employees, for
statutorily proscribed reasons, I shall recommend that
Respondent be required to make Dolan Gray, Lorinda
Wilvers, Elwyn Green, John R. Smith, Dale Carpenter,
and Leonard Imes whole for any loss of earnings or
other monetary losses which they may have suffered,
specifically by reason of their unlawful discharges, by
the payment to them of sums of money equal to the
amounts which they normally would have received as
compensation for their services, from the date of their re-
spective unlawful terminations to Monday, August 6,
1979, the date by which they were invited to request re-
instatement, less their net earnings during the period des-
ignated.
632
EMPIRE GAS, INC. OF DENVER
Since the record shows that Dolan Gray, and the five
employees designated, each received letters from Re-
spondent's management (dispatched and received on
dates which have not been specified for the record
herein) wherein they were invited to request reinstate-
ment to their former positions on or before Monday,
August 6, 1979, that date may be taken as the date which
should toll Respondent's backpay liability. Further, since
Respondent's retail manager and five employees were-
within the letters noted-offered reinstatement, Respon-
dent should not be required to repeat or renew reinstate-
ment offers. Whatever backpay the persons previously
designated may be entitled to claim should be computed
separately for the two calendar quarters within which
their designated backpay period falls, pursuant to the for-
mula which the Board currently uses. F. W Woolworth
Company, 90 NLRB 289, 291-296 (1950). Interest there-
on should likewise be paid, computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977). (See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962), in this connection.)
Upon the foregoing findings of fact, conclusions of
law, and the entire record, I hereby issue-pursuant to
Section 10(c) of the Act, as amended-the following rec-
ommended:
ORDER'
The Respondent, Empire Gas, Inc. of Denver, its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging employees because they have concer-
tedly demanded favorable resolutions with respect to
separate but identically based grievances previously pre-
sented, or taking comparable adverse action against any
supervisor or employee, in circumstances constituting in-
terference with, restraint, or coercion of employees, with
respect to their exercise of rights which Section 7 of the
Act guarantees.
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 find-
ings, 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.
(b) Interfering with, restraining, or coercing employ-
ees, in any other manner, with respect to their exercise
of statutorily guaranteed rights.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act, as amended:
(a) Make whole Dolan Gray, Lorinda Wilvers, Elwyn
Green, John R. Smith, Dale Carpenter, and Leonard
Imes for any loss of earnings or other monetary losses
which they may have suffered, specifically by reason of
their unlawful discharges, in the manner and to the
extent set forth within the "Remedy" section of this de-
cision.
(b) Preserve, until compliance with any order for
backpay made by the Board in this proceeding, and,
upon request, make available to the Board and its agents,
for examination and copying, all payroll records, social
security records, timecards, personnel records and re-
ports, and all other records relevant and necessary to
reach determinations with respect to the amounts of
backpay due pursuant to this Order.
(c) Post within its Commerce City, Colorado, facility
copies of the notice attached to this report as an appen-
dix, and comply with the commitment set forth therein. 2
Copies of the notice, on forms provided by the Regional
Director for Region 27, as the Board's agent, shall be
posted immediately upon their receipt, after being duly
signed by Respondent's representative. When posted,
they shall remain posted for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that these
notices are not altered, defaced, or covered by any other
material.
(d) File with the Regional Director for Region 27, as
the Board's agent, within 20 days from the date of this
Order, a written statement setting forth the steps which
Respondent has taken to comply herewith.
2 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
633