The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALTON H. PIESTER, LLC,
Petitioner,
v.
No. 09-1148
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v. No. 09-1255
ALTON H. PIESTER, LLC,
Respondent.
On Petition for Review and Cross-application
for Enforcement of an Order of the
National Labor Relations Board.
(11-CA-21531)
Argued: October 28, 2009
Decided: January 15, 2010
Before TRAXLER, Chief Judge, and
DUNCAN and AGEE, Circuit Judges.
2 PIESTER v. NLRB
Petition for review denied; cross-application for enforcement
granted by published opinion. Chief Judge Traxler wrote the
majority opinion, in which Judge Duncan joined. Judge Agee
wrote a separate opinion concurring in part and dissenting in
part.
COUNSEL
ARGUED: Charles F. Thompson, Jr., MALONE, THOMP-
SON & SUMMERS, LLC, Columbia, South Carolina, for
Alton H. Piester, LLC. Milakshmi V. Rajapakse, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the
Board. ON BRIEF: Michael D. Malone, Columbia, South
Carolina, for Alton H. Piester, LLC. Meredith L. Jason,
Supervisory Attorney, Ronald Meisburg, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Fergu-
son, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for the Board.
OPINION
TRAXLER, Chief Judge:
Alton H. Piester, LLC ("the Company") petitions this court
for review of a decision of the National Labor Relations
Board ("the Board") finding that the Company violated
§ 8(a)(1) of the National Labor Relations Act ("the Act"), see
29 U.S.C.A. § 158(a)(1) (West 1998). The Board cross-
applies for enforcement of its order. For the reasons stated
below, we deny the Company’s petition for review and grant
the Board’s cross-application for enforcement.
I.
Section 7 of the National Labor Relations Act ("the Act")
guarantees employees not only the "right to self-organization,
PIESTER v. NLRB 3
to form, join, or assist labor organizations, [and] to bargain
collectively," but also the right "to engage in other concerted
activities for the purpose of . . . mutual aid or protection." 29
U.S.C.A. § 157 (West 1998). Section 8(a)(1) implements
these guarantees by making it an unfair labor practice for an
employer to "interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 157." 29
U.S.C.A. § 158(a)(1).
The complaint in this case alleged that the Company vio-
lated § 8(a)(1) on January 13, 2007, by impliedly threatening
to discharge its employees if they continued to engage in pro-
tected, concerted activity, and on April 2, 2007, by impliedly
threatening to discharge—and then actually discharg-
ing—employee Darrell Chapman for engaging in protected,
concerted activity. An administrative law judge dismissed the
allegations, and the General Counsel filed exceptions to each
of the dismissals.
The Board, acting through a two-member quorum,1 found
the following facts:
[The Company] is a trucking company. On Janu-
ary, 13, 2007, the [Company’s] owner, Alton Piester,
announced a proposed change to its billing and
bookkeeping practices regarding fuel surcharges
("the fuel surcharge change"). The change would
decrease the drivers’ net pay. Though many drivers
protested, Piester told them that his mind was made
up and that the change would proceed regardless of
their objections. Piester told the objecting drivers
that if they didn’t like it, they could "clean out their
truck and move to another job."
1
We have held that the Board can delegate its authority to a panel of
three members and that two members are authorized to do that panel’s
work with a two-member quorum. See 29 U.S.C.A. § 153(b) (West 1998);
Narricot Indus. v. NLRB, No. 09-1164, 2009 WL 4016113, at *2-*4 (4th
Cir. Nov. 20, 2009).
4 PIESTER v. NLRB
"Clean out your truck" has a special meaning for
the [Company] and its drivers. A driver will typi-
cally leave personal items in a truck if he expects to
use it again. Therefore, a supervisor’s statement to a
driver to "clean out your truck," conveys the mes-
sage that the driver will no longer be operating that
truck, i.e., that he is discharged.
After the January 13 meeting, and up to the time
of Chapman’s discharge, employees frequently com-
plained among themselves about the fuel surcharge
change. Employees also complained directly to
Piester and the [Company’s] secretaries, although
only Chapman continued to complain to the [Com-
pany] after January. On several occasions, however,
owner-operator Adger McAlister informed Piester
that the drivers continued to complain among them-
selves about the unfairness of the fuel surcharge
change.
On April 2, Chapman spoke with Derrick, the
[Company’s] secretary, who also had various
accounting duties. Chapman repeated the complaint
he (and others) had voiced about the fuel surcharge
change, and asked that the surcharge change be
reflected on his paycheck stub. During this conversa-
tion, Chapman spoke loudly, then went into Piester’s
adjoining office to further discuss his concerns. Der-
rick followed Chapman into the office.
Chapman reiterated to Piester the same complaint
and request he made to Derrick, at which point Der-
rick interjected that if Chapman was unhappy work-
ing there, he "should clean out" his truck. Chapman
protested that Derrick did not have authority to dis-
charge him. Chapman became louder, got up from
his chair, and stepped toward Derrick. Piester then
told [Chapman] to clean out his truck, which, as
PIESTER v. NLRB 5
Piester acknowledged at the hearing, meant that
Chapman was discharged.
Piester testified that Chapman’s shouting on April
2 was the latest in a series of misconduct, and was
the "last straw" in deciding to discharge him. How-
ever, Piester did not mention any prior misconduct to
Chapman, and the only reason listed for Chapman’s
discharge on the form filed with the South Carolina
Employment Security Commission was "Disorderly
Conduct in office, 4-02-7." On that form, Piester
directly linked Chapman’s April 2 conduct to the
January 13 meeting by stating that "meet 1st part of
Jan 07 that fuel surcharge would be taken out due to
customer didn’t want share."
J.A. 234-35 (footnotes omitted).
Regarding Piester’s January 13 statement that the drivers
could clean out their trucks if they did not like the surcharge
change, the Board noted that the ALJ had found that the driv-
ers were engaged in protected, concerted activity that day
when they protested the change and that the Company had not
excepted to this finding. The Board also determined that
Piester’s statement constituted an implied threat to discharge
the employees for their protected, concerted activity, and, that
even if it meant only that the drivers were free to leave if they
did not like the new system, it was still unlawfully coercive.
As for Derrick’s April 2 suggestion to Chapman that he
should clean out his truck if he was unhappy, the Board noted
that the ALJ had found that Derrick was acting as the Compa-
ny’s agent when she made the statement and that the Com-
pany did not except to that finding. The Board found that the
remark, like Piester’s similar January 13 statement, consti-
tuted an implied threat of discharge. The Board also deter-
mined that Derrick’s remark was directed at Chapman’s April
2 protected activity, for reasons that the Board discussed in
6 PIESTER v. NLRB
detail in its analysis of the Company’s discharge of Chapman.
The Board found, therefore, that the statement was unlawfully
coercive.
