Certified Service, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 360 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certified Service, Inc. and Ralph Hoe. Case 19-
CA-16111
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 23 September 1982 Administrative Law
Judge Thomas E. Bracken issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
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 only to the extent consistent with this
Decision and Order.2
The judge found that the Respondent violated
Section 8(a)(1) of the Act by discharging employee
Ralph Poe because he filed a complaint with the
Occupational Health and Safety Administration of
the United States (OSHA). We disagree.
The undisputed evidence reveals that Poe acted
alone and in his own behalf in filing his complaint
with OSHA.3 Relying on the Board's decision in
Alleluia Cushion Co., 221 NLRB 999 (1975), the
judge found that Poe's actions were concerted ac-
tivities protected by the Act. However, in our
recent decision in Meyers Industries, 268 NLRB 493
(1984), we held that activities will not be found to
be "concerted" within the meaning of the Act
unless they are engaged in with or on the authority
of other employees. In so doing, we overruled Alle-
luia Cushion and its progeny. Accordingly, for the
reasons fully set forth in Meyers, we find that the
Respondent's discharge of Poe was not unlawful
under the Act, and we shall dismiss this allegation
of the complaint.
I The Respondent has excepted to some of the judge's credibility find-
ings. 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 find no basis for reversing
the findings.
2 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
3 The record reveals that Poe talked to employee Steve Hays about
silver solder fumes before complaining to OSHA about this and other
matters. Hays told Poe that the fumes were causing the headaches Poe
was having, but there is no evidence that Hays was personally concerned
about these fumes, or that Poe's complaint to OSHA was in behalf of
Hays.
270 NLRB No. 67
The judge found that the Respondent violated
Section 8(a)(l) of the Act by threatening employ-
ees with discharge for filing complaints with
OSHA. We agree with the judge for the reasons
which follow. The record reveals that Poe contact-
ed the Cincinnati office of OSHA 8 August 1980 to
complain of certain working conditions at the Re-
spondent's premises. On 14 August 1980 OSHA
conducted an inspection as a result of which the
Respondent was found to have violated the Occu-
pational Safety and Health Act and was fined. On
21 August 1980 Poe and other employees were as-
sembled outside Supervisor Claude Couch's office
waiting for their shift to begin. Couch emerged
from his office and shouted that if he found out
who called OSHA, "they was gone."
We find that Couch's remarks would reasonably
tend to interfere with employees in the exercise of
rights under the Act. Thus, we conclude that
under the circumstances here, including the par-
ticular language used by Couch and the fact that
the remark was addressed to a number of employ-
ees, the assembled employees would reasonably
construe Couch's statement as a threat to retaliate
against employees for jointly filing complaints with
OSHA. We find, therefore, that the Respondent,
through Couch's statement, violated Section 8(a)(1)
of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Certified Service, Inc., Dayton,
Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with discharge, or
other reprisals, for engaging in concerted activities
for their mutual aid or protection.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its plant in Dayton, Ohio, copies of
the attached notice marked "Appendix." 4 Copies
of the notice, on forms provided by the Regional
Director for Region 9, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
4 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
360
CERTIFIED SERVICE, INC.
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 ordered us to post and abide by this notice.
WE WILL NOT threaten you with discharge, or
other reprisals, for engaging in concerted activities
for mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you in the National
Labor Relations Act, as amended.
CERTIFIED SERVICE, INC.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge.
This case was tried at Dayton, Ohio, May 3, 1982. The
charge was filed on November 21, 1980,1 and the com-
plaint was issued July 21, 1981.2 The primary issues are
whether the Company, the Respondent; (a) unlawfully
threatened to discharge employees for contacting OSHA,
and (b) unlawfully discharged Ralph Poe because he en-
gaged in protected concerted activities, in violation of
Section 8(aXl) of the National Labor Relations Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, and the Compa-
ny, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, an Ohio corporation, services and re-
pairs air conditioning compressors at its two facilities in
Dayton, Ohio, where, during the past 12-month period,
it purchased and received at these facilities products,
I All dates are in 1980 unless otherwise indicated.
2 Poe had also filed a complaint with the Occupational Safety and
Health Administration (OSHA), and the Board's Regional Office had de-
ferred to a concurrent investigation by OSHA pursuant to Sec. 11(c)(I)
of that Act. Prior to the completion of the OSHA investigation Poe with-
drew his OSHA complaint against the Respondent, and the Regional
Office proceeded with its procedures.
goods, and materials valued in excess of $50,000 directly
from points located outside the State. The Company
admits, and I find, that it is an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company's two plants, located at 1803 Webster
Street and 2035 Webster Street, are about one-half mile
apart. The president of the Company has his offices at
the 1803 plant, and here the employees work on large
semihermetic used compressors. The 2035 plant works
on smaller, full-hermetic used compressors. There has
been little interaction or transfer of employees between
the two plants. The hours of work are from 8 a.m. to
4:30 p.m., with lunch being from 12 noon to 12:30 p.m.
