08-CA-036568 (N.L.R.B. Dec. 27, 2006)

J. Shaw Associates, LLC

National Labor Relations Board - Administrative Judge OpinionsDec 27, 2006

08-CA-036568 (N.L.R.B. Dec. 27, 2006)

JD–88–06 Perrysburg, OH UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES J. SHAW ASSOCIATES, LLC and Case 8-CA-36568 THERESE HASKELL, an individual Steven Wilson & Kelly Freeman, Esqs., for the General Counsel. John Calvin Shaw Jr., of Perrysburg, Ohio, for the Respondent. Therese Haskell, of Perrysburg, Ohio, for the Charging Party. DECISION Statement of the Case IRA SANDRON, Administrative Law Judge. The complaint stems from unfair labor practice charges that Therese (Terri) Haskell filed against J. Shaw Associates, LLC (Respondent or Shaw), alleging violations of Section 8(a)(1) of the National Labor Relations Act (the Act). Pursuant to notice, I conducted a trial in Toledo, Ohio, on November 7–9, 2006,1 at which the parties had full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. The General Counsel and Shaw filed helpful posthearing briefs that I have duly considered. The General Counsel also filed a motion to strike portions of Respondent’s brief, specifically, alleged facts going to the credibility of witnesses that are not contained in the record. The motion is granted, and such alleged facts are stricken and will not be considered for any purpose. Issues Did Respondent issue Haskell a written warning on February 1, and terminate her on March 13, because she engaged in protected concerted activity, including discussing wages and insurance with other employees? 1 All dates hereinafter occurred in 2006, unless otherwise indicated. JD–88–06 5 10 15 20 25 30 35 40 45 50 2 In the above warning, did Respondent unlawfully restrict and limit Haskell’s discussion of wages with other employees? Did Respondent, during the period between January 1 and February 28, verbally promulgate a rule prohibiting employees from discussing wages with other employees, and has it continued to maintain that rule? Witnesses and Credibility The General Counsel called Haskell; Jennifer Bryant and Deborah (Angel) Bailey, former store managers (managers) and admitted supervisors, both of whom were later discharged; and former employee Tammy Keller, who was also later terminated. Shaw testified in detail. Among his other witnesses were assistant store manager (assistant manager) and admitted supervisor Tammie Monti, and employee Louise Davis. Leaving aside Shaw and Haskell, the above witnesses were for the most part credible, and on many points diverged less in the substance of what occurred than in their characterizations. In evaluating their credibility, I have taken into account the natural propensity of Bailey, Bryant, and Kelly, as dischargees, to have animosity toward Shaw. I have also considered the undisputed friction between Monti and Haskell I find that the most reliable witness was employee Davis. She consistently answered questions readily and directly throughout her testimony, testified credibly, and displayed no antipathy toward either Shaw or Haskell. Therefore, I have accorded her testimony the greatest weight and credited it when it differed from that of other witnesses, with the exception of the date of one conversation she had with Haskell. Regarding Shaw and Haskell, I find that they were reliable witnesses on some matters but not others. A well-established trial precept is that witnesses may be found partially credible, because the mere fact that a witness is discredited on one point does not automatically mean that he or she must be discredited in all respects. Golden Hours Convalescent Hospitals, 182 NLRB 796, 799 (1970). Rather, it is appropriate to weigh the witness’ testimony for consistency throughout with the evidence as a whole. Id. at 798–799; see also MEMC Electronic Materials, 342 NLRB 1172, 1200 fn. 13 (2004), quoting Americare Pine Lodge Nursing, 325 NLRB 98 fn. 1 (1997) (noting that when examining testimony, a trier of fact is not required “to accept the entirety of a witness’ testimony, but may believe some and not all of what a witness says”); Excel Container, 325 NLRB 17 fn. 1 (1997) (stating that it is quite common in all kinds of judicial decisions to believe some, and not all, of a witness’ testimony). Certain aspects of Haskell’s and Shaw’s testimony detracted from their credibility. Haskell frequently got off track when answering simple questions, including those I posed to her, and she was sometimes obviously evasive, factors that undermine her credibility in general. For example, she testified that she could not “specifically recall” whether she threw the termination paper in Shaw’s face on March 13, and said she was not going to “fucking read it.”2 Moreover, when Shaw asked if she also told him, “I don’t give a fuckin’ [sic] shit if you fire me,” responded, “I may have said that.”3 I find incredible her professed lack of recall about such an important incident. Moreover, portions of her testimony, such as why she had conversations 2 Tr. 247. 