Independent Stations Co.

National Labor Relations Board - Board Decisions

Jun 22, 1987

284 N.L.R.B. 394 (N.L.R.B. 1987)

394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Independent Stations Co. and Ricky A. Souders and
Milton A. Defibaugh. Cases 6-CA-18786 and
6-CA-18868
22 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 9 September 1986 Administrative Law Judge
Robert W. Leiner issued the attached decision. The
General Counsel and the Respondent each filed ex-
ceptions, supporting briefs, and answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, to modify the remedy, 2 and to adopt
the recommended Order.
Both the General Counsel and the Respondent have excepted to
some of the judge's credibihty findings. The Board's established policy is
not to overrule an administrative law judge's credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and fmd no basis for reversing the findings.
In the absence of exceptions, Chairman Dotson adopts the judge's find-
ing that the Respondent's "no access" rule violates Sec. 8(a)(1) of the
Act.
In affirming the judge's conclusion that the Respondent did not violate
the Act by failing to employ or reemploy Ricky Souders, or by threaten-
ing or otherwise mterfering with, restraining, or coercing employees be-
cause they filed charges with or gave statements to the Board, we agree
with the General Counsel that it was improper to draw an adverse infer-
ence from the General Counsel's failure to produce the Board agent who
drafted Souders' initial charge or to explain why the agent did not testify.
In affirming the finding that the Respondent did not unlawfully refuse to
recall or rehire Souders, we do not rely on his citations of Huchiner Mfg.
Co., 243 NLRB 927 (1979), or Hoover Design Corp. v. NLRB, 402 F.2d
987 (6th Cit. 1968).
We correct the following inadvertent errors in the judge's decision,
none of which affects the result in this case: (1) In the portion of the de-
cision entitled "A. The Employment of Ricky A. Souders," the notes of
Board Agent Johnson should be identified as R. Exh. 5 (not 10). (2) In
the same section, the judge stated that Station Manager White informed
Souders' wife that he would consider Souders for a job if economic con-
ditions improved. In fact, White testified that he told Mrs. Souders, "I
had nothing for him, and there were no job openings." (3) The state-
ments in the same section referring to Souders' "Unemployment Compen-
sation claim" should refer instead to Souders' "Workmen's Compensation
claim." (4) The statement in that same section that "Souders said that he
could work until 15 January" should read "Souders said that he could
not work . . . ." (5) The statement in the same section that the "General
Counsel asserts therefore that White was lying to Souders" is incorrect
The General Counsel was reciting, not adopting, White's testimony that he
had lied to Souders. (6) The last sentence in fn. 33 should refer to the
total (not the full-time) complement of employees. (7) The statement in
the section entitled "Respondent's Defense: A. The Discharge of Jeanne
Griffith," that "there were over two dozen frozen turkey rolls" should
read "there were two frozen turkey rolls . . . ." (8) In fn. 20, the judge
erroneously stated that Restaurant Manager Snider testified that White
wanted Griffith's alleged failure to follow recipes to be the principal
reason for her discharge. That testimony came from White, not Snider.
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
284 NLRB No. 48
In affirming the judge's finding that Milton Defi-
baugh and Jeanne Griffith were discharged in vio-
lation of Section 8(a)(1), we agree with the judge
that Defibaugh and Griffith were engaged in con-
certed activities under the standard formulated and
recently reaffirmed in Meyers Industries. 3 Under
that standard:
In general, to fmd an employee's activity to be
"concerted," we shall require that it be en-
gaged in with or on the authority of other em-
ployees, and not solely by and on behalf of the
employee himself. Once the activity is found
to be concerted, an 8(a)(1) violation will be
found if, in addition, the employer knew of the
concerted nature of the employee's activity,
the concerted activity was protected by the
Act, and the adverse employment action at
issue (e.g., discharge) was motivated by the
employee's protected concerted activity.4
In sending their jointly written anonymous letter
(with the approval of employee Galen Foor) to the
Respondent's president, Cook, complaining of fa-
voritism in the treatment of restaurant employees,
Defibaugh and Griffith clearly were engaged in
concerted activity.5
The record amply supports the judge's finding
that the Respondent knew of the concerted nature
of Defibaugh and Griffith's activity. Not only did
General Manager White admit that Defibaugh had
informed him that he was complaining "on behalf
of" other employees, but Defibaugh and Griffith's
letter refers to three events (involving Griffith,
Bets McDaid, and Connie Gorsuch) that had been
the subject of Defibaugh's complaints. Further,
when White showed the letter to Garage Supervi-
sor Morrison and asked him who he thought had
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. 6621.
3 268 NLRB 493 (1984) (Meyers I), remanded sub nom. ?rill v. NLRB,
755 F.2d 941 (D.C. Cir. 1985), cert. denied 106 S.Ct 313, 352 (1985),
reaffirmed 281 NLRB 882 (1986) (Meyers II). Member Johansen, who did
not participate in Meyers II, agrees that Defibaugh and Griffith were en-
gaged in protected concerted activity.
4 Meyers I, 268 NLRB at 497 (citations omitted).
5 We find merit in certain of the Respondent's exceptions to the
judge's factual findings underlying the conclusion that Defibaugh and
Griffith were engaged in concerted activity. Thus, contrary to the
judge's finding in part II, C,2 of his decision, there is no record evidence
that Griffith "urged" Defibaugh to complain to White about a warning
given to waitress Bets McDaid. Likewise, the record does not support
the finding (also in part II,C,2) that Griffith ever complained to White in
Defibaugh's presence (although she was present at least once when Defi-
baugh complained to White). Finally, although the judge states, in his
discussion of the General Counsel's prima facie case regarding Griffith's
termination, that "when White had a problem with Griffith, he called in
and spoke to Defibaugh and Griffith jointly," the record indicates that
only one such discussion occurred. On the two occasions when Griffith
received warnings, and again when she was fired, she was not in Defi-
baugh's company. These errors, however, do not alter our conclusion
that Defibaugh and Griffith had been engaged in concerted activity
INDEPENDENT STATIONS CO. 395
written it, Morrison said that it was either Griffith
or Defibaugh, or both. By way of response, White
"just looked at [Morrison] arid sort of grinned," but
made no affirmative remark. 6 Under all the cir-
cumstances, it was proper for the judge to find that
the Respondent knew that Defibaugh and Griffith
had written the letter together."'
Finally, we discern no reason to overturn the
judge's finding that the nondiscriminatory reasons
adduced by the Respondent for terminating Defi-
baugh and Griffith were pretextual. Both employ-
ees were discharged within a few days after White
became aware that they wrote the offending letter,
even though both were skilled workers. The Re-
spondent attempted to justify firing Griffith be-
cause she allegedly failed to follow recipes and ne-
glected to "set up" another cook on 3 November.
Yet no cook had ever before been discharged for
running out of food, and—significantly--White and
Restaurant Manager Snider made up their minds to
fire her without hearing her side of the story.
Indeed, when Griffith tried to give her version of
the 3 November events, White refused to listen.
Snider also admitted that even though Griffith
chronically failed to follow recipes after receiving
a warning on 10 September, she was never warned
or disciplined for the failure until she was terminat-
ed.
In Defibaugh's case, the Respondent contended
that he was discharged for intentionally breaking a
company telephone, and because of a "bad atti-
tude" that was manifested in a bad temper, the use
of profanity, and the throwing of tire irons in the
garage. Yet the credited testimony indicates that
not only was the telephone not damaged, but that
White knew it was not damaged before he fired
Defibaugh. Furthermore, the Respondent had put
up with Defibaugh's hot temper, profanity, and—
most significantly—throwing tire irons for months
and had only warned him orally once or twice.8
6 Defibaugh had asked White several times to get him an appointment
to talk to Cook, but White refused. On the last such occasion, about a
week before the anonymous letter was sent, Defibaugh told White that
he wanted to tell Cook about favoritism m the treatment of employees.
7 The Respondent argues that Tn-State Truck Service v. NLRB, 616
F.2d 65 (3d Qr. 1980), compels a contrary result. In that case, the court
of appeals denied enforcement of a Board order because it found no sup-
port for the Board's conclusion that the employer had knowledge of con-
certed protected activity. The court found that the employer knew only
that two employees—who, the employer knew, lived m the same house—
separately refused to work on Saturday unless they were paid overtime
It held a statement to the company's president by one employee, that he
was "sticking with" the other employee, not to be substantial evidence to
support a finding of knowledge of concerted activity.
We find Tri-State distinguishable. Here, Defibaugh already had made
common cause with Griffith, as well as with other employees, when he
complained to White on their behalf. Moreover, nothing in Tn-State cor-
responds in any way to Morrison's identification (with White's implicit
confinnation) of Defibaugh and Griffith as the authors of the letter
8 The record does not mdicate clearly the extent to which Defibaugh
had been disciplined for "attitude problems" The written warning con-
Finally, shortly before he fired Defibaugh for
"damaging" the telephone, White told Morrison
that he was tired of Defibaugh's mouth and his atti-
tude and instructed Morrison to find some reason
to discharge him. Accordingly, we adopt the
judge's conclusion that Defibaugh and Griffith
were discharged, not for the reasons alleged by the
Respondent, but because of their protected 6 con-
certed activity.1°
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Independent
Stations Co., Harrisburg and Breezewood, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
cermng the telephone incident refers to "numerous" warnings about Defi-
baugh's "hard headed attitude" and failure to mind his own business, and
cites a specific earlier oral warning on "attitude." Concerning Defi-
baugh's throwing tire irons, White testified that he "warned" Defibaugh
orally, but that the "warning" consisted of his "explaining" to Defibaugh
that "that was no way to conduct himself . . . because . . [he] could hit
a customer." Although White also testified that supervisors are supposed
to make notations of oral warnings and that he follows that policy bun-
self, he admitted that to his knowledge Defibaugh's personnel file con-
tains no notation of a warning about throwing tare irons. In any event,
the Respondent's alleged disciplining of Defibaugh for "attitude prob-
lems" (before his discharge) appears to have been mmunal.
9 The Respondent does not contend that Defibaugh and Griffith's ac-
tivities, if concerted, were not protected.
" We also adopt the Judge's finding, for the reasons stated by him,
that the Respondent failed to show that it would have terminated Deli-
baugh and Griffith even absent their engaging in concerted activities.
Wright Line, 251 NLRB 1083 (1980,) enfd. 662 F.2d 899 (1st Qr. 1981),
cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S 393 (1983).
Matthew M Franckiewicz, Esq., for the General Counsel.
J. Jay Cooper, Esq. (Goldberg, Katzman & Shipman, P. C),
of Harrisburg, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This
matter was heard on six occasions in the period 14 May
through 5 June 1985, in Bedford, Pennsylvania, on the
General Counsel's complaints alleging, in substance, that
Respondent, Independent Stations Co., in violation of
Section 8(a)(1) and (4) of the National Labor Relations
Act (the Act) maintained various unlawful rules regard-
ing its employees' conduct, unlawfully terminated the
employment of its employees Milton A. Defibaugh and
Jeanne Griffith; and unlawfully refused to recall its em-
ployee Ricky A. Souders. Respondent filed timely an-
swers to the two complaints, admitting certain allega-
tions therein, denying others and denying the commis-
sion of any unfair labor practices.
At the hearing, all parties were represented by coun-
sel, and were given full opportunity to call and examine
witnesses, submit oral and written evidence, and to argue
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
orally on the record. At the close of the hearing, counsel
for the parties waived their right to present final argu-
ment and elected to file posthearing briefs. Thereafter,
the General Counsel and Respondent filed timely posth-
earing briefs which have been carefully considered. On
the entire record, including the briefs, and from my ob-
servation of the demeanor of the witnesses as they testi-
fied, I make the following'
FINDINGS OF FACT
I. RESPONDENT AS EMPLOYER
The complaints allege, the Respondent admits, and I
fmd, that at all material times, Respondent, a Pennsylva-
nia corporation with its principal office and place of
business in High Spire, Pennsylvania, with a facility lo-
cated in Breezewood, Pennsylvania, has been engaged in
the retail sale of gasoline, diesel fuel, and related prod-
ucts. Respondent further admits and I find that in the 12-
month period ending 31 December 1985, in the course
and conduct of its aforesaid retail operations, Respondent
derived gross revenues in excess of $500,000 and pur-
chased and received at its Breezewood, Pennsylvania fa-
cility products, goods, and materials valued in excess of
$50,000 directly from points located outside the Com-
monwealth of Pennsylvania. Respondent conceded at the
hearing that it is, on the above facts, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.2
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Independent Stations Co. owns and operates three
truck stops in the Commonwealth of Pennsylvania, the
"Union 76" truckstop in Breezewood being the only one
of its operations brought within the General Counsel's
complaints. The Breezewood facility has three oper-
ations: the restaurant, the fuel stop, and the garage and
repair facilities. The restaurant, at all material times, has
been under the supervision of Linda Snider; the fuel lines
and fuel pumping facility is not under scrutiny, and the
garage and truck repairing facility, until 17 December
1985, was under the supervision of Galen Morrison. The
overall supervisor of the 70 employees in the
Breezewood facility was and is Drexel White.
Ricky Souders; unfair labor practice charge (Case 6-CA-18786) was
filed and served on Respondent on 15 January 1986; and his first amend-
ed charge was filed and served on 28 February 1986. The Milton A. De-
fibaugh unfair labor practice charge (Case 6-CA-18868) was filed and
served on Respondent on 18 February 1986. Complaint based on the
Souders' charge issued 28 February 1986; complaint based on the Defi-
baugh charge issued 7 April 1986. Attached to the General Counsel's
brief was a motion to correct transcript m four respects. Respondent has
not opposed. The motion is granted.
2 At the hearing, Respondent withdrew its denials concerning the su-
pervisory and agent status of Donald P. Cook, Respondent's president;
Drexel White, Respondent's Breezewood station manager; and Linda
Snider, Respondent's Breezewood restaurant manager. Respondent also
conceded the supervisory and agency status until 17 December 1985 of
Garage Supervisor Galen Morrison I therefore find, consistent with the
allegations of the complaints, that Cook, White, Morrison and Snider are
statutory supervisors within the meaning of Sec. 2(11), and statutory
agents within the meaning of Sec. 2(13) of the Act.
The three segments of the Breezewood facility (restau-
rant, fuel pumps, repair facilities) were geographically
separated. The overall facility, situated on about 3 acres,
consists of a large parking lot and two buildings: the
garage and the main store. The garage is about 100 yards
from the main store. The main store contains the offices,
retail store, restaurant, and pumping area; the garage has
the tire changing and repair facilities.
13. Preliminary Matters: Certain Complaint
Allegations
As preliminary matters, two elements of the complaint
may be disposed of. The first is that paragraphs 8(a) and
9 of the Defibaugh complaint, issued 7 April 1986, allege
that a certain 22 October 1985 written warning to em-
ployee Jeanne Griffith was unlawfully motivated. In his
posthearing brief, counsel for the General Counsel con-
cedes that the allegation was unproved and, for the first
time, moves to withdraw the allegation. I believe, how-
ever, that Respondent, by the close of the hearing, is en-
titled to the General Counsel's sustaining his burden of
proof. I therefore conclude that the General Counsel's
motion is untimely. Rather than granting the motion and
perhaps relying on the proscriptive effect of Section
10(b) of the Act, I shall dismiss the allegation as unpro-
ven rather than grant the General Counsel's motion.
The second preliminary element concerns the 7 April
1986 complaint allegations, appearing in paragraphs 7(a)
through (d), relating to various rules restricting employ-
ee conduct maintained by Respondent in its employee
handbook since about 1 September 1985. Respondent's
answer admits the existence of the rules, as alleged, but
denies their unlawfulness. Respondent's brief fails to ad-
dress the issues.
The rules, at all material times and currently binding
its Breezewood employees, are as follows:
(a) Under no circumstances should employees
discuss salaries or tips with employers or other em-
ployees.
(b) The making or publishing of false, vicious or
malicious statements concerning any employee,
manager or supervisor of the Company are grounds
for immediate dismissal.
(c) Solicitation for any purpose during working
hours, or on Company property used by guests or
customers at any time is subject to dismissal.