Ralph Poe, who had started to work for the Company
in February 1978, worked exclusively at the 2035 plant
in 1980. Here he tore down the welded compressors,
cleaned usable parts, and scrapped the unusable ones.
Approximately nine other employees worked at this
plant with Poe. Claude Couch was the longtime foreman
of the 2035 plant, and admittedly a supervisor within the
meaning of the Act. Under Claude Couch was Assistant
Foreman Roy Couch.3
Roy Couch was a long service employee, having been
hired in 1973. In 1974 he had been promoted to the job
of assistant foreman. When Claude Couch was absent
Roy Couch took over the duties of running the shop. In
addition, he had the key to the 2035 plant, opening and
closing it each day. The record is clear and I find that
Roy Couch was a supervisor under the Act when he ran
the 2035 plant in Claude Couch's absences.
B. The Events of August
In early August or late July, Poe protested to Claude
Couch on three different occasions about certain work-
ing conditions in the plant, in which he was tearing
down compressors. Poe complained about a sandblaster
that was blowing sand through the air, a hoist that had a
weak I-beam support, and silver solder fumes that gave
him headaches. Foreman Couch did not respond to Poe's
complaints, but walked away after becoming red in the
face. Poe had previously talked about these complaints
with Assistant Foreman Roy Couch, and then fellow
plant worker Stephen Lee Hays. Hays, who had worked
for the Company since 1973, had informed Poe that he
was getting the headaches from silver solder fumes as he
silver soldered parts. 4
After waiting several weeks for some response from
the Company about his complaints, and receiving none,
Poe telephoned OSHA at its Cincinnati office on August
8. Poe repeated the complaints he had lodged with his
foreman. By a letter dated August 12, Poe received from
a Claude Couch and Roy Couch were not related.
Hays showed Poe a card that came off a compressor, which read
that if a person gets headaches or chest pains while soldering, to see a
physician.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
OSHA a complaint form OSHA 7 that set forth the
three working conditions he had complained of over the
phone, as well as pertinent data about the Company.
(G.C. Exh. 3.)
On August 14, two OSHA inspectors came to the 2035
plant and inspected the facility. Claude Couch was in the
hospital, and Roy Couch was running the plant as the
acting foreman. Roy Couch admitted that Poe had in-
formed him a day or two before the inspectors arrived
that he had called OSHA. Roy Couch called Vice Presi-
dent Donald Groves at the 1803 plant, and informed him
that OSHA was there to inspect the plant. The vice
president advised he would be right down. The inspec-
tors spoke to various employees and took photographs as
they examined the plant over the course of the day. As a
result of the inspection, several violations were found,
and the Company was required to pay a fine.
Claude Couch returned to work on or about August
21, a week after the inspection. Poe, Roy Couch, and
several other employees were sitting on workbenches
about 6 to 10 feet from the office waiting to start to
work at 8 a.m. At this time the foreman came out of his
office, and hollered at Roy Couch asking if he had called
OSHA. When the assistant foreman replied that he had
not, Claude Couch stated that, if he heard who called
OSHA, "they was gone." Poe made no response, but he
heard Roy Couch tell the foreman that "you talk like
somebody with a paper a-hole. Roy Couch then told
the foreman that there was nothing he could do about
the call to OSHA, that it was over with. Claude Couch
then left the 2035 plant, and went to the main office.
When he returned about 10 a.m. Claude Couch forceful-
ly told the assistant foreman that the employees were
now going to have to wear glasses, they would have to
stop smoking, and other changes would be made. When
Roy Couch informed the foreman that he was not going
to tell the employees of these changes, the foreman ad-
vised him that these were things OSHA had required.
Roy Couch was not satisfied and he told the foreman
that "[i]f that's the way you feel about it I'll give the key
to you," and resign as assistant foreman.
When Claude Couch told him to take it up with Paul
and Donald Groves, Roy Couch insisted that Claude
Couch accompany him to the executive office. Here all
four met in the president's office at 1803, and Roy
Couch proceeded to tell the president that he was giving
the plant key back, and they could get somebody else to
be the assistant foreman. Roy Couch then described the
conversation as follows:
And he said, "Well, Roy did you call OSHA?" and
I said "No, I didn't." He said "Now-or I said
"Paul, there ain't nothing you can do about it, it's
over with." I said "Just forget about it." He said,
"Well, I can close it down." I said, "That's up to
you."
Both the president and vice president asked Roy
Couch if he knew which employee had called OSHA,
and he replied that he did not know. He then turned his
key in, resigning his position of assistant foreman. There-
after, he had no more responsibility as a supervisor, but
as a worker, rebuilding compressors.
Following Claude Couch's return from the hospital,
Poe found himself assigned with a bigger workload than
he formerly had. In addition to his duties of tearing
down compressors, and silver soldering, he was assigned
to sanding crankshafts and washing parts. Poe was able
to perform all of his duties, as he "got it all completed
the best I could." Foreman Couch complained to him at
times that he was slow in tearing down, and was not get-
ting enough compressors torn down. As Roy Couch tes-
tified without contradiction, following the OSHA inspec-
tion he noticed that every time Poe stopped working,
even when he went to the bathroom, the foreman would
holler at him.