3 Tr. 250. JD–88–06 5 10 15 20 25 30 35 40 45 50 3 with Tim Welch, whose wife she suspected of carrying on an affair with Shaw, were unbelievable. As to Shaw, for reasons to be stated, I do not believe he was candid about the nature of his personal relationship with Haskell. Perhaps related to this lack of candor, much of his testimony regarding her alleged performance problems was not borne out by other evidence, and struck me as contrived. Most glaring was his contention—nowhere mentioned in Haskell’s warning or termination letter—that she was terminated in part for unauthorized overtime. Indeed, at the outset of his testimony, Shaw stated that the two primary reasons for her discharge were her use of profanity and her “very aggressive nature with me and other employees.”4 Only much later on in his testimony did he raise the matter of alleged unauthorized overtime, and even then he conceded this was “not one of the top four or five” reasons.5 Respondent submitted no documentation or other records showing that Haskell engaged in such conduct, and I credit Manager Bryant that she was not aware this ever occurred. In these circumstances, I conclude that this proffered justification was manufactured after the fact and cannot be seriously considered as a bona fide defense. Facts Based on the entire record, including the pleadings, testimony of witnesses and my observations of their demeanor, documents, and stipulations of the parties, I find the facts as follows. Respondent, an Ohio corporation that Shaw owns, has been engaged in the operation of a retail convenience store in Perrysburg, Ohio (the store).6 Jurisdiction has been conceded. The store has two sides—the Exxon gas station (Exxon) and Blimpie’s, both of which Shaw operates and staffs.7 The former takes up a larger area, with the Blimpie’s counter located at one end of the facility. About 9–13 employees normally work daily at Exxon. Only one person is assigned fulltime to Blimpie's: the Blimpie’s manager, for the 8 a.m. – 2 p.m. shift. After 2 p.m., Exxon employees take over on a “floating” or rotating basis. The manager and assistant manager of the store have supervisory authority over both Exxon employees and the Blimpie’s manager. From December 19, 2005 on, Bryant was the manager. At times, Bailey, the manager at Holland, was also at the store as a manager. Monti became assistant manager in December 2005. The Relationship Between Shaw and Haskell Based on the entire record, including the following, I credit Haskell’s averment over Shaw’s denial and find that they were involved in an affair that began prior to her employment on November 16, 2005, and continued thereafter. Haskell was unattached; Shaw was married. A plethora of evidence supports this conclusion. As far as documents, Haskell’s telephone records from October 12–November 13, 2005,8 show about 20 phone calls between 4 Tr. 623. He essentially repeated these reasons at Tr. 633. 5 Tr. 731–732. 6 Shaw opened a second store, in Holland, Ohio (Holland), during the term of Haskell’s employment. 7 See GC Exh. 5, a rough diagram of the facility. 8 GC Exh. 11. JD–88–06 5 10 15 20 25 30 35 40 45 50 4 her and Shaw, including three he placed to her, and three that were made at approximately 10 p.m. or after. I cannot believe that their sole content concerned her potential employment, as Shaw alleged. I credit, and find as facts, the following: Shaw testified that he told her on 15–20 occasions between January and March to stop talking with him so much and, a few weeks before her termination, told her that he spent more time with her than on all his other 10–15 employees combined. Indeed, he testified that she was “harassing” him.9 In addition, Haskell admittedly used profanity in their conversations, justifying it on the basis that he used it with her. I find it inconceivable that he would have tolerated such conduct in the absence of their having some kind of personal relationship that transcended that of employer-employee. Monti testified that Haskell at work “did whatever she wanted to.”10 Haskell’s testimony made it clear that she still had romantic feelings for him that continued into her employment. Thus, she admittedly asked Shaw on one occasion with whom he was sleeping. Further, she admittedly called Tim Welch, an acquaintance of hers, after suspecting