(d) Failure to leave the property within a half
hour of clocking out after your shift is grounds for
dismissal.
Returning to the property after your scheduled
shift or on scheduled days off, unless to patronize
the truck stop is grounds for dismissal.
The rule described in subparagraph (a) above, prohib-
its employees from discussing their wages with other em-
ployees without regard to circumstances relating to time,
place, or opportunity. The rule thus prohibits employees
from engaging in "mutual aid and protection," the very
substance of the activities protected in Section 7 of the
Act. Such a prohibition against activity protected by
Section 7 of the Act, violates Section 8(a)(1) of the Act,
INDEPENDENT STATIONS CO. 397
as alleged. I regard it as of no legal consequence that the
rule does not contain within its terms the admonition
that violation would lead to dismissal. The mere exist-
ence of the rule inhibiting protected conduct, even if not
enforced, constitutes an unlawful "interference" in viola-
tion of Section 8(a)(1) of the Act. NLRB v. St. Vincent's
Hospital, 729 F.2d 730 (11th Cir. 1984). Moreover, the
rule exists in a matrix of other rules relating to dismissal.
Such a rule violates Section 8(a)(1). See Jeannette Corp.,
217 NLRB 653, 656 (1975).
With regard to the prohibition in (b), above, against
making a "false" statement concerning any employee,
manager, or supervisor, on pain of dismissal, such a rule,
because it prohibits and punishes the merely false, as op-
posed to the malicious, or vicious, is not merely pre-
sumptively unlawful, but unlawful per se, because Sec-
tion 7 of the Act protects merely inaccurate employee
statements. The rule runs afoul of the fact that these false
statements may well relate to concerted activities. Thus,
the rule violates Section 8(a)(1) of the Act. Radisson
Muehlebach Hotel, 273 NLRB 1464 (1985); American Cast
Iron Pipe Co., 234 NLRB 1126, 1131, enfd. 600 F.2d 132
(8th Cir. 1978).
With regard to the Respondent's rule in (c) above,
prohibiting solicitation "during working hours," the
Board has held, that a rule prohibiting, as here, solicita-
tion among employees during "working hours" is pre-
sumptively invalid because "working hours" connotes
periods from the beginning to the end of work shifts, pe-
riods that include the employees' own time. In the face
of its presumptive invalidity, Respondent adduced no
evidence to suggest that special production, safety, or
other circumstances exist that would overcome the pre-
sumption. As such, Respondent's rule prohibiting, on
pain of discharge, solicitation during working hours is a
violation of Section 8(a)(1) of the Act. Our Way, Inc.,
268 NLRB 394, 395 (1985); National Semiconductor
Corp., 272 NLRB 973, 974 fn. 1 (1984). The rule is un-
lawful even if not enforced, NLRB v. Vaught Corp., 788
F.2d 1378 (8th Cir. 1986).
Respondent in (d), above, has maintained a "no-
access" rule that punishes, on pain of dismissal, employee
failure to leave the property within a half hour of clock-
ing out after the end of the shift; and a companion rule
prohibiting returning to company property after the
scheduled shift unless to patronize the tnickstop.
With regard to the prohibition of off-duty employees
reentering Respondent's property, such a broad rule vio-
lates the Board principle that off-duty employees have
unlimited access to outside premises such as parking lots
and other outside nonworking areas. Tr-County Medical
Center, 222 NLRB 1089 (1976). The Board has expressly
refused to accept a more restrictive rule that would limit
off-duty employees' access to the employer's property on
the basis of 30 minutes before and 30 minutes after the
shift change as Respondent apparently attempted here to
do. See A. W Schlesinger Geriatric Center, 263 NLRB
1337 fn. 3 (1982). Such a rule violates Section 8(a)(1) of
the Act as alleged.
C. The Employment and Discharge of Jeanne Griffith
and Milton Defibaugh
1. The employment of Milton Defibaugh
Defibaugh was hired by Respondent in July 1984 and
was discharged on 9 November 1985. He was employed
as a tire repairman and after his probationary evaluation
received a raise in April 1985, and a change in classifica-
tion to "mechanic." His supervisor was Galen Morrison.
By the beginning of 1985, Respondent knew that Defi-
baugh was living with the other alleged discriminatee,
Jeanne Griffith, a restaurant cook. Sometime prior to the
instant hearing, they were married.
Jeanne Griffith had been employed in the restaurant
since 1977 by Respondent's predecessor and by Respond-
ent since its takeover of the truckstop operation in Feb-
ruary 1983. Griffith quit her employment with Respond-
ent on 29 July 1985, but was reemployed on 23 August
1985. She remained in Respondent's employ until she
was discharged 4 days before Defibaugh on 5 November
1985.
As early as February 1985, while Griffith and Defi-
baugh were employed by Respondent, Supervisor Drexel
White called them jointly into his office because he had
heard rumors that Griffith was seeking to displace Linda
Snider as the restaurant supervisor. Jeanne Griffith was
at that time employed with the title "senior cook." He
told them jointly that he would fire the initiators of the
rumors if he discovered them. Defibaugh and Griffith
denied initiating the rumor. The evidence also shows
that Defibaugh repeatedly complained to Supervisor
White over Respondent's alleged discriminatory mistreat-
ment of Jeanne Griffith. As Supervisor White reasonably
testified (Tr. 60) whenever something was done to
Jeanne Griffith, soon thereafter Defibaugh would be
complaining to White about the treatment. White admit-
ted not only in the spring, summer, and fall of 1985, De-
fibaugh often complained about Respondent's unfavor-
able treatment of Jeanne Griffith, but complained on
behalf of other employees concerning alleged Respond-
ent favoritism and discrimination, especially by Restau-
rant Supervisor Snider.3
In the summer and fall of 1985, Defibaugh, according
to Supervisor White, complained to him about the unfa-
vorable treatment of employees, including Griffith, on a
basis of about once a week, perhaps a dozen times in a
period of 13 or 14 weeks (Tr. 63). These employees,
other than Griffith, included waitresses Diane Bigler and
Bets McDaide. Defibaugh complained that Bigler and
McDaide were the victims of Respondent's (and particu-
larly Linda Snider's) favoritism; that waitress Brenda
Miller was the beneficiary of such favoritism; and that
Snider, herself, failed to obey Respondent's rules. Thus,
there is no doubt on this record that over a period of
months, and particularly in the summer and fall of 1985,
Defibaugh, in particular, constantly complained of Re-
spondent's unfair and disparate treatment of named em-
8 Griffith was sitting with Defibaugh when he complained to White
(Tr. 481-485).
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees and Griffith in particular; and made these views
known directly to Drexel White.
Bigler, a waitress employed from July 1984 to Decem-
ber 1985 (when she quit), had separately, previously
complained to Griffith over Supervisor Linda Snider's
favoritism, particularly over favoritism in scheduling of
waitresses on their shifts. She also complained to Griffith
over the restaurant's chronic running out of supplies and
foods. Bigler also regularly complained (once a week)
after September 1985 to Milton Defibaugh concerning fa-
voritism, particularly concerning an incident in the
summer of 1985 when her boyfriend was found asleep in
her car. Other waitresses, including Jeanne Hess and
Bigler, together, also complained to White and Snider
over favoritism in scheduling and employees shirking
jobs.
Defibaugh spent many off-duty hours in the restaurant,
drinking coffee and eating. He did not interfere with the
actual work of the waitresses, but showed a continual in-
terest in restaurant business. He would often question the
cashiers concerning incoming phone calls about who was
calling and generally inquisitive about restaurant affairs
that were not his business as a tire changer and mechan-
ic. This Defibaugh conduct became so obvious that
Snider told Bigler and other waitresses not to answer
any of Defibaugh's questions because restaurant affairs
were none of his business. She warned Connie Gorsuch,
a cashier, not to discuss any restaurant business with De-
fibaugh while she was on company time.
2. The employment of Jeanne Griffith
As above noted, Griffith was continuously employed
as a cook by Respondent's predecessor in the restaurant
since July 1977, and after Respondent took over the
truckstop in February 1983, by Respondent. She quit for
another job on 29 July 1985, but was reemployed on 23
August 1985. Both Supervisors White and Snider were
especially anxious to secure her services again. There is
no dispute that when she left in July 1985 and gave 2
weeks' notice, White continuously asked her to stay.
When she thereafter quit her new job in August, she
never contacted Respondent for reemployment. Rather,
White telephoned her at home and asked her to come in
to see him about reemployment. White then interviewed
her, told her that she would become a head cook, and
offered her a 75-cent-per-hour raise. Snider told her that
she would be rehired as a 90-day probationary employee,
but Snider was going to instruct her in inventory control
and the methods of ordering food to relieve Snider of
some of her supervisory responsibilities. Otherwise,
Snider told her that she would be doing her old job as a
cook, both "grill" cook and "prep" cook.
After her return to work in August 1985, she received
various complaints from waitresses and cashiers (Connie
Gorsuch, Diane Bigler, Liz Patterson) concerning al-
leged favoritism by Snider among the waitresses,
Snider's failure to order enough food and blaming the
cooks for the failure to have enough food on hand. Grif-
fith twice complained to White, telling him that Snider
did not order enough food and on each occasion White
said he did not know about it. Griffith asked him why
Snider blamed the cooks for not telling her that food had
become depleted when this was Snider's responsibility.
In late August, after Griffith urged Defibaugh to com-
plain to White regarding an allegedly unfair (disparate)
written warning to waitress Bets McDaide, Defibaugh
and Griffith together confronted White. Defibaugh asked
him why he had issued a warning to McDaide when he
did not warn Linda Snider and Brenda Miller who; like
McDaide, left with truckdrivers from Respondent's prop-
erty. White told them that it was mere hearsay and he
could not write them up for that. When they told him of
favoritism toward waitress Brenda Miller (Snider's un-
concern with her rudeness to customers) while waitress
Bigler being written up for the same conduct, White said
nothing. Griffith admitted that she had never complained
to White except in the presence of Defibaugh and never
in the company of other employees. Griffith also admit-
ted she never saw more than one employee at a time
complain to White concerning favoritism, scheduling,
and the failure to order food.
3. The written warning against Griffith of 10
September 1985 (R. Exh. 1)
On 10 September 1985, Supervisor Snider issued a
written warning against Griffith. There is no dispute
with regard to the circumstances surrounding this warn-
ing. The face of the written warning report discloses that
Griffith was disobedient in failing to use existing recipes
that she had been instructed to follow: that she used
hamburger steak for swiss steak in cooking; and also per-
mitted vegetable soup to spoil because it was not timely
refrigerated resulting in the soup being discarded. Grif-
fith concurred with Respondent's statement, admitted
using the hamburger steaks for swiss steak, but denied
that she had not been following recipes. Snider and Grif-
fith signed the warning report on 10 September 1985.
Snider noted that Griffith knew that she was in her 90-
day probationary period and that if she did not comply
with Snider's directions in doing things, she could be let
go.
4. The anonymous letter sent to Supervisor Cook
(G.C. Exh. 3, 22 October 1985)
In the months of September and October 1985, Defi-
baugh was regularly having conversations with Supervi-
sor White concerning Linda Snider's conduct in neglect-
ing her work and, contrary to company policy, leaving
with truckdrivers from Respondent's parking lot and not
receiving punishment for it, whereas Diane Bigler was
being punished for the same conduct (Tr. 633-636).
There were similar discussions concerning cashier
Connie Gorsuch being disciplined. In these discussions,
White would listen to Defibaugh, but would walk away
without comment. On 7 October, Connie Gorsuch was
issued a written warning in part because she had been
speaking with Griffith and Defibaugh in the restaurant
while Gorsuch was on duty and while Griffith and Defi-
baugh were not on duty. When Gorsuch told Griffith
and Defibaugh, Defibaugh went to see White about the
matter. Defibaugh told White that the warning to cashier
Gorsuch was another instance of favoritism because Su-
INDEPENDENT STATIONS CO. 399
pervisor Snider and waitress Brenda Miller were permit-
ted to engage in lengthy conversations with patrons
while they were on duty.
Earlier, in September, when Bets McDaide complained
to Defibaugh and Griffith that she had been written up
for waking up a truckdriver, Griffith and Defibaugh told
White that McDaide had been unfairly disciplined be-
cause other employees, including Linda Snider, had not
only awakened truckdrivers in the parking lot, but had
ridden off with them.
Defibaugh also continuously, and particularly, protest-
ed Respondent's treatment of Griffith. He accused White
of discriminating against Griffith in the above 10 Sep-
tember written warning concerning spoiled vegetable
soup and not disciplining another cook for spoiling sau-
sage that was not refrigerated. There is no dispute that,
in fact, Respondent had disciplined the employee for fail-
ing to refrigerate (there was, in fact, no spoilage).
Bearing the date 22 October 1985, Snider, at Supervi-
sor White's urging, issued a written warning ("disobedi-
ence") against Griffith for going to Respondent's garage
(where Defibaugh was working) in order to pick him up
on completion of his shift. Griffith admitted doing so and
Respondent's warning notice (G.C. Exh. 13) shows that
Snider decided that the next time this occurred, Griffith
woukl be laid off for 3 days without pay.
Defibaugh protested this warning to White and told
White that he was discriminating against Griffith because
White's wife and daughter themselves violated the same
company rule with impunity. In response to this and
other Defibaugh complaints, White told him to keep his
nose out of other people's business and to let things
"flow the way they should flow" (Tr. 650). When White
told him that he had a bad attitude, Defibaugh told him
that if he had a bad attitude, so did White. White con-
temporaneously told Galen Morrison, Defibaugh's super-
visor, that he was tired of Defibaugh's mouth and tired
of Defibaugh sticking his nose into problems involving
Griffith. Snider felt the same way, and as above noted,
ordered waitresses and the cashier not to talk to Defi-
baugh and not to answer his questions concerning the
restaurant and that if any of them were caught talking to
Defibaugh about restaurant business, they would be
fired. Whether Snider conditioned this warning to refrain
only while employees were on duty is a matter disputed.
I am satisfied, in any event, from the record (Tr. 1181-
1184) that Snider untruthfully denied telling a Board
agent that she had never issued a warning (lawful or oth-
erwise) to any employee not to speak to any other em-
ployee); and that such testimony adversely affects her
credibility.
When, on 22 October, Snider handed the warning con-
cerning the appearance at the garage to Griffith, Snider
told her she had nothing to do with the warning and that
she should see White about the matter. I credit Griffith's
uncontradicted testimony that she had picked up Defi-
baugh at the garage two or three times a week; that
White had seen her do this for over a year; and that
White had invited her into the garage to warm up on oc-
casion. Respondent conceded that this warning had noth-
ing to do with Griffith's subsequent discharge; but Grif-
fith said that this 22 October warning (G.C. Exh. 13) and
other acts of alleged harassment prompted her and Defi-
baugh to draft and send an anonymous letter to Re-
spondent's president, Cook, in Harrisburg.
5. Griffith and Defibaugh draft and send an
anonymous letter to Supervisor Cook (G.C. Exh. 3)
On 22 October, Griffith and Defibaugh drafted an un-
signed letter and sent it the next day, 23 October, to
President Donald B. Cook, in Harrisburg, Pennsylvania.
White believed Defibaugh incapable of typing the letter.
Griffith typed the three-page letter and read it to Galen
Foor, her nephew, a dishwasher in the restaurant kitch-
en, before sending it. Foor agreed that the letter be sent.
The letter, addressed to Cook, states that it was being
written:
. . . to enlighten you of some of the episodes that
are going on at Breezewood's Union 76 Truck Stop.
Along with various rules and regulations that the
management and restaurant supervisor violates and
twist and turns around for their benefit. They show
favoritism to a few and treat other employees like
dirt.
