Lou's Transport, Inc. and T.K.M.S., Inc.Download PDFNational Labor Relations Board - Board DecisionsDec 16, 2014361 N.L.R.B. 1446 (N.L.R.B. 2014) Copy Citation 1446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lou’s Transport, Inc., and T.K.M.S., Inc. and Mi- chael Hershey T.K.M.S., Inc. and Jeffrey Rose. Cases 07–CA–102517 and 07–CA–113640 December 16, 2014 DECISION AND ORDER BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER On June 5, 2014, Administrative Law Judge Paul Bo- gas issued the attached decision. The Respondents filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondents filed a reply brief.1 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 briefs and has decided to affirm the judge’s rulings,2 findings,3 and conclusions as modified below and to adopt the judge’s recommended Order as modified and set forth in full below.4 Michael Hershey was employed by the Respondents as a truckdriver, hauling dirt and clay at a limestone and 1 The General Counsel has moved to strike transcript excerpts at- tached to the Respondents’ brief. We have reviewed the transcript in its entirety and have not selectively relied on the Respondents’ excerpts in reaching our decision. The General Counsel’s motion is therefore denied. The Respondents moved to strike the General Counsel’s an- swering brief on three grounds: (1) that it was not double-spaced as required by the Board’s Rules; (2) that it allegedly included evidence not admitted at the hearing; and (3) that it allegedly addressed issues outside the scope of the Respondents’ exceptions. The Board’s policy permits a party to resubmit a brief that conforms to the Board’s Rules, and the General Counsel has done so. We have carefully reviewed the General Counsel’s brief and find the Respondents’ other allegations without merit. The Respondents’ motion is therefore denied. 2 The complaint alleged that Respondent Lou’s Transport, Inc. and Respondent T.K.M.S., Inc. are a single employer and/or joint employ- ers. The judge accepted the parties’ stipulation that the Respondents are jointly and severally liable for any remedies found appropriate in this case. He therefore made no findings with respect to their single- and/or joint-employer status. Accordingly, we will delete reference to the legal status of the Respondents’ relationship other than to adopt the judge’s recommendation, based on the stipulation, that they are jointly and severally liable to remedy the unfair labor practices found in this case. 3 There are no exceptions to the judge’s findings that the Respond- ents violated Sec. 8(a)(1) of the Act by inviting employees to quit be- cause they engaged in protected concerted activity and by warning employees for engaging in protected concerted activity. There are also no exceptions to the judge’s dismissal of the allegation that the Re- spondents violated Sec. 8(a)(1) by discharging Jeffrey Rose. 4 We shall modify the judge’s recommended Order to conform to the Board’s standard remedies. In adopting the judge’s recommended tax- compensation and Social Security Administration reporting require- ments set forth in the remedy section of the judge’s decision, we rely on Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). We shall substitute a new notice to conform to the Order as modified. sandstone quarry in southeastern Michigan. Hershey and the other drivers were dissatisfied with various aspects of their working conditions, including the safety of the un- paved roads within the quarry and the condition of their trucks. The Respondents’ site supervisor testified that every driver complained to him about these issues. The Respondents promulgated several documents to employees that set out, among other things, certain “core values.” One of these “core values” is to “overlook”— i.e., disregard, ignore—the “chatter” of drivers talking to one another on the radio. The Respondents’ manager, Jeffery Laming, testified that “chatter” “stir[s] up the crowd” and “gets the people going.” On January 7, 2013,5 Hershey and another driver en- gaged in a conversation over their company radios about working conditions and safety concerns. This conversa- tion was overheard by some of the Respondents’ offi- cials, and Hershey and the other driver were subsequent- ly disciplined for “talking bad” about the Company and violating its “core values.” Around the same time, Her- shey began displaying signs in his truck window for the other drivers to see. Some of the signs commented on the same concerns regarding safety and working condi- tions that were the subject of the drivers’ complaints. On a day in late January or February, the drivers col- lectively agreed to stop working for the rest of the day because of the dangerous condition of the quarry roads. On March 25, the manager of the quarry held a safety meeting; Sean Schmidt, the Respondents’ manager for the quarry project, was in attendance. Several drivers, including Hershey, criticized the maintenance of the roads. On March 27, Manager J. Laming learned that drivers had been talking about Hershey’s signs. He character- ized Hershey’s signs as “visual chatter” and inconsistent with the Respondents’ “core values.” He further testified that some of the signs, including those stating “paycheck on order” and “brakes on order,” were “stirring up the crowd.” J. Laming told Manager David Laming about the signs. The two of them also discussed the January 7 incident and observed that Hershey was “still talking bad” about the Respondents. When Hershey arrived for work on March 27, J. Laming discharged him. D. Lam- ing testified that, in addition to the signs, Hershey was discharged because D. Laming “had already spoken to [him] about conversations over the radio.” “Then I saw these signs,” D. Laming continued, “and I thought . . . this isn’t the kind of person we want working for us. So I told Jeff Laming it [would] probably be best if we ter- minate him.” D. Laming then reiterated that Hershey 5 All dates are in 2013, unless stated otherwise. 361 NLRB No. 158 LOU’S TRANSPORT, INC. 1447 was discharged “due to the signs” and “also the fact that [D. Laming] had previously spoken to [Hershey] regard- ing his behavior.” For the following reasons, we agree with the judge that the Respondents violated Section 8(a)(1) of the Act when they discharged Hershey.6 An employer violates Section 8(a)(1) of the Act by discharging an employee “if the employee was engaged in an activity which is ‘concerted’ within the meaning of Section 7, the employer knew of the concerted nature of the employee’s activity, the concerted activity was pro- tected by the Act, and the discharge was motivated by the employee’s protected, concerted activity.” Correc- tional Medical Services, 356 NLRB 277, 277 (2010) (cit- ing Meyers Industries, 268 NLRB 493, 497 (1984) (sub- sequent history omitted)).7 The Respondents contend that Hershey was discharged solely for displaying signs in his truck, and that display- ing those signs was not protected concerted activity. The evidence discussed above demonstrates, however, that Hershey was fired for displaying the signs and for his January 7 radio conversation with a fellow driver. We so find. The Respondents did not except to the judge’s finding that Hershey’s participation in the January 7 con- versation was protected concerted activity.8 In any event, we agree with that finding. During the conversa- tion, Hershey and his fellow driver discussed their con- cerns about working conditions—specifically, the condi- tion of their trucks and the safety of the quarry roads on which they had to drive—and all the drivers complained to the Respondents about these very issues. The Board has found protected concerted activity under circum- stances closely resembling those presented here. See Salisbury Hotel, 283 NLRB 685, 686–687 (1987) (find- ing employees’ complaints among themselves about new lunch policy concerted where employees also protested individually to management). Because the protected concerted radio conversation was a reason for Hershey’s discharge, we find the discharge unlawful. 6 In his decision, the judge cited several Board cases decided at a time when the composition of the Board included two persons whose appointments the Supreme Court subsequently held were not valid. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). In affirming the judge’s finding that Hershey’s discharge was unlawful, we have not relied on any of those cases. 7 There is no contention that Hershey, in the course of his protected concerted activity, engaged in opprobrious conduct that caused him to lose the protection of the Act. Accordingly, in determining whether Hershey’s discharge was unlawful, we do not rely on the judge’s analy- sis under the framework set forth in Atlantic Steel Co., 245 NLRB 814 (1979). 8 In the absence of exceptions, Member Johnson adopts the judge’s conclusion that the January 7 conversation was concerted and protect- ed, and finds it unnecessary to independently consider the question. But even assuming, as the Respondents contend, that Hershey was discharged solely for displaying his signs, we would still find his discharge unlawful.9 Regardless whether displaying the signs was itself concerted activi- ty, the evidence demonstrates that the Respondents be- lieved it was. J. Laming’s testimony establishes that he believed the signs were “stirring up the crowd.” Moreo- ver, some of the signs bore messages that related to terms and conditions of employment. An employer violates Section 8(a)(1) by discharging an employee because the employer believes he or she engaged in concerted activi- ty for mutual aid or protection, regardless whether the employee’s activity was in fact concerted. See, e.g., U.S. Service Industries, 314 NLRB 30, 30–31 (1994) (finding discharge unlawful where employer believed employee’s complaints to her supervisor in the presence of other em- ployees were “stirring up the other workers”), enfd. mem. 80 F.3d 558 (D.C. Cir. 1996). We need not and do not reach the issue of whether Hershey’s display of the signs constituted protected concerted activity.10 Accord- ingly, we find that the discharge would be unlawful even if the Respondents’ sole reason for the discharge had been Hershey’s posting of the signs in his truck window, because the evidence shows that the Respondents regard- ed Hershey’s signs as protected, concerted activity. ORDER The National Labor Relations Board orders that the Respondents, Lou’s Transport, Inc., Pontiac, Michigan, and T.K.M.S., Inc., Pontiac, Michigan, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging, warning, or otherwise discriminating against any employee for engaging in protected concert- ed activity. (b) Inviting any employee to quit because he or she engaged in protected concerted activity. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Michael Hershey full reinstatement to his former job or, 9 In reaching this conclusion, Member Johnson has considered that the Respondents did not assert that a reason for the discharge was a purported opprobrious or egregious nature of the signs’ messages. 10 Although Member Schiffer agrees that Hershey’s discharge was unlawful based on the rationale stated above, she also affirmatively finds that the display of the signs constituted protected concerted activi- ty. Thus, she would find Hershey’s discharge unlawful even assuming the display of the signs was the sole reason for the discharge, regardless of what the Respondents did or did not believe. 