that Shaw was carrying on an affair with the former’s wife, Amy. I do not credit her testimony that her several conversations with Welch were for the sole purpose of somehow helping her with the warning she received on February 1. She was extremely vague about what was said in those conversations and how she thought he could assist her. In contrast, Davis was a credible witness who did not appear to make any efforts to slant her testimony either for or against Haskell. I credit her testimony that Haskell told her she knew where Shaw lived because she had been following him and that she had been following both him and Amy Welch because she knew they were having an affair. I also credit Davis’ testimony that Haskell told her on two or three occasions that she was “gonna [sic] get” Shaw.11 Thus, I find that Haskell’s communications with Tim Welch concerned Shaw and Amy Welch, not her employment. Finally, Haskell testified that, on about March 6, she accused Shaw of giving her a hard time and being rude to her. He replied that he rued the day he met her. Her response was, “I have a phone message that will prove that you were once nice to me and that you’re doing this in retaliation for something.”12 He then accused her of threatening him with blackmail. Based on the above, as well as other evidence of record, I find that Haskell’s romantic involvement with Shaw greatly impacted on their employer-employee relationship. For this reason, I do not believe Haskell’s testimony that all of her numerous conversations with him after she began employment were strictly work related; conversely, I do not credit Shaw on many of the reasons he articulated at trial for terminating her. 9 Tr. 644. 10 Tr. 545. 11 Tr. 456, 458. 12 Tr. 238. JD–88–06 5 10 15 20 25 30 35 40 45 50 5 Haskell’s Employment According to Haskell, Shaw said she would start at $8 an hour but would get 30-day and 90-day reviews, providing the potential for a pay raise. Moreover, she would get health insurance after 90 days. Whether or not Shaw actually followed through on preemployment promises is not germane here. On November 16, 2005, Haskell began employment as an Exxon cashier. In about late December, as she had requested, she was moved over to Blimpie’s as the manager and sole employee on the 6 a.m. to 2 p.m. shift. She had responsibility for food preparation and serving; cashiering; ordering, dating, and labeling product; and maintaining and cleaning the area. She worked by herself except during busy periods, when either Bryant or an Exxon employee would come to assist her. On a couple of occasions, she asked an Exxon employee to help her, and the employee agreed. I credit her testimony, supported by Keller, who frequently worked Blimpie’s on the second shift (2–10 p.m.), that she neither possessed nor exercised any supervisory authority of any kind over these employees, and that their work was routine in nature. Indeed, as Shaw conceded, making a Blimpie’s sandwich requires “very low skill.”13 When Haskell left at the end of her shift, everything was already set up, and she left no instructions for the person who would take over. Haskell’s Conversations with Coworkers and Management With Coworkers Starting in approximately mid-December 2005, Haskell initiated conversations with coworkers Davis and Keller regarding their wages and/or health insurance benefits. Davis told management of her conversations with Haskell. Bryant and Monti reacted with little interest when she related that Haskell had talked to her about getting a wage increase. Davis told Haskell in their first conversation on wages that she (Davis) was making $7 an hour and had not received any performance review. Keller, on the other hand, initially responded that the former manager had instructed employees not to talk about their pay. In their second conversation, in approximately mid- or late-January, Keller disclosed to Haskell that she was making $8.50 an hour. Haskell asked if she had received any raises, and she replied no, even though she had worked there for almost a year. Haskell continued to have regular conversations with Davis on wages and/or benefits. In one, occurring in late 2005 or early 2006, Haskell stated that she had called the insurance company and that they should have gotten health insurance within 30, not 90, days. Haskell also stated, “I got [sic] something against him and I’m gonna [sic] get him.”14 Davis replied that was blackmail, and Haskell responded, “I don’t give a fuck. He is fuckin’ [sic] with the wrong girl. I’m gonna [sic] get him.”15 In this conversation, Davis told her, “Just leave me out of it. . . . If I want benefits or a raise I’ll go to John personally.”16 Davis, in fact, went directly to Bryant in approximately early January and said that she wanted the medical insurance. Bryant replied 13 Tr. 621. 