The letter thereafter gives examples of Supervisor
Snider's alleged favoritism, disparate treatment of em-
ployees, and inconsistent positions with regard to her
own and other employees' personal deportment. Thus,
the letter alleges that Snider issued a written warning to
a "cook" for spoiling vegetable soup, but left another
cook without discipline after having spoiled 50 pounds of
sausage patties. 4 The letter then states that the truckstop
general manager had issued a written warning to a wait-
ress for waking up a truckdriver, but the restaurant su-
pervisor, Snider, without discipline, was often in the
trucks with drivers and left with the drivers both while
on duty and off duty. Similarly, another waitress, Brenda
Miller, allegedly engaged in the same conduct as the su-
pervisor, but the general manager has done nothing
about it. Further, the letter notes that Supervisor Snider
issued a written warning to a cashier for standing around
talking in the dining room, but failed to issue a similar
warning to waitress Angie Smith, Snider's niece. The
letter then relates alleged misfeasance by Supervisor
Snider with regard to employees, and particularly Grif-
fith, in daily occurrences in early and mid-1985.
Defibaugh asked White several times to get an ap-
pointment for him to speak with Cook, but White re-
fused. The last time Defibaugh asked White to speak
with Cook was in October 1985, 1 week before Defibaugh
and Griffith sent the anonymous letter. Defibaugh told
White, on that occasion, that he wanted to tell Cook
about favoritism and the way the employees were being
treated.
After Cook received the letter in late October, he
showed it to his assistant, Anna Webb, and telephoned
White giving him a synopsis of the letter. In fact, Cook
had three conversations concerning the letter with
4 In fact, the cook, Hornsbarger, received a written warning for her
failing to refrigerate the sausage patties, but the sausage patties, in fact,
were not spoiled See above.
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
White: the above telephone conversation; a second in
person, and the third time by telephone. Cook testified
that neither he nor White had any idea from whom it
came and White did not suggest who it might have come
from. I discredit both Cook and White in their denials on
the basis of the above record of Defibaugh's continuous
complaints over favoritism (Defibaugh asked White for
an appointment to speak to Cook about favoritism 1
week before, i.e., around 16 October) and White's con-
duct, below. Cook told White to look into it because the
letter concerned Cook himself. White reported back to
Cook within a 2- to 3-week period, according to Cook,
and told Cook that some of the assertions in the letter
were untrue and others had been straightened out. Cook
said that once White had reported back to him, that was
the end of Cook's involvement.
6. Supervisor White's testimony
Supervisor White particularly testified that although
Defibaugh had complained to him about favoritism con-
cerning Griffith in the summer and fall of 1985, perhaps
several times over a period of a dozen weeks, he did not
suspect who wrote the anonymous letter, was not inter-
ested in why the letter was unsigned, and, although he
thought a couple of persons could have written the
letter, he thought that neither Griffith nor Defibaugh
wrote the letter. I do not credit this testimony. White ad-
mitted that in the 2-week period following the receipt of
the letter, he spoke to Supervisors Cook, Webb, and
Snider 10 times about the letter and its authorship. White
further admitted that the letter complains of favoritism
by supervisors in their treatment of employees and that
Defibaugh, in the summer of 1985, several times com-
plained to him about favoritism and the treatment of
Jeanne Griffith. White testified that Defibaugh seemed to
complain to him whenever something was done to Grif-
fith and, during the spring, summer, and fall of 1985, De-
fibaugh complained to him on behalf of other employees
as well as Griffith concerning Respondent's supervisor's
favoritism. He corroborated Defibaugh in recalling that
Defibaugh complained that one of the beneficiaries of
this Snider favoritism was waitress Brenda Miller; and
that some of the victims included Diane Bigler and Bets
McDaide. In short, White testified that he recalled that
Defibaugh complained on behalf of others a dozen times
in 14 weeks.5
Although, as above-noted, White testified emphatically
that he spoke only to Cook, Webb, and Snider concern-
ing the possible authorship of the letter (Tr. 65), 6 he
5 The General Counsel asked- "Did Milton Defibaugh tell you that he
was complaining on behalf of other employees, besides Jeanne [Grif-
fith]?" White: "Yes." (Tr. 61.) Thereafter, the General- Counsel repeated
the same question, "And, those are the persons that he told you that he
was complaining on behalf of, am I correct?" To this White again an-
swered: "Yes." (Tr 61.)
6 White testified
Q. Did it strike you as odd that the letter was unsigned',
A. Yes.
Q. Did you discuss with any other person the possible authorship
of the letter?
A. Yes.
Q. With whom did you discuss that'
A Mr. Cook, and Webb.
overlooked having had three conversations about the
letter and its authorship with his garage supervisor,
Galen Morrison.
Supervisor Morrison credibly testified that the first
conversation was around 25 October 1985 when Morri-
son was in White's office and White mentioned that an
anonymous letter had been sent to Harrisburg, that Presi-
dent Cook was very unhappy about the letter and that
White too was very unhappy about it (Tr. 379). The next
day, White told him that the letter was being sent from
Harrisburg to White and again White mentioned that he
was very unhappy about the letter (Tr. 380-381). On the
next day, apparently 27 October, White took Morrison
into his office, told him that he had shown the letter to
Snider, and showed him the letter (Tr. 381). Morrison
read the letter.
When White then asked Morrison who he thought had
written the letter, Morrison replied that it was either
Jeanne Griffith or Milton Defibaugh, or both (Tr. 383).
In response, White "just looked at [Morrison] and sort of
grinned. He didn't make no affirmative remark of his
own." (Tr. 383.)
The letter also upset Snider (Tr. 1154-1155). She testi-
fied, like White, untruthfully, that she did not suspect
who wrote the letter and even further, directly contra-
dicting White (Tr. 65), denied that White ever spoke to
her about the possible authorship of the letter (Tr. 1155).
On the basis of this contradiction, the unequivocal histo-
ry of Defibaugh's unending complaints against Snider's
favoritism and Supervisor Morrison's testimony, I con-
clude that the question of authorship was hotly discussed
between White and Snider and that the question, in view
of President Cook's baleful interest, was of particular im-
portance to both of them.
7. The discharge of Jeanne Griffith; 5 November
1985
Following the written warning of 10 September 1985,
Snider testified that Griffith continued to fail to follow
recipes. Dorris Stough also testified that Griffith failed to
follow recipes. In the 2-month period, 10 September
through 3 November, there were not only differences in
the taste of food when Griffith failed to follow the rec-
ipes, but there were customer complaints concerning the
food. Whether this was because of the food itself, be-
cause another cook did the cooking or preparation, or
because Griffith contributed to it, in whole or in part, is
not entirely certain. In any event, Stough testified that a
week or two later before the 3 November discharge of
Griffith, Snider offered her the "prep cook" job held by
Jeanne Griffith because of Griffith's failure to follow rec-
ipes. In spite of Snider's knowledge, the difference in
taste and even customer complaints, Respondent did not
further warn or discipline Griffith in the 2-month period
following the 10 September warning for failure to follow
recipes.
Q. Any one else?
A Ms. Snider.
Q. Any one else?
A. That's it.
INDEPENDENT STATIONS CO. 401
On Sunday, 3 November 1985, Griffith, as "prep
cook," was scheduled to work and did work from 7 a.m.
to noon. Dorris Stough was scheduled to work and did
work as the "grill cook" from 7 a.m. to 3 p.m. As the
prep cook, it was Griffith's job, inter alia, to ensure that
the grill cook could properly execute the orders received
from customers by preparing enough food prior to actual
need and to fill the salad bar and buffet table. After Grif-
fith fmished her tour at noon, Stough was the only cook
on duty. There was, however, a dishwasher (Ed Stefan-
cik) on duty at the same time as Stough. At any rate,
after Griffith finished her tour of duty at noon, Stough
was so busy in the kitchen that she was unable to check
the dining room buffet tables and salad bar until about 3
p.m. to discover whether there was an adequate supply
of food there. About 3 p.m., Supervisor White came to
the restaurant. He first visited the buffet and salad bar
and found them either empty or depleted. He then went
to the kitchen and found Stough close to tears (Tr.
1359). He was amazed and angry"' at fmding the salad
bar and buffet in that depleted condition. He asked
Stough what had happened and she told him that she
had been "busy, busy, busy, all day" and that Jeanne
[Griffith] "just didn't set me up" (Tr. 1360). Stough told
White that it was not fair for Griffith to have left her in
this condition and that before Griffith left, she had been
standing around talking with the dishwasher [Ed Stefan-
cik] for 10 or 15 minutes. Stough told White that there
had been no pies taken out of the freezer to be heated,
no vegetables cooked, no meat heated, and insufficient
sliced and cooked turkey to keep up with the run on
turkey as a Sunday special.
Supervisor White asked her to help him out. Stough
stayed overtime in preparing more turkey gravy from
the powdered mix, heating up the frozen vegetables, and
refilling the salad bar. She remained for about an hour
for which she was paid overtime.
Immediately thereafter, White sought to telephone
Snider, but Snider was away for the afternoon (Sunday).
On the next morning, he called in Snider and told her
what had occurred the previous day. Snider told him
that this was not the first time that Griffith had failed to
"set up" the grill cook. White told Snider that he wanted
the affair documented immediately especially because he
had not known of a previous similar situation. He then
directed Snider to speak to Dorris Stough, which she
did. Stough repeated her version to Snider. White admit-
ted that neither he nor Snider sought to interview Grif-
fith or obtain her version of the events in any way; and
when Griffith on 5 November, on learning that she
would be disciplined, attempted (on 5 November), he re-
fused to listen. White testified that it would not have
mattered what Griffith said because he had decided to
fire her the preceding day, i.e., on Monday, 4 November
(Tr. 1371). In fact, White testified that he decided to dis-
charge Griffith before Snider even spoke to Stough (Tr.
1482). As I understood White's testimony (Tr. 1371-
1372), the only reason he wanted Snider to get a written
7 Whether Stough's tearful condition preceded or followed White's
display of anger is unclear to me. It is not crucial to disposition of the
case.
version of the Sunday, 3 November events from Dorris
Stough was to have documentation to support what
Stough had told him verbally on Sunday. As noted,
White had actually made up his mind to discharge Grif-
fith before Snider spoke to Stough and was only await-
ing the documentation to effectuate it. He was not inter-
ested in what Griffith might say to defend against
Stough's version and he testified quite openly it would
not have made any difference to him (Tr. 1371).
Snider did not have the opportunity, in any event, to
interview Griffith on the next day, Monday, 4 Novem-
ber, because Griffith was not present on the premises.
The first time that White or Snider spoke to Griffith
after the Sunday events of 3 November was on Tuesday,
5 November, when White told her that she was dis-
charged. After Snider, on 5 November, reported back to
White concerning her 4 November interview of Stough,
White told her, among other things, that he wanted Grif-
fith written up for discharge before she returned to work
on 5 November.8
Although Snider consistently testified that the princi-
pal reason for discharging Griffith was her bad attitude
and a spirit of lack of cooperation, when Snider wrote
her up pursuant to White's suggestion on 4 November,
the violation (G.C. Exh. 4) is not for the disobedience
but for "work quality." The document is signed by
Snider in two places and by White in a third all bearing
the date 11/5/85. In fact, none of the signatures were af-
fixed by Snider or White and the explanations given by
Snider about this condition do not show that either of
them were unavailable to affix their signatures. The
record shows that the unsigned document was sent to
Harrisburg and the signatures were affixed in Harrisburg
and not by White or Snider. Just why this apparently
unique discharge procedure was followed was left entire-
ly unclear.
The document written up by Snider shows that the
company statement was as follows:
Didn't have work done on Sunday when she left.
There were no fruit pies in the pie rack and didn't
bother to cook any in the oven. Didn't have enough
vegetables prepared for the buffet. Didn't make any
chicken gravy and there was very little in the walk
in. Didn't have any turkey sliced for the special.
8 While White testified that be decided to discharge Griffith before he
had Snider even speak to Stough, he apparently did not reveal this deci-
sion to Snider. Snider testified that, before she spoke to Stough, White
only asked her what they should do about Griffith's performance (Tr.
1995). According to Snider, on Monday, 4 November, she and White dis-
cussed the Sunday events and Snider told him that she would speak to
Stough and "find out what really happened and then get back to White"
(Tr. 1195). White allegedly did not tell her that he was not interested in
what "really happened," but rather in whether Stough would document
what she had told him the previous day. Although White told her that
Griffith should be disciplined, he did not reveal to Snider what that disci-
pline was to be: merely that they should "do something." Because White
decided to discharge Griffith before Snider spoke to Stough (Tr. 1482), it
appeared to me at the hearing and again on review of the record, that he
had little more than a stylistic interest m what Stough told Snider in the
mterview. (Tr. 1196-1197.)
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Had to pay the other cook an hour overtime so that
she could get extra things prepared for the buffet
and some other food prepared for the 3/11 shift.
Could have had some of the above things done
while she was standing around waiting to clock out.
Also she is not following recipes.
Snider was not present on the next day, 5 November,
when White read this document to Griffith and Griffith
was discharged. (Tr. 1191.)
Snider testified that from time-to-time cooks com-
plained of other cooks not performing their jobs correct-
ly. She also testified that since she had been employed
there, at least since 1984, no cook had ever been dis-
charged for any reason, and that neither Stough nor Ste-
fancik, with whom Griffith was allegedly talking for 15
minutes before the end of her shift, were disciplined in
any way. White testified that he told Snider that the
more important factor to be included in the report was
Griffith's failure to follow recipes. 9 While White further
testified that he was aware, since her return to the job in
August 1985, that Griffith, had shown poor cooperation
with the grill cook (Tr. 1484-1485), she was never disci-
plined for such alleged, chronic uncooperative spirit.
White also testified that he had received 10 to 12 com-
plaints from Snider concerning sour soup of which 3 or
4 were supposed to be Griffith's responsibilities. Neither
Griffith nor the cooks responsible for the majority of the
sour soups received oral or other warnings for this al-
leged misconduct.
On 5 November, according to White, Snider returned
and told him that she had spoken to Dorris Stough and
had drawn up the warning report. Snider asked what
they should do, White asked for her recommendation.
Snider said that Griffith should be let go. This occurred
allegedly after a discussion of Griffith's good and bad
points, among which was the fact that she was an excel-
lent grill cook. Snider testified that they never even con-
sidered demoting her to grill cook after the decision was
made to fire her as senior cook.
Griffith was scheduled to work the 3 p.m. to 11 p.m.
shift on 5 November. She arrived at her job about 2:45
and White told her to come into his office. White then
pulled out the warning Snider had written up the day
before (G.C. Exh. 4) and read it to Griffith, asking her to
sign it. Griffith refused to sign it saying it was untrue.
When Griffith attempted to tell him what the facts were
concerning the various allegations of wrongdoing, he
shut her up and would not listen to the facts. At this
point White told her that her services were no longer
needed and that she should leave Respondent's property
quietly.
Griffith, expanding on and corroborating Snider, testi-
fied that no cook had ever been discharged while she
had been working there (8 years) and no employee was
ever discharged for running out of food in terms of
either cooking or supplies. She also testified that specials,
9 Not only was this factor not prominently mentioned, but it was con-
trary to the course of White's anger and concern regarding Griffith's fail-
ure to prepare enough food Thus, White apparently wanted the report
inaccurately weighed.
like the turkey special on Sunday, 3 November, ran out
all the time and no one had ever been discharged for
that condition.
White executed the Griffith termination report (G.C.
Exh. 5) on 5 November 1985. The document shows that
he checked off the fact that Griffith's cooperation and
quality of work were unsatisfactory despite the fact that
her job knowledge was good and her attendance excel-
lent. The document depends on the attached Snider
warning report (G.C. Exh 4) For a reason not explained
on the record, the effective date of the termination was
made "11-3-1985."
8. The discharge of Milton Defibaugh; 9 November
1985
The garage telephone, on Supervisor Morrison's desk,
located about 100 yards from Respondent's office and
restaurant, had been partly defective at all material times.
Galen Morrison's uncontradicted testimony is that the
phone had never been physically damaged. In particular,
the restaurant could not use the phone system to directly
contact the garage via the telephone on Morrison's desk.
Rather, it had to use a pay phone to call the garage be-
cause the paging system in the garage phone did not
work. At any rate, at all material times, the phone, phys-
ically undamaged, otherwise functioned before and after
the incident described below. Although Morrison contin-
ually asked White to have the paging system fixed before
the incident, White said that he would do so, but it was
never fixed.
