Franklin Iron & Metal Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 819 (N.L.R.B. 1994)

819
315 NLRB No. 120
FRANKLIN IRON & METAL CORP.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 judge’s findings.
In challenging the judge’s crediting of Charging Party Hill’s testi-
mony, the Respondent points out that Hill is a convicted felon. Our
review of the transcript reveals that during cross-examination Hill
admitted having pled guilty, within the previous 10 years, to the fel-
ony of carrying a concealed weapon. While the judge does not refer
to Hill’s conviction in his decision, he acknowledged on the record
the relevance of such conduct for purposes of impreachment under
Rule 609 of the Federal Rules of Evidence, and presumably took it
into account in assessing Hill’s credibility. We note further that
Hill’s testimony is in substantial part corroborated by Charging Party
Gunter. Thus, we find that the evidence of Hill’s felony record pro-
vides no basis for reversing the judge’s reliance on Hill’s testimony.
The Respondent also excepted to the judge’s decision on the basis
that it is the product of bias and prejudice. Our review of the entire
record in this proceeding reveals no evidence that the judge pre-
judged the case, made prejudicial rulings, or demonstrated either bias
toward the Charging Parties or prejudice against the Respondent in
his analysis or discussion of the evidence.
2 We deny the Respondent’s motion to supplement the record with
time records for Charging Parties Hill and Gunter covering a period
of several months during 1992. While it appears from the record that
these documents were offered into evidence during the hearing, the
Respondent neglected either to provide copies to the reporter for in-
clusion in the record or subsequently to submit them to the judge
prior to the issuance of his decision. It would be inappropriate in
these circumstances for the Board to consider evidence that was not
available to the judge. In any event, these documents pertain to an
allegation of the complaint that is not in issue before the Board, i.e.,
that the Respondent unlawfully reduced the Charging Parties’ hours
of work. Inasmuch as the judge dismissed this allegation and neither
the General Counsel nor the Charging Party has filed exceptions
thereto, the matter is moot.
We also deny the Respondent’s motion to admit into the record
certain internal company memoranda that were appended to its brief
in support of exceptions. The Respondent made no attempt during
the hearing to introduce these documents and there is no suggestion
that they were unavailable to the Respondent at that time.
Franklin Iron & Metal Corp. and Ronald L. Hill
and John Gunter. Cases 9–CA–30457–1 and 9–
CA–30457–2
December 16, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On August 3, 1994, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Franklin Iron & Metal
Corp., Dayton, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
David Ness, Esq., for the General Counsel.
Mark R. Chilson, Esq., of Dayton, Ohio, for the Respondent.
John J. Heron, Esq., of Dayton, Ohio, for the Charging Par-
ties.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On
charges filed by Ronald L. Hill and John Gunter on March
4, 1993, and amended charges filed by them on March 26,
1993, the Regional Director for Region 9 of the National
Labor Relations Board (the Board) issued a consolidated
complaint on April 15, 1993, alleging that Franklin Iron &
Metal Corp. (the Respondent) committed certain violations of
Section 8(a)(1) of the National Labor Relations Act (the
Act). The Respondent filed a timely answer denying that it
had committed any violation of the Act.
A hearing was held in Dayton, Ohio, on August 9 and 10,
1993, at which all parties were given a full opportunity to
participate, to examine and cross-examine witnesses, and to
present other evidence and argument. Briefs submitted on be-
half of the parties have been given due consideration. On the
entire record and from my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation
engaged in the operation of a scrap metal yard and recycling
center at Dayton, Ohio. During the 12-month period preced-
ing April 1993, the Respondent, in the course and conduct
of its business operations, sold and shipped from its Dayton,
Ohio facility goods valued in excess of $50,000 directly to
points outside the State of Ohio. The Respondent admits, and
I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Rules Prohibiting Discussion of Wages and Unions
Charging Parties Hill and Gunter were employed by the
Respondent as truckdrivers and picked up containers of scrap
metal from customers at various locations and delivered them
to its yard. Hill testified that when he was hired in Septem-
ber 1989 he was told by Harold Edelman, the plant manager
at the time and the brother of Company President Jack
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Hereinafter all dates are in 1992.
Edelman, that there was to be no discussion of wages or
union activity among the employees and that violation of
these rules could lead to termination. He also testified that
when he was given a wage increase in June 1992, current
Plant Manager Donald Stamp told him to keep it to himself
because not everyone got the same type of raise. Gunter
testifed that when he was hired in August 1987 Harold
Edelman told him not to discuss how much he was paid and
not to discuss unions ‘‘because it wasn’t a union company.’’
During August 1992, when he questioned Stamp about a less
senior driver receiving a higher wage rate than his, Gunter
asked why the drivers were not allowed to discuss their
wages and why wage rates were not posted. Stamp answered
that it was ‘‘their policy’’ not to post wage rates or to allow
the drivers to discuss their wages.
Stamp, the only company official to testify at the hearing,
said that the Respondent did not have any rules prohibiting
employees from discussing unions and that in his over 12
years with the Company no employee had ever been dis-
ciplined for discussing unions. He testified that no employee
had ever been counseled or warned for discussing wages and
he denied saying anything about discussing wages to Hill or
Gunter in June 1992 or thereafter. On cross-examination, he
was asked to give an example of the rules and regulations
that he said were read to employees when they were hired
and he answered: ‘‘The first one off is employee’s wages are
to be kept personal with management.’’ He went on to say:
‘‘All we asked is that they would be kept personal—between
management and themselves.’’ He also said that he had ob-
served employees talking about wages among themselves and
had taken no action.