Regarding the discharge itself, the Board found that "Chap-
man’s conduct on April 2[ ] amounted to a continuation of the
earlier concerted employee complaints about the adverse
change to the fuel surcharge." J.A. 237. The Board cited testi-
mony from secretary Sherry Marntin, Piester, and Derrick in
support of its finding and found that Piester, from his conver-
sations with owner-operator McAllister, knew that the
employees continued to oppose the surcharge change. The
Board was not swayed by the fact that Chapman was the only
driver who requested that the surcharge be shown on his pay
stub. It noted that other drivers had requested that the sur-
charge calculation be included on worksheets showing how
their pay was calculated and that Chapman’s "unique" request
was made in the context of his general reiteration of the
shared complaint that the policy was unfair. The Board also
found that Piester himself viewed Chapman’s April 2 conduct
as an extension of the January 13 concerted activity, as evi-
denced by the fact that Derrick’s statement was almost identi-
cal to Piester’s January 13 response and the fact that Piester
linked the January 13 and April 2 events in the explanation he
gave for Chapman’s discharge on the South Carolina Employ-
ment Security Commission form. The Board further found
that Chapman’s protected conduct was a motivating or sub-
stantial factor for his discharge and that the Company had not
proven that it would have discharged Chapman absent the
protected, concerted activity.
Finally, the Board found that Chapman did not forfeit the
Act’s protection by speaking loudly to Derrick and taking a
step in her direction. Applying the test set out in Atlantic Steel
Co., 245 N.L.R.B. 814, 816 (1979), the Board found that all
four factors favored a conclusion that Chapman did not lose
the protection of the Act: The incident took place in an office
where no unit employee witnessed it, the subject of the dis-
PIESTER v. NLRB 7
cussion related to protected activity, the nature of the outburst
was relatively mild and brief, and the outburst was provoked
by Derrick’s unlawful statement. The Board thus concluded
that the Company’s discharge of Chapman constituted a
§ 8(a)(1) violation. On that basis, the Board ordered the Com-
pany to offer Chapman full reinstatement or the substantial
equivalent, as well as backpay.
II.
The Company first argues that the Board erred in finding
that Piester’s statement at the January 13 meeting constituted
a § 8(a)(1) violation. Although the Company does not dispute
that its employees were engaged in protected, concerted
action at the meeting by protesting the surcharge change, it
contends that Piester’s statement was merely intended to con-
vey that he had made up his mind regarding the surcharge
change and that any further complaints by the drivers would
be fruitless.2 The Company further argues that was the mean-
ing Piester intended and that no evidence showed that anyone
at the meeting interpreted it otherwise.
Section 10(e) of the Act states that "[t]he findings of the
Board with respect to questions of fact if supported by sub-
stantial evidence on the record considered as a whole shall be
conclusive." 29 U.S.C.A. § 160(e) (West 1998). "Substantial
evidence" is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." NLRB v.
Gen. Wood Preserving Co., 905 F.2d 803, 810 (4th Cir. 1990)
(internal quotation marks omitted).
When an employer’s actions affect conduct protected by
§ 7, the actions violate § 8(a)(1) if, "under all the circum-
2
The Company also maintains that the Board erred in relying on Chap-
man’s testimony, which the Company contends was perjurious. However,
the Board’s order reflects that it in fact did not rely on Chapman’s testi-
mony, and the Company does not explain why it believes otherwise.
8 PIESTER v. NLRB
stances, the employer’s conduct may reasonably tend to
coerce or intimidate employees." Medeco Sec. Locks, Inc. v.
NLRB, 142 F.3d 733, 745 (4th Cir. 1998) (internal quotation
marks omitted). Under this objective test, "[i]t does not matter
whether the particular conduct by the employer was actually
coercive," NLRB v. Transpersonnel, Inc., 349 F.3d 175, 180
(4th Cir. 2003), or whether the employer actually intended to
coerce, see Medeco Sec. Locks, 142 F.3d at 747. Rather, the
salient inquiry is whether the "conduct may reasonably tend
to coerce or intimidate employees." NLRB v. Grand Canyon
Mining Co., 116 F.3d 1039, 1044 (4th Cir. 1997). Determina-
tions concerning tendency to coerce are "essentially for the
specialized experience of the" Board. Id. (internal quotation
marks omitted). We therefore grant "considerable deference"
to the Board’s decisions on such matters. Medeco Sec. Locks,
142 F.3d at 745.
The Board has often found employers’ statements to be
unlawfully coercive when they have invited employees to quit
their jobs in response to employees’ § 7 conduct. See, e.g.,
House Calls, Inc., 304 N.L.R.B. 311, 313 (1991) (finding vio-
lation when employer told employees who protested their late
paychecks that they could quit if they did not like it). Such
statements have been determined to be coercive because they
tend to imply that continuing to engage in protected activity
is incompatible with continued employment and would be
looked upon with disfavor by the employer. See Conley v.
NLRB, 520 F.3d 629, 638-39 (6th Cir. 2008) (per curiam);
Rogers Elec., Inc., 346 N.L.R.B. 508, 515 (2006). We see no
reason not to defer to the Board’s similar conclusion here. As
we have explained, the test to be applied by the Board was an
objective one. Thus, neither Piester’s intentions nor the reac-
tions of those who heard his statement are dispositive.
The Company argues that the Board’s decision amounts to
a bright-line rule that an employer acts illegally any time he
suggests that his employees can quit if they do not like an
objected-to decision. The Board did not purport to base its
PIESTER v. NLRB 9
decision on such a broad rule, however. It simply determined
that on the facts before it, where the statement was made in
response to the drivers’ concerted protest of the Company’s
new policy, the statement had the potential to coerce employ-
ees. We conclude that substantial evidence supports the
Board’s decision.
III.
The Company next challenges the Board’s finding that
Piester’s discharge of Chapman constituted a § 8(a)(1) viola-
tion. Specifically, the Company contends that no substantial
evidence supported the determination that Chapman was
engaged in protected, concerted activity on April 2. We dis-
agree.
Whether particular conduct constitutes "concerted
activit[y]," as that term is used in § 7 is a question for the
Board’s specialized expertise, and we review the Board’s
determination only for reasonableness. See NLRB v. City Dis-
posal Sys., Inc., 465 U.S. 822, 829-30 & n.7 (1984). "The
term ‘concerted activit[y]’ is not defined in the Act but it
clearly enough embraces the activities of employees who have
joined together in order to achieve common goals." Id. at 830.
To be engaged in concerted activity, employees need not
"combine with one another in any particular way." Id. at 835.
If "a single employee, acting alone, participates in an integral
aspect of a collective process," the conduct may be found to
be concerted. Id. In this regard, a conversation involving only
a speaker and a listener may constitute concerted activity.
Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304, 307
(4th Cir. 1980). To do so, however, "it must appear at the very
least that [the conversation] was engaged in with the object of
initiating or inducing or preparing for group action or that it
had some relation to group action in the interest of the
employees.’" Id. (quoting Mushroom Transp. Co. v. NLRB,
330 F.2d 683, 685 (3d Cir. 1964)). Courts have held that
"[t]he lone act of a single employee is concerted if it ‘stems
10 PIESTER v. NLRB
from’ or ‘logically grew’ out of prior concerted activity."
NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir.
1995) (quoting Ewing v. NLRB, 861 F.2d 353, 361 (2d Cir.
1988)). And even if the speaker was never selected as a
spokesperson, individual protests of a management decision
may properly be characterized as concerted action so long as
those disagreeing with the decision "considered that they had
a grievance and decided, among themselves, that they would
take it up with management." Guernsey-Muskingum Elec.
Coop. Inc., 285 F.2d 8, 12 (6th Cir. 1960); see Hugh H. Wil-
son Corp. v. NLRB, 414 F.2d 1345, 1355 (3d Cir. 1969).
As we have explained, the Company does not challenge the
fact that Chapman and other drivers engaged in protected,
concerted activity by collectively taking up their grievance
with management at the January 13 meeting. The Company
takes issue, however, with the Board’s finding that Chap-
man’s April 2 conduct amounted to a continuation of the driv-
ers’ January 13 complaints.3
In challenging this determination, the Company first attacks
the Board’s underlying factual finding that, in addition to ask-
ing that the surcharge be shown on his paycheck stub, Chap-
man "reiterated the shared employee complaint about the fuel
surcharge change" in the Company’s office on April 2. J.A.
237. We conclude that the finding is supported by substantial
evidence.
The Board cited testimony from Piester, Marntin, and Der-
rick in finding that Chapman complained about the surcharge
that day. See J.A. 126 (Piester’s testimony that Chapman
3
The Company also argues that even if Chapman was engaged in pro-
tected conduct, the Board erred in finding that he did not forfeit his protec-
tive status for engaging in egregious conduct. General Counsel argues that
this issue is not properly preserved for our review. Even assuming that this
issue has not been waived, however, we conclude that the Board’s deter-
mination that Chapman’s conduct did not lose its protected status was
clearly supported by substantial evidence in the record.
PIESTER v. NLRB 11
"mentioned . . . the fuel surcharge situation" on April 2); J.A.
166, 167 (Marntin’s testimony that Chapman "was complain-
ing about the fuel surcharge" when he came into her office on
April 2 and that he went into Piester’s office and "started dis-
cussing the fuel surcharge"); J.A. 180 (Derrick’s testimony
that when Chapman came in on April 2, "he was complaining
about the fuel surcharge and wanted it show[n] on his check
stub"). The Company contends, however, that the testimony,
viewed as a whole and in conjunction with Chapman’s testi-
mony, makes clear that "Chapman was not complaining on
April 2 about the surcharge" but was "instead asking how his
deduction was calculated and asking that the surcharge
‘deduction’ show up on his paycheck." Brief of Appellant, at
20-21. We disagree.
Marntin and Chapman both testified that Chapman had
complained to the secretaries on multiple occasions about the
surcharge change between January 13 and April 2. Marntin
testified that she believed Chapman was substantially mis-
taken concerning the amounts being taken out of his pay-
checks as a result of the change:
[Chapman], along with a couple of other drivers, had
c[o]me in and complained to me about the fuel sur-
charge. I had recalculated the worksheet as though
there was no fuel surcharge and told [Chapman] he
was losing anywhere from twelve . . . to fifteen dol-
lars . . . per load alone. I never understood . . . why
he was thinking he lost between two . . . and three
hundred dollars . . . until I re-examined the works-
heets [and] realized he was counting a hundred per-
cent of what the truck makes and the driver can’t do
that.
J.A. 165. Marntin testified that although she had repeatedly
tried to explain to Chapman that the surcharge was not costing
him nearly as much as he thought, he still "believed that [his]
12 PIESTER v. NLRB
check was down several hundred dollars" when he entered the
Company office on April 2. J.A. 178.
Marntin testified that when Chapman came in, he "was
complaining about the fuel surcharge. He had told [Derrick]
that he was wanting it to show on his check stub." J.A. 166.
Derrick also testified that when Chapman came in that day,
"he was complaining about the fuel surcharge and wanted it
show[n] on his check stub." J.A. 180.
Chapman’s account of the complaints he made when he
came in to the office on April 2 appears largely consistent
with Marntin’s and Derrick’s testimony. He testified,
[Marntin] was in the office . . . doing the payroll. I
started talking to her about it. And I asked her if
she’d pull my record up showing me how things
were being paid. And . . . I said [Marntin], there’s no
way that that’ll work. And she said, "What do you
mean?", and I said, "I can’t figure it out. From what
you told me, this is what’s happening, I can figure it
up it’s not working". So, . . . [Marntin] called [Der-
rick]. And so I walked over to [Derrick], and . . . I
said, "[Derrick], just tell me how you all are doing
our payroll, how you’re doing the surcharge on our
checks". And she said, ". . . this is how we do it". I
said, "But that don’t amount up to what you all is
telling us that would be coming out of our checks, it
don’t amount up". She said, "What do you mean?"
I said, "I figured it up and every time I’m figuring,
I’m not coming up with that". She said, "Well,
[Chapman], that’s how we do it".
J.A. 94-95. Chapman testified that at that point, he went into
Piester’s office and told Piester: "I cannot keep making it like
this right here. . . . My check is way less than what it used to
be. . . . This fuel surcharge is killing us . . . . ; there’s no way
I can make it like that." J.A. 95 (internal quotation marks
PIESTER v. NLRB 13
omitted). Chapman testified that in response, Piester "got a
pencil and paper out and he started doing some figuring," J.A.
96, after which Derrick walked in and told Piester that Chap-
man had requested that his surcharge be shown on his pay-
check stub.
Piester’s testimony regarding the substance of his April 2
conversation with Chapman was largely consistent with
Chapman’s account. He testified that on April 2, "Chapman
mentioned . . . the fuel surcharge situation and I didn’t have
any problems with that. And I tried to explain the thing to him
again." J.A. 126.
From all of this testimony, several facts are clear. First,
since the January 13 meeting, Chapman had repeatedly com-
plained, including on April 2, about what he believed to be
the substantial effect that the surcharge was having on his
income. Second, in the context of that protest, Chapman had
been engaging in an ongoing debate with the Company con-
cerning exactly how much was being taken from his paycheck
as a result of the surcharge change. And third, as this debate
continued on April 2, Chapman claimed that the Company’s
figures did not add up.