1448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Michael Hershey whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against him, in the manner set forth in the remedy section of the judge’s decision as modified. (c) Compensate Michael Hershey for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Admin- istration allocating the backpay award to the appropriate calendar quarters. (d) Within 14 days from the date of this Order, remove from their files any reference to the unlawful verbal warnings issued to Michael Hershey and Timothy Pledg- er, and within 3 days thereafter notify those individuals in writing that this has been done and that the discipline will not be used against them in any way. (e) Within 14 days from the date of this Order, remove from their files any reference to the unlawful discharge of Michael Hershey, and within 3 days thereafter notify him in writing that this has been done and that the dis- charge will not be used against him in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at their Pontiac, Michigan facilities copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondents’ authorized repre- sentative, shall be posted by the Respondents and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents cus- tomarily communicate with their employees by such means. Reasonable steps shall be taken by the Respond- ents to ensure that the notices are not altered, defaced, or 11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” covered by any other material. If either of the Respond- ents has gone out of business or closed its facility in- volved in these proceedings, the Respondents shall du- plicate and mail, at their own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondents at any time since January 8, 2013. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondents have taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge, warn or otherwise discrimi- nate against any of you for engaging in protected con- certed activity. WE WILL NOT invite you to quit because you engage in protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Michael Hershey full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL make Michael Hershey whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL compensate Michael Hershey for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and WE WILL file a report with the Social Se- curity Administration allocating the backpay award to the appropriate calendar quarters. LOU’S TRANSPORT, INC. 1449 WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful warnings issued to Michael Hershey and Timothy Pledger, and WE WILL, within 3 days thereafter, notify them in writing that the warnings will not be used against them in any way. WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful dis- charge of Michael Hershey, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. LOU’S TRANSPORT, INC., AND T.K.M.S., INC. The Board’s decision can be found at www.nlrb.gov/case/07-CA-102517 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. Donna M. Nixon, Esq., for the General Counsel. Amy D. Comito, Esq. and Kelly M. Kammer, Esq. (Steven A. Wright, P.C.), of Shelby Township, Michigan, for the Re- spondents. DECISION STATEMENT OF THE CASE PAUL BOGAS, Administrative Law Judge. These consolidat- ed cases were tried in Detroit, Michigan, on February 24 and 25, 2014. Michael Hershey, an individual charging party, filed the initial charge in Case 07–CA–102517 on April 11, 2013, and amended charges in that case on May 30 and September 26, 2013. Jeffrey Rose, an individual charging party, filed the charge in Case 07–CA–113640 on September 18, 2013. The Regional Director for Region 7 of the National Labor Relations Board (the Board) issued the consolidated amended complaint (the complaint) on January 31, 2014. The complaint alleges that Lou’s Transport, Inc., and T.K.M.S., Inc., a single employ- er and/or joint employers (TMKS) discriminated in violation of Section 8(a)(1) of the National Labor Relations Act (the Act) when they encouraged employees to resign their employment, issued verbal warnings to employees, and discharged employ- ees, because those employees engaged in protected concerted activity and to discourage such activities. The Respondents filed a timely answer in which they denied committing any of the violations alleged. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondents, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Respondent Lou’s Transport and Respondent TKMS (collec- tively referred to herein as the Respondents) are corporations with offices and places of business in Pontiac, Michigan, and are engaged in the intrastate transportation of freight including aggregates of various kinds. In conducting their operations during the fiscal year ending December 29, 2012, each of the Respondents has provided services valued in excess of $50,000 to the Barton Malow Company, an enterprise within the State of Michigan that is directly involved in interstate commerce. The Respondents admit, and I find, that individually and collec- tively they have been employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Respondent Lou’s Transport and Respondent TKMS are trucking companies owned by Dan Israel. The Respondents have a number of managers and supervisors in common, share the use of some equipment and facilities, and also use the same written statements of “core values” and “6 cardinal safety rules,” and the same team member handbook.1 This case con- cerns the Respondents’ treatment of its employees working as truckdrivers at the “Sylvania quarry” jobsite. The Sylvania jobsite is a limestone and sandstone quarry that is owned by Great Lakes Aggregate (Great Lakes), a nonparty. Great Lakes contracts another nonparty, Dan’s Excavating (Dan’s), to ex- tract and load material from the quarry. In order to reach the quarry’s reserves of limestone and sandstone it is necessary for Dan’s to remove a top layer of dirt and clay. That is where the Respondents come in. Dan’s subcontracts with the Respond- ents to transport this dirt and clay from the pit area to a dumpsite at another location on the quarry property. Individu- als working for Dan’s direct the Respondents’ drivers to specif- 1 The complaint alleges that Respondent Lou’s Transport and Re- spondent TKMS are a single employer and/or joint employers. At the start of the trial, the General Counsel and the Respondents submitted written stipulations providing that the Respondents would be jointly and severally liable for any remedies found to be appropriate and that, for purposes of this litigation only, all individuals alleged to be agents in the complaint (Dan Israel, Bruce Israel, David Laming, Jeffery Lam- ing, Sean Schmidt, and Tony Allen) were agents of both Respondents with respect to the discipline and termination of the Charging Parties. The understanding was that this would alleviate the need to litigate the question of single/joint employer status. Given that understanding, the relationship between the two Respondents is discussed in this decision only for the purposes of providing context. I make no finding regarding the alleged single/joint-employer status of the Respondents. 1450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ic locations at the pit area and load the Respondents’ trucks with dirt and clay. The Respondents’ employees then drive to the dumpsite where individuals working for Dan’s direct them to the specific location where the material is to be unloaded. The round trip route from the pit area to the dumpsite and back is less than a mile, and the drivers cover that route approxi- mately four or five times every hour. Dan’s pay the Respond- ents on a per truck/per hour basis for these services. Each of the Respondents’ trucks at the quarry consists of a tractor and a trailer, and transports loads in excess of 100,000 pounds. During the relevant time period, up to 6 of the Respondents’ drivers at the quarry were employees of Respondent Lou’s Transport, and from 8 to 20 were employees of Respondent TKMS.2 All of the Respondents’ drivers, whether employed by Lou’s Transport or TKMS, do exactly the same work at the quarry, and park their trucks overnight at the same TKMS- operated yard facility. The quarry is considered a mine for purposes of regulation by the Mine Safety and Health Admin- istration (MSHA). The record shows that working conditions for the Respond- ents’ drivers at the quarry are challenging. The route that the drivers traverse at the quarry consists almost entirely of non- paved, onsite, roads of clay, dirt, and stone. These roads are very slippery and become more so when they are wet or thaw- ing after a freeze. Dan’s is responsible for maintaining these onsite roads, which deteriorate quickly and require daily resur- facing and rebuilding. The condition of the onsite roads is often quite poor and this results in extreme wear and tear to the trucks. During the time period at issue here, the Respondents’ driv- ers were dissatisfied with the efforts that the Respondents and Dan’s were making to keep the onsite roads and the trucks in a safe and appropriate condition. Sean Schmidt, the Respond- ents’ manager for the quarry project, stated that every driver complained to him about the roads and the condition of the trucks. According to Hershey, drivers complained to Schmidt at least three times a week about roads and equipment. Drivers also complained about what Hershey called “messed up paychecks.” David Laming (D. Laming) a higher-level official with authority over the Respondents’ other managers also re- ceived complaints from drivers. Jeffrey Laming (J. Laming), the Respondents’ operations manager, testified that he was aware that there were issues with the condition of the tires on the trucks used at the quarry. Drivers also noted problems with the trucks on the daily pretrip inspection reports that they sub- mitted to the Respondents. The parties disagree about the rea- sonableness of the efforts that the Respondents and Dan’s were making to maintain the roads and equipment, but it is not nec- essary for me to wade into that disagreement in order to resolve the questions presented here. I do, however, find that the driv- ers were complaining in good faith about what they believed, correctly or not, were unreasonable deficiencies affecting their 2 At the times relevant to the claims in the complaint, the Lou’s Transport drivers were represented by Teamsters Local 614, and the TKMS drivers were not represented by a union. The complaint does not allege any violations based on employees’ union activities or affil- iation. safety. I am persuaded of this by the undisputed testimony that every driver who worked at the quarry complained to Schmidt and that in about February 2013 the drivers became so alarmed about the safety of the onsite roads that they collectively re- fused to continue the day’s work and were sent home. The record shows that one of the Respondents’ trucks had flipped over at the quarry, that the trucks were frequently damaged due to the condition of the roads, and that the trucks were operated in proximity to drops of as much as 200 feet. The lines of authority at the quarry were overlapping to some degree. Schmidt, who managed the Respondents’ nearby yard, visited the quarry up to four times a day and was the Respond- ents’ supervisor for the drivers there. He inspected the onsite quarry roads, checked in with the drivers, and answered ques- tions that Dan’s or Great Lakes personnel had for the Respond- ents. Schmidt reported to J. Laming who also visited the jobsite from time to time. As noted above, personnel from Dan’s, a nonparty, gave the Respondents’ drivers direction at the quarry. Vito Stramaglia, who worked for Dan’s, was the superintendent of the quarry operation and was there through- out the day overseeing the project. In that capacity, he, inter alia, signed the Respondents’ drivers “in” and “out” and di- rected their work. Bill Begley, who was the Great Lakes man- ager for the quarry, rarely interacted directly with the Respond- ents’ drivers. B. Rules and Values Promulgated by the Respondents The Respondents justify the disciplinary actions they took with respect to Hershey, Rose, and a third driver, Timothy Pledger, by referencing three documents