On 20 October, Defibaugh, who had a history of both
foul mouth and bad temper, including throwing of tire
irons in the garage, conditions known to Drexel White,
sought by phone to have a replacement come to the
garage because of a great deal of work and Defibaugh's
desire to leave at the end of the shift. When co-employ-
ees rebuffed his telephone requests for a replacement, he
either threw or purposely heavily "dropped" the phone
onto the receiver. .4 garage mechanic, William Pearson,
a witness to the event, told Morrison of the incident on
the next day.1°
A day or two after Defibaugh threw the phone, White
removed it from Galen Morrison's desk. Sometime there-
after, White told Morrison that he was going to call the
phone company and get a letter sent to him that the
phone was damaged due to negligence or misuse (Tr.
388).
Morrison also testified that 2 weeks after Defibaugh
threw the phone, on the day of, or the day after, Griffith
was discharged (5 or 6 November), White came to him
and told him that, with Defibaugh's bad attitude, "that
any false moves he made or anything that he had done
we should write him up, and try to get rid of him." (Tr.
391.)
On many occasions before the telephone incident of 20
October, as above noted, there would be discussions,
10 Pearson testified that before and after Defibaugh threw the phone,
there was no difference in the phone's function or appearance. In particu-
lar, in a later conversation with Supervisor White who asked him about
the incident after Defibaugh had been fired, on 9 November, Pearson told
White that Defibaugh did not break the phone
INDEPENDENT STATIONS CO. 403
often heated discussions, between Defibaugh and White,
especially concerning events which affected Jeanne Grif-
fith in the restaurant. On more than one occasion, White
told Morrison that he was tired of Defibaugh's loud
mouth and sticking his nose into problems concerning
Jeanne Griffith. In terms of timing, it should also be
noted that while White removed the phone from Morri-
son's desk, a day or two after the 20 October incident
and later told Morrison that he was going to get a letter
from the phone company showing that the phone was
damaged due to misuse or abuse, White succeeded in
gaining such a statement from the phone company in a
telephone conversation on 4 November. It was on that
date that the telephone company employee (Smith) told
White that the phone appeared to be abused and would
send White a letter to that effect. (AU Exh. 1.) Thus,
even after White learned that the phone company would
assert, in writing, that the phone had been abused, he
nevertheless came to Morrison and directed that he be
on the lookout for any other Defibaugh "false moves" as
a basis to discharge him.
Galen Morrison testified that he wrote up a warning
report on Defibaugh's throwing the phone on 22 Octo-
ber (R. Exh. 3), but never notified Deflbaugh of having
done so. He never showed it to White until 17 Decem-
ber. He did however discuss the warning report with
White sometime after he wrote it up. A "few days" after
the incident (whether before or after White heard of the
anonymous letter is unclear), White asked Morrison why
he had not written a warning report against Defibaugh.
He told White that he had written up the report, but had
not given it to Defibaugh. When White asked him why,
Morrison told him that the phone was not damaged; that
he did not see Defibaugh throw the phone; and that it
was merely a matter of temper. It does not clearly
appear from the record whether this Morrison statement
to White, that the phone was not broken, preceded or
followed White's telling Morrison that he was going to
get a letter from the phone company that the phone had
been abused or misused. What is clear, however, and I
find, is that this Morrison statement (that the phone was
undamaged) preceded and directly lead to White's direct-
ing Morrison to be on the lookout for future Defibaugh
"false moves" as a basis "to get rid of him." This was on
the day of, or the day after, White discharged Griffith.
On 6 November, the phone company dispatched its con-
firmation letter. White received it (R. Exh 4) on 8 No-
vember. Ott 9 November, White discharged Defi-
baugh."
" During the General Counsel's investigation of the Defibaugh unfair
labor practice charge, White told a Board investigator, on 6 February
1986, that the damage caused by Defibaugh had forced Respondent to
order a new telephone at a cost of $241.15. In support of this claim of
damage, White submitted to the Board a telephone company bill (G.C.
Exh. 6), which showed the purchase of the replacement telephone. In
fact, however, the phone allegedly damaged by Defibaugh was repaired
under a warranty and the phone company bill for the "new phone" was
for a phone that White ordered for the cashier's desk White denied that
he made a knowingly untrue statement to the NLRB investigator on 6
February, notwithstanding that in the previous December, he had re-
ceived from the phone company the completely repaired telephone and
the billing showing that the phone had been repaired under warranty at
no cost to Respondent. I do not credit White. I conclude that he submit-
ted a knowingly false statement regarding the phone to the Board.
On 9 November, Morrison, Defibaugh, and White held
a meeting regarding the telephone episode. White told
Defibaugh that his services were no longer necessary
and White executed a termination report (R. Exh. 35)
showing that Defibaugh was being discharged for de-
stroying company property and because of his bad atti-
tude.
With respect to Defibaugh's bad attitude, White testi-
fied that he was loud, used abusive language, including
profanity, and, over a period of 8 months, his abusive-
ness became worse. He testified that while profanity is
not uncommon at the truckstop, Defibaugh used profani-
ty in the dining room. His being "loud and abusive" con-
sisted of his complaining of what was going on in the
restaurant and making complaints both as to himself,
Griffith, and against Snider over an 8-month period.
White testified that, on numerous occasions, he had seen
Defibaugh throw tire irons while working in the garage,
always complaining that he had a hard day. White testi-
fied that he verbally encouraged Defibaugh not to be
abusive and not to throw tire irons.
Discussions and Conclusions
Defibaugh and Griffith; the General Counsel's
Prima Facie Case
(a) Jeanne Griffith: Respondent generally asserts
against the existence of a prima facie case and as a de-
fense three grounds: (1) neither Griffith nor Defibaugh
were engaged in protected concerted activities; (2) that
Respondent did not know that they were engaged in
protected concerted activities; and (3) in any event, even
if they were engaged in protected concerted activities
and Respondent knew about it, Respondent discharged
both of them for reasons other than their engaging in
protected concerted activities or, alternatively, even if
they were engaged in protected concerted activities, Re-
spondent would have discharged them notwithstanding
that they had been so engaged because of their individual
misconduct. As I perceive the record, the answer to the
first assertion presented by Respondent is the most diffi-
cult. I shall therefore postpone discussion of that ques-
tion until disposing of the questions of Respondent's
prima facie knowledge and its motivation in the respec-
tive discharges.
With regard, therefore, to the question of Respond-
ent's prima facie knowledge of whether Griffith and De-
fibaugh were engaged in concerted protected activities in
writing the anonymous letter, the record is undisputed
that Griffith and Defibaugh, on at least one occasion in
late August (Tr. 479-485), approached White to com-
plain of working conditions, including favoritism and dis-
cipline, with regard to herself and other employees; and
Defibaugh engaged in a series of a dozen or more argu-
ments with White, some of them heated, concerning the
very subjects (favoritism; disparate discipline) that
appear in their anonymous letter that Respondent re-
ceived about 24 October 1985. Defibaugh chronically
complained about treatment of Jeanne Griffith and also
mentioned, on many of these occasions, the favoritism
that Snider showed to employee Brenda Miller and other
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees while showing antagonistic attitudes to Bets
McDaide, Jeanne Griffith, and Connie Gorsuch. While
White testified that he had no knowledge or reasonable
suspicion who wrote the letter, this a disingenuous
answer and I do not credit White. He could not have
had a dozen or more conversations, some of them
heated, with Defibaugh on the specific subjects (supervi-
sor favoritism; inconsistent discipline, spoiled soup)
raised in the anonymous letter without having a pretty
good idea who wrote the letter. The authorship of the
letter was a matter of great moment to him because, as
he testified, his employer's president, Cook, and he him-
self were very concerned if not angry about the letter.
Cook's concern most surely became White's concern.
Finders of fact need not be naive concerning motivation
and testimony of a witness' state of mind. Shattuck Denn
Mining Corp v. NLRB, 362 F.2d 466 (9th Cir. 1966). I
therefore find on the basis of these continued, prior con-
versations between White and Defibaugh (on at least one
occasion with Griffith) on the very subjects specified in
the anonymous letter, that immediately on Cook telling
him of the letter and the subject matter thereof around
34 October, White knew, or reasonably believed, that
Defibaugh had been a participant in the writing of the
letter. Further, as the General Counsel notes, since
White perceived of Defibaugh and Griffith as a team, I
find he reasonably suspected that Griffith was a partici-
pant in the letter as well. This conclusion is derived from
the fact that they were known to be living together, that
Defibaugh continually hectored White over Griffith's
employment problems, so much so that when White had
a problem with Griffith, he called in and spoke to Defi-
baugh and Griffith jointly.
Even were the above circumstances not compelling in
favor of a conclusion that White, commencing as early
as 24 October (and certainly no later than 25 or 26 Octo-
ber when he received the letter), knew that Defibaugh
and Griffith had written it, his conversation with Super-
visor Galen Morrison, exhausts any reasonable doubt
whether White knew who wrote the letter. As Galen
Morrison credibly testified, on 27 October, White
handed him the typed letter and asked him if he knew
who wrote it. When Morrison told him it was either
Griffith or Defibaugh (who, White testified, could not
type) or both, White grinned and made no statement. In
my judgment, White's grin was explicit affirmation of his
own understanding who the authors were." Morrison's
answer came as no surprise.
I therefore conclude that commencing as early as 24
October and no later than 27 October 1985, the General
Counsel has proved, by a preponderance of credible evi-
dence, that White knew that Defibaugh and Griffith were
the authors of the anonymous letter written to Cook.
With regard to the prima facie case showing that the
motivation" for the discharge of Griffith and Defibaugh
12 Gilbert & Sullivan, H.M.S. Pinafore, Sir Joseph Porter, K.C.B. to
Buttercup: "Wink is often good as nod."
" Overt direct evidence of an unlawful motive is not a prerequisite to
a finding that disciplinary action resulted therefrom. NLRB v. Esco Eleva-
tors, 736 F.2d 295 (5th Cir. 1984), and cases cited.
was unlawful, i.e., motivated by their having written the
anonymous letter, a protest manifesting protected con-
certed activities, I have above concluded that Respond-
ent knew who the authors were. As White admitted, he
and Cook were angry and upset over the letter. Though
he allegedly discharged Griffith principally because of
the events of 3 November (and because she failed to
follow recipes), he did not interview or seek to obtain
Griffith's side of the story with regard to the events of 3
November. He admitted that it would not have mattered
what Griffith said. 14 He was intent on discharging her
regardless of the facts. Tama Meat Packing Corp. v.
NLRB, 575 F.2d 661 (8th Cir. 1978). Indeed, as he fur-
ther admitted, he was intent on discharging Griffith even
before Snider spoke to Stough to record Stough's ver-
sion. In addition, with regard to Griffith's derelictions in
failing to do her job, when it was revealed that Stefan-
cik, the dishwasher, had also stood around and talked to
Griffith when Griffith could have helped Stough prepare
food prior to Griffith's leaving for the day at noon, Ste-
fancik was neither interviewed nor admonished with
regard to his misconduct. Furthermore, according to
Snider's testimony, Griffith had habitually and chronical-
ly failed to follow recipes for the period subsequent to
the 10 September warning report that Snider had issued
to her regarding the spoilage of soup and her failure to
follow recipes. Despite this chronic failure to follow rec-
ipes, allegedly resulting in numerous customer com-
plaints, some of which were attributable to Griffith, noth-
ing was done about it nor any warning given to Griffith
prior to the sending of the anonymous letter. Moreover,
I find that the warning report that Snider wrote up on 4
November, used the failure to follow recipes as a mere
"tag on" reason for the discharge. What precipitated
White's alleged anger was his discovery that the buffet
and salad bar had been depleted. Snider added the prob-
lem of the failure to follow recipes only as an additional
reason for the discharge at White's direction.
I therefore conclude that on the basis of timing of
Griffith's discharge on 5 November (following Griffith's
sending the letter on 23 October and White's clear
knowledge thereof), White's admitted animus over the au-
thorship of the letter, White's one-sided investigation, his
intentional exclusion of Griffith's version, and the failure
to admonish, much less discipline, dishwasher Stefancik
for his failure to replenish the salad bar (disparate treat-
ment), all indicate to me that White excluded anything
and anyone that would interfere with his unalterable de-
cision to discharge Griffith. I therefore conclude that, on
these facts, the General Counsel has proved a prima facie
case for Griffith's unlawful discharge, especially in the
face of Griffith's (and Snider's) uncontradicted testimony
that no cook had ever been previously discharged be-
cause food ran out and that the running out of food had
been a common occurrence. I therefore conclude that
the discharge of Griffith was unlawful, as a prima facie
14 A one-sided investigation into employee misconduct supplies signifi-
cant evidence that disciplinary action was triggered by an unlawful
motive. NLRB v. Esco Elevators, 736 F 2d 295 fn. 5 (5th Cir. 1984), and
cases cited. Similarly disparate treatment also is evidence of or supports a
prima facie case. Ibid.; Tama Meat Packing Corp. V. NLRB, supra.
INDEPENDENT STATIONS CO. 405
matter, in view of the timing, knowledge, animus, one-
sided investigation, disparate treatment, and the uniqueness
of the discipline, if she was indeed engaged in concerted
protected activity, a matter that will be discussed below.
(b) Milton Defibaugh: With regard to Milton Defi-
baugh, the same circumstances cause me to conclude that
Respondent (White) knew that Griffith and Defibaugh
were the authors of the anonymous letter and that the
anonymous letter caused White great anger and anguish.
His animus against the authors, included Defibaugh as it
did Griffith. In addition, as Galen Morrison specifically
testified, not only did he tell White, before the discharge,
that the phone was not damaged, but on the day off, or
day after, Griffith's 5 November discharge, White, ap-
parently not satisfied with the gravity of Defibaugh's
misconduct in the phone incident, told Morrison that he
should look for any further "false move" by Defibaugh
as a basis for discharge, especially because of Defi-
baugh's "big mouth." As White told Morrison, he was
tired of Defibaugh sticking his nose into problems con-
cerning Griffith that were restaurant problems. About a
day before White urged Morrison to seek out any further
false move by Defibaugh as a ground to fire him, he told
Morrison that he was going to get a letter from the
phone company that the phone was damaged due to
misuse or abuse. Morrison told him the phone had not
been damaged. It is clear, therefore, and I fmd, that
White, about 2 weeks after the 20 October phone inci-
dent, and on the day of or after the 5 November Griffith
discharge did not wish to rely solely on the phone inci-
dent as a basis to discharge Defibaugh. He urged Morri-
son to be vigilant for any other Defibaugh error so that
Defibaugh could be fired. I necessarily conclude that
White, on the basis of Morrison's credible and uncontra-
dieted testimony, was searching for an additional basis
on which to discharge Defibaugh. Such White duplicity,
in my judgment, renders the phone incident a pretext to
get rid of Defibaugh.15
The record also reveals that White had regularly seen
Defibaugh's fits of temper, including the dangerous
throwing of tire irons, on several occasions without more
than verbally urging Defibaugh to cease this conduct.
Moreover, Morrison told White that the phone was not
damaged by Defibaugh, and indeed that was the first
reason Morrison told White why he had not given the
warning report to Defibaugh.
I therefore conclude that the circumstances show that
as a matter of prima facie case, Respondent (Cook) and
White, in particular, were upset and angered by the re-
ceipt of the anonymous letter (G.C. Exh. 3); that White,
as early as 24 October, and certainly no later than 27 Oc-
tober, knew who the authors were; and that shortly
thereafter, White executed their discharges because of
the form and content of the anonymous letter (and the
concerted activities related therein). The surrounding cir-
15 Morrison and White discussed the telephone incident within a day
or two of 22 October (Morrison wrote up the incident on 22 October),
but White did not seek to interview witnesses to the phone throwing inci-
dent (i.e., to gather evidence) until after he received notice limn Cook of
the existence of the anonymous letter. White did not seek to interview
garage mechanics Poor, Waybright; or Pearson, about the incident until
around 27 October.
cunistances, including the timing, knowledge, animus, and
pretextual reasons, indicate that if Defibaugh and Griffith
were, indeed, engaged in concerted protected activities,
Respondent discharged them, prima facie, in violation of
Section 8(a)(1).