On one occasion, a few days after the inspection, Poe
did refuse to perform an additional assignment given to
him by Claude Couch. The new work called for Poe to
paint compressors in a paint booth. Poe explained to the
foreman that OSHA did not want any employee to paint
in the Company's booth because it did not have blow-
proof lights in it, and if one of the nonblow-proof lights
in the paint booth blew up while he was working in
there, "you get burned up." Poe had learned of this dan-
gerous condition in the paint booth from a form he had
received from OSHA, which set forth defective condi-
tions that had to be repaired. C. Couch became red in
the face, but did not insist that Poe use the paint booth,
telling him to go back to the work he had been doing
previously.
Poe was not thereafter ordered to work in the paint
booth again, but other employees were required to do so.
Poe noticed this, and also that the sandblaster was being
used, although it had not been altered so as to meet
OSHA standards. So, several days after the August 14
inspection, he telephoned OSHA again, and reported
these two conditions. OSHA's next inspection was made
on December 1, and this time Poe was not present in the
plant, as he had been discharged.
C. The Forklift Truck
In October, Poe was virtually the only employee
working at the 2035 plant who had not received a certifi-
cate from the Company, authorizing him to operate fork-
lift trucks. Forklifts were used in the plant to lift and
move compressors around the building. Poe asked
Claude Couch to give him the test so that he could be
certified, but no test was given. Subsequently, Roy
Couch asked the foreman if he was going to have Poe
take the forklift truck test, "Because everybody else had
already took one." Roy Couch testified as follows: "He
said, no, Ralph wouldn't be there long enough to drive a
fork truck." Poe never did receive the test, and the
record does not disclose that he ever drove a forklift
truck for the Respondent. 5
5 While the record does not set forth any Company rule that required
an employee to have a certificate in order to operate a forklift truck, it is
undisputed that an employee could not operate a forklift truck until he
had taken a test and received a certificate. It is obvious that an employee
who could operate a forklift was a more valuable employee than one
who could not.
362
CERTIFIED SERVICE, INC.
D. Stephen Lee Hays as Assistant Foreman
On October 13, Hays became the assistant foreman, re-
placing Roy Couch in that position. In early November,
Claude Couch was again in the hospital, and Hays took
over his duties as the acting foreman of the plant. Poe
was working at the tear-down bench, while Roy Couch
was working nearby. The assistant foreman then came
over to the bench and told Poe and Couch that, before
Claude Couch came back to work, they would both be
fired. Poe made no reply, but Roy Couch told Hays that
he talked like somebody with "a paper a-hole."
The above testimony by Poe and Roy Couch is uncon-
tradicted and credited. In relation to Poe's work per-
formance, Hays testified that he had no problems other
than Poe and Roy Couch standing around and talking
for longer periods of time. However, he never reported
this to either the president or vice president, as he as-
sumed they were talking about the work they were
doing.
E. The Events of November 17
1. According to the General Counsel's witnesses
Poe testified that as he drove to work on the morning
of November 17 he heard on his car radio the prediction
that there was going to be a blizzard that day. Sometime
before 12 noon, snow commenced to fall. He was con-
cerned about the snow because his son had gone to
school in the morning with a bad cold, and was not
properly dressed for snow. Poe went to lunch at the reg-
ular period of 12 to 12:30 p.m. At approximately I p.m.
Poe was working at his workbench, while Roy Couch
was helping to tear down compressors. Poe did not have
a backlog of work as the employees were not rebuilding
compressors, but were performing the annual task of
cleaning up the shop by scrapping all junk parts and non-
usable metal, and sending this material to a junkyard.
Claude Couch was in the hospital again, and Hays was in
charge of the plant as the acting foreman. Poe testified
that at approximately 1 p.m. he called Hays over to his
workbench and "told him that if it kept up snowing I
was going to have to pick my son up because he had bad
cold and it was too much for him to walk, about six
blocks home." Poe further told him that he was going to
leave about 2 p.m. because his son got out of school at
2:30 or 2:45.8 At this time, Hays did not answer verbally,
but "He kind of shrugged his shoulders as if to say he
didn't care," and walked away.
Close to 2 p.m., Poe went to the plant office, opened
the door, and saw that Hays was using the telephone.
Poe said to him, "I'm leaving now." At this point Hays
waved to him, which Poe interpreted to mean the acting
foreman was saying good bye. Poe then walked to the
timeclock which was about 35 feet from the office,
clocked out, and left. He did not see Hays come out of
the office or hear him call to him. John Smith, an em-
ployee supplied to the Respondent under a contract with
6 According to Poe, if an employee wanted to leave work early, the
company procedure was "to notify the foreman and let him know"
Manpower, who regularly rode to work with Poe, left
with Poe in the snow.