Analysis and Conclusions
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by maintaining oral rules prohibiting em-
ployees from discussing their wage rates with other employ-
ees and prohibiting them from engaging in union activities.
In its brief the Respondent argues that there is no evidence
that such rules existed and that Stamp’s testimony establishes
that they did not. I find that the credible testimony of Hill
and Gunter as to what they were told when they were hired
establishes that these rules did in fact exist. Even if it were
credited, Stamp’s testimony that no one had been disciplined
for violating these rules during his tenure with the Respond-
ent does not prove that the rules did not exist. His contradic-
tory testimony that there was no rule prohibiting employees
from discussing their wages but that they were ‘‘to be kept
personal with management’’ indicates such a rule was in
force and serves to undermine his credibility. I find that the
Respondent did have an oral rule prohibiting its employees
from discussing their wages among themselves and that the
Respondent did not establish any business justification for
such a rule. I also find that the evidence establishes that it
had a rule prohibiting employees from discussing unions
punishable by termination, which in effect prohibited them
from engaging in union activity.
It makes no difference whether the employees were
‘‘asked’’ not to discuss their wage rates or ordered not to do
so. Nor does it matter if the rule was unenforced or
unheeded. In the absence of any business justification for the
rule, it was an unlawful restraint on the rights protected by
Section 7 of the Act and violated Section 8(a)(1). Radisson
Plaza Minneapolis, 307 NLRB 94 (1992); Waco, Inc., 273
NLRB 746 (1984). The Respondent presented no evidence of
a legitimate business purpose for its rule against talking
about unions. Maintaining that rule also violated Section
8(a)(1). Columbus Mills, 303 NLRB 223, 229 (1991); Cave
Springs Theatre, 287 NLRB 4, 8 (1987).
B. Other Allegations
On August 6, 1992,1 while at a recycling plant, Hill and
Gunter encountered and had a conversation with Randy
Locks, who was formerly employed by the Respondent as a
truckdriver. During the course of the conversation Locks
mentioned that he was being paid $10 an hour in his new
job and that he had been paid $8 an hour when employed
by the Respondent. A short time later Hill and Gunter re-
turned to the Respondent’s yard and discussed what Locks
had told them and the fact that neither of them was making
as much as $8 an hour although both had been employed by
the Respondent longer than Locks had been. Both Hill and
Gunter are African-Americans and Locks is white. They dis-
cussed the possibility that the pay discrepancy was racially
motivated and decided that they would speak to Stamp about
it at the end of the workday.
A short time later Stamp rode up on a bicycle and Gunter
got out of his truck and asked to speak with him. As he put
his bicycle aside Gunter walked over to him, about 15 feet
away from Hill, and began speaking to Stamp about wage
discrimination. He testified that he did so rather than waiting
until the end of the workday, as he had discussed with Hill,
because he was upset and wanted to talk to Stamp right
away. Gunter told Stamp that he knew that some drivers who
had been there less time than he had were getting more per
hour than he was. Stamp replied that he knew that things
were not particularly right and that he was going to talk to
Jack Edelman about them. Hill left the yard shortly after
Gunter began speaking to Stamp. An hour or two later Hill
spoke with Stamp in the yard. Hill asked why, if all employ-
ees were doing the same job, one who had been there less
time was being paid more than someone who had been there
longer. Stamp’s first response was: ‘‘Oh God, I think you
been talking to John.’’ Hill replied that Gunter had been
present when he learned about the wage discrepancy and that
they were going to speak to him together. Stamp told him
that some drivers who had been there less time had threat-
ened to quit and they had been given more money in order
to keep them and avoid having to hire and train new drivers.
Stamp said that he would speak to the company president
and see if he could get Hill’s and Gunter’s wages increased.
He also said that Gunter had said that he felt their wage dis-
crepancy was racially motivated and he wanted Hill to know
that he was not prejudiced and that Hill should not feel that
way.
As they were clocking out that evening, Hill and Gunter
discussed their conversations with Stamp in which he prom-
ised to speak to Edelman and they decided to wait and see
what Edelman would do. When nothing happened, in early
September after Hill returned from vacation, he met with
Gunter at a restaurant where they discussed the possibility of
filing a complaint with the Ohio Civil Rights Commission
(OCRC). Hill called and made an appointment for himself
821FRANKLIN IRON & METAL CORP.
2 The only differences in the wording of their charges concerned
their dates of hire.
and Gunter to meet with an OCRC investigator. October 9,
the date of their appointment was a workday. Hill told dis-
patcher Don Beaumire that he had to take his wife to the
doctor that morning and Gunter told Beaumire that he would
be late because he had to see a lawyer. Hill and Gunter met
with the OCRC investigator and both signed and filed almost
identically worded charges accusing their employer of wage
discrimination based on race.2 They drove to work separately
but arrived at the yard together between 10 and 11 a.m.
Hill testifed that on the evening of Friday, October 23,
when he was parking his truck Stamp told him to shave.