that they promulgated to employees—specifically, a statement of “core values,” a statement of “6 cardinal safety rules,” and the rules of conduct set forth in the team member handbook. The clause in the “core values” document that the Respondents rely on directs employees to “overlook the chatter.” J. Laming explained this “core value” by stating, that “drivers especially, they get on their CBs and they, you know chatter about things, you know; overlooking the rumors and all the stuff that goes on.”3 He said, “chatter” is “what gets people going.” The Respondents also relies on two of their “cardinal safety rules”—one that concerns the use of cell phones and the other the use of hardhats. The cell phone rule requires “100% Com- pliance with absolutely no cell phone use while driving forward or reverse in commercial vehicles or heavy equipment.” In the absence of a medical emergency, an employee who needs “to send or receive a phonecall” is to “do so in a designated break location at the facility.” The evidence showed that drivers of- ten use their cell phones while stopped in their trucks and that the Respondents condoned such use. However, the evidence did not show that the Respondents condoned drivers’ use of cell phones while their trucks were moving.4 The drivers were, 3 The other core values set forth by the Respondents’ document on the subject are: never say can’t; honor all commitments; proactive communication (good and bad news must travel fast); details make the difference; T[ake] A[im] A[nd] F[ire]; desire to be part of something special; willingness to change and grow; home grown; and built to last. 4 Charging Party Rose, who the Respondents state that they dis- charged in part for talking on a cell phone while driving his truck, LOU’S TRANSPORT, INC. 1451 however, permitted to communicate using citizens band radios (CBs) and company radios while driving. The safety rule regarding hardhat usage by drivers requires “100% compliance with wearing [a] hard hat . . . all the time out of the vehicle.” Because the quarry was considered a mine for purposes of MSHA, the Respondents and Dan’s personnel informed drivers that it was also necessary that drivers wear hardhats while inside their trucks. The rule requiring the wear- ing of hardhats inside the trucks was not one of the Respond- ents’ written cardinal safety rules, but a site specific modifica- tion of its rule. The record shows that, despite the site specific rule, it was common for Schmidt to see drivers working inside their vehicles without a hardhat on. Charging Party Rose was the only driver to whom Schmidt ever issued discipline for such conduct. The Respondents’ employee handbook lists 50 rules of con- duct, the violation of any of which “will, in the discretion of the Company, result in disciplinary action up to and including dis- charge.” The rule that the Respondents rely on here prohibits the “[u]se of threatening or profane language toward a fellow Team Member, Management, personnel, or a customer.” The evidence showed that despite this rule, drivers at the quarry regularly used profanity and sexually charged language. Most of this occurred during conversations between drivers who were speaking on the CBs or company radios in their trucks. There was also credible testimony from Pledger5 that he heard Israel, J. Laming, and D. Laming all use profanity on the com- pany radio at one time or another. In one instance, Pledger heard a manager tell employees to stop cursing on the radio, however, not all drivers at the quarry received that instruction. In particular, Charging Party Rose was never told to stop curs- ing on-the-job prior to the day the Respondent discharged him. The word “f—k” was used frequently by drivers, but most often as an interjection (for example “f—k, I hit a rock,” Tr. 275), a participial adjective expressing disparagement or discontent (for example “f—king weather,” Tr. 216), a verb (for example “weather— it’s f—king us up,” Tr. 183), or an adverb (for example, “that f—king sucks,” Tr. 292). On occasion the Respondents’ driv- ers would direct the word at one another to express contempt or hostility, as in “f—k you,” but there was credible testimony indicating that this usage was less commonplace. (Tr. 344– 345.) While the record indicates that the Respondents general- ly tolerated drivers using profanity in the ways set forth above, there was no credible evidence that the Respondents had ever tolerated drivers saying “f—k you” to personnel of their cus- tomer at the quarry—i.e., Dan’s—or to using that, or compara- ble language, to communicate refusal to accept direction from Dan’s personnel. (Tr.292–293.) Schmidt stated that there is a testified that he had seen other employees engaging in the same con- duct. Rose did not state how often he witnessed such conduct, nor did he claim that he ever witnessed it occurring in the view of supervisors or managers of the Respondents. Even if I credit Rose’s testimony on this subject, it would not show that such conduct was prevalent, or that the Respondents’ officials knowingly allowed it. 5 Pledger was a former driver with the Respondents, who left that position voluntarily and on good terms. The General Counsel is not seeking any monetary relief for him. difference between the Respondents’ drivers cursing at one another and those drivers cursing at a customer such as Dan’s. He testified that it is unacceptable for drivers to direct profani- ties at a customer and that doing so is grounds for discharge. C. The Respondent’s Reaction to Overhearing a Radio Conversation between Hershey and Pledger Hershey was hired by the Respondents as a driver in July 2012, and transferred to the quarry project in November 2012, the same month that the Respondents began work there. Pledg- er, another driver, began his employment with the Respondents in August 2007 and also worked on the quarry project. On January 7, 2013, Hershey and Pledger had a conversation over the company radios in their trucks. They were using a channel that drivers believed was neither monitored by the Respondents nor used for any official purpose. Hershey and Pledger dis- cussed the poor condition of the onsite roads and of the Re- spondents’ trucks and tires. Pledger told Hershey that the Re- spondents’ personnel had urged him to drive a truck even though its tires were bad, that he ended up receiving a $600 traffic fine for driving on the bad tires, and that the Respond- ents left him to pay the fine himself. Such incidents were a matter of concern to Pledger not only because of the monetary fine, but because such incidents could adversely affect his rat- ing as a commercial driver. Hershey complained that he was having trouble with the condition of his truck and that the Re- spondents kept telling him that the necessary parts were “on order.” Hershey and Pledger discussed their view that Israel and D. Laming were “cheap” regarding how they maintained equipment and ran the Company. One or both of the drivers used profanity during the conversation. No one else participat- ed in the conversation. Unbeknownst to Hershey and Pledger, someone had alerted D. Laming to their radio discussion while it was ongoing. D. Laming reacted by clandestinely listening in on the conversa- tion for 30 to 45 minutes. He testified that during that time he heard Hershey and Pledger “badmouthing the company” and complaining about the trucks, the tires on the trucks, the road conditions, and the monotony of the work. He also heard the drivers disparage Israel, J. Laming, and himself. One of the two drivers said that Israel was an “asshole” and a “cheap- skate.” While the conversation was ongoing, D. Laming alert- ed Israel, who listened in as well. D. Laming testified that he was “enraged” by what he heard Hershey and Pledger saying and wanted to discharge them immediately. Israel, however, said that Hershey and Pledger might just have been “blowing off steam” and that D. Laming should talk to them. The next day, January 8, D. Laming met with Hershey and Pledger. Schmidt was also present. D. Laming revealed that he had listened to Hershey’s and Pledger’s radio conversation the day before and asked, “Why are you still here?” Pledger testi- fied that he was worried that he might be fired depending on how he answered the question. D. Laming went on to say that he “didn’t like” their “attitudes” and that “complaining on the radio is very unprofessional.” He said that the Respondents spent “a lot of money and equipment to repair things and if [Hershey and Pledger] have a problem, [they] need to find a different place to work.” He also stated that “if . . . per your 1452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conversation you think this is terrible place to work, you know, I would never work anywhere that I wasn’t happy working, and why do you work here?” Hershey and Pledger apologized for their comments and said that they were just venting and had not meant D. Laming to hear them. D. Laming prepared discipli- nary paperwork stating that Hershey had received a “verbal warning for bad mouthing [the] company and improper lan- guage on company radio.” He noted on the paperwork that both Hershey and Pledger “were sorry for their actions” and that he believed “they will both do a good job going forward.” D. Laming testified that he created separate paperwork docu- menting a verbal warning for Pledger based on the incident. Shortly after hearing the radio conversation, D. Laming offered to allow Hershey to transfer to a position away from the quarry as a dirt dump supervisor. Hershey declined because he would have earned less in that position. D. Hershey’s Signs In late December 2012 or early in January 2013, Hershey began preparing handmade signs, each 8.5 by 11 inches in size, that he would intermittently place in the lower left hand corner of his truck’s windshield. Each time he made a new sign, Her- shey would display it during one or two loops around the quar- ry. The signs could be seen by the drivers, as well as by per- sonnel of Dan’s and Great Lakes. Hershey meant for the signs to amuse and boost the morale of the other drivers. A good number of the signs carried messages that were critical of the drivers’ working conditions, including the way the trucks and the onsite roads were being maintained, and issues with paychecks. Among the signs were ones that read: “BRAKES ON ORDER”; “PAYCHECK ON ORDER”; “REAL LIFE ON ORDER”; “ICE ROAD THIS!”; “GOT TIRES?”; “TIRES ‘R’ US”; “SLIPPERY WHEN WET”;6 “SHOOT ME PLEASE!” and “HELP!” Several of Hershey’s signs also mocked the Re- spondents’ “JDL” certification. J. Laming testified that the Respondents never told drivers that this was anything more than an internal certification, but Hershey was surprised when a police officer informed him that it was not an independent safe- ty certification and that “JDL” certified meant “Jeffrey and David Laming” certified. Two of Hershey’s signs said “J.D.L. THIS!” and one of those signs also included a stick figure drawing of a person grabbing his or her crotch while dancing in the manner associated with the entertainer Michael Jackson. The drawing is very simple and does not include any represen- tation of genitalia or other graphic details. Another sign carried the message “I GOT YOUR J.D.L. RIGHT HERE.” Some of the signs did not concern working conditions at all, including one that made reference to a sex act. There was credible testi- mony that drivers were amused by Hershey’s signs. Prior to the day of Hershey’s discharge, no coworker, supervisor, or manager had ever told him that the signs were inappropriate. E. Rose Rose was a driver on the quarry project who was hired by the Respondents in late November 2012, and was terminated about 6 This was a reference to Hershey’s view that the Respondents re- quired the drivers to operate even when the roads were wet and, there- fore, particularly hazardous. 