We therefore reach the basic and perhaps more diffi-
cult question of whether Griffith and Defibaugh were
discharged for engaging in "protected concerted activi-
ty," i.e., in the writing of the letter.
The parties are necessarily in agreement that the
Board rule with regard to the existence of "concerted"
activity is found in Meyers Industries, 268 NLRB 493
(1984), reversed and remanded Frill v. NLRB, 755 F.2d
941 (D.C. Cir. 1985), in which the Board stated:
In general, to find an employee's activity to be
"concerted" we shall require that it be engaged in
with or on the authority of other employees, and
not solely by an on behalf of the employee himself.
Once the activity is found to be concerted, a Sec-
tion 8(a)(1) violation will be found if in addition,
the employer knew of the concerted nature of the
employee's activity, the concerted activity was pro-
tected by the Act, and the adverse employment
action at issue (e.g., discharge) was motivated by
the employee's protected concerted activity.
As Respondent notes (Br. 5), although the Circuit Court
of Appeals of the District of Columbia reversed and re-
manded Meyers Industries, the Board's definition and in-
terpretation of concerted activity governs the instant
proceeding. Iowa Beef Packers, 144 NLRB 615 (1963).
Respondent argues that Defibaugh was concerned princi-
pally with Respondent's actions concerning his girlfriend
(and later wife) Jeanne Griffith. In all the discussions
with White, and particularly in the sending of the anony-
mous letter (G.C. Exh. 3), Respondent urges that Defi-
baugh and Griffith were not engaged in concerted activi-
ty. Rather, that Defibaugh was acting out of a purely
personal concern with regard to Respondent's treatment
of Griffith and that any conversations between White
and Defibaugh concerning favoritism and adverse dis-
crimination accorded to some employees by Snider and
Snider's own alleged misconduct were merely incidental
and peripheral to Defibaugh's exclusive concern with the
treatment 'Respondent accorded to Griffith. Such a per-
sonal concern, according to Respondent's arguments
does not amount to concrete activity under the Act. In
support of this position, Respondent correctly cites Blow-
Knox Foundry v. NLRB, 646 F.2d 113 (4th Cir. 1981). In
that case, the court of appeals, reversing the Board,
found that an employee, who complained to, and threat-
ened to kill, a foreman concerning the foreman's alleged
sexual harassment of the employee's cousin, was engaged
in a purely personal concern and not in concerted activi-
ty. The court noted that the employee was not attempt-
ing to enforce a collective-bargaining agreement, seeking
to induce group action, nor acting on behalf of a group.
See NLRB v. Esco Elevators, 736 F.2d 295 (5th Cir.
1984).
The short answer to Respondent's position, insofar as
it seeks support in the citation of the court's decision in
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Blaw-Knox, is that the Board took a contrary position.
With all due respect to the court of appeals, I am, of
course, as Respondent's argument concerning Meyers In-
dustries comprehends, governed and bound by the
Board's view rather than the court's view. Iowa Beef
Packers Co., supra. Needless to add, the General Counsel
relies on the Board's decision in Blaw-Knox Foundry
supra, and does not cite the court's reversal. The Board,
as one might expect from the General Counsel's position,
found that the employee who complained of sexual har-
assment of his cousin was engaged in concerted activity
with the cousin and with other employees.
The General Counsel, however, in the instant case,
does not merely rely on Defibaugh and Griffith being
engaged in "actual" concerted activities to support his
allegation that Respondent unlawfully discharged them.
Rather, the General Counsel takes two positions: (a) it is
immaterial whether Griffith and Defibaugh were en-
gaged in concerted protected activities because the dis-
positive question is Respondent's motive for their dis-
charges, which hinges on Respondent's perception of
whether they were engaged in concerted protected ac-
tivities. In the alternative, the General Counsel argues (b)
that, in fact, they were engaged in protected concerted
activities.
The legal support for the General Counsel's position is
Monarch Water Systems, 271 NLRB 558 (1984), in which
the Board held (Chairman Dotson dissenting) that:
Threats made and actions taken by an employer
against an employee based on the employer's belief
that the employee engaged in or intended to engage
in protected concerted activity are unlawful even
though the employee did not in fact engage in or
intend to engage in such activity.
The Board has subsequently cited Monarch Water Sys-
tems favorably, for the same proposition, in Daniel Con-
struction Co., 277 NLRB 795 (1985), 16 with Chairman
Dotson dissenting, but on a question other than whether
an employer's perception of concerted activity makes ir-
relevant the actual engagement in concerted activity.
For factual support of the Monarch Water Systems
theory, the General Counsel relies on White's repeated
admissions that, as far as White was concerned, Defi-
baugh repeatedly complained about favoritism concern-
ing Jeanne Griffith and on behalf of employees other than
Griffith (Tr. 61):
Q. Did Milton Defibaugh tell you that he was
complaining on behalf of other employees, besides
Jeanne? (Emphasis added.)
A. Yes.
In particular, in a period of approximately 14 weeks
ending in November, as White admitted, Defibaugh re-
peatedly complained about Supervisor Snider's favorit-
ism toward Brenda Miller and her discrimination against
employees Bigler and Bets McDaide. If, as White admit-
ted, Defibaugh was complaining on behalf of other em-
16 Cf. Rosen Sanitary Wiping Cloth Co., 154 NLRB 1185, 1187 (1965),
and cases cited.
ployees as well as Griffith and was doing so repeatedly
on the basis of Respondent's supervisor's favoritism
against those employees, I conclude that White perceived
Defibaugh as being engaged in a protest against Re-
spondent's supervisors' favoritism and was thus "engaged
in with. . . other employees, and not solely by and on
behalf of the employee himself," within the meaning of
"concerted" in Meyers Industries, supra at 497. Further, I
would conclude that White's perception of Defibaugh's
continual complaining "on behalf of others" against fa-
voritism showed that he was "acting on behalf of a
group" within the meaning of even the court of appeals
rule in Blaw-Knox Foundry, supra at 116, cited by Re-
spondent. In short, I conclude that within either of those
rules, White perceived Defibaugh as not acting purely as
a matter of his personal concern for himself, compare:
NLRB v. Esco Elevators, supra, or for himself and Grif-
fith, or for Griffith alone, but rather for Griffith and a
group of other employees, all protesting Linda Snider's
own failure to follow Respondent's rules, her favoritism
toward Brenda Miller and against Griffith, Bigler, and
McDaide. I conclude, therefore, that the General Coun-
sel's legal and factual positions support the conclusion
that Respondent (White) perceived Defibaugh and Grif-
fith, in writing the anonymous letter, as being in "con-
certed activity" within the meaning of Monarch Water
Systems, supra. Having already found, above, that Re-
spondent knew of this activity and that it was motivated,
as a prima facie matter by that activity in discharging
both of them, within a few days of each other, I con-
clude that Respondent, under Monarch Water Systems,
supra, discharged Griffith and Defibaugh because they
engaged in this "concerted activity" thereby violating
Section 8(a)(1) of the Act." That such concerted activi-
ty, employees protesting against a supervisor's actions
against them, is "protected" cannot be denied. Hitchiner
Mfg. Co., 238 NLRB 1253, 1257 (1978), and cases cited;
Chrysler Credit Corp., 241 NLRB 1079 (1979); Noland
Co., 269 NLRB 1082, 1088 (1984); Calvin D. Johnson
Nursing Home, 261 NLRB 289 fn. 2 (1982).
I have also taken into account the fact that the anony-
mous letter was merely the last straw to Defibaugh's
chronic complaints of alleged Respondent favoritism,
which, embarrassing to Cook and thus threatening to
White, precipitated White to take action. Having con-
cluded, above, that 'Wbite knew or believed that Defi-
baugh and Griffith were the authors of the letter, it is ir-
relevant that Defibaugh, in making common cause with
the other employees, was not directly affected by their
conditions of employment with the Employer. See Su-
11 My only hesitation in reaching this conclusion with regard to the
General Counsel's Monarch Water Systems argument is that White's ad-
missions of his perception were responses (Ti. 61-63) while the General
Counsel was examining White as an adverse witness. Under other cir-
cumstances, this might be viewed as mere clever cross-examination, lead-
ing to admissions against interest that are otherwise not fully supported in
the record_ Here, such a consideration should not be , seriously held.
White, as I observed him, was no innocent misled by leading questions. I
conclude that the record as a whole supports White's admissions and sup-
ports the conclusions that White viewed Defibaug,h as protesting not
merely on behalf of Jeanne Gnffith, but on behalf of other employees,
i.e., concerted activity
INDEPENDENT STATIONS CO. 407
prerne Optical Co., 235 NLRB 1432 (1984); Datapoint
Corp., 246 NLRB 234 (1979); Kawasaki Motors Corp., 268
NLRB 936 (1984); S & R Sundries, 272 NLRB 1352
(1984); and Spartan Business Equipment, 274 NLRB 1487
(1985).
I further conclude that, whatever Respondent's per-
ception of their activities, Defibaugh's protest against fa-
voritism in the letter was a protected concerted activity,
especially because the employees, without a bargaining
representative, must "speak for themselves as best they
[can]." NLRB v. Washington Aluminum Co., 370 U.S. 9,
14 (1962), as cited in NLRB v. L'Ermitage Hotel, 268
NLRB 744 (1984), enfd. mem. 796 F.2d 479 (9th Cir.
1986); Shelly & Anderson Furniture Mfg. Co. v. NLRB,
497 F.2d 1200,1202-1203 (9th Cir. 1974). An employee's
support of another employee's complaint concerning a
term and condition of employment (supervisor favoritism
in discipline) is "concerted" activity. Churchill's Restau-
rant, 276 NLRB 775 (1985).
Respondent's Defense
A. The Discharge of Jeanne Griffith
Respondent's defense with regard to Jeanne Griffith
(aside from denying the existence of various elements of
the prima facie case—knowledge, timing, animus) is that
Jeanne Griffith was discharged because of the events of
3 November and her chronic failure to follow recipes.
With regard to the various elements comprising (G.C.
Exh. 4) the reasons why Snider recommended the Grif-
fith discharge because of alleged misconduct on 3 No-
vember, Stough testified in support, and Griffith testified
in defense concerning each of the items. Thus, for in-
stance, the failure of Griffith to have enough vegetables
ready for the buffet table, Griffith testified that she fol-
lowed the usual Sunday procedure in having a half-pot
of broccoli ready to go. With regard to the chicken
gravy, of which there was not enough, Griffith credibly
testified that it was not a question of making gravy from
scratch, but rather simply mixing a dry powder in water,
a matter of little time. In addition, she testified that Su-
pervisor Snider previously directed that only 2 gallons of
chicken gravy be available at any one time; and Grif-
fith's testimony, unrefuted on the record, is that there
were 2 gallons of chicken gravy in the walk-in refrigera-
tor when she left. With regard to insufficient sliced
turkey, Griffith testified that she already had sliced one,
had another one ready to be sliced when it cooled down,
and that there were over 2 dozen frozen turkey rolls
ready to be thawed out when she left. She testified with-
out contradiction that it takes 10 minutes to slice a
turkey. When she left, Griffith told Stough to slice the
turkey (aside from the one that was already sliced) when
it cooled down. Stough agreed and made no mention of
any insufficiency. On the other hand, Stough testified
that Griffith talked when she should have worked and
failed to prepare enough food and salad.
It is unnecessary to minutely dissect whether Stough's
complaints were justified or whether Griffith had failed
to execute her duty as a "prep cook" prior to her noon
departure on Sunday, 3 November. Rather, I would
assume arguendo, that some of Stough's testimony was
correct and that Griffith could have well been more at-
tentive to her job and not stood around speaking with
dishwasher Stefanick for 10 or 15 minutes before she left.
The fact remains, however, that, for at least as far back
as Griffith's 8 years in the restaurant, no cook had ever
been discharged for running out of food; cooks often ran
out of food; there was often insufficient prepared food
for customers, and no employee or cook was ever fired
for this reason." Respondent failed to contradict this
fact. Moreover, as Stough testified, she was extremely
busy ("busy, busy, busy") in the kitchen all day. There is
no dispute that Griffith rightfully left at noon. The
dining room shortages at the buffet and the salad table
were not discovered until 3 o'clock. I cannot see, in
view of the heavy flow of business, that Griffith, under
the worst of circumstances, should have foreseen the
rush of Sunday business and be held solely responsible
for the lack of food at the buffet table and the salad bar
that occurred (after she left) between the hours of 12 and
3 p.m. (when White discovered this) and particularly
when Stough was so busy that she could not leave the
kitchen to visit the salad bar and buffet table to see that
they had been greatly depleted."
But even if Griffith were wholly in the wrong and
Stough's version, blaming Griffith for the shortages, was
entirely correct, I would nevertheless conclude that even
though Griffith had been deficient in her duty, Respond-
ent nevertheless seized on that fact as a pretext and
would not have discharged Griffith except for the par-
ticipation, with Defibaugh, in the writing of the anony-
mous letter.2°
I have found, above, that the General Counsel proved
a prima facie case with regard to the unlawful discharge
of Jeanne Griffith, in violation of Section 8(a)(1) of the
Act, because of timing, animus, knowledge, one-sided in-
vestigation, and as found here, disparate treatment be-
cause no other cook had ever been 'discharged for run-
18 This fact, alone, distinguishes this case from those in which the
Board has found no violation in the discharge, for example, of a known
union advocate, even in the presence of employer union animus when the
employer acts under a historically outstanding rule or practice, the viola-
tion of which would justify the discharge. E.g., Klate Hole Co., 161
NLRB 1606, 1612 (1966).
12 I make this observation not to substitute my judgment for White's,
but to inquire mto the reasonableness of White's actions m the presence
of a prima facie case, i.e., to inquire into the existence of a pretext. White,
ab initio, immunized himself from any explanation of Griffith's alleged
misconduct. I am, therefore, not faced with determining whether White
could accept Stough's version and reject Griffith's. Even at the moment
of discharge, he told Griffith that he was not interested in what she said.
20 With regard to Griffith's failure follow recipes, I regard that matter,
attached to the end of Snidees warning memo (G.C. Exh. 4) as a mere
afterthought, although Griffith had been warned about not following rec-
ipes on September 10. Griffith testified she followed the recipes. Accord-
ing to Linda Snider, Griffith chronically failed to follow recipes thereaf-
ter with no ontoward consequence. This is an 8-week period of failure to
follow recipes. Respondent may not seize on this chronic failure, though
it was a subject of a previous warning, to support the discharge. The real
reason for the discharge, accordmg to White, was his anger at finding the
buffet and the salad bar empty. Snider's testimony that White wanted
Griffith's failure to follow recipes as the principal reason for the dis-
charge, flies in the face of White's anger caused by his Sunday afternoon
findings and shows that White was searching elsewhere for support. As
with De'fibaugh's throwing the phone, so with Griffith's failure to follow
recipes: White looked to Morrison for "false moves"; White added on
Griffith's failure to follow recipes.
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fling out of food. Under the Wright Line, 21 as approved
by the Supreme Court Transportation Management Corp.
v. NLRB, 462 U.S. 393 (1983), in the presence of a prima
facie case of unlawful discharge the burden of proof
shifts to Respondent to prove, as a matter of defense,
that it would have discharged the employee regardless of
the prima facie case and independent of it. NLRB v. Ho-
rizon Air Services, 761 F.2d 22 (1st Cir. 1985); Resistance
Technology, 280 NLRB 1004 (1986).
In the instant case, apart from the facts that Griffith
was admittedly an excellent cook; that White was not in-
terested in, and would not even listen to, any explanation
from Griffith with regard to the events of 3 November,
and no cook had ever been fired because of a shortage of
prepared food, I do not credit White with regard to his
motive in discharging Griffith or Defibaugh, and con-
clude that neither would have been discharged absent
the anonymous letter. Respondent's defense fails to meet
the Wright Line burden.