When he came to work on Monday, October 26, he was not
dispatched and was told he had to report to Stamp. Stamp
told him that he had not shaved and that he was being sent
home to do so. Hill responded that he has trouble shaving
frequently because it irritated his face. Stamp said he knew
about that but that he still had to go home and shave. Hill
said that wasn’t fair because another driver who was
unshaven had been dispatched that morning. Stamp said he
wasn’t concerned about that at the moment, that he wanted
Hill to go home and shave, and that when he did he could
return to work. Hill left, returned after shaving, and was paid
only for the time he actually worked that day. On Wednes-
day, October 28, Hill was called to the office of Company
President Edelman where General Manager Greg Clouts was
also present. When Stamp arrived Edelman sent him to get
Hill’s personnel file. This meeting lasted about an hour and
a half during which Edelman told Hill he was being ‘‘a wise-
ass’’ by taking several hours to go home and shave the pre-
vious Monday. Hill said that he was upset at being sent
home to shave and had stopped to have breakfast. Edelman
told him he did not like his attitude, that he had been ‘‘trou-
ble’’ since he had been there and that he should have been
terminated long ago. When Hill disputed this and said he had
been praised for being a good employee, Edelman repeated
that he had been ‘‘trouble from day one’’ and said he had
a bad attitude. Stamp came in with his personnel file and
when Edelman opened it Hill saw a copy of his OCRC
charge in the file. Edelman began reading off a series of pink
slips in the file relating to instances where Hill had been told
to shave, had come to work without boots or out of uniform,
or had called in sick. When Hill said that they all involved
minor things, Edelman said that they were important and that
Hill had a bad attitude which had to change or he would be
terminated. Hill told Edelman that he was being unfair and
that he felt he was a good employee. Edelman again told Hill
that he had a bad attitude that had to change or he would
be terminated and that he was tired of the ‘‘penny-ante
stuff’’ like not shaving and said: ‘‘I know what you guys are
up to and I’m not going to tolerate this type of stuff.’’ After
Edelman again told Hill he had to change his attitude or be
terminated the meeting ended. Hill testified that he had never
seen any of the pink slips before and that he had never be-
fore been called into the office and threatened with termi-
nation.
Gunter testified that on Friday, October 30, at the end of
the workday he was told by a secretary that he had to go
to Edelman’s office in order to get his paycheck, which had
never happened before. When he got there Edelman and
Stamp were present. When he entered the office Edelman
asked him if he had a tape recorder. Gunter said he did and
Edelman told him to take it out of his pocket. Gunter said
he would not and that he would tape their conversation.
Edelman told Gunter that he knew about the charges that had
been filed and that Gunter had been ‘‘trouble’’ since he had
been there. He then asked why Gunter had taken so long to
get to a customer in Franklin, Ohio, earlier that day. Gunter
responded that it was due to highway construction delays.
Edelman told him not to bring a tape recorder to work and,
if he did so, he wasn’t to clock in. He got his check and
the meeting ended. Gunter testified that he had brought the
tape recorder with him to protect himself because Hill had
told him about being called in to see Edelman previously that
week. He said the recorder failed to record the conversation.
On Saturday, October 31, at the end of the workday, as
they were going to clock out, Hill and Gunter encountered
Supervisor Paul Naves who told them that they had better
watch themselves because the Company was ‘‘gunning’’ for
them. Later, in the locker room, they had a conversation with
Naves in which they talked about Gunter being called into
Edelman’s office on Friday. Naves said that they had ‘‘better
be careful,’’ that he had heard about the charges they had
filed, and that he had been told by the Company not to say
anything to them. When Hill said he wasn’t surprised be-
cause other supervisors were not speaking to him and Gun-
ter, Naves said: ‘‘All I can say to you guys really is you bet-
ter watch yourself because, you know, you’re going up
against the company and you better protect your ass.’’
Hill testified that on Wednesday, November 4, he arrived
at work at 6 a.m. but was not dispatched and was told he
had to see Stamp. He went to Stamp’s office at 7:30 a.m.
and asked Stamp, ‘‘What have I done now?’’ Stamp re-
sponded: ‘‘It’s your attitude, ever since you and John have
filed these charges, your work and your attitude have been
poor.’’ Stamp then asked him why he had left a loaded con-
tainer at OSMI. Hill responded that he was not informed that
the container needed to be picked up. OSMI was a customer
in Springfield, Ohio, that Hill regularly served. He testified
that he normally picked up four or five loads of scrap metal
each weekday and one or two loads on Saturdays. On Tues-
day, November 3, he picked up four loads and did not return
for a fifth because he had checked the container and it was
less than half full. Usually, that meant it would not be filled
overnight and did not need to be emptied unless there was
going to be a heavy volume of scrap generated that night,
in which case a OSMI supervisor would so advise him.