Roy Couch testified that it was snowing pretty hard
before lunch when Poe told him that if it kept snowing
like it was he would have to go get his kid. After lunch,
Poe was tearing down compressors at his workbench for
the junkyard, and Roy Couch was operating a forklift,
bringing compressors to Poe. 7 When about 6 to 8 feet
from Poe's workbench he heard Poe tell Hays, who had
just come out of the grinding room, that he was going to
have to go and pick up his boy if it kept snowing. Roy
Couch did not hear Hays say anything, but saw him
move his shoulders and walk on.
Around 2 p.m. Roy Couch saw Poe go to the office
door, which was about 30 feet from him and he heard
Poe holler to Hays that he was leaving. Roy Couch then
saw Poe punch out and leave with the employee from
Manpower. Earlier he had seen Hays go to the machine
which "John," the man from Manpower, was operating,
and tell him to turn his machine off, as he would have to
go home with Poe that day, because he could not take
him home that night.
About a half hour later, Hays came out of his office
and picked up Poe's timecard, then came over to Roy
Couch, and told him that he was going to fire Poe for
leaving. Roy Couch replied that if he were Poe he could
call the Labor Board. The acting foreman then asked
Roy Couch if he was threatening him, and Roy Couch
replied that he was not. Roy Couch further testified that
Hays never approached Poe in this period of time and
said to him that he and Hays should go into the office
and discuss the situation.
Roy Couch testified that the procedure in effect at the
Company when a person wanted to leave early was to
come tell the foreman, or acting foreman in the fore-
man's absence, that he was leaving, without giving a
reason. The foreman had the discretion to disallow this
action of the employee. Roy Couch testified that he
never gave Claude Couch a reason when he wanted to
leave early and, while he was in charge of the shop as
acting foreman, no employee who informed him that he
was leaving early ever gave him a reason.
2. According to the Respondent's witnesses
Hays testified that the snow started to fall about 11
a.m. on that day, and thereafter he talked to Poe two
times. The first time was right after lunch, going on I
p.m., when he was walking through the shop. He saw
Poe looking out the window at the snow that was
coming down when "Poe said he was going to leave at
two o'clock." When asked if he made any statement to
Poe, Hays answered, "At that time I told him I didn't
believe so and I just went on as I was walking by. I
didn't stop to talk to him." The assistant foreman did not
believe that any other employee was in the vicinity.
According to Hays the second conversation took place
as follows:
On direct testimony R. Couch testified that he was standing beside
Poe On cross-examination, the former assistant manager stated that he
was on his forklift I regard this as a clarification. not a contradiction.
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well almost at one o'clock, right around there, as I
was moving back and forth through the shop
coming from the back to the front he was close to
his work area and he hollered at me a good fifteen
or so away that he was going to leave again at two
o'clock. And at that time I told him I didn't think
so that the snow wasn't that bad outside that I had
just been out at noon time to get my own lunch and
it didn't-it wasn't going to be that much of a
snow. s
Hays went on that "right soon after that" Manpower
employee John Smith came to his office and asked if he
could leave. Smith told him that he would have a 2-mile
walk in the snow to his house if he left by himself, "and
that he was riding with Ralph and if Ralph was leaving,
could he leave too." Hays further testified "and I told
him Ralph was not going to leave, that there was plenty
of work to be done and that if he wanted to leave he
could go on. He had already put in the time. I couldn't
reasonably make him stay."
Hays further testified that he had never had a situation
arise like this one, as it had been standard policy for an
employee who wanted to leave early to go to the fore-
man, tell him he had a problem and what the problem
was, and ask permission to leave. "So I called for a little
bit of help, because, like I said, I had never run across
anything like this before, so I called Don, since Claude
was in the hospital." Hays then explained to the vice
president that Poe has said he was going to leave. When
Donald Groves asked him if there was any work, Hays
told him that there was plenty of work. Hays then stated
the answer given by the vice president: "And he said if
he intends on leaving and there's work to do, tell him
that if he leaves that that's his job and if we want him to
come back to work we'll call him." Hays also testified
that Donald Groves told him to find out why he wanted
to leave. Hays then testified:
I went out from the office just as I was getting
ready to get off the phone, and Ralph stuck his
head in the outer office and told me to hurry up,
that he was getting ready to leave. It was just a few
minutes until two o'clock.
Hays said he then hung up the phone from talking to
Donald Groves, and went out to the buildup area, where
Roy Couch was working, and asked Poe to come in the
office, so that they could talk. Poe refused. Hays then
asked him to go to the back, "away from the guys" so
that they could talk.9 When Poe refused, Hays told Poe
that "if he left that he'd be gone and we'd call him back
if and when we wanted him to come back to work."
Hays went into his office, but returned in a few minutes
where he saw Poe and R. Couch talk for about 8 to 10
minutes. Poe then left and Hays went about his job.
While Hays did not see the Manpower employee go out
8 On cross-examination Hays admitted that he told the NLRB investi-
gator that he did not reply, as he had other things to do, so he left the
area.