14 Tr. 431. 15 Ibid. 16 Ibid. JD–88–06 5 10 15 20 25 30 35 40 45 50 6 she would talk to Shaw. In a later conversation, Davis asked Bryant to get her the health insurance packet, and the latter replied she would. Thus, management knew of Davis’ interest in health insurance wholly independently of anything Haskell said or did. In another conversation between Haskell and Davis, in approximately early March,17 Haskell stated that she knew she could get Davis health insurance. Davis responded that she wanted Haskell to leave her alone and that she could fight her own battles. Haskell then stated that Shaw was going to give her (Haskell) insurance and a raise, repeating that she had something she could use against him but refusing to elaborate. Davis reported this conversation to Shaw. Although Davis testified that the following was also said in this conversation, its content causes me to believe that it was part of an earlier conversation: Davis asked Haskell how she knew what employees made in the store, to which Haskell responded, both by gesture and verbally, that she had gone into the office files. Supporting an earlier date is Bryant’s credited testimony as follows. In late January, she had information that led her to believe Haskell was looking at employees’ personnel files. She called Shaw and asked if she should issue Haskell a warning. He said no. Haskell also had at least two conversations with Keller on the subject of health insurance, the first in approximately mid-December 2005, when Haskell asked her about employee health insurance benefits, said she knew Davis needed insurance, and stated she wanted to look into getting insurance for everybody. The second conversation occurred shortly thereafter. Haskell repeated that she would look into health insurance for everyone. With Management Starting in approximately late December 2005, and approximately weekly thereafter, Haskell raised the subject of wages and/or health benefits in conversations she initiated with Managers Bailey and Bryant, sometimes with them both present. I credit Bailey’s and Bryant’s substantially similar testimony that Haskell brought up the matters of wages/raises or medical insurance in the context of her own situation, not employees in general. Thus, Bailey testified that Haskell said, “She wasn’t happy with what she was getting . . . and felt that she was being underpaid compared to other employees,”18 who were talking among themselves. According to Bryant, in her approximately once-monthly conversations with Haskell regarding health insurance, starting in December 2005, Haskell stated that she wanted such, asked where she could get it, and requested that Bryant talk to Shaw about it. Neither Bailey nor Bryant mentioned anything about Haskell expressing concern for other employees’ pay rates or health insurance benefits. Indeed, at one point in her testimony, Haskell confirmed their accounts. When asked what she said about the wages of other 17 Davis gave the date as “approximately February,” but I find it more plausible that it occurred shortly before Haskell’s termination, based on Shaw’s testimony. 18 Tr. 135. JD–88–06 5 10 15 20 25 30 35 40 45 50 7 employees, she replied, “I said that other people were making more than I was.”19 Therefore, I do not believe Haskell’s self-serving statement that she brought up the subject of wages in an attempt to “speak up for employee rights.”20 Haskell testified, rather vaguely, that in two or three of these conversations, Bailey and Bryant told her that employees were prohibited from talking among themselves about their wages. For the following reasons, I do not credit her on this point (I do credit Bryant’s testimony about what she said about wages when she gave Haskell the February 1 warning, described below). Nothing in the record otherwise suggests that Bailey and Bryant ever told employees not to speak to each other about wages or other benefits, and managers appear to have taken a rather tolerant view thereof. Indeed, Bryant and Monti showed disinterest when Davis advised them that she and Haskell had been discussing pay. I also note Bryant’s testimony that she objected to Shaw’s insistence that the February 1 warning include Haskell’s talking with other employees about wages. There is no dispute over the fact that after Haskell was employed, she consistently spoke directly to Shaw on numerous occasions when he came to the store and did so at various places there, including public areas. She testified that all of these conversations