Vic Tanny International, Inc. v. National Labor Relations Board

622 F.2d 237, 104 L.R.R.M. (BNA) 2395, 1980 U.S. App. LEXIS 17482
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 16, 1980
Docket77-1709
StatusPublished
Cited by31 cases

This text of 622 F.2d 237 (Vic Tanny International, Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vic Tanny International, Inc. v. National Labor Relations Board, 622 F.2d 237, 104 L.R.R.M. (BNA) 2395, 1980 U.S. App. LEXIS 17482 (6th Cir. 1980).

Opinions

EDWARDS, Chief Judge.

Petitioner Vic Tanny International, Inc., seeks this court’s review and the vacation of a National Labor Relations Board order, reported at 232 N.L.R.B. No. 57 (1977). The Board filed a cross-petition for enforcement of its order. The facts upon which this decision turns are not in any substantial dispute, but the inferences to be drawn therefrom and the application of law thereto certainly are.

Vic Tanny operates one of its 10 health spas in the Detroit area in the City of Livonia, Michigan. In May 1976, four female instructors at the Livonia spa became involved in a dispute with John Baker, manager of the Livonia club. The dispute ultimately led to three of the four instructors being discharged. It is undisputed that the four employees refused to perform certain assigned work and left the premises together to carry their grievances over this issue to the area manager who was located at the Vic Tanny area office in Dearborn.

After a hearing before an Administrative Law Judge, the ALJ found that the three discharged employees were fired for “insubordination” and that their preceding walkout played no role in motivating the discharges. The NLRB unanimously concluded that the ALJ erred in his conclusion concerning motivation of the discharges and held that the discharges were motivated “at least in part by employees’ participation in the May 24 walkout.” The Board’s decision presents the essential facts for our consideration as follows:

“Respondent operates 10 physical fitness clubs in the Detroit metropolitan area. The events herein occurred at its facility in Livonia, Michigan. On May 24, 1976, instructor-employees Rochelle Reagan, Debbie Mitchell, Linda Szabo, and Janet Lange walked off their jobs allegedly in protest against Respondent’s decision to require them to pick up payroll checks and supplies at its headquarters in Dearborn, Michigan, 14 miles away. Thereafter, Reagan, Szabo, and Lange were discharged.
* * * * * *
[239]*239“As noted above, Respondent’s Dear-born, Michigan, facility served as headquarters for all 10 clubs in the Detroit metropolitan area. On Monday of each week, each facility would designate one employee to travel to headquarters in order to pick up supplies and paychecks. Prior to May 24, 1976, selection of an employee for the Dearborn trip at the Livonia facility was made on a strictly voluntary basis. The trip was not a sought-after assignment and the employees displayed a general reluctance to volunteer for the trip even though it meant receiving an additional half hour’s pay. Indeed, Reagan, Szabo, and Lange were so dissatisfied with the arrangement that employee Debbie Mitchell ended up making the trip on a fairly regular basis.
“In the opinion of Livonia Club Manager John Baker, the primary reason for the employees’ dissatisfaction lay in the voluntary nature of the Dearborn assignment. Accordingly, in order to remedy this situation, Baker decided to assign employees to the Dearborn trip on a rotating basis, with each employee traveling once every 4 weeks. Allowances would be made for special unforeseen circumstances.
“On May 21, 1976, Baker conducted a meeting and explained the rotating schedule to the employees. They vociferously protested the decision, but to no avail. It also appears that the issue of these instructor-employees assisting in cleanup duty when the maids were absent was debated.
“On Monday, May 24, the roster for the Dearborn trip was posted and Assistant Manger Mary Kopka informed Reagan that she was responsible for making the trip that day. Reagan refused to go, whereupon Kopka requested that she discuss the matter with Baker. During the ensuing conversation with Baker, Reagan remained adamant in her refusal to go to Dearborn. In response thereto, Baker suspended Reagan for the remainder of the day.
“Following this discussion, Reagan went to the club’s coffee room and there disclosed the outcome of her discussion with Baker to her fellow instructors. It was agreed that the four employees would walk off their jobs and go to Dear-born in an effort to resolve the conflict with Baker’s superior, Area Supervisor William McDowell.
“At Dearborn, the four employees met with McDowell and aired their grievance. McDowell advised them that they were wrong to walk out and that their action rendered them subject to discharge. He recommended that they return to Livonia and attempt to straighten out the matter with Baker. McDowell also told Baker, by telephone, that they were all subject to termination and action was up to Baker’s discretion.
“Upon their return to the Livonia club, Reagan asked Baker to speak to the girls as a group. Baker responded that he would speak with them but on an individual basis. During Baker’s conversation with Reagan, Reagan produced and read from a list of grievances which included both the trips to Dearborn and the supplemental maid duties. When Reagan continued to refuse to perform either of these two functions, Baker informed her that she was discharged. Szabo likewise refused to perform either function and as a result was terminated. Lange agreed to travel to Dearborn but refused to engage in cleaning work. Baker informed her that he would consider her position and then advise her of his decision. Later that evening, Baker contacted Lange and notified her that he could not retain her under the conditions she proposed and that she was therefore terminated. Mitchell agreed to perform both functions and was retained. The termination reports for Lange and Szabo indicate that their discharges were the result of insubordination and because they, respectively, ‘walked out’ and ‘walked out on job.’ ” (Footnotes omitted).

After reciting these facts, the Board reasoned as follows:

“In view of the above, the issues before us are: (1) was the May 24 walkout pro[240]*240tected concerted activity; and (2) if so, was Respondent’s conduct in discharging the employees motivated by the walkout. If both questions are answered in the affirmative, then a violation must be found.
“The General Counsel contends that the Administrative Law Judge should have concluded that the walkout was protected concerted activity. We agree. Under the circumstance of this case, the spontaneous banding together of employees in the form of a work stoppage as a manifestation of their disagreement with their employer’s conduct is clearly protected activity. N. L. R. B. v. Washington Aluminum Company, Inc., 370 U .S. 9 [82 S.Ct. 1099, 8 L.Ed.2d 298] (1962); General Nutrition Center, Inc., 221 NLRB 850 (1975).
“We also find evidence to support the General Counsel’s contention that the discharges were motivated, at least in part, by the employees’ participation in the May 24 walkout. First, Respondent’s officials commented that the employees laid themselves open to discharge for walking off the job. Second, the information set forth in the termination reports for both Lange and Szabo reveals that their discharges were the result of both insubordination and having walked off the job. We find such notations sufficient to establish that the employees’ walkout — a protected concerted activity — precipitated the discharges.

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Bluebook (online)
622 F.2d 237, 104 L.R.R.M. (BNA) 2395, 1980 U.S. App. LEXIS 17482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vic-tanny-international-inc-v-national-labor-relations-board-ca6-1980.