* Hays furnished no names of any employees he was referring to as
guys.
the door with Poe, he admitted that he did not see Smith
after 2 p.m.
Hays admitted on cross-examination that he made the
remark about the snow not being that bad, because he as-
sumed that Hays wanted to leave "because the snow was
too bad for him to get up the hill to his house." The
acting foreman admitted that, if Poe had told him that
was the reason he wanted to leave early, it would have
been a sufficient reason for leaving work early.
Donald Groves was asked on direct examination if he
received a telephone call from Hays on Novenber 17.
After he answered that yes, he had, he was asked:
Q. Do you recall what that conversation was
about?
A. Basically, it started out as a general call to
find out how things were going because I knew he
had only been doing what he was doing for a short
period of time. And he commented that he was
having trouble with one of the employees that
wanted to leave. During the discussion on the
phone I heard Ralph Poe come to the door and
scream that he was leaving. And Steve said, "Just a
minute." And he said "If you want to talk to me,
hurry up." And with that the door slammed. And I
asked Steve what was going on and he told me.
And at that time I told Steve, you know, did he
have a reason or give you a reason for leaving and
he said no. And so I suggested to him that he talk
to him or call him aside and see what his reason
was. If it was an emergency, there is nothing we
can do about it. But if there's no reason at all and
we had work for him, to ask him to stay and advise
him that if he left he wouldn't be returning.
He was then asked if he met with Hays later that day,
and he replied as follows:
Yes, he brought me the card after he was up-
after Ralph and left and at that time he said he tried
to talk to Ralph and asked hin to come to the office
and Ralph refused. He also asked him to go in the
back of the shop and he wouldn't. And then he also
said the only time he would talk to him was right
there at that time. And Steve told him that if he left
he would be laid off and only called back if he was
needed.
F. The Events of November 18
On November 18, Poe reported to work at 8 a.m., and
he noticed that his timecard was not in its slot.10 He
then asked Hays where his timecard was, and was in-
formed that Don Groves had it at the 1803 office. Poe
then got into his car and drove to the main office. Here,
he asked the vice president why he had his timecard.
When asked if Donald Groves responded, Poe testified
as follows:
'0 On driving to work he observed that the streets were pretty clear of
snow, and that there was 6 to 8 inches of snow in yards.
364
CERTIFIED SERVICE, INC.
Yes, he said you just can't leave whenever you feel
like and, uh, whenever you feel like it. And I asked
him was I fired and he shook his head and said, yes.
Q. What did you do then?
A. Well, rather than be in an argument or some-
thing, I left.
On cross-examination, Poe admitted that he could not
remember if Donald Groves asked him why he had left
on the previous day, stating he was mad at the time and
figured it would lead to an argument.
Donald Groves, when asked if he met with Poe on
November 17 testified as follows:
A. Yes, he came in early in the morning shortly
after stopping down the street and he come to me
and asked if he had lost his job. And, I told him,
ask him if he had got permission from Steve to
leave and he said he did. And I said, Steve said he
didn't. I said did you talk to Steve and he said
Steve never asked to talk with me. And I then com-
mented that I was on the phone and heard him
scream to Steve that he was leaving and asked
Steve to talk to him. And told him that Steve had
asked him three times to talk to him and Steve said
that he wouldn't. And with that Ralph had nothing
to say, got up and left.
Donald Groves further testified that, if Poe had given
him a reason on November 18 for his leaving on the pre-
vious day, he would not have fired him. The vice presi-
dent also testified that, in the 20 years he had worked for
the Company, only one employee other than Poe had
ever been fired, and that was so long ago he could not
remember that employee's name.
G. Credibility
The facts in this case as far as the events that occurred
prior to November 17 are not in dispute, as the testimo-
ny of the General Counsel's witnesses is uncontradicted.
This is largely due to the fact that Claude Couch, the
foreman of the plant, did not testify, although he was
still working for the Respondent at the time of the hear-
ing. In fact, the president of the Company testified that
he assumed Claude Couch was at work on the day of the
hearing. I therefore draw the inference that Respondent's
unexplained failure to produce this witness was for the
reason that the witness' testimony would have been ad-
verse to the Respondent. Martin Luther King, Sr. Nursing
Center, 231 NLRB 15 (1977); G. C. Murphy Co., 223
NLRB 604 (1976), enfd. 550 F.2d 1004 (4th Cir. 1977).
The General Counsel's witnesses Ralph Poe and par-
ticularly Roy Couch impressed me as sincere, straightfor-
ward minimally educated laborers telling the truth as
best they could remember it, and I credit their testimony.
Also, they withstood searching cross-examination, while
the hearing was conducted under the rule of exclusion of
witnesses.
The Respondent's witnesses Hays and D. Groves did
not impress me as witnesses in whose testimony I could
have confidence, as to its accuracy or reliability. Rather,
I received the strong impression that they were advo-
cates trying to furnish answers that helped the Respond-
ent's cause, rather than trying to state the facts as they
actually remembered them. I also found much of their
testimony to be implausible. I have therefore credited the
testimony of Poe and Roy Couch where there is a con-
flict with the testimony of Hays and D. Groves.