4 months later on March 25, 2013. During Rose’s tenure with the Respondents, Schmidt heard him complaining on the radio and came to see him as an instigator of negativity on the radio. The record does not show when Schmidt overheard Rose make these statements. The disciplinary paperwork for Rose’s termination was pre- pared and signed by Schmidt and dated March 25. It stated that Rose was being warned and discharged that day on the basis of insubordination, violation of a safety rule, and uncooperative performance. In the “details” section of the document, Schmidt wrote: Issue #1: On 3/23/2013 I saw Jeff Rose Driving on the Syl- vania [quarry] site without a hard hat on and asked him where it was? He stated “the strap was broken on it.” I gave him a new hard hat. Issue #2: It was brought to my attention that on 3/22/13 around 5:00 the Dan’s operator Gary Martin told Jeff Rose “we are loading until 5:00 pm and to get another load.” Jeff Rose responded, “f—k you and f—k Vito.” I didn’t know about this until this morning when Vito Stramaglia (Dan’s Superintendent) told me. The exit interview form prepared by the Respondents that day describes the reason for Rose’s separation as “Services are not longer needed. Does not meet company core values.” At trial, Schmidt testified that his decision to terminate Rose was the result of a “culmination of things” and he discussed purported shortcomings in addition to those described above. Schmidt stated that in late February or early March 2013, Rose had an accident while driving for the Respondents and that in March 2013 Rose had been caught talking on a cell phone while he was driving. Schmidt testified that the incident on March 22 when Rose purportedly cursed at a customer was “the straw that broke the camel’s back.” Regarding the accident, the evidence showed that Rose had been told to return the truck he was driving to the Respondents’ yard because the brakes were not working properly. As Rose turned the truck while nearing the yard, the brakes malfunc- tioned and the truck jackknifed. The first company official at the scene, J. Laming, asked Rose: “What the hell happened? What’d you do?” After Rose explained, J. Laming told him to get another truck and keep working. J. Laming did not send Rose for a drug test or testify that the accident was Rose’s fault. Schmidt, however, testified that he subsequently examined skid marks at the scene and formed the opinion that the skid marks were created during the accident and showed that Rose had been driving too fast. The Respondents did not issue discipline to Rose at the time of the accident. Rose was discharged some weeks later, but the paperwork explaining that decision did not mention the accident. Regarding the cell phone incident, the evidence showed that one day in March 2013, as Rose was driving into the Respond- ents’ yard, he received a call from a mechanic. Rose answered the call while his truck was moving and Schmidt witnessed this conduct. Schmidt reacted by yelling at, and verbally repri- manding, Rose for talking on the cell phone while driving. At the time of Rose’s termination, Schmidt told him that the cell LOU’S TRANSPORT, INC. 1453 phone incident was one of the reasons for the action, although the termination paperwork did not specify that as a reason.7 On two occasions, Schmidt saw Rose violating the quarry- specific rule requiring drivers to wear hardhats while inside their trucks. Schmidt witnessed the first violation on about March 16 or 17, 2013, and alerted Rose to the violation. The second violation was on March 22 or 23, and this time Schmidt gave Rose a warning as part of the same March 25 disciplinary paperwork that documented Rose’s discharge.8 There was an ongoing conflict at the quarry between Stra- maglia (Dan’s quarry superintendent) and the Respondents’ drivers. Stramaglia wanted the drivers to continue receiving loads until the shift ended. Drivers resisted taking loads close to the end of the shift because they found that doing so meant that they would not complete their work until after the shift ended and would not be compensated for the postshift work. On Friday, March 22, 2013, Rose stopped accepting loads shortly before his shift was scheduled to end at 5 p.m. Stra- maglia had told the Dan’s employees to continue loading the Respondents’ trucks until the end of the shift. Consistent with that instruction, one of Dan’s employees, an operator named Greg Martin, told Rose to take another load. There is no dis- pute that this led to a hostile exchange between Rose and Mar- tin. Rose testified: “He’s like, f—k you go, go [take another load]. And I’m like, no, f—k you. So he’s like, go or I’ll kick you’re a—s.” (Tr. 209.)9 Stramaglia was not a witness to this exchange, but his understanding was that when Martin relayed the instruction to take another load, Rose responded, “f—k you” and “f—k Vito too.”10 Subsequently, on Monday, March 7 At one point, Rose testified that Schmidt yelled at him because he was driving while talking on the cell phone, and that, at the time of the discharge, Schmidt stated that the cell phone was one of the reasons for the discharge. (Transcript at page(s) (Tr.) 189, 190.) However, Rose also testified that no supervisor spoke to him about his use of the cell phone until subsequent to his discharge and that Schmidt never told him that the cell phone usage was a reason for his discharge (Tr. 190). Based on my review of Rose’s inconsistent testimony, I conclude that Schmidt did talk to Rose about the cell phone violation at the time of that violation and did mention it to Rose when terminating his em- ployment. That testimony was specific and against Rose’s interests, and therefore it is unlikely that he would fabricate it. In general, Rose had a calm and measured demeanor while testifying. However, his credibility was undermined by a number of inconsistencies in his testi- mony which demonstrate lapses in memory and/or an eagerness to harmonize his account with his own interests in this litigation. 8 According to Schmidt, in the second instance Rose stated that his hardhat was broken, but when Schmidt examined it he discovered that the hardhat was not broken. Neither Schmidt, nor any other witness for the Respondent, claimed that Rose was discharged in whole or in part for misrepresenting the condition of his helmet. 9 Here again, Rose gave inconsistent testimony. He initially testified that “I’m like, no, f—k you,” to Martin, but later said that he had not “sworn” at Martin. This inconsistency, along with others in Rose’s testimony, leads me to consider him less than fully reliable as a witness. 10 Martin himself did not recall the incident at all, could not testify about what Rose did or did not say, and, in fact, did not even remember who Rose was. The General Counsel characterizes this as Martin deny- ing that Rose cursed at him (brief of General Counsel at pp. 38 to 39), but, in fact, Martin only testified that he could not recall whether Rose had done so or not. (Tr. 265–266.) 25, Stramaglia informed Schmidt about the hostile exchange between Rose and Martin. Stramaglia testified that his purpose in doing this was to let Schmidt know about the difficulty he was having with drivers who did not want to take loads as the end of the shift approached. Stramaglia was not concerned about the language that Rose had used, but nevertheless he reported to Schmidt that Rose had said “f—k you” and “f—k Vito too.” The General Counsel argues that for purposes of assessing the severity of Rose’s conduct during the March 22 incident with Martin, I should not consider Dan’s to be the Respond- ents’ “customer.” That argument is not persuasive. It is undis- puted that the Respondents drivers were working pursuant to a contract with Dan’s and that Dan’s was the party paying the Respondents for these services. Multiple witnesses were asked to weigh in on the question, and this testimony was consistent with the Respondents’ characterization of Dan’s as their cus- tomer. Not only did four of the Respondents’ witnesses (D. Laming, J. Laming, Schmidt, and Stramaglia) state that Dan’s was the Respondents’ customer, but two of the General Coun- sel’s own witnesses (Pledger and Martin) agreed with that char- acterization. Pledger even went a little further and stated that the drivers were aware that Dan’s was their customer.11 F. Rose and Hershey Speak at March 25 Safety Meeting On Monday, March 25, 2013, a safety meeting was held at the quarry. Bill Begley, who manages the quarry for Great Lakes, made a presentation at the meeting. A total of about 30 persons attended. Among the other supervisory and manage- ment personnel present were Paul Cosgrow (project safety manager) and Stramaglia from Dan’s, and Schmidt and Tony Allen (dispatcher) from the Respondents. The evidence does not suggest that J. Laming, D. Laming, or Israel were present. The drivers working at the quarry that day, including Hershey and Rose, attended the meeting. Begley made his presentation to emphasize the importance of MSHA rules regarding road maintenance and protective equipment. During his presentation, Begley touched on a num- ber of subjects including the importance of safety, the particular hazards presented by the arrival of spring, the importance of using care when crossing the public road that cut through the quarry, and his commitment to maintaining the roads. He en- couraged the drivers to give him their input. After Begley had been talking for about 5 or 10 minutes, drivers began raising complaints about the roads. Rose went first, stating, “[Y]ou promised that you’d give us these good roads, and here we are driving on the slop and slurry.” He said that Stramaglia was “not taking care of the roads like they’ve been taken care of before, and we need them taken care of.” Hershey joined Rose in complaining about Stramaglia’s maintenance of the onsite 11 A contrary view was expressed by one former driver at the quarry, Gary Grode, who testified that he did not consider Dan’s to be the customer. Grode believed that customers were those persons who came to the quarry to obtain product. I think Grode was confusing the ques- tion of who was the customer of the quarry owners, with the question of who was the customer of the Respondents’ trucking operation at the quarry. At any rate, I find the contrary evidence more persuasive than Grode’s opinion on the subject. 