were work related, and pertained to her wanting a wage increase, the evaluations she was promised, and her obtaining medical insurance. He also testified that the thrust of her conversations related to these subjects. I find it difficult to believe from this record that at least some of the content of their conversations did not relate to their personal involvement. In any event, it is undisputed that Shaw told her many times that she talked too much and asked her to leave him alone and to respect his time. I credit his testimony that he grew more and more frustrated, to the point where he felt “harassed.” In this regard, Haskell conceded that toward the end of her employment, Shaw told her “quite frequently” to “please” leave him alone.21 She also conceded that he eventually tried to avoid her when he was at the store. Haskell’s Job Performance I will address only those alleged problems with her behavior/performance that were cited in the February 1 written warning and the March 13 termination letter, finding any others that Shaw later advanced to be after the fact and therefore not bona fide. February 1 Warning22 On January 24, Monti and Haskell got into a heated exchange on the floor. When Monti started walking toward the back, Haskell followed her and kept arguing with her voice raised. Bryant observed the incident. She called Shaw and recommended that Haskell be written up for this misconduct. Bryant issued no other written warnings during her tenure as a manager. She testified that she believed a warning was justified for that one incident alone. In the actual warning, Shaw had additional language inserted, so that the first paragraph read: 19 Tr. 214. 20 Tr. 211. 21 Tr. 328. 22 GC Exh. 2. JD–88–06 5 10 15 20 25 30 35 40 45 50 8 On Tuesday, January 24th, Terri approached another associate and raised her voice and demonstrated negative emotional reactions to work related issues. In addition, Terri has displayed these reactions on several occasions to her manager, the business owner, and other co-workers . . . . (Underlining in original.) After this incident, Bryant told Monti that she (Bryant) would henceforth exclusively handle Haskell as an employee because of Haskell’s and Monti’s problem in dealing with each other. When Bryant spoke to Shaw, she also recommended that Haskell be issued a warning for ordering unauthorized products, once in December, and once in January. She considered the second incident more significant. Therein, Haskell had ordered cinnamon rolls for Blimpie’s during a month that Exxon was a running a donut promotion. Bryant’s testimony was confusing as to whether the cinnamon rolls were or were not “authorized,” but in any event, Bryant concluded that Haskell had engaged in misconduct in ordering them. Shaw agreed to put ordering unauthorized products as another reason for the warning. In addition, Bryant testified, he wanted to add as a third ground that Haskell was not allowed to discuss her pay rate with other employees or to ask for a raise; Bryant objected, but he insisted. However, the actual language in the warning mentioned nothing about her talking with other employees. Rather, it read: Terri has made repeated, vocal, requests for a wage increase at inappropriate times and in settings that were open to other staff and customers. This behavior is considered unprofessional . . . and will not be tolerated. (Underlining in original.) On February 1, Bryant issued the warning to Haskell. I credit her account as follows. Bryant presented it to her in a vehicle in the parking lot, largely because Haskell was emotional, and if she got upset, nobody else would be around. Bryant reviewed each of the three matters. Haskell stated that she understood the portions of the warning addressing the January 24 incident and the cinnamon rolls incident but was upset about not being able to talk about her wages. She said that it was unfair that she had not gotten a raise and now was not even allowed to talk about getting one. Bryant apparently asked how Haskell had learned what other employees were making, and Haskell replied that everybody talked about it. Bryant responded that from her own past experience, talking about wages with peers was not something done at the workplace.23 The March 13 Termination Shaw testified that he made the determination to terminate Haskell and that the last straw was when Davis related Haskell’s threat to blackmail him. The termination letter24 enumerated the following reasons: Arguing with fellow employees. Regular use of profanity, losing your temper and crying. 