Noone told him that it needed to be emptied that day. Stamp
told him that OSMI had called the previous evening and
complained that Hill had been told to return for the fifth con-
tainer and did not do so. He said that the call came in during
a supervisors meeting and that Edelman wanted Hill termi-
nated. Hill told Stamp that Noone had told him that the con-
tainer needed to be emptied. Stamp responded that 6 months
ago he might have believed him, but because of all that had
been going on and since he and Gunter had filed charges, he
could not accept Hill’s word. He told Hill he was being laid
off until he found out what had happened. Hill left and drove
to OSMI where he confronted the supervisor who was re-
sponsible for telling him if another run was necessary. He
then called the OCRC investigator, told him what had hap-
pened, and went to the office to sign another charge. After
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he returned home, he was called by Stamp who told him to
come in to talk to him. When he arrived at the yard, Stamp
told him he had talked to OSMI and knew that Hill had not
been told to return for a fifth load and that he was putting
him back to work but because he did not have his work
clothes with him, he would be paid for the time up until he
had been called at home. When Hill said that he had told
Stamp that he had not been told about a fifth load, Stamp
repeated that 6 months ago he would probably have believed
him but not since ‘‘this thing with you, John and the com-
pany.’’ Stamp also told him that he was being taken off the
OSMI run because he did not want any ‘‘animosity’’ be-
tween Hill and the people at OSMI. From that time on he
was not sent to OSMI and was assigned other runs which he
considered less desirable in that they were shorter, more fre-
quent, and required physical labor such as sweeping, shovel-
ing and climbing on the containers which the OSMI runs did
not. He testified that he was brought in later and sent home
earlier than he had when he made the OSMI runs. On No-
vember 12 and 13 he called in sick and on November 14 he
resigned his employment. Clouts asked him to sign a letter
of resignation in which he stated that he was leaving for a
new position. Hill said that he agreed to sign the letter but
told Clouts that was not the only reason and it was also be-
cause of the harassment he had received since filing charges.
Hill testified that he felt humiliated by being taken off the
OSMI run and given jobs he felt should have been given to
new employees.
Gunter testified that on Monday, November 2, he was
called to Stamp’s office. When he arrived Stamp told him
that he had been told to tell him he was not to have his tape
recorder ‘‘on company time on company property,’’ and
asked if he would abide by that. Gunter said that he would
and went out and put his tape recorder in his van. On No-
vember 4, after speaking with Hill he returned to the OCRC
and signed an additional charge. Gunter testified that about
a week after he was called in and spoken to by Edelman he
was talking to driver Steve Moore near the scales at the First
Street Recycling Center. He showed Moore a copy of the
charge he had filed with the OCRC and explained why he
had done so. About an hour later he was called to Stamp’s
office. When he arrived, Stamp said that he had been told
by Bruce Patterson, the operator of the First Street Recycling
Center, that Gunter and Moore had been talking about unions
and that he had seen Gunter showing Moore some papers.
Stamp said: ‘‘You know how Jack [Edelman] goes crazy
about unions.’’ Stamp then asked him if he was talking to
Moore about unions. Gunter said that he was not and was
showing Moore a brochure about a credit card he had been
received. Gunter testified that during the last few weeks he
was employed by the Respondent he noticed his hours were
being reduced and several times a week he was being
brought in an hour or sometimes two later than his normal
6:30 a.m. starting time while other less senior drivers contin-
ued to start at 6:30. He also testified that he was being as-
signed less desirable runs and was given trash detail 3 or 4
times instead of the usual once a month or every other
month. Gunter testified that on November 24 he resigned
from his employment with the Respondent because he felt he
was under a lot of stress as a result of his hours being cut,
being called into the office by Stamp, and getting less desir-
able runs. When he resigned he told Stamp that he had
bought his own truck because he did not want the Respond-
ent to know he would be unemployed, but in fact he had not
done so.
Counsel for the General Counsel and the Charging Parties
contend that the Respondent violated Section 8(a)(1) of the
Act by threatening and retaliating against Hill and Gunter be-
cause they engaged in protected concerted activities when
they complained of possible race discrimination relating to a
higher wage rate being paid to a less senior white driver and
when they filed charges with the OCRC and that its unlawful
actions resulted in the constructive discharge of both Hill and
Gunter. The Respondent contends that Hill and Gunter were
not engaged in concerted activity as their complaints to it
and to OCRC were made as individuals and sought only to
redress their individual concerns, that their actions were not
protected by the Act, and that they were not constuctively
discharged.
1. Concerted activity
The standard for determining whether an employee’s activ-
ity is concerted is found in the Board’s decision in Meyers
Industries, 281 NLRB 882, 88 (1986), where, on remand, it
reaffirmed the definition set forth in its prior decision in that
case, Meyers Industries, 268 NLRB 493, 497 (1984), that it
must ‘‘be engaged in with or on the authority of other em-
ployees, and not solely by and on behalf of the employee
himself.’’ The credible and uncontradicted testimony of Hill
and Gunter establishes that, on August 6, immediately after
being told by a former employee, who was white and less
senior, that he had been receiving a higher wage rate while
employed by the Respondent, they discussed what they had
been told, speculated that the wage discrepancy may have
been ‘‘racially motivated,’’ and decided to approach Plant
Manager Stamp about the matter that evening. This consulta-
tion and planning to take action in their mutual interest ren-
dered the complaints they subsequently voiced to Stamp that
evening concerted notwithstanding the fact that they spoke to
him separately. Adelphi Institute, 287 NLRB 1073 (1988);
Daly Park Nursing Home, 287 NLRB 710, 711 (1987). Like-
wise, the complaints they filed with the OCRC constituted
concerted activity although each filed separate complaints.
After failing to receive the response which both were prom-
ised by Stamp on August 6 and which they had agreed to
await before taking further action, in September, they met at
a restaurant and discussed going to the OCRC. Thereafter,
they made a joint appointment with an OCRC investigator on
October 9 and filed nearly identical complaints asserting ra-
cial discrimination by the Respondent in setting their wage
rates. Their OCRC complaints were the product of their con-
sultation and joint effort to address what they considered dis-
crimination and constituted concerted activity.
Whether or not their concerted activity was protected de-
pends on whether the employer knew or reasonably should
have known that Hill and Gunter were acting concertedly.
