J. Shaw Associates, LLC

National Labor Relations Board - Board Decisions

Apr 30, 2007

349 N.L.R.B. 939 (N.L.R.B. 2007)

J. SHAW ASSOCIATES, LLC
349 NLRB No. 88
939
J. Shaw Associates, LLC and Therese Haskell. Case
8–CA–36568
April 30, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On December 27, 2006, Administrative Law Judge Ira
Sandron issued the attached decision. The Charging
Party, appearing pro se, filed exceptions in the form of a
letter.
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 exceptions1 and has decided to affirm the
judge’s rulings, findings,2 and conclusions3 and to adopt
the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Steven Wilson and Kelly Freeman, Esqs., for the General Coun-
sel.
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

1 The Charging Party, Therese Haskell, has not excepted to the
judge’s finding that the Respondent did not discriminate against her in
violation of Sec. 8(a)(1) by issuing her a written warning on February
1, but has excepted to the judge’s failure to find that the warning inde-
pendently violated Sec. 8(a)(1) by prohibiting her from discussing
wages with other employees. In addition, the Charging Party has not
excepted to the finding that Manager Bryant’s statements did not
unlawfully prohibit Haskell from discussing wages with other employ-
ees. Nor has she excepted to the finding that the Respondent did not
verbally promulgate a rule prohibiting such discussions.
2 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the judge’s findings.
3 In agreeing with the judge’s dismissal of the 8(a)(1) discriminatory
discharge allegation, we find it unnecessary to pass on the judge’s
finding that Haskell was not engaged in protected concerted activity.
Even assuming arguendo that the General Counsel met his threshold
burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889
(1st Cir. 1981), we agree with the judge’s finding that the Respondent
demonstrated that it would have discharged Haskell even in the absence
of any protected concerted activity.
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, specifi-
cally, 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 pro-
tected concerted activity, including discussing wages and insur-
ance with other employees?
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 contin-
ued 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 termi-
nated.
Shaw testified in detail. Among his other witnesses were as-
sistant store manager (assistant manager) and admitted supervi-
sor 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 evi-

1 All dates hereinafter occurred in 2006, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD940
dence 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 termina-
tion paper in Shaw’s face on March 13, and said she was not
going to “f–king read it.”2 Moreover, when Shaw asked if she
also told him, “I don’t give a f–kin’ [sic] shit if you fire me,”
responded, “I may have said that.”3 I find incredible her pro-
fessed lack of recall about such an important incident. More-
over, portions of her testimony, such as why she had conversa-
tions 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 Has-
kell. Perhaps related to this lack of candor, much of his testi-
mony 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 testi-
mony, Shaw stated that the two primary reasons for her dis-
charge were her use of profanity and her “very aggressive na-
ture with me and other employees.”4 Only much later on in his
testimony did he raise the matter of alleged unauthorized over-
time, and even then he conceded this was “not one of the top
four or five” reasons.5 Respondent submitted no documenta-
tion 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 can-
not be seriously considered as a bona fide defense.
Facts
Based on the entire record, including the pleadings, testi-
mony 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 Per-
rysburg, Ohio (the store).6 Jurisdiction has been conceded.

2 Tr. 247.
3 Tr. 250.
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.
The store has two sides—the Exxon gas station (Exxon) and
Blimpie’s, both of which Shaw operates and staffs.7 The for-
mer 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 full time to Blim-
pie’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 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, justi-
fying it on the basis that he used it with her. I find it inconceiv-
able that he would have tolerated such conduct in the absence
of their having some kind of personal relationship that tran-
scended 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 ac-
quaintance of hers, after suspecting that Shaw was carrying on
an affair with the former’s wife, Amy. I do not credit her tes-
timony 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

7 See GC Exh. 5, a rough diagram of the facility.
8 GC Exh. 11.
9 Tr. 644.
10 Tr. 545.
J. SHAW ASSOCIATES, LLC 941
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 commu-
nications 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 re-
plied 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 nu-
merous 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.
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 insur-
ance 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 em-
ployee 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 su-
pervisory 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 al-
ready 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 initi-
ated conversations with coworkers Davis and Keller regarding
their wages and/or health insurance benefits. Davis told man-
agement 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.