What is unclear is whether Chapman was asserting that the
Company was taking more than Piester said on January 13
would be taken or whether he was asserting that the Company
was taking more than Piester and his secretaries claimed to be
taking during the ongoing debate that continued after January
13. If Chapman was making the former assertion, then it
would appear that he was raising a complaint distinct
from—albeit related to—the complaint raised by the drivers
at the January 13 meeting. But, if he was merely rejecting the
Company’s claim that the change did not have as large a
financial impact as he believed, then it would appear that his
primary objection was the one that he and the other drivers
had expressed on January 13, namely, that the surcharge
change was unfair and too costly to the drivers.
14 PIESTER v. NLRB
In our view, none of the testimony clearly resolves this
question. The best testimony for the Company would seem to
be Derrick’s answer to the question of whether Chapman felt
the Company was "taking out more than [it] should have"
from his check. J.A. 189. Derrick responded, "Yes. Yes, I
believe he thought we were taking out more — he was com-
ing up with a different figure somehow." J.A. 189-90. This
answer is less than clear, however, and Piester’s description
of Chapman’s complaints—"he mentioned . . . the fuel sur-
charge situation, and I didn’t have any problems with that,"
J.A. 126—seems more consistent with the notion that Chap-
man had repeated the familiar shared general complaint about
the surcharge.4 Derrick’s response that Chapman should clean
out his truck if he was unhappy working for the Company
also seems a more likely response to a reiteration of the Janu-
ary 13 complaint than to the complaints the Company claims
Chapman was making. In the end, we conclude that this is
simply a very close factual issue, and, regardless of how we
would have resolved it in the first instance, substantial evi-
dence supports the Board’s finding that Chapman was reiter-
ating the shared employee complaint.
Relying on Manimark Corp. v. NLRB, 7 F.3d 547 (6th Cir.
1993), the Company next argues that even if Chapman did
repeat his opposition to the surcharge change in the Compa-
ny’s offices on April 2, his actions were not protected because
he was acting only on his own behalf, not on behalf of other
drivers. In Manimark, the court determined that an employ-
ee’s action was not "concerted" within the meaning of § 7,
even though the employee had raised concerns to his
employer that were shared by other employees. See Mani-
mark, 7 F.3d at 550-51. We do not find Manimark to have
much bearing on the result here, however. Critical to the
Manimark court’s decision was the fact that the conversation
4
And, of course, Chapman’s own testimony that he told Piester, "This
fuel surcharge is killing us," J.A. 95, also is more consistent with the latter
interpretation.
PIESTER v. NLRB 15
between the employee and employer took place because the
employer had summoned the employee to discuss a separate
matter that affected only the employee. See id. at 550. After
disagreeing with the employer concerning that matter, the
employee brought up the unrelated complaint at issue only "as
an afterthought." Id. Also important in Manimark was the fact
that while the complaint at issue was one shared by other
employees, there was "nothing to indicate that [the employ-
ees] had decided to act upon those" complaints. Id. at 551.
In contrast to Manimark, here it is undisputed that the driv-
ers acted in concert in jointly protesting the surcharge change
at the January 13 meeting. The narrow question for the Board,
therefore, was whether Chapman’s April 2 conduct was a con-
tinuation of that action. We conclude that the Board was on
firm ground in finding that it was. The Board found as a fact
that after the drivers jointly presented their complaints on Jan-
uary 13, the controversy had continued unabated prior to
April 2 as the drivers continued to repeatedly discuss the sur-
charge among themselves and Chapman continued to com-
plain to the secretaries and to Piester. Moreover, the Board
found that Piester knew that the other drivers continued to
complain about the change amongst themselves. Cf. City Dis-
posal Sys., Inc., 465 U.S. at 832 (holding that a "lone employ-
ee’s invocation of a right grounded in his collective-
bargaining agreement is . . . a concerted activity in a very real
sense" because the employee is in effect reminding his
employer of the power of the group that brought about the
agreement and that could be reharnessed if the employer
refuses to respect the employee’s objection). In fact, evidence
in the record suggested that Piester himself understood Chap-
man’s April 2 complaints to be an extension of the January 13
concerted activity. A South Carolina Employment Security
Commission form signed by Piester listed the reason for
Chapman’s termination as "meet 1st part of Jan 07 that fuel
surcharge would be taken out due to customer didn’t want
share. Disorderly conduct in office, 4-2-07." J.A. 216. For all
of these reasons, we believe that, even though Chapman’s
16 PIESTER v. NLRB
continued protests were presented individually, they were rea-
sonably understood by the Board to be a continuation of the
drivers’ mutual decision "to take [their grievance] up with
management." Guernsey-Muskingum Elec. Coop., Inc., 285
F.2d at 12; see Hugh H. Wilson Corp., 414 F.2d at 1355.
We note that our conclusion is strongly supported by Day-
ton Typographic Service, Inc. v. NLRB, 778 F.2d 1188 (6th
Cir. 1985), which reached a similar result on closely analo-
gous facts. In that case, an employee and several of his
coworkers complained to their supervisor at a meeting about
several working conditions, including the fact that they were
often required to work overtime on Saturdays for no pay. See
id. at 1189. When the complaint went unaddressed, the
employee reiterated his concerns regarding unpaid Saturday
work on two more occasions, one about a month after the
original complaint, and one about a month after that. See id.
Subsequently, he and another employee argued heatedly when
their supervisor told them that one of them would have to
work the next Saturday. See id. at 1189-90. The employee
continued to argue that employees should be paid for their
Saturday work. See id. at 1190. The court found reasonable a
Board finding that the subsequent complaints constituted a
continuation of the initial joint complaints. See id. at 1191-92.
The court found non-dispositive the fact that the employee
had not been chosen by his fellow employees as a spokesman
for their joint complaints and noted that although the com-
pany claimed the other employees had lost interest in the
issue, the company did not present any evidence of that fact.
See id. at 1192. Rather, the court concluded that it was suffi-
cient to warrant protection that the employees had decided
amongst themselves to bring their collective concern to man-
agement. See id. at 1191-92.
The Company emphasizes that Chapman’s request to have
the surcharge shown on his pay stub was a request that no
other driver had made and that his protests were always
framed in terms of how much money he personally was los-
PIESTER v. NLRB 17
ing. However, we conclude that it was reasonable for the
Board to find these facts not dispositive. In the weeks after the
January 13 meeting, the group opposition to the surcharge
change had spawned a number of requests that the surcharge
be shown in worksheets explaining how the drivers’ wages
were calculated. Chapman’s request to have the surcharge
shown on his pay stub was only a slight variation on those
requests, and it was presented "in the context of [Chapman’s]
underlying complaints about the fuel surcharge change." J.A.
238. As for the fact that Chapman stated his objections in
terms of the effect that it was having on his paycheck, that
would at most show only that it was his concern for his own
finances rather than those of the group that motivated his sup-
port for the drivers’ collective position. See Joanna Cotton
Mills Co. v. NLRB, 176 F.2d 749, 753 (4th Cir. 1949)
(explaining that individual’s personal motivation for attempt-
ing to further group action does not prevent the conduct from
being protected). There was no testimony that Chapman
sought a personal exemption from the surcharge change that
would not have applied to the other drivers as well. We there-
fore conclude that the Board’s decision that Chapman was
engaged in protected, concerted activity on April 2 was a rea-
sonable one.