I have carefully reviewed White's testimony with
regard to his credibility. 22 I have found more than sever-
al examples of White's testimony on basic issues that I
conclude to be untruthful. I am therefore constrained to
disregard any of White's testimony concerning his own
motives. Thus, I have considered his testimony extraordi-
nary, wholly incredible, that he had no reasonable suspi-
cion who wrote the anonymous letter (Tr. 63); that al-
though he thought about it (Tr. 64) and both he and
(more important) President Cook were upset and angry
about it (Tr. 379), he nevertheless did not think about
why the letter was unsigned (Tr. 65). Although he spoke
with President Cook about the letter as many as 10 times
(Tr. 66), all within a 2-week period, and although he
thought about who may have written the letter (Tr. 64),
he had no suspicion who had in fact written it (Tr. 63);
and that among those that he had suspicions about, Defi-
baugh and Griffith were not included (Tr. 64) notwith-
standing that he asked Supervisor Galen Morrison who
wrote the letter (and Morrison accurately told him), not-
withstanding that Defibaugh had complained about the
same items that appeared in the anonymous letter about a
dozen times" in 14 weeks in the summer and fall of
1985, notwithstanding that Griffith similarly complained
to White (Tr. 485-487), and notwithstanding that the
record fails to show any other employees who made
similar, much less repeated, complaints. As the court ob-
served in similar circumstances in NLRB v. Horizon Air
Services, supra, to credit such testimony of lack of knowl-
edge, personal innocence, and disinterest from an angry,
concerned supervisor is to put faith in the tooth fairy.
In addition, I do not accept his testimony that it was a
mere mistake in his telling the Labor Board investigator
that Respondent was liable to pay the repair bill for a
21 Wright Line, 251 NLRB 1083 (1980); Resistance Technology, Inc., 280
NLRB 1004 (1986).
22 I have also scrutinized Griffith's testimony especially m hght of her
admission of a plea of guilty to welfare fraud. While I would not hesitate
to discredit her on this fact alone in the absence of contrary compelling
circumstances, I do not do so Each case involving prior criminal activity
stands on its own facts. Compare: Bill Fox Chevrolet, 270 NLRB 568
(1984), enfd. 765 F.2d 144 (6th Cir. 1985), with Bosh Paint & Sandblast
Co., 266 NLRB 1033, 1037-1038 (1983)
22 Respondent characterizes these complaints as "isolated" (R. Br, 12).
new phone. He made the statement to the Board agent in
February. He knew by the preceding December, on re-
ceipt of phone company papers, that the phone was re-
paired free of cost. Furthermore, I regard either or both
White and Snider to be less than truthful when White
testified (Tr. 65) that he discussed the authorship of the
anonymous letter with Snider, but Snider testified (Tr.
1155) to the exact opposite: that not only did she not dis-
cuss the authorship with any other person, but particu-
larly not with White. To entertain as credible the testi-
mony of such witnesses would be to abdicate responsible
factfinding. NLRB v. Horizon Air Services, supra; Shat-
tuck Denn Mining Co. v. NLRB, supra. Moreover, Re-
spondent tolerated Griffith's failure to follow recipes for
almost 2. months after the 10 September reprimand, in
spite of alleged customer complaints, due thereto, with-
out action against Griffith until the anonymous letter.
Similarly, regarding Griffith's 3 November conduct, no
cook had ever been discharged for running out of food.
Thus, the defenses of (a) failure to follow recipes and (b)
Griffith's 3 November misconduct are not persuasive, if
credible. Certainly they do not meet the Wright Line
burden of proof.
I conclude, viewing Respondent's defenses to the dis-
charge of Griffith in their best light, that Respondent did
not prove by a preponderance of the credible evidence
that Respondent was motivated by her misconduct to
such an extent that it would have dismissed her in any
event, whether or not she engaged in protected concert-
ed activities. NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983); NLRB v. Horizon Air Services, supra;
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
I conclude, in short, that Respondent discharged
Jeanne Griffith because of the matters inland the nature
of the anonymous letter, see particularly Mitchell Manu-
als, Inc., 280 NLRB 230 (1986), a recent "letter" case,
and seized on Griffith's past history of failure to follow
recipes and the incident of 3 November 1985 as pretexts
on which to show a lawful aspect of the discharge.
The Discharge of Milton Defibaugh
With regard to the discharge of Defibaugh, timing is
certainly as significant as it was in the case of Griffith, or
perhaps more so. In Defibaugh's case, White instructed
Morrison to write up the phone incident several days
after the 20 October incident. He did not recommend to
Morrison that this incident was serious enough for some
independent discipline, much less serious enough to con-
duct an investigation or for suspension or discharge. He
did not seek an evaluation of the "damage" from the
phone company, and did not himself seek information
from witnesses to the incident. Rather, he let it slide. It
was not until about a week later that he interviewed
garage mechanics Waybright, Pearson, and Foor con-
cerning the incident. But by that time, of course, he had
received notice of, and in fact received, the anonymous
letter from Cook. Then he interviewed Foor, Waybright,
and Pearson, getting their full versions of how the phone
was thrown, told Morrison that he was obtaining a letter
from the phone company documenting abuse of the
INDEPENDENT STATIONS CO. 409
phone and, thereafter, apparently not satisfied with the
phone incident as a basis to discharge Defibaugh, told
Morrison to look for some other reason ("false moves")
to fire Defibaugh because of his sticking his nose in other
persons' business and because of his bad attitude. All of
this a few days after he received the letter from Cook
and the latter search for a pretext on the same day that
he decided to discharge Griffith.
Respondent's basic position is that while the extent of
actual damage to the phone is a matter of dispute (Br.
26), White had reasonable grounds to believe that Defi-
baugh damaged the phone based on his own inspection
and conversations with the phone company employee
(Smith). The evidence shows that the phone was not
damaged; that his own supervisor, Morrison, told him
that he would not deliver the reprimand because there
had been no damage to the phone, and that the phone
functioned and was in the same condition as it was
before Defibaugh threw the phone. Moreover, Smith, the
phone company employee with whom White spoke, and
on whom Respondent relies to show White's reasonable
belief of phone damage, testified that the phone had been
"mistreated" only because it was dirty and greasy. White
wanted a letter from him that the phone had been "mis-
treated" (Tr. 1277), a word Smith used and about which
White made no inquiry (Tr. 1278). Respondent appears
to rest much of its case on Smith's use of the word "mis-
treated." Especially because White failed to inquire into
what the mistreatment consisted of, I am unable to con-
clude that Smith's use of the word (R. Exh. 4) automati-
cally absolves White.
Respondent next argues that, in any event, the throw-
ing of the phone was symptomatic of Defibaugh's atti-
tude problem which he had been warned about on 30
September 1985 by White and Morrison. (R. Exh. 5.)
This is essentially a weaker ground to support the dis-
charge because Defibaugh was known to be a profane
and difficult person with a bad temper; White had seen
him throw tire irons and never done anything about it
even in terms of a verbal warning; and in various discus-
sions of concerted activities, Defibaugh and White had
engaged in heated conversations resulting in large part
from Defibaugh's hot temper without White taking any
action against him. Defibaugh's bad temper was chronic.
However, as above noted, I regard timing and White's
later search for a pretext as the most significant elements
with regard to how seriously White considered any
damage to the phone. He knew of the incident from
Morrison and told Morrison to write the incident up. He
did nothing further about it until after he and Cook dis-
cussed, and he received, the anonymous hitter. Two
weeks went by. On the day, or day after, White dis-
charged Griffith, White went to Morrison explicitly re-
vealing White's current state of mind: to get Morrison to
find some reason to discharge Defibaugh for sticking his
nose into other people's business. Such a statement, to-
gether with White's demonstration of incredibility as a
witness, lead me to conclude that White did not take De-
ftbaugh's throwing of the phone serious enough to create
the basis for discharge until he had received the anony-
mous letter from angry Cook and thereby himself
became very unhappy and upset by it. Even then, he
sought out Morrison to discover a different, further basis
for a discharge.
Although it is true that Respondent proved that a
kitchen employee, Oscar Shaffer, was discharged in June
1985 for negligently damaging an electric cord on the
salad bar cart; and proved that a maintenance man, John
Mobley, was discharged on 26 January 1985 for damag-
ing a pickup truck, I do not regard these discharges for
cause as dispositive on the issue of White's motive here.
Although Defibaugh was not subjected to disparate
treatment (unlike the case of Griffith, where no cook had
ever been discharged or punished because she ran out of
food) those discharges are not dispositive of the Defi-
baugh case. In the discharges of Shaffer and Mobley,
there is no proof of any time lapse between Shaffer's
damaging the electric cord and his discharge, and truck-
driver Mobley's damaging a company truck and his dis-
charge. Thus, in attempting to show a consistent pattern
of terminating employees for damaging Respondent's
property, Respondent adduced evidence of these two
discharges to show that Respondent acted consistently
and lawfully in the Defibaugh case. The evidence belies
Respondent's theory. For the testimony and documents
in evidence (R. Exh. 36) show that Shaffer damaged the
cord on the evening of 28 June and was fired the next
day (Tr. 1418). Similarly, in the case of maintenance em-
ployee, John Mobley, the record shows that he damaged
the pickup truck on 24 January and was discharged on
26 January 1985 (compare: R. Exh 37, pp. 1-2). In short,
two instances of negligent injury to Respondent's proper-
ty resulted in the termination of the offending employees
either on the same day or the second day thereafter. In
the case of Deflbaugh, who inflicted or attempted to in-
flict intentional injury to Respondent's property, who
had a history of throwing tire irons, who had been previ-
ously warned of a bad attitude, whose chief supervisor at
the truckstop, White, knew of the phone incident on 22
October and caused Supervisor Morrison to write up the
incident on that day, White did nothing about the matter
for at least 5 days. He then interviewed the witnesses to
the event and did nothing for a full week thereafter until
he said he would get a letter from the phone company
showing mistreatment and told Morrison to look for a
further pretext on which to discharge White. At the time
he told Morrison to look for a pretext, he told him that
he was sick and tired of Defibaugh's "bad attitude and
big mouth" (Tr. 396). 24 Having found no further pretext
on which to discharge Defibaugh, he discharged him on
receipt of the phone company letter on 9 November.
These circumstances lead me to conclude that the throw-
ing of the phone and Defibaugh's "bad attitude" were
pretexts seized on by Respondent to discharge Defi-
baugh. In so concluding, I conclude that Respondent did
not sustain its Wright Line burden of proof to prove it
would have discharged Defibaugh because he threw the
telephone and because of his "bad attitude" in the face of
the General Counsel's proof of the prima facie case (that
24 If, as it appears, Defibaugh's "bad attitude" was the equivalent of
Defibaugh's "butting his nose into other people's business," this is tanta-
mount to an admission that at least part of White's motive was Defi-
baugh's engaging in protected concerted activities.
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent discharged Defibaugh because he engaged in
protected concerted activities).25
To the extent that the Respondent defends on the
ground that the allegations in the anonymous letter were
false, the Board has recently again held that the falsity of
a communication does not deprive it of its protected
character (within the meaning of the Act) as long as the
false statements are not deliberately or maliciously false.
Mitchell Manuals, Inc., supra." There is no evidence of
malice. Some of the allegations, according to White and
Snider, were "corrected" and thus not clearly false.27
Finally, on an overall basis, it should be noted that Re-
spondent was here concerned with two employees who
were anything but marginal employees. Thus, Respond-
ent had gone out of its way to rehire Griffith, providing
25 Respondent attacks the credibility of Griffith and Defibaugh on var-
ious grounds including the fact that they had been living together since
1982 and were recently married; that the only employees who testified
concerning Griffith's proper performance of her job were Stough and
Hornbarger, Respondent's present or former employees, who testified
against Griffith for failure to follow recipes; that the only employees who
testified for Defibaugh and Griffith were former employees; and that
Griffith had previously pleaded guilty to a complaint of welfare fraud.
These assertions have some merit. I have based my findings and conclu-
sions not on the testimony of Griffith and Defibaugh, but principally on
admissions by White, the testimony of Galen Morrison, and the incredi-
bility of Respondent's explanations as demonstrated by Respondent's ad-
mission, documentary evidence, and the testimony of other witnesses. To
the extent that Respondent relies on the referee's decision in an Unem-
pkiyment CompCnsation Board of Review hearing in the Commonwealth
of Pennsylvania, which shows that Milton Defibaugh had been dis-
charged for cause (R Exhs. 14-15), I have taken into account these pro-
ceedings. I do not give those decisions substantial, much less binding,
weight because a decision by the Unemployment Compensation Board
that Defibaugh was discharged for cause was determined under a statute
different than the National Labor Relations Act; and because there was
no suggestion of evidence to support the existence of a prima facie case
in violation of Section 8(a)(1) of the Act. See Serendippity-Un-Ltd., 263
NLRB 768 (1982), and cases cited at 774 therein.
26 Mitchell Manuals, Inc., supra, is instructive. In that case, employees
were discharged for sending a letter to the chairman of the board critical
of the employer's operations. Although m that letter, the employees' con-
certed activity related to employee concerns about education, wages, and
training (and in the instant case concerned supervisor favoritism to em-
ployees), both cases stand for the proposition that where the thrust of
employee criticism relates to working conditions of the employees and
"specifically addresses typical employee concerns such as wages, educa-
tion and training," such a letter manifests "concerted activity" within the
meaning of the Act. Mitchell Manuals is further instructive in its rejection
of N.Y. China Town Senior Citizens, 239 NLRB 614 (1978), as pertinent to
the facts therein. In that case, the Board held that the "thrust and pur-
pose" of employee protest and criticism was to effect a change in em-
ployer top management for reasons not primarily related to their own
working conditions. What is clearly manifested in the instant case, how-
ever, is that the authors of the letter Were complaining of Respondent's
favoritism by supervisors against some employees and in favor of others
The authors of the anonymous letter were not seeking to have Respond-
ent discharge Linda Snider and thus effect a change in the management
of the employer, they were seeking to have management change a condi-
tion of the employees' employment, favoritism by a supervisor against
some employees and in favor of others, i.e., a change in their own work-
ing conditions.
27 To the extent Respondent defends on the ground that Defibaugh
was in a different unit than Griffith, would not benefit from changes he
urged and thus was not complaining of his own working conditions (Br.
11), that argument is irrelevant. Defibaugh was making common cause
with employees in their complaints. That is sufficient to make his action
"concerted." The protection afforded by this common action could be
expected to be ultimately "reciprocal," ultimately protecting Defibaugh.
See Electrical Workers IBEW Local 1395 (Indianapolis Power) v. NLRB,
797 F.2d 1027 (D.C. Cir. 1986) (sympathy strikers); Giant Food Markets,
241 NLRB 727 (1979) (area standards picketing).
here with a new title and a pay raise in order to entice
her to return to work; and Respondent had given Milton
Defibaugh a pay raise and had tolerated, ever since he
was employed, his abusive mouth and bad temper, in-
cluding health-endangering throwing of tire irons. Under
these circumstances, the interposition of the prima facie
case leads me to conclude that Respondent was willing
to get rid of two experienced employees because of their
engaging in concerted protected activities rather than be-
cause of their chronic failure to follow recipes, the fail-
ure to supply enough food, or the throwing of a tele-
phone, which was not injured thereby.
Case 6-CA-18786: The Employment and Discharge
of Ricky A. Souders
A. The Employment of Ricky A Souders
On 7 October 1985, Supervisor White hired Ricky
Souders as a mechanic to work in the garage at Re-
spondent's Breezewood facility. Like the other mechan-
ics, his minor function was tire repair and replacement,
although he did the other minor mechanical repairs (oil
changes, lubrications, brake adjustments, replacing water
pumps, etc.) that the other garage mechanics performed.
He was hired at the mechanics' starting salary ($4 per
hour) and thereafter received no warning or discipline
because of his work or conduct.
To the extent that White testified that Souders was not
actually a "mechanic," but was merely a "tire repair
man," this contradicts White's own estimation of
Souders' proper classification that appears on Respond-
ent's personnel documents in White's own handwriting.
In any event, on 8 November 1985, Souders was laid
off. Whereas White testified that he terminated Souders
because of poor performance (Tr. 139), the records com-
piled by White himself demonstrate that White laid him
off because of economic reasons dictated from Harris-
burg and that the layoff was occasioned by an economic
reduction in force (Tr. 139-144).
When, on 8 November, Souders was called into the
office, he found White and Morrison waiting for him.