Nicola’s, 299 NLRB 860, 862–863 (1990); New England
Fish Co., 212 NLRB 306, 311 (1974). The Respondent con-
tends that when Hill and Gunter separately approached
Stamp an hour or 2 apart on August 6 they spoke only in
terms of their own individual situations and did not act
concertedly. The evidence does no support its argument. The
credible testimony of Hill was that when he spoke to Stamp
shortly after Gunter had done so, as soon as he asked about
823FRANKLIN IRON & METAL CORP.
3 The amended charges filed with the OCRC on November 4 by
Hill and Gunter, alleging retaliation for having filed the original
charges, were extentions of the concerted activities they engaged in
when they filed the original charges.
4 According to Stamp, the only management official to testify, he
did not know why the meeting was convened.
employees being paid more than others with longer service,
Stamp responded, ‘‘Oh, God I think you been talking to
John.’’ Hill told him that he had been talking to John, that
they learned of the wage discrepancy while together, and that
they had agreed to speak to Stamp about it together but Gun-
ter had ‘‘jumped the gun’’ and talked to Stamp by himself.
Stamp gave Hill the same explanation he had given Gunter,
that sometimes a driver threatens to quit for another job the
Respondent offered to match the pay at the other job in order
to keep them from leaving. He also promised Hill that he
would speak to Edelman about a wage increase for both Hill
and Gunter. Stamp did not deny any making the comments
and statements attributed to him by Hill. The Respondent
also argues that the actions of Hill and Gunter on August 6
were not concerted or protected in that neither specifically
asked Stamp for a pay increase and their comments to him
simply amounted to unprotected griping and complaining.
Whatever their actual words might have been, the evidence
is clear that Hill and Gunter told Stamp that they felt they
were being discriminated against by being paid less than a
less senior white driver had been paid and that Stamp under-
stood that they wanted the situation rectified as he told Hill
that he would talk to Edelman about getting them a wage in-
crease. I find that the actions of Hill and Gunter on August
6 were protected concerted activities within the meaning of
the Act.
The Respondent also contends that the charges Hill and
Gunter filed with the OCRC can only be characterized as in-
dividual complaining. I do not agree. These complaints were
the product of their consultation and agreement on a plan of
action. The charges, alleging racial discrimination and seek-
ing redress from an agency of the State of Ohio, arising from
the same set of circumstances, a less senior white employees
receiving a higher wage rate, and seeking the same relief, in-
volve more than individual complaining and were the direct
result of their joint action at the same time and place. There
is no rational basis on which to conclude that because there
were two charges filed instead of one their actions were not
concerted or protected. The fact that the charges were almost
identical, were filed on the same date, and followed their un-
successful efforts to resolve the same matter with Stamp put
the Respondent on notice they were acting in concert.3
I find there is no merit in the Respondent’s contention that
the filing of these charges by Hill and Gunter was not pro-
tected because their absence from work for a few hours on
the day they were filed disturbed the efficient operation of
the company’s business. The evidence establishes that each
requested time off in advance which, from all that appears,
was granted. While their purpose in requesting the time off
differed from the reasons they gave (to see a lawyer and take
one’s spouse to a doctor), it was no less lawful or meritori-
ous. The Respondent offered no evidence to establish that
their taking time off that day was not approved in advance
or had caused any disruption of its business. On cross-exam-
ination, when Stamp was asked about memos that he had put
in the personnel files of Hill and Gunter concerning their late
arrivals on October 9, he testified that ‘‘it was a problem be-
cause it was short notice.’’ However, he failed to state what
the ‘‘problem’’ was or to describe what, if any, disruption
resulted. The memo in Hill’s file does state that he did not
request time off until the previous evening and says that he
was told in the future he ‘‘must try to give better notice in
advance to have time off.’’ The memo in Gunter’s file notes
only that he had requested time off to see a lawyer. Neither
suggests that their arriving for work late on that morning
pursuant to previously requested and approved time off
caused any disruption of the Respondent’s business that day.
Consequently, I find there is nothing to establish that their
taking off from work in order to file charges with the OCRC
caused any detriment to the Respondent’s business or ren-
dered their actions unprotected. If anything, these memos and
Stamp’s testimony concerning them offer additional proof
that he was aware that they were engaged in concerted activ-
ity. On the memo in Gunter’s file, which refers to his arrival
at work at 11:30 a.m. after telling Don Beaumire that he was
going to see a lawyer, Stamp wrote: ‘‘He came in with Ron
Hill.’’ When asked why he made this notation, Stamp testi-
fied:
The fact that they both came to Don in short notice to
do the same type of thing timewise and also they show
up back together, you know, it looked to him as if they
were out doing something together instead of having to
see lawyers, having to see doctors, that’s the only rea-
son that was put in there.
Having already been approached by both about a matter of
mutual concern to them, Stamp obviously had a reason to be-
lieve Hill and Gunter ‘‘were out doing something together,’’
which was confirmed when he saw the OCRC charges dated
October 9.
2. Alleged threats and interrogation
On October 28, shortly after the Respondent had received
by mail a copy of the charge Hill filed with the OCRC, he
was called into the office by Company President Edelman
who began criticizing his job performance. The credible and
uncontradicted testimony of Hill establishes that Edelman
said that he did not like Hill’s attitude, that he had been trou-
ble since he started there, that he should have been termi-
nated a long time ago, and that if he did not change his atti-
tude he would be terminated. During the course of the con-
versation Edelman said that the fact that he was Jewish and
Hill was black made them ‘‘like brothers’’ in that both were
subjected to discrimination, that Jewish people had it a whole
lot harder, but that they rarely complained.