23 Bryant said this twice. Tr. 81, 82. It apparently clarified her testimony at Tr. 82 that they “talked about rate of pay, or her not talking to the other employees about that.” Haskell did not specifically address this aspect of Bryant’s version of their conversation. 24 GC Exh. 4. JD–88–06 5 10 15 20 25 30 35 40 45 50 9 Almost a daily occurrence of you saying: “I am tired of getting fucked.” Ordering inventory without approval. Constant prying into the owner’s personal life. Trying to locate him after work. Inquiring: “Who are you sleeping with?! [sic] Last week you made a threat against the owner – and even informed fellow employees that if you are terminated – you will “black mail [sic]” him! The letter went on to tell her not to enter any sites owned by Shaw, contact any employees during their work hours, or have any communication with the owner or his family. Turning to the above reasons, the first expressly related to her relationships with coworkers; the second two would have covered both her interactions with coworkers and with Shaw; the fourth has already been addressed under her written warning; and the fifth and sixth concerned only her relationship with Shaw. Testimony varied widely concerning Haskell’s ability to get along with supervisors and coworkers. However, nothing in the record reflects any change to the worse between the time Haskell received the February 1 warning and her termination on March 13, nor does the record reflect any major confrontations following the January 24 incident she had with Monti. Further, although Respondent contends that Haskell swore egregiously, this was not mentioned at all in the February 1 warning, and I credit Bryant’s testimony that other employees frequently used profanity and that Haskell’s use thereof was not egregious. I note that Bryant showed no hesitation in recommending Haskell be written up for her confrontation with Monti or for ordering unauthorized product. I also credit Davis’ testimony that she was offended by Haskell’s constant use of profanity, but I further credit her testimony that almost everyone (other than herself) used profanity and that managers were among the worst offenders. I find that Haskell was somewhat volatile and used obscenities but that management did not consider these to be problems warranting her termination or even a written warning. In the conclusions section, I will address the portions of the termination letter dealing exclusively with Shaw. The facts relating to them have already been set out. In addition, I note Bailey’s credited testimony that just before Valentine’s Day (and after the February 1 warning), Shaw simply stated, without articulating any reasons, that Haskell was “a troublemaker,” and he wanted to fire her.25 Conclusions Haskell’s Warning and Termination The framework for analyzing whether an employer’s motivation for taking action against an employee was his or her protected concerted activities is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel must make a prima facie showing sufficient to support an inference that the employee’s protected conduct motivated the employer’s adverse action. The General Counsel must show, either by direct or circumstantial evidence, that the employee engaged in protected concerted conduct, the employer knew or suspected the employee engaged in such, the employer harbored animus, and the employer took action because of this animus. 25 Tr. 137. JD–88–06 5 10 15 20 25 30 35 40 45 50 10 Under Wright Line, if the General Counsel establishes a prima facie case of discriminatory conduct, it meets its initial burden to persuade, by a preponderance of the evidence, that protected activity was a motivating factor in the employer’s action. The burden of persuasion then shifts to the employer to show that it would have taken the same adverse action even in the absence of such activity. NLRB v. Transportation Corp., 462 U.S. 393, 399−403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002); Serrano Painting, 332 NLRB 1363, 1366 (2000); Best Plumbing Supply, 310 NLRB 143 (1993). To meet this burden, “an employer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” Serrano Painting, supra at 1366, citing Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). Initially, I reject Respondent’s contention that Haskell was a supervisory employee under Section 2(11) of the Act when she was the Blimpie’s “manager.” As to assignment of employees, she had no authority to mandate Exxon employees assist her but could only request their help. Any directions she gave to them at Blimpie’s were ad hoc and related to definite tasks, as opposed to being of a significant overall nature. Accordingly, she did not “assign” work within the meaning of Section 2(11), as interpreted by Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), and its progeny. As far as “responsibly to direct,” Haskell lacked the necessary element of authority to take corrective action against employees who assisted her. Ibid. Nor did she possess any other indicia of supervisory authority. Accordingly, I conclude that Haskell was not a supervisor within the meaning of the Act. The first major issue is whether Haskell engaged in protected concerted activity. She did talk to Managers Bailey and Bryant, and to Shaw, about wages and health benefits. Such matters were certainly of fundamental relevance to her terms and conditions of employment and raising them came under the protections of the Act if her activity was indeed concerted. The determination “of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” Meyers Industries (Meyers II), 281 NLRB 882, 886 (1986). To be found concerted, the activity must be engaged in with or on the authority of other employees and not solely on behalf of the employee herself. Bethany Medical Center, 328 NLRB 1094 (1999); Meyers Industries (Meyers I), 268 NLRB 493 (1984). For the following reasons, I conclude that Haskell’s activity did not meet this criterion. Haskell alone went to management, so this is not a situation where other employees were present and were required to disavow her conduct if they did not wish her to represent them. See, e.g., Alex P. Consumers Power Co., 282 NLRB 130 (1986). As far as authorization, either express or implicit, Davis specifically told Haskell early on that she did not wish Haskell to speak on her behalf, which she also told management, and there is no evidence that at any time, Keller or anyone else told Haskell they wished her to speak for them, or even encouraged her to act. Moreover, there is no evidence that in any of her discussions with employees, anyone but she voiced complaints per se about pay or benefits. Contrast, Hilburn Elec. Service Co., 313 NLRB 372 (1993); Salisbury Hotel, Inc., 283 NLRB 685, 686 (1987). Even if Haskell indicated to other employees that she was going to pursue better benefits for them as well as herself, the fact remains that in her conversations with management, she complained only that she was underpaid and had not received medical benefits, and did not voice any broader concern for employees in general. JD–88–06 5 10 15 20 25 30 35 40 45 50 11 Thus, Haskell alone initiated discussions with other employees about pay and benefits, was never authorized or even encouraged by any of them to go to management, and limited the expressed scope of her concerns to her own pay and benefits. In sum, her activity was solely the product of her dissatisfaction with her individual situation. Therefore, it was not concerted in nature. For purposes of a complete decision, and in the event that the Board disagrees with my conclusion that her activity was not concerted, I will proceed with further analysis. Management knew of Haskell’s activity, Shaw’s statements that Haskell was “a troublemaker” and talked too much could be viewed as demonstrating animus, and Haskell was warned and then terminated. Therefore, if Haskell’s activity was indeed concerted, the General Counsel would have made out a prima facie case of discrimination on account of protected concerted activity. However, under the second prong of Wright Line, I find that Respondent has rebutted any such prima facie case. As to the February 1 warning, it was initiated by Manager Bryant, one of the General Counsel’s witnesses, and concerned what she perceived as two types of misconduct on Haskell’s part that warranted discipline. One was yelling at Monti in a public area of the store and following Monti as the latter attempted to disengage from their heated argument. The second was for improperly ordering products. There is nothing in the record reflecting that Bryant had any animus toward Haskell because the latter complained about her pay and lack of health insurance. On the contrary, Bryant objected when Shaw wished to put a third reason in the warning letter, pertaining to Haskell’s conversations about wages. In actual wording, the third reason (number two in the warning) did not state anything about Haskell talking to other employees about their wages or other benefits or prohibit her from doing so. Rather, the language was that Haskell had made “repeated, vocal requests for a wage increase at inappropriate times and in settings that were open to other staff and customers.” Presumably, this related to Haskell’s constant initiation of conversations with Shaw at various locations in the store. An employee does not have an unqualified right to engage in an unlimited number