Morrison told Souders that the Respondent had received
notification from the head office that there was to be a
cutback in the work force and that Souders was to be
laid off. Morrison testified that he chose Souders because
he was the least experienced of the mechanics. The
choice was solely Morrison's. White left the office. Pur-
suant to Souder's questions, Morrison said that if "things
picked back up" he could come back to work. At this
point, White returned and asked Morrison if he had told
Souders that in fact Souders had been "terminated."
Morrison said yes. White asked Souders if he knew what
the word "terminated" meant and Souders said that he
did; that it meant "fired" (Tr. 234). Thus, Morrison told
him that he would be rehired if things picked up and
White told him that he had been fired (Tr. 235). White
then told Souders that although there had been a few
complaints from some of the other employees in the
garage concerning Souders' attitude and work, he was
being terminated basically because there was not enough
work. Thus, on 8 November (Friday) with White making
INDEPENDENT STATIONS, CO. 411
adverse comments concerning estimates of co-employ-
ees, 28 White terminated Souder's employment due to an
economic reduction in force.
On the following Monday, 11 November, Souders
went to White's office for a further explanation of why
he had been laid off when a less senior employee (Terry
Ballman) was kept in employment. White testified that
he felt sorry for Souders and told him that although
things were "slow all over," he did have a job for
Souders as a maintenance man. Souders answered that he
was already checking on another job and asked White's
permission to let him know whether he would accept the
maintenance job the next day. White agreed.
When Souders returned to White's office the following
day, and told White that he accepted the job, White told
him that he already hired someone else and that White
"jumps on openings like that immediately." White never-
theless called in Supervisor Linda Snider and told her
not to transfer (from the kitchen area to the maintenance
area) the person to whom he had previously given the
job because he had already promised the job to Souders.
Snider agreed and left (Tr. 242). The maintenance job
which Souders accepted paid $3.50 per hour.
Souders testified that at this point, White told him that
they should go to some quiet place to discuss the terms
of his new job (Tr. 243) and White and he then descend-
ed to the basement laundromat room. On the way, to the
basement, according to Souders, he told White that with
regard to regaining his job with Respondent, Souders
could have gotten "help from other areas" (Tr. 244) to
which, according to Souders, White responded: "I don't
want the Labor Board around here, I don't want the son-
of-a-bitches here at all" (Tr. 244). In fact, at that time,
Souders had not contacted the Labor Board and the
record is barren of any conversations, at that time, in-
volving Souders, White, or anyone else with regard to
charges filed with, or the participation of, the National
Labor Relations Board in any of the matters surrounding
Souders. Souders also testified (Tr. 246) that in that con-
versation, White told Souders that he could get a raise
after his probationary 3 months on the job (I credit this)
and that White also told him that if there was an opening
in the garage and if economic conditions permitted (if
things "pick back up"), White would put him back to
work in the garage (I credit this element of Souders' tes-
timony). White denies the entire conversation; denies
asking Souders to accompany him into a laundromat at
that time; and denies any statements regarding the Labor
Board or that Souders told him that there were "other
areas" of help that Souders could have sought.
I do not credit most of Souders' testimony with regard
to this conversation. In the first place, it is thoroughly
inconsistent with the circumstances of the conversation
for White (a) to have sought privacy in the laundromat
to discuss the job or to (b) have made this gratuitous
remark concerning the Labor Board when the Board had
not been involved at this time in the case. There seems
28 Morrison, Souders' supervisor, described co-employees' comments
as typical of older employees against a new employee. Morrison found
Souders a wilhng worker, eager to learn everything and nothing was
wrong with his work
little predicate for Souders to suddenly introduce an
anomalous threat of "other areas" when, by a stroke of
good fortune, he had just been awarded a job by displac-
ing another employee. Moreover, even if Souders haii
used the expression "other areas" in any such laundulmat
conversation, there is no suggestion in the record why
White would have drawn the inference that Souders was
referring to the National Labor Relations Board as the
source of "other areas" for help. Furthermore, when
Souders thereafter did invoke the aid of the Labor
Board, and gave a version of this most incriminating
conversation to the investigating Board agent, the Board
agent recorded White's offer of the maintenance job as
following, not preceding, Souders' threat to "go for help
elsewhere" (R. Exh. 10). In view of these circumstances,
I find that Souders invented this early, incriminating
statement by White to bolster his case as hereafter dis-
cussed.29
The General Counsel asserts that this alleged statement
by White ("I don't want the Labor Board around") con-
stitutes an instruction that Souder refrain from his right
to file charges with the NLRB, is analogous to an in-
struction to refrain from engaging in union or concerted
activities and thus constitutes a clear violation of Section
8(a)(1) of the Act (G.C. Br. 8). The complaint alleges
that this alleged White conduct constitutes a threat of un-
specified reprisals. Not only is the testimony inconsistent
with the allegations of the complaint, but I would have
serious doubts that even if White's statements was made
that it would constitute an illegal "instruction" in viola-
tion of Section 8(a)(1) of the Act. The testimony simply
does not live up to the coercive allegation of the com-
plaint. However, I need not pass on the substance of the
allegation because there is no credible supporting evi-
dence to show an "instruction," much less a threat in
violation of Section 8(a)(1). I therefore recommend that
paragraph 7 of the Souders' complaint be dismissed on
the ground that it was unproven.
The evidence is undisputed that Souders worked as a
maintenance employee from 12 November until the night
of 29-30 November.1 As the General Counsel notes, there
is no suggestion that his employment met with any Re-
spondent dissatisfaction concerning attitude or perform-
ance and certainly it shows no Respondent discipline for
Souders' work or attitude.
On the night of 29-30 November, Souders, working as
a maintenance man, fell off a countertop while cleaning
windows, injuring his ankle. White told Souders on the
following morning that he had not been placed on the
duty roster for Maintenance, posted the previous
29 I credit White's testimony: that sometime in mid-December 1985,
Souders, still unemployed, appeared at Respondent's premises and told
White that Respondent had failed to fully support his workman's COM-
pensation claim and that Souders was desperate for a job. When Sonders
pulled out a knife and started gouging his arm with the knife (to show
insensitivity to pain from a prior injury) White led Souder to the laundro-
mat and closed the door. Souders denied this version, but I credit White.
The General Counsel argues that White's version was untruthful because
he would not invite a knife-waving "lunatic" to an unoccupied area (i.e.,
the laundromat) and close the door. I do not regard Souders conduct as
that of an uncontrolled lunatic; I regard his conduct then, and on other
occasions, as that of an unemployed ex-employee desperately seeking em-
ployment because of pressing economic and family problems.
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evening, because he was going to be laid off effective 2
December 1985. His layoff stemmed from economic con-
siderations. White testified that he selected Ricky
Souders for the layoff, but that there was no particular
reason why it was Souders that he chose (Tr. 1258-
l259).°
White admitted that he told Souders that it was a tem-
porary layoff, but White testified that what he told
Souders was untrue and that actually Souders was per-
manently laid off. Thus, when White thereafter told
Souders that he would consider him for a job if there
were any openings after Souders' foot healed, White tes-
tified that he was telling an untruth (Tr. 1286). The Gen-
eral Counsel asserts therefore that White was lying to
Souders (G.C. Br. 8). I agree.
In support of White's testimony that he was telling a
lie when he told Souders that the layoff was temporary,
and that White actually had permanently terminated
Souders' employment, the record clearly shows that
while White memorialized the termination on 2 Decem-
ber as a "layoff," he also characterized it as a "dismis-
sal." White further noted in the memorandum that, based
on Souders' performance in the garage and his occupa-
tional injury, he would not rehire Souders (G.C. Ex& 7).
Souders' doctor told him, originally, that he could
return to work on 15 December, but thereafter told him
to remain out of work until 15 January. Souders so in-
formed White.
In the period following Souders' 30 November injury
and White's subsequent untruthful assurance that the
layoff was only temporary, Souders was met with Re-
spondent's apparent failure to expedite the processing of
his unemployment compensation claim. Suspecting that
he needed help with this compensation claim (and per-
haps to regain a job with Respondent), Souders tele-
phoned the Labor Board. The Board agent prepared and
mailed to him for signature an unfair labor practice
charge on 3 December (G.C. Exh. 9). While it is true
that the face of the charge contains an assertion of the
violation of Section 8(a)(4) of the Act, due to an alleged
unlawful layoff of 1 December 1985 because Souder filed
charges or gave testimony to the Board, there is no sug-
gestion on the face of the charge or anywhere else (other
than Souder's testimony) to show that Souders had told
the Board agent of the alleged White "sons-of-bitches"
remark in the alleged November, laundromat conversa-
tion. I conclude that the 8(a)(4) allegation in the prior
charge is not substantial circumstantial evidence to cor-
roborate Souder's testimony. Evidence in substantial sup-
port of such a statement would have been the corrobora-
tive appearance of the Board agent to whom it was al-
legedly made. Although a Board agent (Johnson) testi-
fied prominently in the instant hearing in support of the
8(a)(4) allegation regarding failure to reemploy Souders,
the other Board agent to whom the remark was alleged-
ly made, a remark that would have completely changed
3° While there is no dispute that econothic considerations were the
basis for the layoff? to the extent Respondent stiggests that It was because
Souders was the least experienced of the maintenance employees (R. Br.
31) and cites White's testimony (Tr. 1240) to support this propoiition,
such a citation is' misleading. The context of the cited testimony referred
to Souders' employment as a mechanic rather than as a maintenance man.
the nature of this case in terms of my conclusions, failed
to appear. Significantly, a subsequent 8(a)(4) unfair labor
practice charge, the charge that forms the basis of this
case (G.C. Exh 1(a)) contains an assertion of an unlaw-
ful threat to Souders.
In any event, the Board agent mailed the prior charge
to Souders on 3 December. Around 16 December,
Souders visited White (Tr. 272-273) and advised him
that, because of his physical condition, he could not
return to work until 15 January. He asked how Respond-
ent was proceeding with the workman's compensation
claim and White told him that he had placed it in the in-
surance company's hands. Sometime after 17 December
(Tr. 274), Souders again visited White and spoke to him
in the parking lot. He again asked White how things
were coming along with the compensation claim.
Souders wanted to know how long it was going to take
because he was getting "hard up like everybody else."
Toward the end of December, Souders visited White
again after Respondent had terminated Galen Morrison
(17 December) (Tr. 276). Souders said that White told
him that he had an opening in the shop for a mechanic
and that if he got a medical release, White would put
him to work immediately. When Souders said that he
could not work until 15 January because he feared injur-
ying his foot, White said that that was okay (Tr. 277). I
do not credit Souders' testimony.
White denies that he ever told Souders that he actually
had a job for him and states that the most he told
Souders was that he would consider him for a job if
things improved. White similarly denies Souders' testi-
mony that around the first of the new year, in two phone
conversations, White assured him, in regard to his ques-
tions, that "the job was still there" (Tr. 270). On the wit-
ness stand, Souders was unable to describe the phone
conversations with White, repeating only that White said
that the job was still there. His recollection of these
phone conversations concerning an alleged job opening
was surprisingly vague compared to those earlier conver-
sations following his layoff as a mechanic, when White
offered him the new job as maintenance man. The record
(Tr. 277 et seq.) shows that in describing White's state-
ments in these subsequent phone conversations, concern-
ing the existence of an unconditional job offer, Souders
repeatedly used expressions such as "he let on" (Tr. 277),
or that he could not recollect what he himself said "off
hand" (Tr. 279). All that he could remember was that
White said that the job offer was "still there" (Tr, 279). I
do not credit this testimony. Rather, I credit White's tes-
timony: that White was imprecise in his discussions with
Souders; that he never told the truth to Souders, the
truth being that Souders' would never be rehired; that
White's imprecision was untruthful; and that he was
stringing along Souders rather than telling him that
White would never consider Souders for reinstatement.
What he actually told Souders and Souders' wife, un-
INDEPENDENT STATIONS CO. 413
truthfully, was that he would consider Souders for a job
if economic conditions improved." This was fa1se. 3 2
Souders filed the unfair labor practice charge (mailed
to him from the Region on 3 December) with the Na-
tional Labor Relations Board by mail (G.C. Exh. 10). Al-
though Souders waited 2 weeks and signed the charge
on 19 December, it took him more than a week to mail
it. The charge was not received by the Board until about
30 December when it was filed. I regard the 3-week
hiatus between his early December receipt of the charge
and the failure to mail it for filing until sometime in or
about Christmas week as a reflection of Souders' indeci-
sion concerning processing of the unemployment com-
pensation claim and his doubts of a firm job offer result-
ing from repeated failure to receive decisive, positive an-
swers from White that White would reinstate him or
rehire him Thus, in economic desperation, Souders filed
the charge in Case 6-CA-18747 on 30 December 1985.
In one of the late December conversations with White,
Souders told him that he had been to the NLRB and that
White would hear from it (Tr. 1300).
Respondent adduced evidence to show that, in this
period, its financial situation required the reduction of
expenditures. The General Counsel showed that in spite
of that theory, Respondent's overtime hours rose in the
period following 12 December and that recalling
Souders would reduce the amount of overtime and save
on premium pay (G.C. Br. 10-11). On the other hand,
Respondent's records (R. Exhs. 18-19), show that its
profitability, in the period October 1985 through January
1986, in the Breezewood facility and in Respondent's
overall operations, had dropped by more than 50 per-
cent.
The General Counsel argues that Souders doubted
White's sincerity concerning the offer of the job and thus
decided to file the charge. The General Counsel cites no
evidence as to what these doubts were. As above-noted,
I conclude that these "doubts" stemmed from Souders'
anxiety resulting from White's failure to make an uncon-
ditional offer to Souders to reinstate him. Rather,
Souders rightly feared that White was stringing him
along with talk about giving him a job when economic
circumstances permitted. Hence, the long hiatus and then
the filing of the charge.
The General Counsel principally attacks White's credi-
bility on the theory that if White had made up his mind
not to reemploy Souders, "it is most unlikely that White
would repeatedly tell Souders that there is nothing at the
moment, implying that there would be a job at some
later time." Rather than repeatedly equivocating with
Souders, the General Counsel urges that "it would have
been to White's own interest to tell Souders that he was
terminated thus avoiding repeated reruns of the same
31 The General Counsel failed to call Souders' wife to deny White's
testimony that, in phone conversations, White repeatedly told Souders
and his wife that Souders would be recalled if economic conditions im-
proved Such a failure permits the inference, which I draw, that Souders'
wife would not deny White's testimony. Hitchtner Mfg. Co., 243 NLRB
927 (1979).
32 White truthfully used the same expression with Souders (after rehir-
ing him as a maintenance man) on a prior occasion when Souders in-
quired of the chances of returning to the garage as a mechanic: if things
"pick back up" (Tr. 246).
conversations with Souders." I disagree. White was evi-
dently desirous of not meeting Souders' pleas of poverty
and family need head on. White, on a prior occasion, had
truthfully told Souders that he would be rehired if eco-
nomic circumstances improved. White had seen Souders
stab himself in the arm with a knife, demonstrating, in
part, Souders' desperate need for a job. Thus, White rea-
sonably did not unequivocally reject Souders. He had no
need to. Rather, he untruthfully strung Souders along,
repeatedly and untruthfully telling him that if economic
conditions permitted, Souders would be considered for a
job. I have already noted that the 2 December layoff
document (G.C. Exh. 7) shows that White would not
rehire Souders and that this decision was made at the
time of the layoff.33
Souders' unfair labor practice charge, filed 30 Decem-
ber, was assigned to NLRB Field Examiner John M.
Johnson for investigation. Johnson arranged to meet
with Souders on 2 January 1986. On the morning of 2
January, White received a copy of the Souders' 30 De-
cember charge.
When NLRB Field Examiner Johnson met with
Souders on 2 January, Souders said that he was uneasy
about White's promises of a job and would feel better if
there was some confirmation of the offer. He said he
would withdraw the charge if there were confirmation,
when Johnson told Souders that an allegation of a viola-
tion of the Act, based on a refusal to rehire because of
Souders' filing the workman's compensation claim, was a
weak case.