H. Discussion and Conclusions
The record is uncontradicted that Poe complained to
Supervisor Claude Couch about what he perceived to be
three different dangerous working conditions in the plart.
It is also clear that he contacted the Cincinnati OSHA
office and filed a complaint against the Company for
what he considered to be uncorrected safety violations at
the 2035 plant. It is established that when an employee
speaks up and seeks to enforce statutory provisions relat-
ing to occupational safety designed for the benefit of all
employees such activity is concerted and is protected by
Section 7 of the Act. Hotel & Restaurant Employees Local
28, 252 NLRB 1124 (1980); Alleluia Cushion Co., 221
NLRB 999 (1975).
Thus on August 21, after C. Couch had returned from
the hospital to the plant and learned of the recent OSHA
inspection, he was an obviously angry man. After he
questioned Roy Couch as to whether he had contacted
OSHA and was told no, he let out an ominous threat to
the assembled employees. His shop language words, that
if he found out who called OSHA "they was gone,"
were plainly coercive and a threat of reprisal, and would
reasonably tend to interfere with the employees' exercise
of Section 7 rights in violation of Section 8(a)(1). Provi-
dence Medical Center, 243 NLRB 714 (1979); Seneca
Foods Corp., 244 NLRB 558 (1979).
The Respondent contends in its brief that the Compa-
ny did not know that Poe had filed a complaint with
OSHA until November 24, when it received from the
Board the charge filed by Poe with the Board on No-
vember 21.' I find that the weight of the evidence con-
tradicts this position. Several weeks before the August 14
OSHA inspection, Poe, on three separate occasions, had
complained to Claude Couch right in the plant about
what he regarded as unsafe working conditions. This is
uncontradicted and certainly the veteran and very loyal
company foreman would remember just which employee
had angered him by pointing out what the employee re-
garded as dangerous working conditions. While C.
Couch made no verbal response to Poe's complaints, he
obviously showed his ire by becoming red in the face,
and walking away without making any comment whatso-
ever. The foreman apparently was of the old school that
an employee should be glad to have a job, any job, and
not complain about working conditions. However, Con-
gress, in enacting the National Labor Relations Act, and
the Occupational Health and Safety Act, gave this right
to employees, with safeguards provided when this right
is exercised.
" This charge, G C. Exh. I(a), stated succinctly under basis of the
charge, "On or about November 18, 1980, the above-named Employer
discharged Ralph Poe because he filed complaints with OSHA concern.
ing unsafe working conditions."
365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Then when C. Couch returned from his stay in the
hospital about a week after the initial OSHA inspection,
he made his first order of business an inquiry of Roy
Couch as to whether he had called OSHA. When the as-
sistant foreman denied that he had done so, Claude
Couch showed his anger at the whole concept of anyone
reporting unsafe working conditions in the plant to
OSHA, by yelling that if he learned which employee had
called OSHA "they was gone."
On the same day, the then president of the Company,
Paul Groves, showed his intense anger at the employee
who had reported the Company to OSHA, when Roy
Couch advised him to forget about trying to learn who
reported the Company to OSHA. The president's caustic
reply that he could close the plant down is illustrative of
the bitterness that the president felt over what he obvi-
ously regarded as disloyalty to the Company.
The finger of guilt overwhelmingly fixed on Poe when
he refused C. Couch's order to paint compressors in the
paint booth. Poe let the foreman know in clear terms
that OSHA did not want any employee to use the Com-
pany's paint booth because it did not have blowproof
bulbs in it, and that the use of nonblow-proof lights in it
subjected an employee to the chance of being severely
burned. The foreman again became red in the face at
Poe's words, but did not comment on how Poe came to
have such information. OSHA had sent a form to the
Company listing the defects it had discovered at its Oc-
tober 14 inspection, and obviously Poe had a copy there-
of, as did Claude Couch. The foreman backed down and
did not order Poe to paint in the paint booth. I draw the
reasonable inference that Claude Couch then reasoned
that this same Poe was the employee who had filed the
complaint with OSHA, as he had verbally complained
on three occasions to him about safety matters prior to
the OSHA visit, and now he was stating a plant violation
that OSHA had found shortly before, when a plant in-
spection had been made. Tapper Co., 228 NLRB 1389
(1977).