I find that this conversation was the result of the OCRC
charge that Hill had filed and the Respondent had received
that day. As noted, Edelman did not appear as a witness and
the Respondent has offered no explanation as to why this
meeting was called.4 The timing of an employer’s action can
be persuasive evidence of its motivation. Limestone Apparel
Corp., 255 NLRB 722, 736 (1981). Edelman’s comments
about the discrimination to which certain ethnic groups have
been subjected further suggests that it was learning about
Hill’s racial discrimination charge that caused him to sum-
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I credit Hill’s testimony about what was said by Stamp during
this incident over Stamp’s denial based on their demeanor while tes-
tifying and the fact that Stamp’s testimony about this and other mat-
ters was less than credible.
6 Apparently, Hill did not go back to work on November 4 after
being called to come back to the yard and talk to Stamp (who at
that point knew Hill was blameless) because he did not have his
work clothes with him. There is no reason why Hill could not have
been told he was being put back to work when he was called to
come in. It appears the Respondent was attempting to further punish
Hill for its own mistake.
mon Hill to his office. Moreover, Edelman’s closing state-
ment to Hill that he knew ‘‘what you guys are up to and
you’re going to change your attitude or you’re going to be
terminated,’’ indicates it was the concerted activity Hill had
engaged in that led Edelman to threaten him with termi-
nation. I find that this threat violated Section 8(a)(1).
The credible testimony of Hill and Gunter establishes that,
on October 31, Supervisor Naves told them he had heard
about the charges they had filed and that they had better
watch themselves because the company was gunning for
them. Naves was not called as a witness and this testimony
is uncontradicted. I find that Naves’ statements constituted an
unlawful threat of unspecified reprisals for having engaged in
protected activity and violated Section 8(a)(1).
I credit the testimony of Gunter concerning the conversa-
tion he had with Stamp concerning his activity at the the
First Street Recycling Center in early November over
Stamp’s denial. Gunter’s testimony about the incident was
specific, detailed, and believeable. Stamp’s denial was in an-
swer to a compound leading question which did not accu-
rately reflect Gunter’s testimony about the incident and, as
discussed above, I did not believe his testimony concerning
the Respondent’s not having a rule prohibiting discussion of
unions. Gunter testified that Stamp told him he had been ob-
served talking to another employee about unions and show-
ing him some papers. After commenting that Company Presi-
dent Edelman ‘‘goes crazy about unions,’’ Stamp asked Gun-
ter if he had been talking about unions. The totality of the
circumstances surrounding this incident must be considered
pursuant to the Board’s decision in Rossmore House, 269
NLRB 1176 (1984). I have previously found that the Re-
spondent had an unlawful rule prohibiting its employees
from discussing unions punishable by termination. Stamp’s
inquiry came shortly after Gunter had engaged in a private
discussion with another employee at a site remote from the
the Respondent’s premises, it had no ostensible purpose other
than to ascertain whether Gunter had violated the rule against
discussing unions, and was prefaced with a reference to
Edelman’s opposition to unions. I find this constituted a co-
ercive interrogation and violated Section 8(a)(1).
3. Alleged acts of retaliation
The complaint alleges that the Respondent took certain ad-
verse personnel actions against Hill and Gunter because they
had engaged in protected concerted activity in violation of
Section 8(a)(1). In cases where the employer’s motivation for
taking certain actions is in issue, those actions must be ana-
lyzed in accordance with the test outlined by the Board in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 800
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Under Wright Line, the General Counsel must make
a prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once that has been done, the burden shifts to the
Respondent to demonstrate that it would have taken the same
action even in the absence of protected activity on the part
of its employees.
There is ample evidence that immediately upon learning of
the concerted activity of Hill and Gunter it took action to
deter that activity, including, the unlawful threats discussed
here. The timing of the threats, the involvement of Edelman
and his statements to Hill concerning his ‘‘attitude’’ and the
possibility of termination if that attitude did not change, and
Supervisor Naves’ contemporaneous warning the the em-
ployer was gunning for them, all support the inference,
which I draw, that protected activity was a motivating factor
in the personnel actions discussed below.
On October 26, Hill was sent home from work in order
to shave. The evidence shows that Stamp was aware that Hill
has a skin condition that can be irritated by shaving and
while he had often been spoken to about shaving he had
never before been sent home or prevented from working be-
cause he was unshaven. According to the credible testimony
of Hill, that same day another driver who had not shaved,
Wade Watkins, was allowed to work. When he raised that
fact with Stamp, he said he was not concerned about that at
the moment. This incident occurred after Hill and Gunter had
raised the issue of wage discrimination with Stamp and
shortly after their absences on October 9 to file charges with
the OCRC, when Stamp suspected they were ‘‘out doing
something together.’’ The evidence shows that although he
had been told to shave on numerous occasions during his en-
tire employment with the Respondent, sometimes for 2 or 3
days in a row, he was never disciplined or prevented from
working before this. The only thing that had changed prior
to this incident was that Hill had begun to engage in pro-
tected activity. I find the evidence establishes that Hill was
sent home to shave on October 26 in retaliation for engaging
in protected activity. The Respondent has presented no evi-
dence to explain why Hill was treated differently on this oc-
casion or why he was singled out for discipline when another
driver who was unshaven was allowed to work that same
day. Accordingly, I find that it has failed to establish that it
would have taken the same action against Hill in the absence
of protected conduct on his part and that its action violated
Section 8(a)(1).