1454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD roads. According to Gary Grode, a driver testifying for the General Counsel, a total of three drivers raised complaints. Hershey remembered himself and Rose being the main em- ployee speakers during the meeting. Stramaglia defended the efforts that Dan’s was making to maintain the roads. Hershey and Stramaglia aired their disagreement, and then Begley stated that he “did not want to get in an argument,” but rather wanted “to talk about what we need to do.” He stated, “[W]e’re going to see what we can do to get it solved so everybody’s happy.” According to the accounts of Hershey and Rose, the disagree- ment between employees and Stramaglia during the safety meeting had become heated and involved some yelling before Begley settled it down. Begley and Stramaglia, neither of whom works for the Respondents, both credibly testified that they did not recall the conversation becoming particularly heat- ed. There is no claim that either Hershey or Rose directed any of their complaints during the meeting at the Respondents or engaged in any confrontation with the Respondents’ agents who were present. I find that Schmidt was present at the safety meeting and had knowledge of Rose’s and Hershey’s state- ments at that meeting. I also credit Schmidt’s testimony that at the time he was testifying (11 months later) he no longer had any specific recollection of that meeting. G. Respondents Discharge Rose on March 25 Later on March 25, the same day as the safety meeting, Schmidt presented Rose with disciplinary paperwork stating that Rose was being warned and discharged. According to Schmidt, he began preparing this document as a written warn- ing based on his observation that Rose was not wearing a hard hat on March 22 or 23. Schmidt testified that after he began preparing the paperwork, Stramaglia told him that, on March 22, Martin had directed Rose to take another load, but Rose had refused and said, “F—k you” and “F—k Vito.” Schmidt modi- fied the disciplinary paperwork to include this incident and changed the disciplinary action from a warning to a waring and discharge. On the form, Schmidt stated that Stramaglia told him about the incident “this morning”—i.e., on March 25, the same day as the safety meeting and the issuance of the disci- pline. Schmidt testified that he discharged Rose based on a variety of things and that the incident Stramaglia reported was the “straw that broke the camel’s back.” Schmidt did not testi- fy that he took any actions to investigate Stramaglia’s account before terminating Rose. Schmidt also completed an exit inter- view form for Rose on March 25. There, Schmidt wrote that Rose “does not meet company core values.” At trial, Schmidt testified that this meant Rose “didn’t meet our core values as far as attention to safety and the way he conducted himself with our customer.” Rose testified that at the time of the discharge, Schmidt told him that the action was being taken because of the hard hat incident, the cell phone incident, and “all the shit” Rose was talking on the radio. After he was discharged, Rose called Israel to discuss what had happened. Rose told Israel that he “liked working” for the Respondents and that he had “thought that [the Respondents’ operation] was going to be my home.” Israel asked Rose why, if he liked working for the Respondents, he was “talking shit on the radio.” Rose told Israel that his complaints were legitimate. Israel asked, “[W]ould you take your job back?” Rose said he would, and Israel said, “[L]et me call Sean [Schmidt] and . . . talk to him.”12 About 3 or 4 days later, Rose called Schmidt and asked if he had spoken with Israel. Schmidt said that he had, but that they had decided not to rehire Rose “because there was too much negativity on the radio.”13 H. Respondents Discharge Hershey on March 27 The Respondents’ terminated Hershey’s employment on March 27, 2013. On that day, J. Laming became aware that drivers had been talking about Hershey’s signs. He called Schmidt at about 5 a.m., and asked him to check Hershey’s truck, which was still parked in the Respondent’s yard, to see if there were any signs in the truck. Schmidt found the signs in Hershey’s truck and reported on them to J. Laming. Shortly thereafter, J. Laming came to the yard. He testified that Her- shey’s signs “upset” him because Hershey was “talking about” the working conditions which “99.9 percent of us work so hard to make right every day.” He found it “offensive” that Hershey mocked the “JDL” certification which he viewed as the Re- spondents going “out of our way to try to make a pleasant working environment.” J. Laming characterized the signs as “verbal chatter” and therefore inconsistent with the Respond- ents’ core value of “avoiding the chatter.” He testified that Hershey’s signs stating “JDL this,” “paycheck on order,” “real life on order,” and “breaks on order” were “stirring up the crowd.” J. Laming contacted D. Laming and told him about the signs. The two discussed the January 7 episode when D. Lam- ing heard Hershey and Pledger criticizing the Respondents, and noted that Hershey was “still talking bad” about the Respond- ents. D. Laming was unhappy that Hershey was displaying the signs for other employees to see and felt that they were “espe- cially inappropriate following the discussion” he had had with Hershey in January about badmouthing the Respondents. J. Laming and D. Laming decided to terminate Hershey for, in D. Laming’s words, “his actions of creating the signs and displaying the signs and negative attitude.” J. Laming pre- pared the termination paperwork. As the reason for the termi- nation, J. Laming wrote “employee does not meet our core values.” When Hershey arrived that morning, J. Laming called him into the office and fired him. J. Laming stated that the reason was that Hershey did not meet the Respondents’ “core values.” Hershey asked what that meant, and J. Laming an- swered, “[W]e didn’t appreciate your signs,” they “pissed off my brother, and you don’t meet our core values.” 12 Israel did not testify at the hearing and the Respondents did not present any other evidence contradicting Rose’s facially plausible ac- count of this conversation. 13 This quote is based on Rose’s testimony, which I credit regarding this statement. Schmidt testified that he did not recall telling Rose that he was “negative,” but Schmidt did not testify that he recalled that he had not done so. In general, Schmidt’s recollection was rather vague regarding the words he spoke to Rose that day. I note, moreover, that Schmidt testified that he considered Rose an instigator of negativity on the radio. The fact that Schmidt did, in fact, hold that view of Rose, lends some support to Rose’s testimony that Schmidt expressed that view. LOU’S TRANSPORT, INC. 1455 I. Complaint Allegations The complaint alleges that the Respondents violated Section 8(a)(1) of the Act on about January 7, 2013, by discriminating against Hershey and Pledger when D. Laming encouraged them to resign and issued verbal warnings to them because of their protected, concerted, discussions about drivers’ working condi- tions. The complaint further alleges that the Respondents vio- lated Section 8(a)(1) of the Act on March 25, 2013, by discrim- inatorily discharging Rose because he concertedly complained about working conditions on March 25, 2013, and to discourage employees from engaging in these or other concerted activities. In addition, the complaint alleges that the Respondents violated Section 8(a)(1) of the Act on March 27, 2013, by discriminato- rily discharging Hershey because he: engaged in protected, concerted, discussions regarding working conditions on January 7, 2013; concertedly complained about working conditions on March 25, 2013; and publicized complaints regarding working conditions by posting signs in his vehicle from January 14 to March 27, 2013. III. ANALYSIS AND DISCUSSION A. Hershey’s and Pledger’s Conversation on January 7 The General Counsel alleges that Hershey and Pledger were engaged in protected concerted activity when, during their Jan- uary 7 conversation on the company radio, they complained to one another about their working conditions and that the Re- spondents’ violated Section 8(a)(1) of the Act when, because of that conversation, they issued verbal warnings to Hershey and Pledger and encouraged them to resign. D. Laming admitted that the Respondents disciplined Hershey and Pledger on Janu- ary 8 because of the January 7 conversation, but the Respond- ents contend that the conversation was not protected activity. Since there is no dispute that the Respondents issued the verbal warnings based on Hershey’s and Pledger’s January 7 conver- sation, this case is properly analyzed using the Atlantic Steel Co., 245 NLRB 814 (1979), framework. Under that frame- work, if Hershey’s and Pledger’s January 7 conversation was protected concerted activity, the Respondents violated the Act by taking action against them because of that activity unless Hershey and Pledger lost the protection of the Act due to op- probrious conduct. See Fresenius USA Mfg., 358 NLRB 1261, 1264 (2012). I find that Hershey’s and Pledger’s conversation on January 7 was protected concerted activity. Section 7 of the Act states that employees engage in protected activity when they, inter alia, “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” The Board has held that employees engage in such activities when they complain about working conditions affecting other employees as well as themselves. Worldmark by Wyndham, 356 NLRB 765, 777–778 (2011) (employees “engaged in concerted activities, privileged by Section 7 of the Act” when they discussed compensation prob- lems among themselves); see also Meyers Industries, 281 NLRB 882, 887 (1986) (Board clarifies that the standard re- quiring that, in order to be concerted, the employees’ action must not be engaged in “solely by and on behalf of the employ- ee himself” encompasses, inter alia, “those circumstances where the individual employees . . . prepare for group action”), enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Where the complaint is made to fellow employees it is “inherently concerted because it involves a speaker and listeners.” Belle of Sioux City, 333 NLRB 98, 105 (2001). The conversation at issue here primarily concerned the safety of the onsite roads and the Respondent’s trucks—matters that were of concern not only to Hershey or Pledger, but to both Hershey and Pledger, Carrier Corp., 331 NLRB 126, 127 (2000) (“concerted activity may well include nothing more than one speaker and one listener”), as well as to the Respondents’ other drivers at the quarry. The record shows that every one of the more than 20 drivers at the quarry brought their complaints about the condition of the roads and the trucks to Schmidt’s attention, and in some cases to the attention of other manage- ment officials. In one instance drivers became so concerned about the safety of the onsite roads that they engaged in a group work stoppage and were sent home. Employees’ expressions of concern are protected concerted activity under such circum- stances even if the employees had not agreed to act together to seek change. See Salisbury Hotel, 283 NLRB 685, 687 (1987) (employees engage in protected activity when they complained about the employer’s lunch hour policy among themselves, and some employees individually expressed their dissatisfaction to management, even if the employees had not explicitly agreed to act together to change the policy). The Respondents contend that Hershey and Pledger were en- gaged in “mere griping . . . not protected concerted activity” because their statements were not made to management or on behalf of other employees. This argument is not persuasive for a number of reasons, among them that Hershey and Pledger were not raising purely personal discontents, but rather discon- tents that they shared with one other, and with the other drivers at the quarry. In Phoenix Processor Limited Partnership, 348 NLRB 28, 46 (2006), petition for review denied sub nom. Cor- nelio v. NLRB, 276 Fed. Appx. 608 (9th Cir. 2008), cert. denied 555 U.S. 994 (2008), the Board affirmed the administrative law judge’s conclusion that an employee engaged in protected con- certed activity by talking to other employees about their wages and hours. The judge distinguished this activity from “mere griping,” by explaining that “griping about a purely personal concern is not ordinarily considered action undertaken for mu- tual aid or protection,” but “voicing concerns that pertain to working conditions affecting other employees as well as the complaining worker is protected by Section 7 of the Act.” Id., citing Alaska Ship & Drydock, Inc., 340 NLRB 874 fn. 1 (2003). It is certainly the case that the safety issues discussed by Hershey and Pledger fall into the category of working condi- tions that affect other employees. Tampa Tribune, 351 NLRB 1324, 1334–1335 (2007) (employee’s complaints are concerted protected activity, not mere griping, where coworkers were also unhappy about the same issues), enf. denied on other grounds by 560 F.3d 181 (4th Cir. 2009). The Respondents contend that Hershey’s and Pledger’s con- versation was not protected because they had not intentionally included representatives of the Respondents in their discussion. First, the record shows that