IV.
For the foregoing reasons, we deny the Company’s petition
for review of the Board’s order and grant the Board’s cross-
application for enforcement.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
AGEE, Circuit Judge, concurring in part and dissenting in
part:
I concur with the majority opinion that Alton Piester’s
comment to "clean out your truck" on January 13 constituted
18 PIESTER v. NLRB
a violation of the National Labor Relations Act (NLRA)
based on the standard of review applicable in this case. See
Smithfield Packing Co. v. NLRB, 510 F.3d 507, 515 (4th Cir.
2007) ("[W]e must defer to the Board where it has chosen
‘between two fairly conflicting views, even though the court
would justifiably have made a different choice had the matter
been before it de novo.’") (quoting Universal Camera Corp.
v. N.L.R.B., 340 U.S. 474, 488 (1951)). However, I write sep-
arately because I do not agree with the majority’s conclusion
as to the April 2 events. In particular, I do not agree with the
majority’s determination that "even though [Darrell] Chap-
man’s continued protests were presented individually, they
were reasonably understood by the Board to be a continuation
of the drivers’ mutual decision to take their grievance up with
management." Supra at 15-16 (internal quotations omitted).
Nor do I agree with the majority that whether Chapman "was
reiterating the shared employee complaint" is a "close factual
issue." Supra at 14. The evidence in the record plainly shows,
as the ALJ found, that Chapman’s complaints on April 2 were
directed at his own inability to calculate the fuel surcharge,
not the drivers’ collective dissatisfaction with imposition of
the fuel surcharge in the first instance. As such, there is not
substantial evidence from which to conclude that Chapman
was engaged in "concerted" activity at the time of his dis-
charge. Therefore, I respectfully dissent from that portion of
the opinion holding that Chapman’s discharge violated
§ 8(a)(1) of the NLRA.
I.
With respect to Chapman’s discharge claim, the General
Counsel alleged "that Chapman engaged in concerted activi-
ties with other employees for their ‘mutual aid or protection’"
during his discussions with Sherry Marntin, Renee Derrick,
and Piester on April 2, 2007. J.A. 243. Specifically, the Gen-
eral Counsel argued "that Chapman’s April 2 conduct was a
continuation of the employee protests at the January 13 meet-
PIESTER v. NLRB 19
ing, and therefore protected."1 J.A. 246. The ALJ disagreed,
finding that "over time, employee discontent with the [fuel
surcharge] abated" but "Chapman . . . continued to complain
about" it. J.A. 245. In particular, the ALJ determined that
[t]he credited testimony establishes that when Chap-
man spoke with Derrick on April 2, he was con-
cerned that the fuel surcharge amount did not appear
on his pay stub. Derrick offered an explanation.
Chapman remained unsatisfied and ultimately spoke
with Piester.
....
Chapman spoke only about his own pay and pay
documents and not those of any other employee.
Additionally, the record fails to establish that Chap-
man indicated in any way that he intended to speak
on behalf of any other employees or that any other
employees had asked him to act on their behalf.
....
The credited evidence does not establish that Chap-
man said anything which would lead Piester to con-
clude that he was continuing the earlier protest.
Considering the amount of time which had elapsed,
it would not be self-evident that Chapman’s com-
plaints, focused solely on his own pay documenta-
tion, actually constituted activity on behalf of other
employees. I conclude that [Piester] had no reason-
able basis to believe that Chapman was acting on
behalf of anyone but himself.
1
There is no question that, as Piester concedes and the ALJ and the
Board found, the employees were engaged in protected, concerted activity
when they voiced their group complaints about imposition of the fuel sur-
charge during the January 13, 2007 meeting.
20 PIESTER v. NLRB
J.A. 245-46. According to the ALJ, the two and one-half
months between the January 13 meeting and Chapman’s
objections on April 2, combined with the lack of evidence that
Piester was hostile to the employees’ protest about the fuel
surcharge, necessitated the conclusion that the General Coun-
sel did not carry its "burden of showing a link between the
protected activity [at the January 13 meeting] and" Chap-
man’s discharge. J.A. 246.
It is worth noting that in reaching his conclusions the ALJ
also made significant first-hand determinations of witness
credibility and expressly found that Chapman’s testimony did
"not ring true," was not to be credited, and was not "reliable."
J.A. 241. In contrast, the ALJ found that Derrick’s testimony
"merit[ed] the greatest confidence," and that testimony by
Marntin and Piester should be credited. J.A. 245. "We owe
deference to such witness credibility assessments." NLRB v.
Mining Specialists, Inc., 326 F.3d 602, 605 (4th Cir. 2003)
(citing Concrete Pipe & Prods., Inc. v. Constr. Laborers Pen-
sion Trust, 508 U.S. 602, 623 (1993)); Sam’s Club, a Div. of
Wal-Mart Stores, Inc. v. NLRB, 173 F.3d 233, 240 (4th Cir.
1999) ("An ALJ’s credibility determinations should be
accepted by the reviewing court absent exceptional circum-
stances."). The Board did not reject the credibility findings by
the ALJ.
Despite the ALJ’s fact and credibility determinations, the
Board found that Chapman’s complaints on April 2 were "a
continuation of the earlier concerted employee complaints
about the adverse change to the fuel surcharge." J.A. 237. The
Board reached this conclusion notwithstanding its determina-
tion "that Chapman made an individualized request for a nota-
tion on his pay stub" during the April 2 meeting. J.A. 238.
According to the Board, "that request was made in the context
of his underlying complaints about the fuel surcharge
change." Id. (emphasis added). Based on the record, I do not
agree.
PIESTER v. NLRB 21
II.
During the process of reviewing the entire record
for substantial evidence, a reviewing court must not
only consider the evidence used to support the
Board’s factual conclusion, but it also "must take
into account whatever in the record fairly detracts"
from the Board’s factfinding. Universal Camera, 340
U.S. at 487-88, 71 S.Ct. 456. "When the Board pur-
ports to be engaged in simple factfinding, . . . it is
not free to prescribe what inferences from the evi-
dence it will accept and reject, but must draw all
those inferences that the evidence fairly demands."
Allentown Mack, 118 S.Ct. at 829. "Courts perform-
ing substantial evidence review, therefore, must
examine whether the Board considered all of the rea-
sonable inferences compelled by the evidence in
reaching its decision." Pirelli Cable Corp., 141 F.3d
at 514.
Sam’s Club, 173 F.3d at 239-40 (emphasis added).
The Board (and the majority) primarily rely on testimony
by Marntin and Derrick as evidence that Chapman reiterated
protected group complaints made at the January meeting
when he met with Marntin, Derrick, and Piester in April.