The evidence to support the inference that Hill was sus-
pended on November 4 because he had engaged in protected
activity is even stronger. By that point, the Respondent had
received copies of the OCRC charges, Edelman had called
Hill in and threatened him with termination, and Naves had
warned him that the Company was gunning for him. When
Hill attempted to explain that he had done nothing wrong at
OSMI, Stamp said that he could no longer believe him be-
cause of ‘‘all the stuff that’s been going on here,’’ an obvi-
ous reference to Hill’s protected activity.5 The Respondent
now admits that Hill had not been asked to pick up an addi-
tional container at OSMI on the previous day, as had alleg-
edly been reported to it, and that he had done nothing wrong,
yet, it failed to put him back to work immediately on No-
vember 4 and paid him for that day only up to the point he
had been called to come back to the yard.6 In addition, it
825FRANKLIN IRON & METAL CORP.
7 The hearing transcript indicates that the Respondent did introduce
some payroll records but it apparently failed to provide copies to the
reporter for inclusion in the record.
took Hill off the OSMI run, which the evidence indicates
was a desirable run that he had been assigned for some time.
It claims that OSMI was an important customer and it did
so in order to avoid friction between Hill and OSMI person-
nel and because of some other ‘‘problems.’’ The other prob-
lems involved Hill’s alleged failure to put some containers
in the right place at OSMI on 2 occasions during October.
Although Stamp testified that he had spoken to Hill on both
occasions, no disciplinary action was taken against him and
he continued to handle the OSMI run. Stamp failed to ex-
plain why after twice cautioning Hill for the same type of
misfeasance on the OSMI run without removing him from it
before he learned of the OCRC charges, he immediately re-
moved him from the run after the November incident even
though Hill was blameless. This resulted in his being as-
signed to other runs each day which involved shorter dis-
tances and more arduous duties and were less desirable than
his regular OSMI run. Hill testified that he was not aware
of any friction between himself and OSMI personnel and the
Respondent has failed to establish that any existed. I do not
agree with the Respondent’s contention that Hill agreed to be
taken off the OSMI run because when he was told by Stamp
that he being taken off the run, he said ‘‘okay.’’ The evi-
dence shows that the decision to remove him from the run
had already been made when Hill was informed about it and
there is nothing to suggest that Stamp sought his concurrence
or that a protest would have done any good. I find that the
Respondent has failed to establish that it would have taken
the same action in the absence of protected activity on Hill’s
part. On the contrary, it appears that it used this incident as
a pretext for removing Hill from a desirable assignment and
assigning him to more onerous duties. By doing so, it vio-
lated Section 8(a)(1) of the Act.
4. Reduced hours of work
The complaint alleges that, as a result of the protected ac-
tivities on the part of Hill and Gunter, the Respondent re-
duced their hours of work. In support of this allegation, Hill
testified that, following the OSMI incident on November 4
until he resigned, he felt he was brought in later and sent
home earlier than when he was on the OSMI run. Gunter tes-
tified that during his last 2 or 3 weeks of employment he
was told to come in to work later than usual at least 3 or
4 times while other drivers with less seniority were starting
work earlier. I find this general testimony to be insufficient
to establish that the working hours of Hill and Gunter were
actually reduced. Stamp testified without objection that he
had reviewed the Respondent’s records and that the work
hours of neither were reduced during this period. More pre-
cise and probative evidence should have been readily avail-
able either from the Charging Parties’ pay records or from
the Respondent’s payroll records which could have been sub-
poenaed. No such records were offered as evidence and there
was nothing to suggest that they were unavailable.7 The Gen-
eral Counsel had the initial burden of proof in establishing
that their work hours had in fact been reduced. I find that
the burden has not been carried and shall recommend that
these allegations be dismissed.
5. Constructive discharge
Hill resigned from his employment with the Respondent
on November 14. He testified that he had already been work-
ing part time with another trucking company, he had an offer
to work for it full time, and he felt that he should take the
job while it was available because he was being harassed for
filing wage discrimination charges against the Respondent
and feared he might be terminated. Gunter resigned from his
employment with the Respondent on November 24 although
he did not have other employment. The complaint alleges
that both were constructively discharged as a result of the
Respondent’s retaliation for their having engaged in pro-
tected activity.