Johnson then went to see White without previously
notifying him. He introduced himself as an NLRB agent
and, before he could get any further, White told him that
he had just received the charge; that he wanted to talk
to Johnson; and he invited him into his office Alone in
the office with Johnson, White asked why Souders
would want to file the unfair labor practice charge inas-
much as he was giving Souders his job back on 15 Janu-
ary. When Johnson asked if he was returning him to the
job as a mechanic (because Johnson was not sure which
job was being offered), White told him he was offering
him the job as a mechanic. Pursuant to Johnson's prior
conversations with Souders, Johnson told White that
Souders would be withdrawing the charge if he was
being actually offered a job as a mechanic (Tr. 178-179).
On two occasions, he asked White whether White was
giving Souders back his job as a mechanic and White
said he was.
White testified, and Johnson denied, that Johnson told
White that if he would "consider" Souders for his job,
he was sure Souders would withdraw the charge. White
testified that he told Johnson he could not promise, but
that he could only consider Souders. I credit Johnson and
fmd that in response to Johnson's assurance that the
33 Economic conditions permitted no hiring. R. Exh. 20 shows that in
the week ending 28 November, Respondent had a total of 76
Breezewood employees, which was reduced to 70 for the week ending 12
December and further reduced to 67 in the week ending 26 December.
Although in the weeks of 10 January through 7 February employment
was maintained at 68 employees, by 21 February it fell to 65, Thereafter,
ending 2 May 1986, the full-time complement rose to 76.
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
charge would be withdrawn and reiterated that Souders
had the job. I further find that White was untruthful in
giving this assurance to Johnson and told this to Johnson
in order to get Johnson and the Labor Board off his
back. I also do not credit White's further testimony that
Johnson later told White by phone that because White
said he would "consider Souders," Souders would with-
draw the charge. To the extent that White testified that
he repeatedly told Johnson, in order to make his position
clear, that White was merely going to consider Souders
for a job and was not promising to recall or reinstate
him, I do not credit White. While it is true that John-
son's testimony on ,cross-examination confused dates,
days, and sequence of his conversation with White, I do
not discredit Johnson's testimony.34
For, agreeing with the General Counsel, I see no
reason why Johnson has an interest in misstating the
facts. Furthermore, I was satisfied from my observation
of Johnson that he knows the difference between White
having assured him of the existence of a job for Souders
and White stating merely that he would consider
Souders for a job if economic circumstances permitted it.
Moreover, not only is there no reason for Johnson, a
Board agent, to tell an intentional untruth or, as here, to
completely misinterpret what White said to him, but
there would be no reason for Johnson to assure White
that Souders would withdraw merely on being told that
White would "consider him" for the job. 35 There would
be no reason for Souders to withdraw a charge (filed to
secure unequivocal assurance of a job) when he was
being told only that White would consider him of eco-
nomic conditions improved. In any event, as noted, I
fmd that White did tell Johnson that Souders had a job
on and after 15 January, and I further find that White, in
so doing, was misrepresenting his intentions to Johnson
at that time. Souders then withdrew his charge.
After Johnson told Souders that White had promised
the job commencing with Souders' return on 15 January,
Souders telephoned White on 9 January to inquire about
the status of Souders' workman's compensation claim
and to ask about the shift he should report to on 15 Jan-
uary. White told Souders that there was no opening for
him. When Souders reminded White that he told John-
son that there was a job for him, White said that Souders
should not "twist things" his own way. White then
ended the telephone call.
Souders telephoned Johnson (on 9 January) and told
him of his conversation with White. He asked Johnson to
prepare a new charge and mail it to Souders. He did.
Thereafter, when Souders again telephoned White and
asked him when he should report to work on 15 January,
White again told him that he had no job for him. In sub-
sequent conversations after 15 January, when Souders
had his doctor's release, White told him that there was
no job for him because of a reduction in force due to Re-
spondent's poor financial status.
34 Plumbers Local 195 (Stone & Webster), 240 NLRB 504 (1979), enfd.
606 F.2d 320 (5th Cir 1979)
35 To the extent that counsel for Respondent argued, at the hearing,
that Johnson falsely testified because he had overextended himself by
promising Souders White's unconditional commitment, there is insuffi-
cient proof to support this theory.
The record shows (R. Exhs. R-27-R-34) that com-
mencing in February 1986, Respondent hired several em-
ployees in maintenance and others in the garage as me-
chanics. The hiring of these employees was allegedly
based on their superior qualifications. The qualifications
appear to be, in each case, superior to Souders' qualifica-
tions. In any event, without regard to qualifications, I
conclude that Souders was never considered for rehiring
after his termination about 2 December 1985.
Discussion and Conclusions
1. If the General Counsel sought to prove that White
had made the "son-of-bitches" remark to Souders (with
regard to an investigation by the NLRB) as early as 12
November 1985, it was incumbent on the General Coun-
sel to produce the Board agent to corroborate Souders.
While I generally discredit the testimony of Supervisor
White for reasons both in the Souders case and in the
case involving Defibaugh and Griffith, I fmd the circum-
stances do not militate in favor of crediting Souders re-
garding the alleged White remark. Rather, if Souders
was to be believed as to this sudden, illogical and gratui-
tous statement by White, the Board agent to whom it
was allegedly repeated should have been produced for
corroboration. Agent Johnson testified and no reason
was advanced why the other Board agent failed to testi-
fy.
2. Similarly, if the General Counsel desires that I find
White told Souders, after his 2 December accident that,
on his returning on 15 January with a medical excuse, he
would have an actual job rather than merely being con-
sidered, the General Counsel was under an obligation to
produce Souders' wife as a contradictory witness, at least
in rebuttal. White testified there was no job for Souders
and that economic considerations prevented anything but
considering Souders for a job if the circumstances permit-
ted. Souders' wife, on this record allied with Souders'
cause, should have been produced to deny any such con-
versation. Failure to do so leads to the inference, which
I draw, that she could not truthfully deny White's testi-
mony. Compare: Automobile Workers (Gyrodyne Co.) v.
' NLRB, 459 F.2d 1329 (1972), with Hitchiner Mfg. Co.,
243 NLRB 927 (1979). White was not a credible witness
with regard to his motivation concerning the termina-
tions of Griffith and Defibaugh. I reach no different con-
clusion with regard to the termination of Souders. While
I conclude, contrary to Souders, that White never made
an unconditional job offer, I find that White was untruth-
ful to Souders on a regular basis between 2 and 30 De-
cember, wherein he told Souders that he would "consid-
er" Souders for a job whereas he had made up his mind
not to rehire Souders and untruthfully strung Souders
along on the point. I further fmd that White was un-
truthful in denying that he told Board Agent Johnson
that Souders had an actual job. I fmd that he did so
inform Johnson, but that such a statement was untruth-
ful.
3. In making these findings, I nevertheless conclude
that there wasP no violation of Section 8(a)(4) of the Act
as alleged (because Souders filed a charge and gave a
Board affidavit).
INDEPENDENT STATIONS CO. 415
The key to an 8(a)(4) violation would have been a
finding that Souders truthfully testified that White made
the "son-of-bitches" statement as Souders alleged. In this
instance, among others, I have found Souders to be an
untruthful witness. I particularly find that, contrary to
his testimony, White did not tell him unconditionally
that there was an actual job. I have found that White
was untruthfully stringing him along in telling him that
he would be considered for a job. I particularly find that
Souders' testimony concerning the "sons-of-bitches"
remark was invented to support an assertion of White's
animus against Souders resorting to the Board. Again, if
White made that strangely gratuitous statement, it was
incumbent on the General Counsel to corroborate
Souders' testimony by producing the Board agent to
whom it was allegedly repeated in November 1985, and
on the basis of which the original 8(a)(4) charge was
filed.
4. In evaluating Souders' testimony I was impressed by
the failure of the General Counsel to explain the basis of
Souders' becoming so unsure of White's alleged repeated
offer of an actual job that Souders contacted and then
filed a charge with the Labor Board. On the basis of this
record, I conclude that White did not make a definitive
offer of a job, and Souders, in contacting the Labor
Board in early December, holding the charge in abey-
ance and then filing the charge in late December,
became uneasy with White's equivocal offer. In the face
of the Respondent's apparent procrastination or lack of
cooperation in the processing of Souders' workman's
compensation claim, Souders struck on the device of en-
listing "outside help," i.e., the NLRB, to pressure Re-
spondent on the claim and on the job offer. In seeking
help to get more expeditious processing of his compensa-
tion claim, Souders further saw the benefit of having a
Board investigation, directly or indirectly, coerce White
into making an unequivocal offer of a job.
Johnson told Souders that he had a weak case if he be-
lieved that a violation could be established based on Re-
spondent's resentment over Souders' compensation claim.
Souders' strategy succeeded insofar as White told Board
Agent Johnson that a firm job offer had been made and
was outstanding Johnson then truthfully told Souders
what White had told him. The fact that White was tell-
ing an untruth and did not intend to keep his word to
Johnson does not make out a violation of Section 8(a)(4).
Rather, it demonstrates only that White lied to Souders
in stringing him along by "considering" a job, and there-
after lied to Johnson with regard to the existence of a
firm job. But Souders' testimony that White uncondition-
ally offered a job is not credible. In short, White's
equivocation was the actual source of Souders' telling
Johnson that he did not trust White's offer of a job.
I fmd support in this conclusion by examining what
occurred after 15 January, i.e., after Souders telephoned
White and asked him about the existence of the job in
light of what White had told Board Agent Johnson. On
that occasion, according to Souders, there was no longer
any reason for White to talk about the existence of a job.
White merely told Souders not to misconstrue and twist
the facts and hung up on him. The fact that White
became brisk to Souders does not mean that the filing of
the charge and the promise he made to Johnson changed
White's position, from a predetermined refusal to consid-
er to actually considering Souders for a position, see
Service Operations Systems, 272 NLRB 1033 (1984), and
cases cited in fn. 1, so that White's failure to lawfully
consider Souders makes out an 8(a)(4) violation. Rather, I
conclude that White had long before determined not to
consider Souders for rehire, continually misstated to
Souders his actual refusal to even consider him, and after
the visit of the Board agent saw no reason to continue
any longer telling Souders that he was being considered
for an actual job. Again, I view the General Counsel's
failure to produce both Souders' wife (to deny White's
testimony that he consistently told Souders and his wife
that Souders was being considered for a job), and the
Board agent to whom White's "sons-of-bitches" remark
was allegedly earlier repeated to be substantial evidence
that Souders' testimony of White making an uncondition-
al job offer was untruthful. To the same effect is the ap-
parent material inconsistency of whether White offered
Souders the maintenance job before or after Souders
threatened to go to. "other places" for help. I conclude
that Souders' testimony was untruthful (a) in the alleged
"sons-of-bitches" remark, and (b) regarding White
having unequivocally offered him a job when his foot
healed.
It is therefore my conclusion that the General Counsel
has not produced preponderent evidence to support the
allegation that Respondent, through White, or any other
supervisor, unlawfully threatened employees with repris-
als for filing charges of giving testimony to the Board;
and I further find that the General Counsel similarly
failed to produce preponderent evidence to prove, under
Section 8(a)(4) of the Act, that about 15 January 1986,
Respondent refused to recall Souders from layoff be-
cause of his having filed a charge or given testimony to
the National Labor Relations Board. Cf. A A Electric
Co., 405 U.S. 117 (1972); Hoover Design Corp. v. NLRB,
402 F.2d 987 (6th Cir. 1968).
CONCLUSIONS OF LAW
1. Independent Stations Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. By maintaining rules governing its employees that
(1) forbid employees from discussing wages, hours, or
other terms or conditions of employment with each
other; (2) prohibit and punish employees' making false
statements concerning their terms and conditions of em-
ployment, their co-employees, or their supervisors; (3)
prohibit solicitation by employees during working hours
or on company property used by guests or customers at
any time; and (4) require employees to leave Respond-
ent's property within a half hour of clocking out, or re-
turning to Respondent's property unless to patronize the
truckstop, Respondent violated Section 8(a)(1) of the
Act.
3. By discharging Jeanne Griffith on 5 November 1985
and Milton Defibaugh on 9 November 1985 because of
their engaging in concerted activity protected under the
Act, Respondent engaged in, and is engaging in, unfair
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
4. Respondent did not violate the National Labor Re-
lations Act in its failure to employ, reemploy, or rehire
Ricky Souders, nor did it unlawfully threaten, or other-
wise interfere with, restrain, or coerce employees be-
cause they filed charges or gave statements to the Na-
tional Labor Relations Board.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative actions designed to effectuate the policies
of the Act.
Respondent having unlawfully discharged Jeanne Grif-
fith and Milton Defibaugh, I find it necessary to order it
to offer them immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority ,and other rights and privileges, and to make them
whole ,for loss or earnings they may have suffered by
reason of Respondent's unlawful conduct against them
by payment to them of sums of money equal to that
which they normally would have earned from the dates
of their discharges to the dates of a bona fide offer of
reinstatement, less net interim earnings during such
period. Backpay shall be computed on a quarterly basis
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest thereon to be computed in accord-
ance with Florida Steel Corp., 231 NLRB 651 (1977).36
Moreover, consistent with the Board's decision in Ster-
ling Sugars, 261 NLRB 472 (1982), I shall recommend
that Respondent be required to remove from its records
any references to the unlawful discharges of Griffith and
Defibaugh and provide written notices of such action to
them, and inform them that Respondent's unlawful con-
duct will not be used as a basis for future disciplinary
action against them.
On the basis of the above fmdings of fact and conclu-
sions of law, and on the entire record, and pursuant to
Section 10(c) of the National Labor Relations Act, I
issue the following recommended37
ORDER
The Respondent, Independent Stations Co., Harrisburg
and Breezewood, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining employees
for engaging in concerted activity protected under the
Act.
(b) Maintaining rules governing the conduct of em-
ployees that rules (1) prohibit employees from discussing
their salaries, tips, or other terms and conditions of em-
6 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
67 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the fuldings, conclusions, and recommended
Order shall, as provided m Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ployment with co-employees; (2) prohibit employees
from making false statement concerning any employees,
manager, or supervisor; (3) prohibit employees from en-
gaging in solicitation for any purpose during working
hours or on Respondent's property used by guests or
customers at any time; (4) prohibit employees from re-
turning to Respondent's property after their scheduled
shift or on scheduled days off if they do not patronize
Respondent's product and by requiring employees to
leave Respondent's property within a half hour of clock-
ing out after their shifts.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Jeanne Griffith and Milton Defibaugh im-
mediate and full reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings in the manner set forth in the remedy section of
this decision.
(b) Remove from the records of Jeanne Griffith and
Milton Defibaugh any reference to their discharges, and
notify them in writing that this has been done, and that
the evidence of their unlawful discharges will not be
used as a basis for any future disciplinary actions against
them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Breezewood, Pennsylvania place of busi-
ness copies of the attached notice marked "Appendix."38
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent ,to ensure that the notices are not altered, defaced, or
covered by any other material,
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
38 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the Umted States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
INDEPENDENT STATIONS CO. 417
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discipline em-
ployees for engaging in concerted activity protected
under the National Labor Relations Act.
WE WILL NOT maintain rules governing the conduct of
our employees that (1) forbid employees from discussing
wages, hours, or other terms and conditions of employ-
ment with each other; (2) prohibit employees from
making false statements concerning their terms and con-
ditions of employment, their co-employees, or their su-
pervisors; (3) prohibit solicitation by employees during
working hours or on company property used by guests
or customers at any time; (4) require employees to leave
company property within a one-half hour of clocking
out, or returning to company property unless to patron-
ize the Company.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce the employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Jeanne Griffith and Milton Defibaugh
immediate and full reinstatement to their former jobs or,
if their former jobs no longer exist, to substantially
equivalent positions of employment without prejudice to
their seniority or other rights and privileges, and WE
WILL make them whole for any loss of earnings, with in-
terest, that they may have suffered by reason of their un-
lawful discharges.
WE WILL remove from our files any reference to the
discharges of Jeanne Griffith and Milton Defibaugh, and
WE WILL notify them that this has been done, and that
evidence of their unlawful discharges will not be used as
a basis for disciplinary actions against them.
INDEPENDENT STATIONS CO.