Chapman’s own testimony, however, aptly illustrates the par-
ticular grievance he sought to address with Marntin and Der-
rick on April 2:
I asked her if she’d pull my record up showing me
how things were being paid. And I said, you know
I said to myself, I said Sherry [Marntin], there’s no
way that’ll work. And she said "what do you
mean?", and I said, "I can’t figure it out . . . ." And
so I walked over to [Derrick] and [Derrick] and I
started talking. And I said, "[Derrick], just tell me
22 PIESTER v. NLRB
how you all are doing our payroll, how you’re doing
the surcharge on our checks."
J.A. 94 (emphasis added).
Chapman then described his conversation in Piester’s office
this way:
She (Derrick) walks in. She sits across from where
I’m sitting. I’m in front of [Piester’s] desk. And she
said — he asked her, he said, "What do he want?"
[sic] She said, "Well he want the money that we’re
talking [sic] out of their check, he wanted it shown
on his check stub". Alton repeated, "No, we can’t do
that". I said, "Why you can’t do that? You’re taking
it out of our check. Why you can’t show it?"
J.A. 96 (emphasis added).
According to the majority, it is "clear" that (1) Chapman
repeatedly complained about the effect of the surcharge on
"his income," and that (2) Chapman had been in an ongoing
debate with the Company concerning the amount taken from
"his paycheck." Supra at 13. It is patently clear from the con-
text of the testimony, as it was to the ALJ who heard it first-
hand, the gravamen of Chapman’s complaint on April 2 was
that he did not understand how the surcharge was being calcu-
lated (and thus how it was affecting his pay), not the fact that
a surcharge was company policy.
Marntin testified that Chapman
was complaining about the fuel surcharge. He had
told [Derrick] that he was wanting it to show on his
check stub and she advised him she couldn’t put it
on his check stub due to he’d be taxed by the IRS
and he couldn’t be taxed on money that didn’t
belong to him. That wouldn’t benefit him at all.
PIESTER v. NLRB 23
....
[Then] he had went back there and him and [Piester]
had started discussing it.
J.A. 166.
From this testimony the Board excerpted Marntin’s broad
characterization of Chapman’s complaint as being "about the
fuel surcharge," J.A. 237, in total isolation from her specific
description of Chapman’s actual, specific complaint during
his visit to the company’s office. Moreover, Marntin’s state-
ment that Chapman and Piester were discussing "it" clearly
refers to Chapman’s desire to have the information included
on his pay stub, as explained by Marntin’s description of the
meeting between Chapman and Piester:
[Piester] called [Derrick] back there and told [Der-
rick] what [Chapman] was wanting. He was wanting
the fuel surcharge to show on his checks. [Derrick]
explained to [Piester], she said, "That’s going to be
the IRS taxing that money and," she said, "the
money don’t belong to [Chapman] anyway, we can-
not put it on his check stubs.["]
J.A. 167-68.
Finally, the ALJ specifically asked Marntin whether Chap-
man said "anything about just himself or other employees as
well as himself" when he "came in and he talked about his
payroll and his paycheck." J.A. 178. Marntin replied "just
himself." Id. Marntin then reiterated that Chapman "always
spoke about his check."2 J.A. 179.
2
The circumstances surrounding the April 2 meeting also emphasize the
individual nature of Chapman’s actions. His truck had a flat tire and he
was instructed to pull around and have it fixed. While it was being
repaired, he took the opportunity to go to the company’s office and speak
24 PIESTER v. NLRB
The Board likewise read Derrick’s testimony out of con-
text. She testified that Chapman "stood in between our desks
and he was complaining about the fuel surcharge and wanted
it showed [sic] on his check stub." J.A. 180 (emphasis added).
The Board cited this description as evidence that Chapman
was complaining about the fuel surcharge and thus making a
group complaint when, in context, Derrick undoubtedly con-
veyed that Chapman’s purpose in speaking with Derrick was
to have the fuel surcharge shown on his pay stub. Derrick’s
description of Chapman’s spontaneous meeting with Piester
mirrored that of Marntin: "[Piester] called me back there to
help him explain what I had already explained to [Chapman].
I explained to [Piester] why it couldn’t be on his check stub
and explained it again to [Chapman]." J.A. 181.
Piester’s testimony is also consistent with that of Marntin
and Derrick. The General Counsel called Piester as a witness
and he testified as follows:
Counsel: And when [Chapman] came in, he was
talking to you about the fuel surcharge.
Isn’t that correct?
Piester: The — yes, sir.
....
Counsel: Isn’t it true that [your affidavit] says that
you were trying to explain how it worked
to him, to Mr. Chapman? Isn’t that what it
says?
with Marntin and Derrick. The fact that Chapman came to the office to
speak with the administrative personnel indicates that he did not intend to
plea for rescission of the surcharge, because Piester was the only one with
authority to change that policy. Chapman’s impromptu meeting with
Piester only occurred because Derrick was unable to resolve his pay stub
issue.
PIESTER v. NLRB 25
Piester: Yes sir. . . .
....
Counsel: Isn’t it true that [your affidavit], the bot-
tom line, the last line there says that you
were trying to explain how it worked.
Piester: Yes.
Counsel: How the fuel surcharge worked.
Piester: Yes.
....
Counsel: Okay. Didn’t he ask that it be put on the
pay stub so he could see it and figure it
out?
....
Piester: I’m not sure about that now. I’m not sure
whether it was on the worksheet or the pay
stub.
J.A. 30-35 (emphasis added). This testimony by Piester is
utterly in accord with the testimony given by Marntin and
Derrick. It shows, again, that the purpose of Chapman’s
requests on April 2 was to obtain further explanation of how
the surcharge was being calculated and to request that it be
shown on his pay stub.
The majority concludes "that substantial evidence supports
the Board’s finding that Chapman was reiterating the shared
employee complaint" about the fuel surcharge expressed by
the group at the January meeting. Supra at 14. But when the
testimony is read in context, the Board did nothing more than
26 PIESTER v. NLRB
improperly "prescribe what inferences from the evidence it
[would] accept and reject" and the inferences it makes are not
"reasonable inferences compelled by the evidence." Sam’s
Club, 173 F.3d 239-40. The Board’s observation that Chap-
man complained "about the fuel surcharge" is not a fair read-
ing of the evidence and does not support the conclusion that
his actions on April 2 were "a continuation of" the drivers’
complaints. Supra at 15. In my view, the evidence compels
the conclusion reached by the ALJ "that Chapman was raising
a personal pay computation issue on April 2 . . . ." J.A. 236-
37. By accepting the Board’s unreasonable reading of the tes-
timony out of its context, the majority fails to "take into
account" the parts of the record that "fairly detracts from the
Board’s factfinding." Sam’s Club, 173 F.3d at 239 (internal
quotations omitted).
III.