11 Tr. 456, 458.
12 Tr. 238.
13 Tr. 621.
Davis told Haskell in their first conversation on wages that
she was making $7 an hour and had not received any perform-
ance 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 mak-
ing $8.50 an hour. Haskell asked if she had received any raises,
and she replied no, even though she had worked there for al-
most 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] some-
thing 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 f–kin’ [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 person-
ally.”16 Davis, in fact, went directly to Bryant in approximately
early January and said that she wanted the medical insurance.
Bryant replied 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 ap-
proximately 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 re-
sponded, 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 insur-
ance, and stated she wanted to look into getting insurance for
everybody. The second conversation occurred shortly thereaf-

14 Tr. 431.
15 Id.
16 Id.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD942
ter. Haskell repeated that she would look into health insurance
for everyone.
With Management
Starting in approximately late December 2005, and approxi-
mately weekly thereafter, Haskell raised the subject of wages
and/or health benefits in conversations she initiated with Man-
agers 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 un-
derpaid 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, Has-
kell confirmed their accounts. When asked what she said about
the wages of other 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 be-
low).
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 in-
clude Haskell’s talking with other employees about wages.
There is no dispute over the fact that after Haskell was em-
ployed, 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.

18 Tr. 135.
19 Tr. 214.
20 Tr. 211.
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 em-
ployment, 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 behav-
ior/performance that were cited in the February 1 written warn-
ing 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 ex-
change 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 justi-
fied for that one incident alone. In the actual warning, Shaw
had additional language inserted, so that the first paragraph
read:
On Tuesday, January 24th, Terri approached another associate
and raised her voice and demonstrated negative emotional re-
actions to work related issues. In addition, Terri has displayed
these reactions on several occasions to her manager, the busi-
ness owner, and other co-workers. [Emphasis 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 prod-
ucts, 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 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 an-
other 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 men-
tioned 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

21 Tr. 328.
22 GC Exh. 2.
J. SHAW ASSOCIATES, LLC 943
staff and customers. This behavior is considered unprofes-
sional . . . and will not be tolerated. [Emphasis 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 emo-
tional, and if she got upset, nobody else would be around. Bry-
ant 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 re-
sponded 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 Has-
kell’s threat to blackmail him. The termination letter24 enumer-
ated the following reasons:
Arguing with fellow employees.
Regular use of profanity, losing your temper and cry-
ing.
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 at if you are termi-
nated—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 warn-
ing; 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 Has-
kell 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,

23 Bryant said this twice. Tr. 81, 82. It apparently clarified her tes-
timony 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.
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 Has-
kell be written up for her confrontation with Monti or for order-
ing 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 obsceni-
ties 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 motiva-
tion for taking action against an employee was his or her pro-
tected 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 em-
ployer’s adverse action. The General Counsel must show, ei-
ther 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 har-
bored animus, and the employer took action because of this
animus.
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 Man-
agement 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 per-
suade 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 Ber-
trand 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

25 Tr. 137.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD944
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,” Has-
kell 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. Accord-
ingly, 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 Bry-
ant, and to Shaw, about wages and health benefits. Such mat-
ters 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 dis-
avow 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 manage-
ment, and there is no evidence that at any time, Keller or any-
one 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
Electric 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.
Thus, Haskell alone initiated discussions with other employ-
ees about pay and benefits, was never authorized or even en-
couraged 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 termi-
nated. 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 per-
ceived as two types of misconduct on Haskell’s part that war-
ranted discipline. One was yelling at Monti in a public area of
the store and following Monti as the latter attempted to disen-
gage from their heated argument. The second was for improp-
erly 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 conversa-
tions about wages.
In actual wording, the third reason (number two in the warn-
ing) did not state anything about Haskell talking to other em-
ployees about their wages or other benefits or prohibit her from
doing so. Rather, the language was that Haskell had made “re-
peated, vocal requests for a wage increase at inappropriate
times and in settings that were open to other staff and custom-
ers.” 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 ac-
tivities in which she allegedly engaged.
Turning to Haskell’s termination, Shaw most likely hired
Haskell in part because of their romantic involvement. Regard-
less, it is patently obvious that she was given much greater
latitude as an employee because of that factor. It is inconceiv-
able 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.
Apparently, during the course of Haskell’s employment, the
time came when she wished their romantic relationship to con-
tinue 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
J. SHAW ASSOCIATES, LLC 945
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 re-
cording of a phone call which, in the absence of any other ex-
planation, 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 Bry-
ant’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 let-
ter, 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 vio-
lation 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 ef-
fect. Indeed, when Davis told Bryant and Monti that Haskell
had been discussing wages with her, they showed little concern,
a reaction inconsistent with there 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 prac-
tices under the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended26
ORDER
The complaint is dismissed.

26 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.