Hershey and other drivers repeated- 1456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ly made the same complaints and related complaints to the Respondents. Even if this were not the case, the Respondents’ argument would fail since the Board has made clear that em- ployees’ “discussions with coworkers [a]re indispensable initial steps along the way to possible group action” and therefore are protected regardless of whether the employees have raised their concerns with management or talked about working together to address those concerns. Hispanics United of Buffalo, Inc., 359 NLRB 368,370 (2012), quoting Relco Locomotive, Inc., 358 NLRB 298, 314 (2012), enfd. 734 F.3d 764 (8th Cir. 2013). Similarly, protection is not denied because other employees have not authorized Hershey or Pledger to serve as their spokesperson because coverage is not dependent on “employ- ees combin[ing] with one another in any particular way,” NLRB v. City Disposal Systems, 465 U.S. 822, 835 (1984), or on the speaker being “specifically authorized” as a “group spokesper- son for group complaints,” Worldmark by Wyndham, 356 NLRB 765, 778. Hershey’s and Pledger’s conversation was part of the process of building sentiment and solidarity around the view that the safety of the roads and trucks had to be improved and, there- fore, their conversation was part of the process that might, and did, include employees seeking those improvements from the Respondents. Even if I did not find that Hershey’s and Pledg- er’s conversation was part of the ongoing efforts by drivers to seek improvement of working conditions at the quarry, I would find that the conversation was protected because complaints about such serious perceived workplace safety hazards are a funda-mental matter of concern to employees and are, on that basis, inherently protected. See Hoodview Vending Co., 359 355, 357–358 (2012) (employee conversations are inherently protected when they involve matters of fundamental concern to employees such as wages, job security, and work schedules); see also St. Bernard Hospital & Health Care Center, 360 NLRB 53, 61 (2013) (“The Board has held that an employee who raises safety issues with his employer is engaged in con- certed activity that is protected by Section 7 of the Act.”). Since Hershey’s and Pledger’s January 7 conversation was protected concerted activity the Respondents could not lawfully discipline them for that activity unless the drivers did some- thing so opprobrious or extreme in the course of the activity that they forfeited the Act’s protection. See Fresenius USA Mfg., supra; Atlantic Steel, supra. Under the Board’s decision in Atlantic Steel, whether otherwise protected activity has lost the Act’s protection depends on a “careful balancing” of the following four factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an em- ployer’s unfair labor practice. 245 NLRB at 816. The Board has cautioned that while an em- ployer may lawfully discipline an employee engaged in pro- tected activity for making statements that threaten others with, for example, physical harm, it may not discipline an employee for making statements that simply make others annoyed or uncomfortable. Chartwells, Compass Group, USA, 342 NLRB 1155, 1157 (2004); Alpine Log Homes, 335 NLRB 885, 894 (2001), RCN Corp., 333 NLRB 295, 300 (2001). The Respondents make no argument that Hershey and Pledger lost the Act’s protection under the Atlantic Steel fac- tors. Based on my consideration of those factors, I find that Hershey’s and Pledger’s activity were neither opprobrious nor extreme. The “place” of the discussion weighs in favor of con- tinued protection. The drivers were at work, in their trucks, and conversing on a radio channel that the Respondents did not use for any business purpose and which the drivers believed the Respondents did not monitor. “The place of work is a place uniquely appropriate for dissemination of views concerning . . . the various options open to the employees.” NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322, 325 (1974). The fact that the conversation occurred in a “place” where management officials were exposed to the drivers’ negative opinions should not weigh against continued protection since those officials were only exposed because they chose to clandestinely eavesdrop on the conversation and eavesdropping on protected activity is itself an unfair labor practice. See Turtle Bay Resorts, 353 NLRB 1242, 1242 fn. 6 (2009), affd. by Board after remand from court of appeals 355 NLRB 706 (2010), enfd. 452 Fed. Appx. 433 (5th Cir. 2011). The subject matter of Hershey’s and Pledger’s discussion also weighs in favor of continued protection. As discussed above, the focus of the conversation was the drivers’ good-faith concerns that management was putting their safety at risk. Although the Respondents may disagree that this belief was well founded, they cannot lawfully muzzle coworkers’ discussion of it.14 The nature of the outburst here also weighs in favor of con- tinued protection. The Respondents do not allege, and the rec- ord does not show, that Hershey or Pledger made threats of physical harm or improper action during their intercepted con- versation. Although profanity was used and management offi- cials were the subject of derogatory name calling, such lan- guage was not extreme or opprobrious given that the use of profanity on the radios was pervasive and generally tolerated, and that neither employee had reason to believe that the offi- cials to whom they were referring were listening in. It is not surprising that D. Laming was annoyed and uncomfortable because of what he overheard, but under Board precedent it takes more than that to strip employees of the Act’s protection. Chartwells, supra; Alpine Log Homes, supra, RCN Corp., supra. 14 The truth or falsity of an employees’ communications to others generally is immaterial to the protected nature of the activity. Phoenix Processor Limited Partnership, 348 NLRB 28, 46 (2006), petition for review denied sub nom. Cornelio v. NLRB, 276 Fed. Appx. 608 (9th Cir. 2008), cert. denied 555 U.S. 994 (2008); see also R. J. Liberto, Inc., 235 NLRB 1450, 1453 (1978) (“Whether [an employee’s] facts or interpretation were correct, he was entitled to discuss with his fellow employees his perception of the working conditions and employee problems. Respondent, to be sure had a right to try to counter his ar- guments, but it had no right to attempt to muzzle his discussions with fellow employees of issues relating to their working conditions.”), enfd. mem. 591 F.2d 1336 (3d Cir. 1979), and Holyoke Visiting Nurses Assn., 313 NLRB 1040, 1053 (1994) (disparagement defense only available to employer if the employee’s statements were not only false, but made with malice). LOU’S TRANSPORT, INC. 1457 Regarding the final Atlantic Steel factor, the General Counsel has not shown that any part of Hershey’s and Pledger’s conver- sation was provoked by an unfair labor practice. This factor however, does not weigh against continued protection since their statements were meant for each other, not their supervi- sors or managers. In Fresenius, 358 NLRB 1261, 1267, the Board stated that where the employee’s message is directed towards coworkers, not his or her superior, the “lack of em- ployer provocation neither weighs in favor of nor against find- ing the conduct protected.” Three of the four Atlantic Steel factors weigh in favor of con- tinued protection, and the fourth is neutral. I find that Her- shey’s and Pledger’s January 7 conversation about their work- place concerns retained the Act’s protection, and that the Re- spondents violated Section 8(a)(1) of the Act on January 8, 2014, by issuing a verbal warning to them based on that con- versation. The complaint alleges that the Respondents violated Section 8(a)(1) of the Act not only by issuing verbal warnings in re- sponse to the protected conversation, but also by responding to that conversation by encouraging Hershey and Pledger to re- sign. As discussed above, D. Laming’s initial reaction to over- hearing the employees’ criticisms was that he should immedi- ately discharge both employees. When D. Laming talked to the employees about what he had overheard, he did not discharge them, but did state that if they “ha[d] a problem [they] need to find a different place to work.” He also opined that “if . . . per your conversation you think this is a terrible place to work, you know, I would never work anywhere that I wasn’t happy working, and why do you work here?” D. Laming’s hostile reaction to the protected activity caused Pledger, quite reasonably, to be concerned that he might be fired. The Board has repeatedly held that statements of the type that D. Laming made to Hershey and Pledger are coercive in violation of Sec- tion 8(a)(1). In Merit Contracting, Inc., 333 NLRB 562, 563 (2001), the Board affirmed that the employer’s statement to an employee that he could “go work somewhere else” if he was not happy was “implicitly threatening, and therefore had a ten- dency to interfere with Section 7 rights,” in violation of Section 8(a)(1). Similarly, in House Calls, Inc., 304 NLRB 311, 313 (1991), the Board held that when an employer responded to employee complaints about a paycheck delay by saying that “if they did not like it, they could quit” the employer engaged in coercive conduct in violation of Section 8(a)(1). In Worldmark by Wyndham, supra, an employer responded to employees’ complaints about working conditions by saying “My dad al- ways told me . . . if you didn’t like it some-where, rather than whining and complaining about it, go find another job.” The Board affirmed the administrative law judge’s conclusion that this statement was coercive in violation of Section 8(a)(1). 356 NLRB 765, 779. The Respondents do not cite any contrary precedent under which D. Laming’s statements to Hershey and Pledger would be lawful. I find, based on the Board precedent cited above, that D. Laming coerced Hershey and Pledger in violation of Section 8(a)(1) when, on January 8, 2013, he responded to their pro- tected activity by telling them that “if they did not like it, they could quit,” and that if “per your conversation you think this is terrible place to work, you know, I would never work anywhere that I wasn’t happy working, and why do you work here?” B. Discharge of Rose The General Counsel alleges that, on March 25, 2013, the Respondents violated Section 8(a)(1) of the Act when they discriminatorily discharged Rose because he engaged in pro- tected concerted activity by voicing complaints about road conditions during a safety meeting earlier that day. The Re- spondents counter that their action was not motivated by any- thing Rose said at that meeting, but rather by his violation of safety rules and the profanity he directed at a customer. The Board applies the Wright Line framework to alleged violations of Section 8(a)(1) that turn on employer motivation. American Red Cross Missouri-Illinois Blood Services Region, 347 NLRB 347, 349 (2006). Under the Wright Line analysis, the General Counsel bears the initial burden of showing that the Respond- ent's decision to take adverse action against an employee was motivated, at least in part, by unlawful considerations. 