"There can . . . be no violation of § 8(a)(1) by the employer
if there is no underlying § 7 conduct by the employee. Con-
duct must be both concerted and protected to fall within § 7."
Yesterday’s Children, Inc. v. NLRB., 115 F.3d 36, 44 (1st Cir.
1997).
Employee activity protected under section 7 of the
NLRA includes "the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection." 29 U.S.C. § 157 (2000).
We recognize that this language is broadly-worded.
However, it is not without limits. As we have noted,
"[t]he purpose of the act was not to guarantee to
employees the right to do as they please." Joanna
Cotton Mills Co. v. NLRB, 176 F.2d 749, 752 (4th
Cir. 1949)(internal citation omitted).
PIESTER v. NLRB 27
TNT Logistics of N. Am., Inc. v. NLRB, 413 F.3d 402, 406-407
(4th Cir. 2005).
The ALJ found that while there was evidence that the fuel
surcharge "remained a subject of discussion among employ-
ees even at the time of Chapman’s discharge in April, . . .
Chapman was the only driver who still was voicing objec-
tions." J.A. 242. As explained by the ALJ:
Chapman’s protest, of course, would still be pro-
tected even if he were the lone holdout trying to rally
other employees to support this cause. Indeed, an
individual employee’s complaints aimed at instigat-
ing group action is quintessential concerted activity.
However, the credible evidence does not establish
that Chapman was trying to enlist the support of
other employees or that, on April 2, 2007, he
intended to speak for anyone but himself. On that
date, Chapman sought, in effect, that [Piester] treat
the reduction in pay as a deduction from pay and list
it on the paycheck stub. The record does not estab-
lish that any other employees wanted, or had asked
for, such a change. Therefore, I conclude that Chap-
man was acting by himself, and not continuing the
employees’ January 13, 2007 concerted activity.
Credible evidence does not establish that, on April
2, 2007, [Piester] regarded Chapman as speaking or
attempting to speak for anyone other than himself.
Accordingly, it is difficult to find a nexus between
Chapman’s discharge on that date and his protected
activity several months earlier.
J.A. 242.
In reversing the ALJ’s decision, the Board concluded that
"Chapman’s repetition of the complaint about the fuel sur-
28 PIESTER v. NLRB
charge change on April 2 was a continuation of earlier pro-
tected concerted activity." J.A. 238. However, this faulty
conclusion rests on the Board’s erroneous determination that
Chapman’s request on April 2 "was made in the context of his
underlying complaints about the fuel surcharge change." J.A.
238. Although the Board’s decision is somewhat confusing on
this point, it appears to have relied on two items of evidence
when it overruled the ALJ’s decision regarding "concerted
activity": (1) "that the employees continued to complain
among themselves about the fuel surcharge change and that
[Piester] knew of this continuing dissatisfaction," J.A. 237,
and (2) that "other employees also had requested that the fuel
surcharge information be included on their worksheets."3 J.A.
238. The Board’s reliance on this evidence as a basis that
Chapman acted with a "concerted voice" is unreasonable and
is not supported by substantial evidence.
As the majority notes, we agreed in Krispy Kreme Dough-
nut Corp. v. NLRB, 635 F.2d 304 (4th Cir. 1980), that con-
certed activity can occur even when it involves only a speaker
and a listener. We also explained, however, that
[i]t will not satisfy this condition [(concerted action)]
for Board action under Section 7 that an employee’s
complaint may be directed at working conditions
which affect all employees; "(i)t is . . . necessary . . .
that the employee’s actions themselves at least con-
template such group activity [in order to support
Board jurisdiction]. As was explained in Indiana
Gear Works v. NLRB, 371 F.2d 273, 276 (7th Cir.
1967), "in order to prove a concerted activity under
3
Each driver receives a worksheet with his paycheck showing informa-
tion about each load he picked up, including "where [he] picked it up from
and delivered to and how many times." J.A. 158. It also shows "the rate,
. . . the fuel surcharge, and the dollar amount that the truck makes. Then
depending on what the truck makes, what percentage [the driver] makes."
Id.
PIESTER v. NLRB 29
Section 7 of the Act, it is necessary to demonstrate
that the activity was for the purpose of inducing or
preparing for group action to correct a grievance or
a complaint." Pelton Casteel, Inc. v. NLRB, 627 F.2d
23, 28 (7th Cir. 1980). This construction of the statu-
tory language determinative of when the action of a
single employee will be deemed "concerted activity"
within Section 7, is illustrated by Mushroom Trans-
portation Company v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964):
It is not questioned that a conversation may
constitute a concerted activity although it
involves only a speaker and a listener, but
to qualify as such, it must appear at the
very least that it was engaged in with the
object of initiating or inducing or prepar-
ing for group action or that it had some
relation to group action in the interest of
the employees.
635 F.2d at 307 (emphasis added).
We have also explained that
[d]etermining whether activity is protected or not
depends on a proper identification of the activity’s
purpose. "[I]t is not the motive of the participants
that we are concerned with here but the purpose of
the activity." Id. at 753. To be protected "the purpose
of the concerted activities must be the mutual aid or
protection of the employees." Id. By contrast, "per-
sonal missions are not the sort of concerted activity
which the statute protects." Media Gen. Operations,
Inc. v. NLRB, 394 F.3d 207, 212 (4th Cir. 2005).
TNT Logistics, 413 F.3d at 407 (emphasis added).
30 PIESTER v. NLRB
As the majority explains, it was Chapman who had "repeat-
edly complained . . . about what he believed to be the substan-
tial effect that the surcharge was having on his income."
Supra at 13 (emphasis added). It was Chapman who "had
been engaging in an ongoing debate with the Company con-
cerning exactly how much was being taken from his pay-
check." Id. (emphasis added). It was Chapman who,
according to the Board, "made an individualized request for
a notation on his pay stub." J.A. 238 (emphasis added). Con-
sistent with these findings, Derrick’s testimony during cross-
examination by the General Counsel ably illustrates the pur-
pose of Chapman’s visit to the company office on April 2:
Counsel: He also wanted the surcharge to be shown
on the pay stubs of all the employees, isn’t
that correct?
....
Derrick: He never said anything about all the
employees.
Counsel: Well, what did he say?
Derrick: He was complaining about hisself and his
paycheck.
Counsel: Didn’t he say that the surcharge should be
put on the pay stubs?
Derrick: He said that he would like it shown on his
pay stub.
J.A. 190.
Other testimony shows that Chapman’s complaints
diverged from those of the other drivers not long after the Jan-
uary meeting. Derrick testified on cross-examination that "[a]
PIESTER v. NLRB 31
few" of the "other employees came in and complained about
[the] surcharge" but that those complaints "only lasted for a
week or two" after the January meeting. J.A. 191, 193
(emphasis added). She also testified as follows:
Counsel: But everybody complained about — most
of the employees, the drivers, did com-
plain in some way about the surcharge.