I also find that the Employer knew of Poe's activities
with OSHA, as the small size of the plant sustains an in-
ference of employer knowledge that he was the contact
employee. There were only 10 employees at the 2035
plant, with all employees working in close contact with
each other. In the summer Poe had openly complained
to Roy Couch and Hays about the sandblaster, the I-
beam hoist, and silver solder fumes. He had subsequently
complained to the foreman about the same three working
conditions, without seeing any change. Claude Couch, as
well as the assistant foreman, was continuously in con-
tact with the work force. Vice President Groves admit-
ted that he was "quite frequently" in contact with his
foreman, and talked to Assistant Foreman Hays about
what was going on in the plant. Claude Couch vindic-
tively wanted to uncover the employee who contacted
OSHA, when he predicted that when he found out that
person would be fired. President Groves sought the same
information and was so angry at the unknown informer
that he threatened to close the plant down because of the
OSHA inspection in the Respondent's plant. The small-
ness of the plant, coupled with Poe's open complaints
about what he regarded as unsafe working conditions,
and the close supervision, makes it likely the Employer
knew of Poe's activity, and I so find. Webco Bodies, Inc.,
238 NLRB 1213 (1978), enfd. 595 F.2d 451 (8th Cir.
1979); Eastern Steel Co., 253 NLRB 1230 (1981).
Applying the precepts of Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (Ist Cir. 1981),12 it is evident
that the General Counsel has made a prima facie show-
ing sufficient to support the inference that Poe's activity
in filing a complaint with OSHA was a motivating factor
in his termination.
The record is clear that the Respondent had strong
hostility for the employee who had reported it to OSHA,
as Foreman Claude Couch's threat of discharge showed,
as well as President Groves' statement that he could shut
the plant down if he did not find out who reported the
Company to OSHA. At the latest, the Respondent had
knowledge in late August that Poe was the employee
who reported the Company to OSHA, when Poe refused
to go into the Company's paint booth and paint a com-
pressor because, as he told Claude Couch, OSHA had
found it to be dangerous.
The record also discloses that Poe was a reasonably
competent employee. Roy Couch, who was the assistant
foreman over Poe for many years, described Poe as an
employee whose quality of work was fair, as were also
his work habits.'3 He also stated that Poe's attendance
was good, and that he did not leave early as a matter of
practice. Hays admitted that he had no complaints about
Poe's work during the month he was assistant foreman
except for conversations he held with Roy Couch.
Also, in support of the General Counsel's case, is the
ominous prediction that Claude Couch made in early Oc-
tober that Poe would not be with the Company long
enough to drive a forklift truck. Then, in November,
Hays, who had been an assistant foreman for approxi-
mately I month, but who was at the time the acting fore-
man as Claude Couch was again in the hospital, added
his prediction that before Claude Couch came back to
work both Poe and Roy Couch would be fired.
It is also clear that the Company had a very relaxed
policy as to the discharge of an employee. In the 20
years prior to Poe's discharge only one other employee
had ever been discharged, and that for a reason lost in
antiquity.
I turn now to the reason offered by the Respondent
for Poe's discharge, to rebut the General Counsel's case.
It is the Respondent's position that Poe was discharged
for the sole reason that he did not have permission to
leave work when he left the plant on November 17. As
set forth below, I find that this reason does not stand
scrutiny.
There is no doubt that it was snowing during the
lunch period of the Respondent's employees on Novem-
ber 17. It is also unchallenged that the employees were
I' The General Counsel states in his brief that the Respondent's reason
for discharging Poe was clearly pretextual, and therefore it is unneces-
sary to view this case in terms of Wright Line. The Respondent in its
brief contends that the test to be applied is that of Wright Line. I have
proceeded along the test set forth in Wright Line.
's Roy Couch also classified his and Claude Couch's quality of work
as fair.
366
CERTIFIED SERVICE, INC.
not working on any jobs of immediate importance to any
customer, but were in fact performing the annual chore
of junking old metal and parts that had been lying
around the plant for some time. Thus, after lunch, it was
in a relaxed work atmosphere as Poe looked out at the
falling snow, and told Hays that if it kept snowing he
would have to leave about 2 p.m. and pick up his son. I
credit both Poe's and Roy Couch's testimony that they
did not hear any reply from Hays. I do not credit Hays'
testimony that he replied that he did not believe so, and
just kept walking. Such a reply would be totally out of
character with Hays' subsequent testimony that he would
have given Poe permission to leave early, if Poe had told
him he had to leave so as to get his car up the hill to his
house, before the snow got too bad.
However, accepting Hays' testimony that at some
point that afternoon he replied to Poe that the snow was
not so bad outside, even though he claimed Poe had not
mentioned snow to him, certainly points out that Hays
knew that Poe wanted to leave because of the snow. Yet,
Hays' testimony would require that he thereafter subtly
tried to extract from Poe why he wanted to leave early,
by asking him to come in the office to discuss it, and
asking him to go to the back of the plant where the
other employees could not hear their conversation. I find
this testimony incredible as it is totally at variance with
Hays' own immediate recognition that Poe wanted to
leave because of prospective problems with the snow.