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The General Coun- sel may meet this burden by showing that: (1) the employee engaged in union or other protected activity; (2) the employer knew of such activities; and (3) the employer harbored animosi- ty towards the Union or other protected activity. ADB Utility Contractors, 353 NLRB 166, 166–167 (2008), enf. denied on other grounds 383 Fed.Appx. 594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB 1270, 1274–1275 (2007); Senior Citi- zens Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 355, 356 (1999). Animus may be inferred from the record as a whole, including timing and disparate treatment. See, Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1185 (2011). If the General Counsel establishes discriminatory motive, the burden shifts to the employer to demonstrate that it would have taken the same action absent the protected conduct . ADB Utility, supra; Intermet Stevensville, supra; Senior Citizens, supra. The General Counsel has succeeded in demonstrating that Rose engaged in protected activity when he raised safety com- plaints regarding the onsite roads during the March 25 meeting. Concerns about the safety of the onsite roads were shared by all of the Respondents’ drivers and Rose engaged in collective group activity when he brought those truly group complaints to the attention of officials at the quarry. See Meyers Industries, 281 NLRB at 887 (concerted activities include “individual employees bringing truly group complaints to the attention of management). In addition, I infer that the Respondents knew of these complaints since Rose made them in the presence of two of the Respondents’ agents—Schmidt and Allen.15 15 Allen did not testify, or otherwise deny, that he had knowledge of Rose’s comments. Schmidt did testify, and stated that he had no specif- ic recollection regarding the March 25 meeting. However, even if, at a trial 11 months after the meeting, Schmidt did not recall Rose’s re- marks it would not rebut the reasonable inference that he recalled those remarks at the time of Rose’s discharge, just hours after the remarks were made. 1458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I find, however, that the General Counsel has failed to estab- lish that the Respondents bore hostility towards the protected activity alleged in the complaint, i.e., towards Rose’s March 25 comments to Begley (a Great Lakes official) and Stramaglia (a Dan’s official) at a meeting during which Begley was seeking the drivers’ input. I recognize that the evidence establishes that the Respondents were hostile to drivers complaining about the Respondents’ own management during conversations between themselves on the radios and CBs. However, that does not mean that the Respondents were hostile towards drivers ex- pressing their concerns about Great Lakes or Dan’s when asked for their input by a Great Lakes official who was discussing safety issues. The March 25 presentation, although attended by two officials of the Respondents, was not being led by those officials and the evidence does not show that Rose criticized the Respondents at the meeting. The General Counsel points to the purportedly heated exchange between the drivers and Stra- maglia at that meeting. I doubt that the exchange was particu- larly heated given the contrary testimony of Begley and Stra- maglia—neither of whom is associated with the Respondents. Even assuming that I accept the General Counsel’s characteri- zation of the exchange between the drivers and Stramaglia as heated, there is no claim that the Respondents’ officials were involved in that exchange. Indeed, although the evidence shows that the Respondents were hostile to drivers discussing their work complaints with one another, the record does not show that the Respondents were hostile to drivers reporting their complaints to management. Drivers continually brought complaints about the condition of the roads and the trucks to Schmidt, and while it is true that this failed to generate the changes some thought necessary, the evidence does not show that Schmidt had reacted in a hostile or coercive manner when drivers presented their complaints to him.16 The General Counsel argues that the timing of Rose’s discharge is suspi- cious because it occurred on the same day as the safety meet- ing. However, that argument is not persuasive because it also true that Rose was discharged on the same day that Schmidt was informed that Rose had responded to an instruction to con- tinue working by saying, “f—k you, and f—k Vito.” Even if I concluded that the General Counsel had succeeded in making a weak prima face case, I would find that the Re- spondents met their responsive Wright Line burden by showing they would have terminated Rose on March 25 for safety viola- tions and cursing at a customer even absent his protected con- duct at the safety meeting. ADB Utility, supra; Intermet Ste- vensville, supra; Senior Citizens, supra. The uncontradicted evidence shows that earlier that month, Schmidt had caught 16 I note that the complaint does not allege, and the General Counsel does not argue in its brief, that the Respondents discriminated against Rose because he instigated or participated in negativity on the radios and CBs. The complaint does not even claim that Rose’s participation in those discussions was protected concerted activity and the General Counsel did not elicit testimony from Rose or other drivers regarding Rose’s participation in those conversations. I make no finding regard- ing the part that those discussions may have played in the decision to terminate Rose since that question has not been raised or fully litigated. Cf. Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). Rose violating one of the Respondents’ six cardinal safety rules by talking on his cell phone while his truck was in motion. That is a serious violation under the Respondents’ rules and one that subjects employees to discipline up to and including immediate dismissal. The undisputed evidence was that immediately upon observing this violation, Schmidt “yelled” at, and verbally rep- rimanded, Rose. Therefore it is clear that Schmidt considered this a serious breach before Rose engaged in protected activity at the safety meeting some days or weeks later. The General Counsel did not show that the Respondents’ officials, or Schmidt in particular, had ever observed, or condoned, other drivers talking on cell phones while their trucks were in motion. It was also, in my view, reasonable for Schmidt to be particu- larly concerned about this safety violation given that Rose had recently been involved in a serious accident and had continued to violate the Respondents’ policy requiring employees to wear hard hats while driving. More importantly, on the day that Rose was terminated, Stramaglia reported to Schmidt that one of Dan’s operators had, in accordance with Stramaglia’s direction, told Rose to contin- ue accepting loads until the shift ended, but that Rose had re- fused and said, “fuck you” and “f—k Vito [Stramaglia] too.” There was no evidence that Schmidt had reason to doubt the veracity of this report from the Respondents’ customer. At any rate, Rose himself testified that he had refused the direction to take another load and had responded, “like, no, f—k you.” I find that this complaint from the Respondents’ customer at the quarry would, either alone or in combination with the cell phone violation safety violation earlier that month, have led Schmidt to terminate Rose regardless of anything that Rose said at the safety meeting. In reaching this conclusion, I considered the General Counsel’s argument that the Respondents tolerated the use of profanity at the quarry. Rose’s use of profanity, however, was more aggravated than that which was shown to be common at the quarry. Rose did not simply use profanity, but he directed the profanity at the Respondents’ customer as an expression of hostility and to indicate his refusal of a cus- tomer’s work-related direction. There was no evidence that the Respondents had tolerated that type of aggravated behavior from any other driver. I credit Schmidt’s testimony that he considered cursing at a customer to be unacceptable and more serious than when drivers used curse words among themselves. The General Counsel argues that I should not give credence to this explanation because Stramaglia testified that he was not personally disturbed by the language that he reported Rose using. However, the Respondents are not required to forgive what they consider unacceptable conduct towards a customer just because the customer forgives it. I conclude that the Re- spondents have satisfied their burden of showing that Rose’s behavior on March 22 would have been, in Schmidt’s words, the “straw that broke the camel’s back” regardless of any pro- tected activity that Rose engaged in at the March 25 safety meeting. For the reasons discussed above, I conclude that the allega- tion that Rose was discriminatorily discharged in violation of Section 8(a)(1) because of his protected concerted activity at the March 25 safety meeting, should be dismissed. LOU’S TRANSPORT, INC. 1459 C. Discharge of Hershey The complaint alleges that the Respondents violated Section 8(a)(1) by terminating Hershey’s employment on March 27, 2013, because of his protected concerted activities: during the radio conversation with Pledger on January 7; at the safety meeting on March 25; and/or when he posted signs in his work vehicle that publicized complaints about terms and conditions from January 14 to March 27. The Respondents officials admit that they discharged Her- shey because of his radio conversation with Pledger on January 7 and because of the complaints about working conditions that he publicized on the signs he displayed in the truck he drove at the quarry. Therefore, the question of whether those activities were the Respondents’ motive for discharging Hershey is not an issue here and the Atlantic Steel analysis, rather than the Wright Line analysis, is applicable. The first question under the Atlantic Steel analysis is whether the basis upon which the employer acted was protected activity. That question has already been discussed, and answered in the affirmative, with respect to Hershey “badmouthing”/”talking bad” about the Respondents during his January 7 conversation with Pledger. Hershey also engaged in protected concerted activity when he publicized the same, and other, complaints using the signs that he displayed in his truck. The signs carried messages related to the perceived failure of the Respondents to: replace defective parts and tires on the trucks and generally ensure that the trucks were safe to drive; take adequate steps to ensure that onsite roads were maintained in a safe condition; and eliminate paycheck irregularities. Hershey engaged in protected activity when he raised these complaints with coworkers since the complaints concerned working conditions affecting other employees as well as himself. Worldmark by Wyndham, supra; Hoodview Vending, supra; see also Belle of Sioux City, 333 NLRB at 105 (communications between em- ployees about pay are inherently concerted if there is a speaker and listeners); and House Calls, Inc., 304 NLRB at 313 (em- ployees engaged in protected concerted activity when they complained that employer was late in distributing paychecks). The Respondents argue that Hershey’s display of signs criti- cizing management should not be considered protected because Hershey “was not trying to get the other drivers to join him in some kind of organized effort to have management do some- thing,” or trying to “make management aware” of the com- plaints. This argument is not persuasive for the reasons dis- cussed above in reference to the January 7 conversation be- tween Hershey and Pledger. As with that radio conversation, Hershey was using his signs to “voic[e] concerns that pertain to working conditions affecting other employees as well as [him- self].” Phoenix Processor Limited Partnership, supra. The Board has held that such communications between co-workers are an indispensable step along the way to possible group ac- tion and are protected even if the complaints are not being made to management, Hispanics United of Buffalo, supra, and even if the employees have not agreed to act together to seek changes, Salisbury Hotel, supra. Hershey stated that he dis- played the signs complaining about working conditions in an effort to entertain and build morale among the drivers. This is part of the process