Under Board law in order to establish a consructive dis-
charge the General Counsel must show that the burdens im-
posed on the employee cause and were intended to cause a
change in working conditions so difficult or unpleasant as to
force him to resign and that those burdens were imposed be-
cause of the employee’s protected activity. Manufacturing
Services, 295 NLRB 254, 255 (1989); Crystal Princeton Re-
fining Co., 222 NLRB 1068, 1069 (1976). In the case of
Hill, I find that the evidence in the record meets the Board’s
standard for finding a constructive discharge. It is clear that
the retaliatory actions discussed here stemmed from Hill’s
protected activity in raising the issue of wage discrimination
with the Respondent and filing charges with the OCRC. The
only question is whether those actions made Hill’s working
conditions so difficult or unpleasant as to force him to re-
sign. The evidence shows that on learning of Hill’s protected
activity the Respondent began a campaign of harassment and
threats. Although he had a long history of noncompliance
with the rule requiring drivers to be clean shaven because of
a skin condition, Hill was disciplined for not shaving for the
first time, by not being allowed to go to work, shortly after
the fact of his protected activity surfaced. A few days later,
this incident was used as an excuse by the company presi-
dent to call Hill into his office for a long discussion of Hill’s
alleged shortcomings as an employee, followed by threats of
termination if he did not change his attitude. I have found
this meeting flowed directly from the fact that Hill had filed
discrimination charges with the OCRC and was meant to
harass him for engaging in protected activity. A few days
later, Supervisor Naves told Hill to watch himself because
the Company was ‘‘gunning’’ for him. This was corroborated
days later when the Respondent shot first and asked ques-
tions later. Hill was wrongly accused and suspended for the
incident at OSMI, told by Stamp that he could not be trusted
because he had filed the charges, and was taken off the
OSMI run despite being exonerated. Thereafter, he was given
assignments which normally went to less senior drivers, re-
quired more physical work, such as, shoveling up overflow
scrap and climbing onto the truck to cover containers, that
the OSMI job did not, and which he felt were meant to hu-
miliate him. When he resigned he expressed these thoughts
to General Manager Clouts who responded only that it ‘‘was
not his position to get into that.’’ I find that the Respond-
ent’s harassment of Hill was intended to make his working
conditions so difficult or unpleasant as to force him to leave
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and resulted in his constructive discharge in violation of Sec-
tion 8(a)(1). Daniel’s Pallet Service, 283 NLRB 34 (1987).
I find that the evidence does not establish that Gunter was
constructively discharged. It does not establish that his hours
were reduced after he filed charges with the OCRC or that
his working conditions were significantly changed. I find his
testimony about being assigned to the trash detail more often
than before, being given runs which were shorter or dan-
gerous and involved more physical work too vague and lack-
ing in detail to establish that he was given assignments that
were so difficult or unpleasant as to force him to leave his
employment. While he was called into the office and ques-
tioned about a delay in completing an assignment about the
same time as Edelman called in Hill, unlike in the case of
Hill, there was no evidence that any adverse action was
taken against him as a result. His interrogation by Stamp and
the threat by Naves, while unlawful, did not directly impact
on Gunter’s working conditions nor did his being told not to
bring his tape recorder to the yard. I shall recommend that
this allegation be dismissed.
CONCLUSIONS OF LAW
l. The Respondent, Franklin Iron & Metal Corp., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Parties, Ronald L. Hill and John Gunter,
were engaged in protected activity when they concertedly
complained to the Respondent about possible wage discrimi-
nation based on race and subsequently filed discrimination
charges with the Ohio Civil Rights Commission.
3. By maintaining rules prohibiting employees from dis-
cussing their wages among themselves and from discussing
unions the Respondent violated Section 8(a)(1) of the Act.
4. By coercively interrogating an employee about protected
activity; and by threatening employees with termination and
other unspecified retaliatory action, suspending an employee,
and changing an employee’s job assignment; because they
had engaged in protected activity, the Respondent violated
Section 8(a)(1) of the Act.
5. By harassing, changing his working conditions, and
constructively discharging Ronald L. Hill because he had en-
gaged in protected activity, the Respondent violated Section
8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion design to effectuate the purposes of the Act.
Having found that the Respondent violated Section 8(a)(1)
by suspending Ronald L. Hill on October 26 and on Novem-
ber 4, and by constuctively discharging him, I shall rec-
ommend that it be required to offer him immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights and privileges
previously enjoyed, and make him whole for any loss of
earnings or other benefits he may have suffered as a result
of the discrimination against him, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest, com-
puted as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On the findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Franklin Iron & Metal Corp., Dayton,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining rules prohibiting employees from discuss-
ing wages among themselves and prohibiting employees
from discussing unions.
(b) Coercively interrogating employees about protected ac-
tivity.
(c) Threatening employees with termination or other un-
specified retaliatory action because they engage in protected
activity.
(d) Harassing and changing employees’ job assignments or
working conditions because they engage in protected activity.
(e) Suspending and discharging employees because they
engage in protected activity.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its rules prohibiting employees from discuss-
ing among themselves wages and unions.
(b) Offer to Ronald L. Hill immediate and full reinstate-
ment to his former position or, if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or any other rights and privileges previously
enjoyed, and make him whole for any loss of earnings or
other benefits he may have suffered as a result of the dis-
crimination against him, plus interest. Backpay and interest
due shall be computed in the manner described in the remedy
section of this decision.
(c) Remove from its files any reference to the unlawful
suspensions and discharge of Ronald L. Hill and notify him
in writing that this is being done and that they will not be
used against him in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in Dayton, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’9 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 receipt
827FRANKLIN IRON & METAL CORP.
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found herein.
Dated, Washington, D.C. August 3, 1994
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT maintain rules prohibiting our employees
from discussing among themselves wages or unions.
WE WILL NOT coercively question our employees about
union or other protected activities.
WE WILL NOT harass or threaten our employees with retal-
iation because they engage in protected activities.
WE WILL NOT change working conditions, suspend, dis-
charge or otherwise discriminate against our employees for
engaging in union or other protected activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind the rules prohibiting our employees from
discussing among themselves wages and unions.
WE WILL offer Ronald L. Hill immediate and full rein-
statement to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make him whole for any loss
of earnings and other benefits resulting from his unlawful
suspensions and discharge, plus interest.
WE WILL notify him in writing that we have removed from
our files any reference to his suspensions and discharge and
that they will not be used against him in any way.
FRANKLIN IRON & METAL CORP.