of requests for wage increases at any time and at any location in the employment environment. I conclude that Respondent had a legitimate basis for warning her that there were limitations on when and where she could request such. I further conclude that such language did not constitute an independent violation of Section 8(a)(1). For the above reasons, I conclude that Respondent’s issuance of the written warning to Haskell was legitimately based on reasons having nothing to do with any protected concerted activities in which she allegedly engaged. Turning to Haskell’s termination, Shaw most likely hired Haskell in part because of their romantic involvement. Regardless, it is patently obvious that she was given much greater latitude as an employee because of that factor. It is inconceivable that Shaw otherwise would have allowed himself to be, as he himself put it, “harassed” and to have begged her to leave him alone. Two reasons for her termination related directly to his personal status having nothing to do with his role as her employer. The first was her constant prying into his private life. The facts show that Haskell not only asked him with whom he was sleeping, but she followed him and his suspected paramour, Amy Welch, and attempted to interfere with Amy Welch’s marriage. The second was threatening to blackmail him and telling another employee (Davis) that she would blackmail him, contentions also supported by facts of record. JD–88–06 5 10 15 20 25 30 35 40 45 50 12 Apparently, during the course of Haskell’s employment, the time came when she wished their romantic relationship to continue but Shaw wished it to end. I strongly suspect that much of the subject matter of their conversations pertained to this subject. I believe that Haskell attempted to frame them as all work related for purposes of advancing her claim that she was discharged for protected concerted activity, and I believe that Shaw was afraid to disclose anything that would suggest they did have an affair. Even if those conversations were indeed fully work related, Haskell harassed Shaw at her workplace; asked him with whom he was sleeping; used profanity in their conversations; on at least one occasion threatened to blackmail him with a tape recording of a phone call which, in the absence of any other explanation, must be assumed to have implicated him in their having an affair; and told a coworker he would have to give her a pay raise and health benefits because she had something she could use against him. I conclude that these constituted ample grounds to justify her termination, regardless of any protected activity in which she might have engaged. Independent Violations of Section 8(a)(1) For reasons stated above, I do not find that the language in the February 1 warning letter unlawfully restricted and limited Haskell’s discussion of wages with other employees, as alleged by the General Counsel. On the contrary, regardless of Bryant’s testimony about what Shaw told her to put in the warning, it stated nothing with respect to Haskell’s activities vis-à-vis other employees but rather placed reasonable restrictions on when she could talk to management about her own wages. As to statements Bryant made when issuing the warning letter, she told Haskell that from her own experience at other companies, employees did not discuss their pay rates at work. I conclude that this fell short of unlawfully prohibiting Haskell from doing so, and did not even amount to a request that she refrain from such activity. See Sturgis-Newport Business Forms, Inc., 227 NLRB 1426, 1427 fn. 3 (1977). Contrast, Radisson Plaza Minneapolis, 307 NLRB 94, 94 (1992), enfd. 987 F.2d 1376 (8th Cir. 1993). Accordingly, there was no violation of Section 8(a)(1). Finally, I have discredited Haskell’s vague testimony that Bailey and Bryant at certain times told her she was prohibited from discussing wages with other employees. Nor is there any evidence that there has been a “policy” at any time to that effect. Indeed, when Davis told Bryant and Monti that Haskell had been discussing wages with her, they showed little concern, a reaction inconsistent with their being a policy against it. Conclusions of Law 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent has not engaged in any unfair labor practices under the Act. JD–88–06 5 10 15 20 25 30 35 40 45 50 13 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended26 ORDER The complaint is dismissed. Dated, Washington, D.C., December 27, 2006. ______________________ Ira Sandron Administrative Law Judge 26 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended 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.