Derrick: Once[,] until I explained it to them in a
better manner.
Counsel: Didn’t they feel that they were losing
money, the employees felt that they were
losing money?
Derrick: At the beginning until it was explained to
them correctly.
J.A. 191. Marntin likewise testified that "Chapman and Mr.
Brian Smith and several other drivers" complained "[w]hen
they [first] saw the deduction on their pay" in late January but
that she had to explain the calculation of the surcharge to
Chapman "a couple of times" because he didn’t seem to
understand it.4 J.A. 173-74. Neither Marntin, Derrick, nor
Piester testified that any other driver complained about how
the surcharge was calculated.
Despite Marntin and Derrick’s testimony, the Board found
relevant the fact that "Piester, via [driver] McAlister, knew
that the issue remained a concern to the employees." J.A. 237.
4
Derrick agreed that Chapman and Smith "were the most vocal com-
plainers about this surcharge" but because Smith quit the week after the
surcharge was instituted, Chapman was the only driver continuing to
express concerns. J.A. 191. Smith did not complain to Derrick or Marntin
until after he quit. Smith said he quit "because of the fuel surcharge" and,
indeed, nothing in his testimony indicates he complained to anyone at the
Company about calculation of the surcharge. J.A. 62-63.
32 PIESTER v. NLRB
But, here again, "the issue" referenced by the Board was the
drivers’ resentment "about the fuel surcharge," not Chap-
man’s continued complaints about how it was being calcu-
lated vis-à-vis his paycheck. McAlister testified that the
employees talked about "it" everyday — "it" being "the
increase in the surcharge" or the "money being taken out of
their pay." J.A. 79-80. According to McAlister, he "told
[Piester] it wasn’t right for him taking the fuel surcharge out
of the drivers’ pay" and that it "wasn’t fair." J.A. 83. But
nothing in McAlister’s testimony indicated that anyone
besides Chapman had expressed confusion over calculation of
the surcharge or wanted it shown on their pay stub.5 As the
Board acknowledges, the ALJ "found no evidence that other
employees wanted or sought similar changes to their pay
stubs." J.A. 237.
The Board also relied on the fact that "other employees also
had requested that the fuel surcharge information be included
on their worksheets," J.A. 238, to conclude that "[t]he mere
fact that [the other drivers] had not additionally requested that
the information be reflected on their pay stubs, does not
exclude Chapman’s request from the scope of protected con-
certed activity." Id. But the fact that the employees received
the worksheets only bolsters the conclusion that Chapman’s
"purpose" on April 2 did not involve group concerns. The
worksheets allowed each employee, concurrent with receipt of
5
In light of my view of the record in this case, the majority’s citation
to Dayton Typographic, 778 F.2d 1188 (6th Cir. 1985), is unpersuasive.
In that case the only complaint from the employees was having to work
on Saturdays without pay. Here, as discussed, the evidence shows that
Chapman’s complaints leading to his discharge were categorically differ-
ent. Even more pertinent to the finding of concerted action in Dayton
Typographic was the fact that the company put forth no evidence showing
the employees did not continue to be "interested in the Saturday work
issue." Id. at 1192. In the case at bar, the evidence demonstrates that while
the drivers continued to complain about the surcharge, none other than
Chapman had continued to seek explanations of how it was calculated or
asked that it be put on their pay stub.
PIESTER v. NLRB 33
their paycheck, to see the fuel surcharge as it pertained to
their individual loads hauled. Given that the drivers had the
surcharge information on their worksheets and their com-
plaints stopped once it had been explained to them by Der-
rick, there was simply no evidence in the record that, despite
their ongoing private grumblings "about the fuel surcharge,"
any driver other than Chapman was unsatisfied with, or did
not understand, how the surcharge was being calculated.6
Not only is the purpose of Chapman’s discussion with
Marntin, Derrick and Piester on April 2 clear, the only evi-
dence that Chapman intended to act on behalf of the group on
April 2 came from his wholly discredited testimony that he
told a another driver he had been fired "because I was talking
about our money." J.A. 100. That driver expressly disputed
Chapman’s claim, as the ALJ noted:
Chapman’s interest in the outcome of this proceed-
ing — he stood to regain his job with backpay —
may have affected his recollection. For example,
Chapman described a conversation he had with
another driver on April 2, 2007, just after [Piester]
discharged him. Chapman testified that he told this
driver that Piester fired him "because I was talking
about our money." However, according to the other
driver . . . Chapman said he had been fired because
"he got loud in the office."
J.A. 241. There is also no evidence in the record that any of
the other drivers encouraged, endorsed or even knew about
Chapman’s effort on April 2 to have the fuel surcharge shown
on his pay stub.
6
In fact, the most reasonable inference is that the other drivers would
not want surcharge information on their pay stubs because, as Derrick
explained, there would be adverse tax and payroll implications to the driv-
ers for doing so. Doing so would not be "in the interest of the employees."
Mushroom Trans. Co., 330 F.2d at 685.
34 PIESTER v. NLRB
A fair reading of the testimony as a whole shows that the
drivers’ continued complaints "about the fuel surcharge" is
simply not the same "activity" in which Chapman was
engaged on the date of his discharge. The record clearly
establishes that Chapman’s purpose on April 2 was to try,
again, to understand for himself how the surcharge was being
calculated and to have it placed on his pay stub. By accepting
the Board’s view that Chapman’s actions on April 2 consti-
tuted "concerted protected activity," the majority effectively
accepts as sufficient evidence, contrary to Krispy Kreme, the
fact that Chapman’s "individualized request for a notation on
his pay stub" might "affect all employees." 635 F.2d at 307.
It reaches this conclusion despite no evidence that his efforts
were "for the purpose of . . . mutual aid or protection," 29
U.S.C.A. § 157 (West 1998), or "for the purpose of inducing
or preparing for group action to correct a grievance or a com-
plaint." Krispy Kreme, 635 F.3d at 307 (internal quotations
omitted). For these reasons I find the Board’s determination
that Chapman was engaged in concerted action to be wholly
unreasonable and I would, accordingly, reverse the Board’s
determination that the company violated § 8(a)(1) on April 2,
2007, either by threatening to discharge Chapman or by actu-
ally discharging him.7
7
Given my conclusion based on the record that Chapman’s complaints
in April were not a continuation of the group complaints at the January
meeting, I disagree with the majority’s characterization of Manimark
Corp. v. NLRB, 7 F.3d 547 (6th Cir. 1993). See supra at 15 (distinguishing
Manimark because "while the complaint at issue in Manimark was one
shared by other employees, there was ‘nothing to indicate that [the
employees] had decided to act upon those’ complaints."). Here, not only
is there no evidence showing the employees shared Chapman’s complaints
expressed on April 2, there is no evidence that Chapman "was acting in
anyone’s interest but his own on [April 2]." Manimark, 7 F.3d at 551.