Hays' granting permission to John Smith, the employ-
ee from Manpower, to leave at 2 p.m. points up the in-
consistency of the Respondent's discharge of Poe. Roy
Couch's testimony that prior to 2 p.m. he had seen Hays
go to Smith's machine, told him to turn off his machine
as he would have to go home with Poe, was uncontra-
dicted and is credited. Hays admitted that he gave Smith
permission to leave early that day, and that he knew
Smith rode with Poe. Hays' testimony that he could not
"reasonably" have made Smith stay until he had finished
the regular 8-hour day is incredible. The Respondent
failed to submit any written contract or other documen-
tation that would show that a Manpower employee
could leave the plant at will, any time after working 4
hours. Even if the Respondent only had an oral agree-
ment with Manpower as to its respective contractual
rights, the Respondent would have had time records
showing that other Manpower employees had left after
working more than 4 hours and less than 8, when they
desired to do so, if that, in fact, had been company
policy. As testified to by Vice President Groves, the Re-
spondent had used Manpower employees since 1962. One
would expect that to bolster such a contention the Re-
spondent would have offered its business records in evi-
dence. However, without explanation, the Respondent
did not do this. Its failure to do so leads me to believe
that its records would not have supported its position.
Northern States Beef, 226 NLRB 365 (1976), enfd. in per-
tinent part 575 F.2d 658 (8th Cir. 1978); Bechtel Corp.,
141 NLRB 844 (1963).
Finally, we have the contradiction between Hays' ver-
sion of his telephone conversation with Donald Groves
and the vice president's version. Hays testified that he
had never before experienced a situation with an employ-
ee where the employee had told him he was going to
leave, and he had told the employee he did not think so.
Faced with this new problem, Hays called the vice presi-
dent for what he termed, "a little bit of help," as Fore-
man C. Couch was in the hospital. According to Hays,
he started immediately to tell the vice president in detail
about his problem with Poe.
The vice president contradicted Hays' version of this
conversation, in not only his direct testimony, but also
during cross-examination. On direct he was asked if he
had a telephone call from Hays on November 17, and he
replied that he had. He was then asked:
Q. Do you recall what that conversation was
about?
A. Basically, it started out as a general call to
find out how things were going because I knew he
had only been doing what he was doing for a short
period of time.
On cross-examination, he again testified that the con-
versation started about work in the plant and denied
flatly that he and Hays talked about Poe at the beginning
of the conversation. I regard this fundamental contradic-
tion between the vice president and the acting foreman
as evidence of the fabrication of the Respondent's ac-
count of Poe's and Hays' conversations on November 17.
The conference on the following morning between
Poe and Donald Groves was very brief and with a mini-
mum of words. It is true that the record does not show
that Poe gave any reason to the vice president as to why
he had left early. But I find Poe's abrupt leaving to be in
accord with his calling on the United States Government
to help him in his work problems. This he illustrated by
calling OSHA on two prior occasions about what he re-
garded as dangerous working conditions at the plant. He
again illustrated this by going to the Board's Regional
Office 2 days after his discharge and filing a charge
against the Company.' 4
The Respondent argues strenuously in its brief that
"No employer could operate an efficient operation
where employees could leave for no reason and without
obtaining permission even when there was no work to be
performed." However, this misses a point contained in
Roy Couch's testimony, as the leave procedure he de-
scribed contained a safety net for the Company's ability
to operate its business efficiently. The veteran employee,
who for many years had been the assistant foreman,
pointed out that the foreman had the authority to turn
down the employee's request to leave. In the instant case
the credible record does not show that Hays turned Poe
down, but that he silently acquiesced to his leaving, and
Poe had reasonable grounds to believe he had permission
to leave.
From the foregoing I conclude that the Respondent's
stated reason for Poe's discharge was a pretext, and that
Respondent sought to disguise the true motive. When the
4 It is also to be noted that Claude Couch on four occasions made no
response to Poe when he complained to him about safety conditions, but
silently turned away Thus. it is not uncommon fior any people to be at a
loss for words, particularly in a time of stress
367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserted motive is not reasonable as I have so found
herein, then that fact is evidence that the true motive for
discharge is an unlawful one, which the Respondent
seeks to conceal. 15
Finding that the alleged reason for Poe's termination
was false, I infer that the true motive was because he
was viewed by the Respondent as the employee who re-
ported it to and filed the complaint with OSHA, and the
Company wanted to rid itself of this disloyal employee.
Accordingly, I find that the Respondent's discharge of
Poe for engaging in protected concerted activity violated
Section 8(a)(1) of the Act. Farmland Soy Processing Co.,
263 NLRB 237 (1982).
CONCLUSIONS OF LAW
1. Certified Service, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. By discharging Ralph Poe on November 18, 1980,
because of his engaging in protected concerted activities,
'1 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d (9th Cir., 1966);
First National Bank of Pueblo, 240 NLRB 184 (1979).
the Company engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
3. By threatening employees with discharge for con-
tacting the Occupational Safety and Health Administra-
tion of the United States Government, the Company vio-
lated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having unlawfully discharged Ralph
Poe, I find it necessary to order it to offer him reinstate-
ment and make him whole for lost earnings, and other
benefits, computed on a quarterly basis from date of dis-
charge to the date of a proper offer of reinstatement, less
any net interim earnings, in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as comput-
ed in Florida Steel Corp., 231 NLRB 651 (1977). See gen-
erally Isis Plumbing Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]
368