of building sentiment and solidarity around the conviction that working conditions were unacceptable and required change. J. Laming himself recognized this, testifying that Hershey’s signs were “stirring up the crowd.” In fact, after Hershey began displaying the signs, other drivers complained to Schmidt about the condition of the roads and the trucks, and in one instance engaged in a group work stoppage over safety concerns. Under facts similar to those present here, the Board has af- firmed that employees engaged in protected concerted activity when they displayed signs critical of their employer in their vehicles. In RAI Research Corp., 257 NLRB 918 fn. 3 (1981), enfd. mem. 688 F.2d 816 (2d Cir. 1982), the Board held that an employee’s “display in the windshield of his automobile of a sign reading ‘Please Don’t Feed the Management. They only Suck Blood’ constituted protected activity under Section 7 of the Act, and therefore, [the employer’s] discharge of [the em- ployee] for this activity violated Section 8(a)(3) and (1) of the Act.” Similarly, in Holyoke Visiting Nurses Assn., 313 NLRB at 1052 and 1053, the Board affirmed that employees engaged in protected activity by displaying signs in their car windows that stated, “Union busting, Its illegal.” Under Board law, em- ployees were protected even when they made “various extrava- gant statements of opinion in describing unattractive features of employers.” Id. at 1053. The Respondents argue that Hershey’s display of the signs was not protected because he displayed some signs that did not reference complaints about working conditions affecting em- ployees. It is true that Hershey displayed some signs that did not relate to working conditions and that his display of those signs was not protected. That, however, is completely irrele- vant here since the Respondents do not claim that Hershey was discharged because of those unprotected signs. D. Laming and J. Laming testified that the signs they acted on were those that were “badmouthing” or “talking bad” about, the Respondents. Neither D. Laming nor J. Laming ever claimed that they were motivated by, or would have taken action based on, the signs that were unrelated to working conditions. Since Hershey was engaged in protected concerted activity when he displayed messages critical of working conditions, the Respondents violated Section 8(a)(1) of the Act by discharging him for that activity unless they can show that Hershey’s con- duct was so opprobrious or egregious as to forfeit the Act’s protection. I have considered Hershey’s activity under the fac- tors set forth in Atlantic Steel, supra, and find that his action was neither opprobrious nor egregious. The first factor—the location of the activity—weighs in favor of continued protec- tion. Hershey was displaying the signs at the jobsite where he and the other affected drivers worked. Longstanding doctrine establishes that employees have a right to display protected messages at their workplace absent special considerations. Pathmark Stores, 342 NLRB 378, 379 (2004); Ellis Electric, 315 NLRB 1187, 1203 (1994); United Artists Theatre, 277 NLRB 115, 128 (1985); see also NLRB v. Magnavox Co. of Tennessee, 415 U.S. at 325 (“The place of work is a place uniquely appropriate for dissemination of views concerning . . . the various options open to the employees.”). Moreover, there is no suggestion that Hershey attempted to display the signs in areas at the jobsite that were off limits or where his normal 1460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD duties had not taken him. It is true that while driving at the jobsite, Hershey’s signs could be seen by persons who worked for Great Lakes and Dan’s. Those third parties were not the intended audience for Hershey’s signs, but even if it they had been that would not deprive Hershey of the Act’s protection since an employee is presumptively privileged to display signs bringing his work-related complaints to the attention of third parties. See Hills & Dales General Hospital, 360 NLRB 611, 612 (2014) (employees “making statements to third parties protesting their terms and conditions of employment . . . is clearly protected by Section 7”). In reaching the conclusion that the “location” of the activity weighs in favor of continued protection, I considered the spe- cific location of the signs within the truck. The Respondents contend that Hershey’s placement of the 8½ by 11 inch signs in the lower left-hand portion of his windshield created a blind spot and was a safety hazard. This safety concern is clearly an after-the-fact rationalization invented for trial and I do not cred- it it. Hershey testified that his vision was not impeded by his display of the signs. Neither D. Laming nor J. Laming initially mentioned any safety concerns when testifying about why they terminated Hershey for displaying the signs. It was only in response to leading questions that D. Laming eventually assert- ed that Hershey’s display of the sign would “absolutely” create a blind spot and safety concern for himself and other drivers. Any suggestion that safety played a part in the termination decision, or would have led to Hershey’s termination, is contra- ry to the reasons that the Respondents gave Hershey orally and in writing at the time of his discharge. Moreover, during the 3 months that Hershey displayed the signs, no one ever told him that doing so was a safety violation, even though the record shows that officials at the quarry frequently counseled drivers about workplace behaviors that were considered unsafe. The subject matter of the messages at-issue also weighs in favor of continued protection. The messages concerned safety and paycheck irregularities. As discussed above, every one of the Respondents’ drivers at the quarry had complained to Schmidt about the safety of the trucks and the onsite roads and at one point a group of drivers refused to continue to driving at the quarry because of the perceived hazard. Paychecks prob- lems involve employees’ pay and are matters of fundamental concern to employees. Hoodview Vending, supra. It is particu- larly important to employees’ rights under the Act that they be permitted to communicate with one another about such signifi- cant workplace concerns. The third Atlantic Steel factor, “the nature of the outburst” also weighs in favor of continued protection. In the signs over which the Respondents took action, Hershey was using humor and sarcasm to drive home his criticisms of the Respondents’ handling of working conditions. He did not make any threats of violence or unlawful action or use any curse words. It is true that one of the signs included a drawing of a dancing stick fig- ure that was grabbing its crotch. Although this sign was in poor taste, it did not approach being so opprobrious or egregious as to cause Hershey’s safety related criticism to lose the protection of the Act. The stick figure was drawn in a child-like, in no way graphic, manner. The pose depicted was a reference to a pose that Michael Jackson had performed in front of millions of people, including on broadcast television. Moreover, to the extent that the picture was suggestive it did not transgress the standards of decorum at a jobsite, such as the quarry, where profanity and sexually charged messages were commonplace and generally tolerated. During the 3 months that Hershey had been displaying the signs prior to his discharge, no one had ever told him that the signs were not appropriate. I do not doubt that, as J. Laming testified, he was personally stung by Hershey’s criticism of the working conditions that the Re- spondents provided to drivers, but the Board has made clear that an employer may not discipline an employee for making statements that simply cause another to feel annoyed or uncom- fortable. Chartwells, Compass Group, USA, supra, Alpine Log Homes, 335 NLRB 885, supra, RCN Corp., supra. I find that the final Atlantic Steel factor—whether the out- burst was a response to an unfair labor practice—weighs nei- ther for nor against continued protection. Although Hershey displayed the written criticisms primarily, if not entirely, after the Respondents unlawfully disciplined him for the protected radio conversation with Pledger, Hershey did not claim that he resorted to the signs in response to the Respondents’ action to muzzle his oral communications. Assuming that the signs were not a reaction to that unfair labor practice, I conclude that this factor weighs neither for nor against continued protection since the Respondents and Hershey agree that Hershey was using the signs to communicate with his coworkers, not with the Re- spondents’ supervisors or other officials. See Fresenius, 358 NLRB 1261, 1267 (when employee’s message is directed to- wards co-workers, not his or her superior, the “lack of employ- er provocation neither weighs in favor of nor against finding the conduct protected”). I find that Hershey engaged in protected concerted activity when he complained about working conditions during his con- versation with Pledger and when he displayed signs carrying messages critical of the drivers’ working conditions, and that he did not engage in any behavior in connection with those activi- ties that caused him to forfeit the Act’s protection. Therefore, the Respondents violated Section 8(a)(1) when they discharged Hershey on March 27, 2013, for engaging in those protected concerted activities.17 CONCLUSIONS OF LAW 1. The Respondents violated Section 8(a)(1) of the Act: on January 8, 2014, by issuing verbal warnings to employees Mi- chael Hershey and Timothy Pledger because those employees engaged in protected concerted activity; on January 8, 2014, 17 For the reasons already discussed with respect to Rose, I find that, under Wright Line, supra, the General Counsel has failed to establish a prima facie case with respect to alleged discrimination against Hershey based on his statements at the March 25, 2013 safety meeting. The Respondents deny that they were motivated by Hershey’s statements at that meeting and the evidence did not show that the Respondents were hostile to employees raising safety complaints regarding Great Lakes and/or Dan’s at a Great Lakes safety presentation during which the drivers’ input was sought. However, since the evidence shows that Hershey was unlawfully discharged for his protected communications with Pledger on January 7, 2013, and his display of signs from January to March 2013, he is entitled to reinstatement and backpay. LOU’S TRANSPORT, INC. 1461 when D. Laming reacted to Hershey’s and Pledger’s protected concerted activity by telling those employees that “if they did not like it, they could quit,” and that “I would never work any- where that I wasn’t happy working, and why do you work here?”; on March 27, 2013, when they discharged Michael Hershey because he engaged in protected concerted activities. 2. The evidence does not show that the Respondents discrim- inatorily discharged Jeffrey Rose in violation of Section 8(a)(1) because of his protected concerted activity at the safety meeting on March 25, 2012. REMEDY Having found that the Respondents engaged in certain unfair labor practices, I shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. In particular the Respondents, having dis- criminatorily discharged Michael Hershey, must offer him rein- statement and make him whole for any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky Riv- er Medical Center, 356 NLRB 6 (2010). The Respondents shall file a report with the Social Security Administration allo- cating backpay to the appropriate calendar quarters. The Re- spondents shall also compensate the discriminatee for the ad- verse tax consequences, if any, of receiving one or more lump- sum backpay awards covering periods longer than 1 year, Lati- no Express, Inc., 359 NLRB 518 (2012). [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation