Thompson's Gas, Inc. And Del-Ro Transports, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 652 (N.L.R.B. 1985)

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thompson 's Gas, Inc. and Del -Ro Transports,
and James D. Burrows . Case 14-CA-16691
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Inc. cember.3 Thompson asked if Burrows had already
joined the Union or if he were going to do so. Bur-
On 27 January 1984 Administrative Law Judge
Walter H . Maloney Jr. issued the attached decision.
The Respondents filed exceptions and a supporting
brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order. i
The judge found , inter alia, that the Respondents
violated Section 8(a)(1), (3), and (4) of the Act: (1)
by terminating employee James Burrows' privilege
to make personal purchases on the Respondents'
charge account ; (2) by imposing finance charges on
the accounts receivable of Burrows and his wife;
(3) by selectively docking Burrows' pay for minor
tardiness ; (4) by periodically and intermittently
laying off Burrows for short periods of time; and
(5) by constructively discharging him. The judge
concluded that the Respondents took these actions
because Burrows joined the Union , filed unfair
labor practice charges with the Board , and cooper-
ated in the investigation and prosecution of other
charges filed in his behalf by the Union . For the
reasons set forth below we disagree with these
findings.
Burrows was hired by the Respondents' vice
president , Phillip Thompson , in 1977. Burrows
worked as a jack -of-all-trades ; he performed gener-
al maintenance work as well as certain unit work
such as driving trucks, assisting mechanics, and
working the dock . Although his job duties includ-
ed at least 40-percent bargaining unit work Bur-
rows did not join the Union until December 1982.
As a nonunit employee Burrows received a lower
hourly wage than unit employees even when he
performed unit work . Thus, since his hire Burrows'
status had frequently been a source of dispute be-
tween the Respondents and the Union.
On 8 December 19822 Burrows met with
Thompson , the Respondents ' dispatcher Donald
Clymer , and Shop Steward Ron Frazer and in-
formed them that he had joined the Union 7 De-
' There were no exceptions taken to the judge's finding that Thomp-
son's Gas, Inc and Del-Ro Transports, Inc constitute a single employer
2 All dates are 1982 or 1983 unless otherwise noted
rows answered that he had already joined. There-
upon Clymer told Burrows that the Company did
not need another union employee and that he was
discharged.
On 9 December the Union filed charges alleging
that the Respondents had discriminatorily dis-
charged Burrows. Although a complaint issued on
that charge the matter was never litigated. Rather
on 12 January the Respondents offered to reinstate
Burrows to his former position. After consulting
with the Union Burrows accepted the offer and re-
turned to work 14 January.4 However, the matter
was not finally resolved until the parties concluded
an out-of-Board settlement 12 April. Pursuant to
the terms of that agreement Burrows received
backpay for the period between his discharge and
reinstatement, 5 the Respondents no longer assigned
unit work to Burrows, and the Union withdrew its
charges. On 15 April the Regional Director ap-
proved withdrawal of the charges and dismissed
the complaint.
On 13 May Burrows filed an individual charge
which gave rise to the instant case. In this charge
as amended Burrows alleges that certain actions
taken by the Respondents both before and after the
12 April settlement agreement were directed
toward discouraging his union activities. The judge
found that the Respondents had settled the previ-
ous case but had not forgotten or forgiven Burrows
for joining the Union. He concluded that the Re-
spondents' termination of Burrows' credit card
privileges, imposition of a finance charge on Bur-
rows' account, docking his pay for minor tardiness,
and laying him off during the summer and fall of
1983 were all actions tainted by the animus mani-
fest in the Respondents' 8 December discharge of
Burrows. We now consider each of these actions.
1. TERMINATION OF CHARGING PRIVILEGES
On 12 December Burrows filed a claim in the
amount of $462.15 with the Illinois Department of
Labor. Burrows claimed that the Respondents
owed him wages for the period 29 November to 3
December ($352.55) and 6 December to 8 Decem-
ber ($79.55). Burrows also maintained that the Re-
3 On 7 December Burrows went to the union office and applied for
membership After questioning Burrows about his job duties, Union Busi-
ness Representative John Gonzales told Burrows that he belonged in the
Union Burrows then paid Gonzales a $300 initiation fee and $19 for I
month's dues
4 Burrows was paid his nonunion hourly wage The Respondents no
longer assigned Burrows to fill propane cylinders or to driving trucks,
both unit jobs
5 Burrows received and cashed a backpay check for approximately
$1500
274 NLRB No. 92
THOMPSON'S GAS 653
spondents owed him $30 deposited in a savings ac-
count. Burrows had attempted to obtain these
moneys on 10 December but was told by Thomp-
son that they would be applied to the balance of
his employee charge account which was then ap-
proximately $900.
The hearing on Burrows' claim was scheduled
for 14 March. On 10 March Thompson called Bur-
rows to his office and informed him that he had
been advised to give Burrows his checks. Thomp-
son told Burrows that he wanted to apply the
checks to the balance of Burrows' account which
then stood at $699. Burrows agreed to sign over
the larger ($325) of the two checks which Thomp-
son had prepared for their meeting. Thompson
then mentioned that he also intended to apply the
$30 savings account (for which no check had been
drawn) to Burrows' account As the meeting broke
up Burrows told Thompson that he would not be
charging any more items to his account Thompson
remarked, "I know you won't," and the meeting
ended. The record indicates that Burrows contin-
ued to charge items on his account until early June.
We disagree with the judge's conclusion that
Thompson withdrew Burrows' charging privileges
10 March in violation of Section 8(a)(1), (3), and
(4) of the Act. We first note that Thompson did
not in fact terminate Burrows' charging privileges
10 March; rather, the record indicates that Bur-
rows continued to charge items on his account
until early June. The record is silent regarding the
reasons for the cessation of charging activities in
early June. Thus it is conjecture to conclude that
the Respondents discriminatorily terminated Bur-
rows' charging privileges in June. Nor does
Thompson's 10 March meeting with Burrows pro-
vide any grounds for engaging in such conjecture.
The record offers no evidence to support either the
judge's characterization of that meeting as an "acri-
monious discussion" or his finding that Thompson's
closing remark was prompted "by a discriminatory
motivation."s On the contrary in his testimony re-
garding the 10 March meeting Burrows never at-
tempted to characterize the tone of the discussion,
nor was mention made of his outstanding charges.
Indeed the record clearly demonstrates that
Thompson's closing remark was occasioned not by
a discriminatory motive but by Burrows' unsolic-
ited comment that he would no longer be using his
charging privileges. The 10 March meeting there-
fore cannot be used to ascribe a discriminatory
motive to Thompson's remark. Finally, we note
that even if Thompson's actions were related to
6 We note Thompson's unrefuted testimony that the Respondents on
an unspecified date also revoked the charging privileges of employee
James Heap
Burrows' claim with the Illinois Department of
Labor, the judge properly concluded that no viola-
tion should be found. Meyers Industries, 268 NLRB
493 (1984); Access Control Systems, 270 NLRB 823
(1984).
H. IMPOSITION OF FINANCE CHARGES
The Respondents issued to each employee a
monthly statement which listed charges and pay-
ments to the employee's charge account and the
date on which the transaction occurred. It also in-
cluded the present balance. The record indicates
that before March the Respondents had not previ-
ously levied a finance charge on an employee's ac-
count.
Burrows' March statement7 showed two entries
for finance charges. These finance charges were for
$12.95 and $7.61 and were for the months of Feb-
ruary and March respectively. The record discloses
that two other employees were assessed finance
charges in March-Jacquelin Carter Burrows8 and
James Heap. The record also discloses that the Re-
spondents continued to impose finance charges on
Burrows' account from April through August. It
also imposed finance charges on Mrs. Burrows' ac-
count in April and May and on Heap's account in
April and May.9 Additionally, finance charges
were applied to the account of employees Darus
Jackson in May, June, and July and Ronnie Tou-
chette in August.
The judge found that since Burrows was regular-
ly reducing the outstanding balance of his account
the Respondents' imposition of finance charges on
Burrows and his wife could not be explained on
nondiscriminatory grounds. He further found that
the imposition of finance charges on other employ-
ees did not negate the discriminatory intent direct-
ed at Burrows since other employees with greater
outstanding balances were not assesed finance
charges. The judge thus concluded that the Re-
spondents' imposition of finance charges on the ac-
counts of Burrows and his wife could only be ex-
plained as stemming from the animus displayed by
the Respondents in their 8 December discharge.
We disagree.
The record demonstrates that the Respondents
on several occasions 10 had expressed their concern
regarding the amount owed by Burrows on his ac-
' The statement was dated 25 March
8 Mrs Burrows resigned from the Respondents' employ in early Feb-
ruary, her statement reflected the balance due from purchases made
before her resignation
9 As of 1 June Mrs Burrows' account had been paid in full, the record
provides no information regarding Heap 's account after May
10 10 December, 27 January, and 10 March
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
count. i i Thus on 27 January Thompson sought
Burrows' agreement to a wage assignment of $30
per week. Burrows countered with an offer to pay
$10 per week by personal check. Burrows and
Thompson compromised and agreed that Burrows
would pay $20 per week by personal check. After
Burrows refused to reduce his outstanding balance
at the requested rate Thompson informed Burrows
that it would be necessary to begin levying a fi-
nance charge on his account. This fact-inexplica-
bly ignored by the judge-explains Burrows' ap-
parent acquiescence in the Respondents' assessment
of finance charges for February and March in his
March statement.12 That the Respondents did not
initiate the finance charge until March is accounted
for by a change of personnel in the Respondents'
bookkeeping office. Thus, contrary to the judge we
find that the Respondents' imposition of finance
charges occurred before Burrows began making
steady reductions in his balance and that this fi-
nance charge was imposed to encourage that very
result. We further find that the imposition of the fi-
nance charge constituted a legitimate exercise of a
managerial prerogative. The Respondents imposed
finance charges on four employees besides Bur-
rows.13 Although other employees may have had
larger amounts outstanding, that was not the factor
on which the Respondents relied in deciding to
impose finance charges. Instead the Respondents
imposed finance charges on the accounts of those
employees whom it found to be slow in reducing
their balance.14 We therefore conclude that the
Respondents made a reasonable business decision.
That decision was not arbitrary nor does it evi-
dence a discriminatory intent. 1 s
11 Between June 1982 and January 1983 Burrows' balance was never
less than $800
12 The record offers no evidence that Burrows inquired of or protested
to Thompson about the imposition of the finance charges when he re-
ceived his March statement
13 Additionally, we note that documentary evidence indicates that a
fifth employee, Dennis Adams, was assessed a finance charge in Septem-
ber 1983 The record also°suggests that the Respondents had decided to
levy a finance charge on employee Randy Frazer The record does not
reveal whether that decision was implemented
14 The record indicates that when the Respondents imposed finance
charges on their accounts Burrows, Mrs Heap, Jackson, and Touchette
had all failed to make progress in reducing their balances for extended
periods of time The record also indicates that at the time Randy Frazer's
account was coded for a finance charge and that Dennis Adams' account
was assessed a finance charge both had failed to reduce their balance to
any significant extent for a period in excess of 3 months and 5 months
respectively
15 The Respondents' imposition of a finance charge was clearly direct-
ed at employees who failed to make satisfactory progress in paying off
their accounts and the Respondents treated Burrows like other employees
in this regard In these cirucmstances we do not find that Thompson's
remark that he was "pissed off about the grievances" being filed with the
Board evidences a discriminatory motivation in the Respondents' imposi-
tion of finance charges on Burrows' account
III. DOCKING OF PAY
In January the Respondents installed a timeclock
which certain employees including Burrows were
required to use on arriving at and departing from
work.16 Employees were also required to punch in
and out for lunch. The Respondents' written rule
explained that time would be calculated on the
basis of 15-minute units . Thus an employee late by
1 to 14 minutes would be docked one-fourth hour's
pay.
According to testimony of Mrs. Burrows,
Thompson announced to the office employees that
the Respondents would permit a grace period of 2
to 3 minutes for employees who punched in late.
Burrows testified that Clymer informed him of the
same policy. This grace period policy was, howev-
er, never reduced to writing nor is there any evi-
dence that it was made known to nonoffice em-
ployees other than Burrows.
Relying on a chart prepared by the General
Counsel the judge found that the Respondents ap-
plied the grace period in a disparate manner by
docking Burrows for being tardy within the grace
period while not docking other employees who
were repeatedly late for periods of time far in
excess of the grace period. The judge found that
the Respondents' "selective" docking of Burrows
was arbitrary and without any legitimate rationale.
He concluded it could be explained only by the
Respondents' animus stemming from Burrows' join-
ing the Union in December.
The chart accompanying the General Counsel's
posthearing brief does indeed show that during
April Burrows was docked for minor tardiness and
that certain employees who punched in later than
Burrows were not docked. However, this chart
does not tell the full story. As the General Counsel
noted the chart compares Burrows' timecard and
hours compilation with those of others classified as
"office workers." A comparison of Burrows' time-
card and hours compilations and those of the other
employees who are listed with Burrows on the Re-
spondents' weekly timesheets clearly demonstrate
that the Respondents did not single Burrows out
for disparate treatment. Given the nature and loca-
tion of Burrows' job responsibilities and those of
the other employees listed on the weekly time-
sheets, such a comparison provides a more accurate
measure of the Respondents' treatment of similarly
situated employees. Our examination of the April
pay records-the period during which Burrows
claimed that the Respondents discriminatorily
docked his pay-clearly refutes the judge's finding
16 There was no contention that the Respondents ' introduction of the
timeclock was discriminatorily motivated
THOMPSON'S GAS
that the Respondents' departure from the grace
period allowance was a selective and arbitrary
one.17 While office workers may have enjoyed a
grace period not afforded Burrows and those with
whom he usually worked that fact alone does not
evidence a discriminatory motive in the Respond-
ents' docking of Burrows' pay. Indeed as applied to
drivers and other outside help the Respondents' en-
forcement of its time rules was uniform and con-
sistent. We also note that the record offers no evi-
dence that these employees formally or informally
objected to the Respondents' strict enforcement of
the time policy against them. Finally we note that
on 12 April the parties settled the 8 December inci-
dent from which the judge derives animus. Ac-
cordingly we reject the judge's conclusion that the
Respondents' docking of Burrows' pay for minor
tardiness was discriminatorily motivated.
Intermittent Layoffs
The Respondents' business is seasonal with its
peak in the winter months. Its business slows at the
end of March and declines through the summer
and early fall. Burrows testified that between 1977
and 1982 he was not laid off during the summer. It
is undisputed that during those years Burrows per-
formed both unit and nonunit work.
During the summer and fall of 1983 the Re-
spondents laid off Burrows periodically for varying
amounts of time. Burrows testified that the Re-
spondents provided lack of work as the reason for
his layoffs. Although the procedure differed on oc-
17 The records for pay periods ending 10, 17, 24, and 31 April show
Pay Period Ending 10 April
Burrows Late 1 minute on Monday , 2 minutes on Tuesday
Docked 1/4 hour on occasion
Randy Frazer Late 9 minutes on Monday, 5 on Wednesday, 2 on
Thursday Docked 1/4 hour on each occasion
Pay Period Ending II April
Burrows Late 1 minute on Monday Docked 1/4 hour
Randy Frazer Late 13 minutes on Monday, 2 on Wednesday, 6 on
Thursday Docked 1/4 hour on each occasion
Ronald Frazer Late 1 minute Wednesday Docked 1/4 hour
Pay Period Ending 24 April
Burrows Late 2 minutes on Monday, 2 on Tuesday, I on Wednes-
day, 2 on Thursday, 3 on Friday Docked 1/ 4 hour on each occa-
sion
Randy Frazer Late 5 minutes on Monday, I on Friday Docked
1/4 hour on each occasion
Pay Period Ending I May
Burrows did not report to work late during this pay period
Randy Frazer late 2 minutes on Monday, 18 on Tuesday, 7 on
Wednesday, 4 on Thursday
Docked 1/4 hour on each occasion except Tuesday for which he
was docked 1/2 hour
Ronald Frazer Late 1 minute on Monday Docked 1/4 hour
655
casion it was the Respondents' usual practice to
inform Burrows of a layoff around 5 p.m. on the
day preceding its start. In accordance with this
practice Burrows was told by Clymer at approxi-
mately 5 p.m. on 30 August that he was laid off for
8 days. Clymer also informed Burrows that since
Burrows was working less than 20 hours per week
he would not be covered by the Company's hospi-
talization and dental insurance. Clymer suggested
that "if he wanted to do anything about it" Bur-
rows should speak to Thompson. As Burrows left
to punch out Clymer said to him, "Off the cuff,
you know you-you can do something about this
thing." Burrows testified that he left after Clymer
made this remark but that Ronald Frazer, who was
present for the entire conversation, remained in the
office.
Relying primarily on Clymer's 30 August remark
to Burrows and the fact that Burrows had not pre-
viously been subject to summer layoff the judge
concluded that "by depriving Burrows of normal
work opportunities during the summer and fall of
1983, and in laying him off during that period of
time" the Respondents violated Section 8(a)(1), (3),
and (4) of the Act. We find that the record does
not support the judge's conclusion.
We first note that the table of hours worked con-
tained in the judge's decision is misleading. That
table provides the amount of hours Burrows actual-
ly worked; it does not, however, factor in vacation
time, sick leave, or holiday pay.18 Second we
attach little significance to the fact that Burrows
was not laid off in summers past. Burrows' work
status in the summer of 1983 differs fundamentally
from the summers of 1977-1982. In 1983, according
to the terms of the April settlement agreement,
Burrows was no longer assigned the unit work
which had previously composed 40 percent of his
job duties. Given this fact we find it surprising that
Burrows was not subject to more frequent layoffs.
This is especially so given the Respondents'
strained economic situation which showed profits
were down in 1983. Although in years past the Re-
spondents usually laid off two drivers the record
reveals that in 1983 the Respondents frequently
were required to lay off three drivers. We particu-
larly note that this was the case in the period that
coincides with Burrows' most severe layoffs. Thus
during the weeks ending 11, 18, and 25 September,
the Respondents laid off three drivers and, during
the week ending 4 September, two were laid off
and one worked only 4-1/2 hours. Finally we con-
sider Clymer's conversation with Burrows at the
close of business on 30 August. Clymer mentioned
18 The table below supplies the information omitted by the judge
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that as a result of his layoffs Burrows would lose
his health insurance. Yet there is no evidence that
the Respondents in fact ever revoked Burrows' in-
surance coverage. Moreover, regarding Clymer's
closing remark we note Frazer's unrefuted testimo-
ny that after Burrows had left the office he asked
Clymer "what Jim [Burrows] had done now" to
which Clymer responded, "the same old stuff, the
interest on his bill and being in late or clocking
late." This testimony which the judge ignored un-
dermines his conclusion that Clymer's remark evi-
dences an illegal motivation underlying the Re-
spondents' layoffs of Burrows. We find that the
evidence indicates that Burrows' layoffs stemmed
from a lack of work. We further find that there is
no evidence that the layoffs were discriminatorily
motivated. We thus conclude that the Respondents'
layoffs of Burrows during the summer of 1983
were not in violation of Section 8(a)(1), (3), and (4)
of the Act.
Week Ending Hours worked
Supplemental
Hours
Total
10 Apr 31-1/2 + 8 (vacation) 39-1/2
17 Apr 39-3/4 0 39-3/4
24 Apr 38-3/4 0 38-3/4
1 May 42 0 42
8 May 40 0 40
15 May 32 + 8 (vacation) 40
22 May 39 0 39
29 May 39 0 39
5 June 32-1/2 + 8 (holiday
and 1/4
overtime)
40-3/4
12 June 35 + 5 (sick and 40-1/4
1/4
overtime)
19 June 24 + 16
(vacation)
40
26 June 24 0 24
3 July 40 0 40
10 July 32 + 8 (holiday) 40
17 July 16 0 16
24 July 40 0 40
1 Aug 37 + 3 (sick) 40
7 Aug. 24 0 24
14 Aug 0 (vacation) 0 0*
21 Aug. 39-3/4 0 39-3/4
28 Aug 16 0 16
4 Sept 16 0 16
11 Sept. its 0 16
18 Sept. 16 0 16
25 Sept. 24 0 24
The record evidence is ambiguous as to whether Burrows
received 40 hours' vacation pay
Conclusion
Inasmuch as the record fails to substantiate the
judge 's conclusions regarding the Respondents' ter-
mination of Burrows ' charging privileges , imposi-
tion of finance charge, docking of pay, and laying
off of Burrows, we reverse his finding that each of
these actions constituted a violation of Section
8(a)(1), (3), and (4) of the Act.19 Consequently we
reject his derivative finding that Burrows' resigna-
tion 2 0 amounted to a constructive discharge.21 We
find no evidence establishing that any of the Re-
spondents' actions were arbitrary, discriminatorily
motivated, or part of some deliberate plan designed
to force Burrows' resignation. On the contrary, the
record indicates that each of the actions constituted
a legitimate exercise of the Respondents' manageri-
al prerogatives and business judgment. That these
actions may have had adverse consequences for
Burrows does not without more render them ille-
gal. Accordingly we find that no violation of the
Act has been committed.
ORDER
The amended complaint is dismissed.
MEMBER DENNIS , dissenting.
Contrary to my colleagues, I agree with the
judge that after the Respondents fired Burrows be-
cause he joined the Union, they violated Section
8(a)(1), (3), and (4) of the Act after rehiring him by
terminating his charging privileges, imposing fi-
nance charges on the accounts receivable of Bur-
rows and his wife, docking him for minor tardiness
in April, and selectively laying him off during the
summer and fall. I would affirm the judge's find-
ings regarding these violations, for the reasons set
forth in his decision and those discussed below.
19 With respect to our finding that Burrows' charging privileges were
not revoked on 10 March our dissenting colleague claims that we ignored
the fact that the five charges made by Burrows after 10 March did not
require Thompson's approval . Our colleague also relies on the absence of
proof that Thompson knew Burrows continued to charge after March
and on an alleged "admission ([Respondent 's] Br 6) that they did termi-
nate Burrows' right to charge " Reliance on these considerations is mis-
placed because they all mistakenly assume that Burrows ' charging privi-
leges were revoked in March and overlook the fact that such privileges
were not revoked until June This explains both the five charges after 10
March and the Respondents ' having no reason to present evidence of
Thompson's knowledge of such pre-June charges by Burrows Similarly
the Respondents "admitted" the June revocation, the statement taken
from the Respondents ' brief never mentions a March revocation
Our dissenting colleague' s finding regarding the finance charge assess-
ments and the docking of pay for tardiness similarly relies on faulty
grounds Our colleague compares Burrows with other employees with far
greater outstanding balances However, the Respondents imposed charges
not on the amount outstanding but on accounts that were slow to reduce
and our dissenting colleague fails to refute the record evidence that Bur-
rows' pay was docked in the same manner as other employees similarly
situated In short , the General Counsel failed to show discriminatory
treatment because he failed to show that Burrows was treated differently
from those in the affected category
20 On Sunday , 23 October, Clymer called Burrows to tell him to
report to work the following day Burrows informed Clymer that he had
obtained other employment
21 We note that the General Counsel never alleged that Burrows' res-
ignation constituted a constructive discharge The judge reached this
finding sua sponte
THOMPSON'S GAS 657
There is no dispute that the Respondents dis-
charged Burrows on 8 December 1982 because he
joined the Union. Although the legality of Bur-
rows' discharge is not at issue here,' it is the start-
ing point from which all the Respondent's subse-
quent actions acquire significance. Contrary to my
colleagues, I agree with the judge that the Re-
spondents neither forgot nor forgave Burrows for
his alliance with the Union and penalized him
through various means for months.
On 10 December, the day after the Union filed
its initial charge on Burrows' behalf, General Man-
ager Thompson told Burrows that he was upset be-
cause the Union had filed so many grievances, that
he had to guard his speech and actions now that
the "feds" (NLRB) were involved, and that he did
not think the Union would have filed the charge
for Burrows if Burrows had not completely coop-
erated. Then, on 27 January 1983,2 during a con-
versation regarding Burrows' outstanding charge
balance, Thompson told Burrows he was con-
cerned about breaches of confidentiality and asked
Burrows if he was going to report their conversa-
tion to the Board. Burrows said he might report it.
Thompson also said he was angry about the
number of grievances (Le, charges) filed with the
Board 3
Thompson's statements on 10 December 1982
and 27 January unmistakably evidence animus
toward Burrows' union activity and the Union's
filing charges on his behalf. Moreover, they dem-
onstrate that Thompson had neither forgotten nor
forgiven Burrows for his union adherence. The an-
tiunion motivation that led the Respondents to dis-
charge Burrows still lingered. It is in this context,
therefore, that the Respondents' next action against
Burrows-revocation of his charging privileges-
and all subsequent actions must be judged.
On 10 March, a few days before Burrows' wage
claim hearing with the Illinois Department of
Labor,4 Thompson called Burrows into his office.
Thompson gave Burrows two back wage checks,
and Burrows agreed to apply the larger of the two
to his outstanding credit balance with the Respond-
ents. As the meeting ended Burrows told Thomp-
son he would not be charging any more items, to
which Thompson replied, "I know you won't."
The majority finds, contrary to' the judge, that
the Respondents did not revoke Burrows' charging
privileges because Burrows continued making
charges until early June, and that, thus, there is no
support for the judge's finding the alleged revoca-
tion unlawful. My colleagues, however, ignore the
fact that the five charges Burrows made after 10
March did not require General Manager Thomp-
son's approval, beacuse all were for less than $25.
There is no proof, therefore, that Thompson knew
Burrows continued to charge.
More importantly, in finding that Burrows'
charging privileges were not revoked, the majority
disregards the Respondents' admission (Br. 6) that
they did terminate Burrows' right to charge, as fol-
lows- "Only because Burrows continued to charge
without substantial payment on his account was his
charge privilege finally terminated." Not only did
the Respondents admittedly revoke Burrows'
charging privileges, but their proffered defense-
lack of substantial payment-is meritless. Burrows
had reduced his charge balance from $829.33 on 27
January to $699 when he met with Thompson 10
March concerning his claims for backpay. By the
end of the meeting Burrows reduced the outstand-
ing balance to $347 by agreeing to assign a back
wage check in the amount of $352 to his account.
Thus, in a period of 6 weeks, Burrows reduced his
outstanding balance by almost 60 percent. In these
circumstances, the Respondents' asserted need to
eliminate Burrows' charging privileges rings
untrue. Subsequent events only serve to bear this
conclusion out, while providing additional proof
that the Respondents' unlawful campaign against
Burrows continued.
On 25 March, 2 weeks after the Respondents re-
voked Burrows' charging privileges, the Respond-
ents issued a credit statement to Burrows which,
for the first time in Respondents' history, an-
nounced the levy of a finance charge on an ous-
tanding balance. The Respondents contend that the
imposition of finance charges was to motivate Bur-
rows and others to reduce their outstanding bal-
ances. But the Respondents' contention is belief by
the fact that Burrows had by then substantially re-
duced the balance. In March it was 60 percent less
than it was in January when his charging privileges
still existed and no interest was charged.5
' The Union filed an unfair labor practice charge on Burrows' behalf
alleging the discharge violated Sec 8(a)(3) and (1), which the parties re-
solved in a non-Board settlement The Respondents rehired Burrows 14
January 1983 before the settlement became final
2 All dates mentioned hereafter are in 1983 unless otherwise indicated
3 Amended charges had been filed on 13 and 19 January
4 Burrows filed a wage claim with the Illinois Department of Labor
for back wages shortly after he was fired The judge, properly applying
Meyers Industries, 268 NLRB 493 (1984), did not rely on the state wage
claim for any of the violations found
5 The majority's conclusion that finance charges actually were levied
on 27 January and not on 25 March beause of a change in the Respond-
ents' bookkeeping personnel is not even supported by the Respondents,
who did not raise this contention in their brief I also disagree that Bur-
rows acquiesced in the assessment of finance charges Relying on Thomp-
son's testimony, the majority contends that Thompson told Burrows fi-
nance charges were necessary if $20 was the most Burrows could pay
each week against his outstanding charge balance The majority com-
Continued
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, I agree with the judge that the finance
charge assessments against three employees other
than Burrows and Burrows' wife (a former em-
ployee who was charged at the same time as Bur-
rows) do not negate the Respondents' discriminato-
ry intent to punish Burrows. There were other em-
ployees with far greater outstanding balances who
were not subjected to finance charges. Moreover,
the judge found retroactive finance charges were
levied against only one other employee, James
Heap.
In April, Burrows was again singled out when
the Respondents docked his pay for tardiness. A
new policy had been implemented while Burrows
was in discharge status. Under the policy, as
Thompson had explained it to the employees, they
would have a 2-3 minute grace period before being
docked in pay. Dispatcher Clymer personally told
Burrows on his rehire that the Respondents would
allow a 2-3 minute grace period for lateness. Nev-
ertheless, Burrows was docked eight times in April
for tardiness that never exceeded the grace period
for lateness. Nevertheless, Burrows was docked
eight times in April for tardiness that never exceed-
ed the grace period.6 No good reason was ad-
vanced for these dockings. The only reason given
was that which Clymer gave Burrows in response
to the latter's inquiry: "I guess the love affair be-
tween you and Phil Thompson is over."7 In light
of Thompson's stated animosity to Burrows' union
activities, it takes little imagination to understand
the full import of Clymer's remark. That remark,
plus the fact that other employees were far later
than Burrows but were not docked, establishes that
Burrows was docked discriminatorily.
The pattern of discrimination continued when,
during the summer and fall, the Respondents spo-
radically laid off Burrows for a total of 21 days
from the week ending 19 June through the month
of September. Burrows had never been laid off
throughout any of the summers from 1977-1982.
My colleagues maintain that layoffs were inevitable
because Burrows was no longer performing unit
work, which had constituted about 40 percent of
his job duties before the settlement of Burrows' dis-
charge. But this loss of unit work does not explain
pletely ignores Burrows' testimony that he did not believe he was told at
any time before he received the March statement that finance charges
would be levied The judge's finding that the charges were levied in
March demonstrates that the judge implicitly resolved the conflict in tes-
timony in Burrows' favor
6 My colleagues contend that Burrows' tardiness should not be com-
pared with office workers' but with unit employees' There is no dispute,
however , that the settlement agreement providing for Burrows ' return to
work resolved that Burrows would no longer perform unit work Ac-
cordingly, the judge properly relied on the evidence showing that the
Respondents treated Burrows differently from office employees
' Interestingly, Burrows was docked for minor latenesses on only two
occasions thereafter
why the Respondents, instead of keeping Burrows
on or recalling him from layoff, hired a new non-
unit employee to work some of the times Burrows
was laid off. Presumably, Burrows could have per-
formed that work, certainly, the Respondents do
not contend otherwise. These facts, therefore, war-
rant the inference that Burrows' layoffs were un-
lawfully motivated. The inference is not rebutted
by the layoff of three drivers (instead of the usual
two) in September. The drivers' layoffs are of little
consequence in considering Burrows' situation, be-
cause Burrows no longer performed unit work fill-
ing in for drivers and working on the loading dock.
Moreover, although the Respondents' profits were
down for the summer of 1983, the Respondents had
experienced a worse year in 1981, and had not laid
Burrows off then.
The events of 30 August dispel any doubt as to
the validity of these conclusions. On that date
Clymer told Burrows that Thompson was at his
lawyer's office and was upset about union negotia-
tions and Burrows' pending NLRB hearing. After
Clymer received a phone call later that day from
Thompson, he told Burrows he was laid off8 and
suggested that Burrows sit down and talk to
Thompso. Burrows asked what he could talk
about, and Clymer said, "About whatever,"
adding, "Off the cuff, you know you can do some-
thing about this thing."s It is evident that Clymer's
comments were intended to convey to Burrows
that, by abandoning support for the Union and its
charges, he could rectify his standing with the Re-
spondents, in return for which he would not be
subjected to continued layoffs and other adverse
treatment.
Thus, in agreement with the judge, I would find
all the violations discussed above.10
s This layoff lasted 8 days
The majority relies on a conversation between the shop steward, Ron
Frazer, and Clymer immediately after Burrows left Clymer's office My
colleagues emphasize that the steward asked "what Burrows had done
now" and that Clymer replied, "the same old stuff, the interest on his bill
and being late or clocking late " In fact , Burrows' charge balance had
been reduced by then to $35 16 or less, and it is difficult to believe that
the Respondents would have been concerned about interest due on such
a low remaining balance Also, Burrows was docked for being late only
twice after April It is apparent that Clymer's response to the steward
was pretextual and that , in light of his previous conversations with Bur-
rows the same day, the Respondents ' true concern was with Burrows'
union activities
10 Between the first day of the unfair labor practice hearing on 6 Octo-
ber and its resumption on 27 October, Burrows resigned The judge, rely-
ing on the violations that I would find, additionally found constructive
discharge In view of my colleagues' disposition of the underlying viola-
tions, I find it unnecessary to reach the question whether constructive
discharge, which the General Counsel did not allege, was adequately
raised and litigated , as well as the question whether the Board's standards
for finding constructive discharge have been met See generally Crystal
Princeton Refining Co, 222 NLRB 1068, 1069 (1976)
THOMPSON'S GAS
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H MALONEY JR., Administrative Law Judge
This case came on for hearing before me at St Louis,
Missouri, upon an unfair labor practice complaint,'
issued by the Regional Director for Region 14, which al-
leges that Respondent Thompson's Gas, Inc, and Del-Ro
Transports, Inc.2 violated Section 8(a)(1), (3), and (4) of
the Act More particularly, the complaint alleges that the
Respondents engaged in certain specified acts for illegal
purposes. The operative acts alleged in the complaint are
that the Respondent periodically laid off Charging Party
James D. Burrows for short periods of time, imposed
upon him finance charges for items purchased for his
own personal use on the company account, revoked his
charging privileges, and docked his pay for minor infrac-
tions of its punctuality rule, all because he joined the
Union, filed unfair labor practice charges with the
Board, and cooperated in the investigation and prosecu-
tion of other charges filed on his behalf by the Union,
and filed a claim for unpaid wages against Respondent
Thompson's Gas with the Illinois Department of Labor.
The General Counsel also contends that Thompson's
Gas, Inc, and Del-Ro Transport, Inc., are an integrated
enterprise and a single employer under the Act Re-
spondent contends that it intermittently and periodically
laid off Burrows during the summer of 1983 because of
lack of work, that it did not single him out for special
treatment in the application of its policy of docking em-
ployees for lateness, and that it applied to him a policy
of imposing finance charges for unpaid items, purchased
by Burrows but charged to the Respondent's account, on
a nondiscriminatory basis because Burrows was slow or
delinquent in reducing the size of the balance due It en-
tered a formal denial in its pleadings that Thompson's
Gas, Inc., and Del-Ro Transports, Inc., were a single, in-
tegrated enterprise, but it did not press this argument in
i The principal docket entries in this case are as follows
Charge filed by James D Burrows, an individual, on May 13, 1983,
against Respondents, complaint issued against Respondents by the Re-
gional Director for Region 14, on June 13, 1983, Respondent's answer
filed on June 22, 1983, amended charge filed by Burrows against Re-
spondents on September 1, 1983, amendment to complaint issued by Re-
gional Director on September 20, 1983, Respondents' answer to amend-
ment to complaint filed on September 29, 1983, hearing held in St Louis,
Missouri, on October 6, 7, and 27, briefs filed with me by the General
Counsel and Respondents on or before November 28, 1983
2 Respondents admit, and I find, that they are both Illinois corpora-
tions that maintain an office in Belleville, Illinois, where they are both
engaged in the sale and distribution of liquid propane gas In the course
and conduct of these businesses, they have purchased and caused to be
transported and delivered to their Belleville, Illinois place of business
goods and materials valued in excess of $50,000, which were transported
and delivered to that place of business directly from other enterprises lo-
cated outside the State of Illinois, and they sold, at this place of business,
and distributed goods and materials valued in excess of $50,000, which
were shipped thereto directly from points and places located from out-
side the State of Illinois Accordingly, Respondents, and each of them,
are employers within the meaning of Sec 2(2), (6), and (7) of the Act
Teamsters Local Union No 50, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(the Union) is a labor organization within the meaning of Sec 2(5) of the
Act
659
its brief Upon these contentions, the issues herein were
joined 3
The Unfair Labor Practices Alleged
Thompson's Gas, Inc is a small family-owned enter-
prise located in Belleville, Illinois It sells liquid propane
at retail to individual customers who use it for heating or
operating small machinery Thompson's Gas, Inc not
only sells and delivers liquid propane in metal cylinders,
it also hooks up propane tanks to home heating units,
sells retail appliances which use propane, and operates a
warehouse at which customers can obtain refills for
empty propane cylinders. The firm was started under an-
other name in 1953 by the late Delmar Thompson. At
the present time, his widow, Rogene Thompson Frezza,
his son Phillip, and his estate are the shareholders in this
enterprise. Its directors are Rogene Thompson Frezza,
Phillip C. Thompson, and Mary Reid Thompson.
Rogene Thompson Frezza is president, Phillip C
Thompson is vice president and secretary, and Mary
Reid Thompson is the treasurer Phillip C. Thompson is
also the general manager of the Company and is its chief
operating officer
Del-Ro Transports, Inc was formed in 1964 and was
acquired by the Thompsons in 1965 At the present time,
Rogene Thompson Frezza owns a majority of the stock
and other members of the family own the balance. Del-
Ro Transports, Inc. is a certified intrastate common car-
rier and is licensed by the Illinois Commerce Commis-
sion to haul liquid propane for farm use and to operate as
a common carrier for the hauling of anhydrous ammonia,
fertilizer, household goods, and other items Its directors
are Rogene Thompson Frezza, Phillip C. Thompson, and
Mary Reid Thompson. Del-Ro has only one and one-half
employees. It hauls liquid propane in bulk from the man-
ufacturing plant to the Del-Ro-Thompson's Gas place of
business at Belleville. It also hauls for other customers.
Del-Ro Transports, Inc. maintains separate books and
separate accounts but its office is integrated with the
Thompson's Gas office and its office work is performed
by Thompson's Gas employees It has no place of busi-
ness separate and apart from Thompson's Gas. Its trucks
are parked at the Thompson's Gas premises and are
maintained by Thompson's Gas mechanics. To the extent
that it has need of any management on a daily basis, such
control is supplied by Phillip Thompson. Donald Clymer
acts as dispatcher both for Thompson's Gas drivers and
the driver or drivers who drive for Del-Ro
Respondent's business is somewhat seasonal. They
enjoy their busiest period during the winter when
demand for heating fuel is highest. Throughout most of
the year, Thompson's Gas employs six or seven drivers.
It employs two or three more during the busy season.
Many years ago Thompson's Gas, Inc. recognized the
Union here as the collective-bargaining representative for
its chauffeurs, helpers, servicemen, transport drivers,
maintenance men, and individuals doing temporary in-
stallations and plastic tubing work. The Union has never
been certified as the result of a Board election Thomp-
' The transcript is corrected as noted
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son's Gas has concluded with the Union a series of 3-
year contracts, the most recent of which expired on June
1, 1983. The most recent contract in the record appears
to be a multiemployer contract, signed not only by
Thompson's Gas, Inc., but also by another Thompson
holding, Thompson Fuel Company, and by a third em-
ployer who is not connected to the Thompson family In
the past, the Del-Ro driver or drivers were not formally
covered by a collective-bargaining agreement but it ap-
pears that they enjoyed certain union benefits. The prin-
cipal difference between the full-time Del-Ro driver and
the union drivers employed by Thompson's Gas is that
the former are compensated on the basis of a mileage or
gallonage hauled, whereas Thompson's Gas employees
are all paid by the hour. The record also reflects that
recent collective-bargaining efforts have resulted in
bringing the Del-Ro driver or drivers in under the con-
tract. Since this agreement had reached only a "hand-
shake" stage at the time of the hearing and is not in evi-
dence, it is unclear whether Del-Ro will be a fourth
party to an ostensibly multiemployer ' agreement or
whether the unit will simply be redefined to include per-
sons compensated from the Del-Ro bank account
James D Burrows was first hired by Phillip C.
Thompson in 1977. It appears that, at one time, he was a
personal friend as well as an employee of Thompson.
Burrows' employment history reflects an ambivalent
status, since at one time he was both an employee of
Thompson's Gas per se and a personal retainer to
Thompson, performing chores at Thompson's home and
at the home of Thompson's mother Both domiciles are
located adjacent to company premises . Since 1977, Bur-
rows has been on the Thompson's Gas payroll but his
chores have, from time to time, included maintenance
services performed at the premises of the corporate prin-
cipal
Over the years, Burrows performed both work cov-
ered by the collective-bargaining agreement and work
which was clearly not bargaining unit work. From time
to time, he would fill in for company drivers, make de-
liveries, install heating equipment or gas cylinders at the
homes of customers, and fill cylinders at the warehouse
for customers who needed refills. He had, on occasion,
driven the Del-Ro transport truck and has assisted truck
mechanics
In addition to bargaining unit work, Burrows mowed
lawns, both at company premises and for the Thomp-
sons, did minor maintenance and repairs both of compa-
ny premises and the homes of the Thompsons, main-
tained a spare parts inventory, waited on customers in
the store, and chased parts and supplies from downtown
stores in the Company's pickup truck. These jobs have
been traditionally considered as outside the bargaining
unit Until December 8, 1982, Burrows was never a
member of the Union. He received health insurance ben-
efits and other benefits enjoyed by unit employees but, at
the time in question , he was paid at the rate of $8 20 per
hour, in contrast to the $9.84 hourly rate for unionized
drivers.
Burrows' status has been an ongoing bone of conten-
tion between the Union and Thompson's Gas. The Union
objected to the fact that Burrows was regularly perform-
ing unit work and there is some suggestion in the record
that it was also concerned about the presence of Bur-
rows, a nonunion employee, on the premises and avail-
able to perform replacement work for drivers who might
elect to go on strike Over the years, the Union brought
pressure to bear to prevent the assignment of unit work
to Burrows When that failed, it tried to require Burrows
to join. The pressure applied was in the form of threats
of economic reprisal, both to Burrows under the union-
security provisions of the contract as well as to Thomp-
son's Gas to require Burrows to join or be discharged.
Normally, when such pressure was applied, the response
of Thompson's gas was to reduce the amount of unit
work assigned to Burrows until the threat of union
action blew over. Then Burrows would go back to per-
forming unit work as in the past Phillip C Thompson
told Burrows on several occasions that he did not want
him to join the Union because he felt that Burrows did
not belong in the Union. Both sides agree that historical-
ly 40 to 50 percent of Burrows' duties consisted of work
which was defined in the contract as being within the
bargaining unit.4
On December 7, 1983, Burrows went to the Local 50
office and applied for membership He spoke with Busi-
ness Representative John Gonzales He told Gonzales
that he had worked for Thompson's Gas for 6 years, was
doing bulk tanks, worked on the dock, delivered tanks to
retail customers, and served as a jack of all trades. Gon-
zales told Burrows that he thought that Burrows be-
longed in the Union and accepted from him $300 for an
initiation fee and $19 for 1 month's dues. On the follow-
ing day, Burrows held a meeting with Phillip C. Thomp-
son, Clymer, and Ron Frazer, the shop steward, at the
company office Burrows informed the individuals assem-
bled that he had just joined the Union. He said that he
felt he needed to do so because he needed job security,
asserting that Clymer had been riding him severely in
recent weeks. Thompson asked Burrows if he had in fact
joined the Union or was just thinking about doing so
Burrows acknowledged that he had in fact joined.
Clymer then spoke up. He told Burrows that the Compa-
ny did not need another union employee so he was dis-
charged. Clymer added that Burrows had been insubor-
dinate and that there were still jobs in the field which he
had started but had not been completed. He also told
Burrows that he was not qualified to be a union driver.
At this point, Ron Frazer interjected, "What do you
4 At the hearing , Respondent 's counsel stated that Burrows had some
supervisory duties but was ambivalent when asked if he was contending
that Burrows was a supervisor and thus not protected by the provisions
of the Act In its brief, Respondent did not press the contention that Bur-
rows was a supervisor and it is well that it did not, since there is no sub-
stantial evidence in the record to this effect At one time Burrows re-
ceived a letter from Respondent stating that he was the dock supervisor,
but it is clear from the record that this title was a misnomer Burrows
had no one to supervise Ile had no power to hire, and fire, had no
power to discipline, recall, or transfer employees, and no power to adjust
grievances In fact , Clymer told him that he had no power to hire and
fire Occasionally, when he was working on the dock, Burrows was as-
signed a helper who was earning a higher hourly rate than he earned
However, Burrows would tell him what to do Burrows was, at best, a
leadman on these sporadic occasions and was in no sense a statutory su-
pervisor.
THOMPSON'S GAS
mean `not qualified9' He's as qualified as anybody, if not
more so." Burrows asked Clymer if this meant that he
was fired and Clymer said he was. Clymer replied that
the Company was going to have him report to work as
usual that day but this would not come to pass because
he had joined the Union.
On December 10, Burrows returned to the company
office and asked Thompson for a couple of paychecks
and a savings check which he felt were due him. Ac-
cording to Burrows, the amount in question was $462.15.
Thompson refused to give Burrows any checks but took
advantage of the occasion to discuss the question of the
discharge. He asked Burrows if the latter knew why he
had been discharged. Burrows replied that he was not
exactly sure. Thompson then made the nonsensical state-
ment that it was not because Burrows had joined the
Union that he had been discharged but it was because he
had joined the Union that he was discharged Thompson
went on to say that he was the one who was running the
Company, not Local 50, and he was upset because the
Union was always trying to set the pay scale. He said
that he was also upset because of all the grievances
which Local 50 had been filing against him concerning
who should drive trucks. Thompson told Burrows that
he had not been looking for a replacement for Burrows,
that this position was still open, and that, if it was up to
him, Burrows could have his old job back. However, be-
cause the "feds" were involved, he had to be careful
about what he said and what he did, so he was going to
let his attorney handle the whole matter. He noted that
the Union had "gotten right on it" as soon as Burrows
was fired by filing a charge with the Board, and voiced
the opinion that he did not think that the Union would
have "jumped right in" if it was not receiving Burrows'
complete cooperation.5 The discussion then moved to
the amount of the initiation fee and the dues which Bur-
rows had paid. Burrows told Thompson that he did not
pay the Union "just pennies," to which Thompson re-
plied that the amount in question might not seem like
pennies right now but it would seem like pennies in the
years to come if Burrows were to stay with the Compa-
ny.
About 2 days later, Burrows filed a wage claim against
the Company in the amount of $462.15 with the Illinois
Department of Labor. He alleged that the Company had
withheld over a week's pay as well as $30 in a savings
account. This matter did not come on for hearing until
after Burrows had been reinstated.
The Union and Thompson worked out a tentative
agreement permitting Burrows to return to work. At
5 On December 9, 1982, the day following Burrows ' discharge, the
Union filed a charge in Case 14-CA-16353 alleging that Burrows had
been discriminatorily fired Amended charges were filed on January 13,
1983, January 19, and February 22 A complaint was issued on January
13 alleging that Respondent had discriminatorily discharged Burrows and
had committed certain independent violations of Sec. 8(a)(1) of the Act
An amended complaint , issued on March 4, alleged that Respondent had
violated Sec 8(a)(5) of the Act by failing to pay certain bargaining unit
employees , particularly Burrows, the wages and conditions called for by
the existing collective -bargaining agreement An out-of-Board settlement
of this case was concluded by the parties , so the Regional Director ap-
proved the withdrawal of the charges on April 15, 1983 , and dismissed
the consolidated amended complaint
661
what point in time this agreement actually became final-
ized is difficult to ascertain. Burrows was offered rein-
statement about January 12 and returned to work on Jan-
uary 14 The pending litigation still continued and was
not settled until April 14, when Burrows received a
check in the amount of $1,771.20. This amount apparent-
ly represented the aggregate of an agreed-upon figure of
$1500 for backpay, plus a week's wages for the first
week in April, less standard deductions. At the time of
Burrows' return, the offer of reinstatement was more in
the nature of a tolling of backpay rather than a complete
settlement of the outstanding dispute between the parties,
since more charges continued to be filed while Burrows
was actually working.
On the morning Burrows returned to work, he an-
nounced that he wanted to be reinstated to his old posi-
tion but also wished to be represented by the Union.
Thompson or Clymer said that he could not be repre-
sented by the Union and that he would be paid at his old
scale, namely, $8 20 an hour and without union benefits.
Burrows resumed his former duties, except that he did
not refill any propane gas cylinders and did no driving
except running for parts
Respondent has long maintained a practice of permit-
ting its employees to purchase at a discount the items
which it retails at its commercial outlet. In addition, it
permits employees to charge items purchased for person-
al use on the various charge accounts which the Compa-
ny maintains with suppliers in and about Belleville. The
kinds of items purchased by employees under this ar-
rangement have varied widely. While gas heaters and
auto parts may constitute a large share of these compa-
ny-assisted purchases, records introduced into evidence
indicate that employees have taken advantage of this
practice to purchase major appliances such as color tele-
vision sets, refrigerators, and ranges. For purchases
under $25, an employee simply obtains a purchase order
number from the dispatcher and presents the number to
the store upon making the purchase Purchases over $25
must be approved by Thompson, but it appears from the
record that such requests are routinely approved
Employees who owe the Company outstanding bal-
ances for items purchased on its account are sent month-
ly statements, much as customers are billed These state-
ments contain a printed legend that employees are being
charged a 21-percent annual finance fee but, until March
1983, an actual itemized charge was never levied on any
employee's account. Arrangements for payment have
varied and it clearly appears that, until the dispute arose
between Burrows and Respondents, the Company was
quite lax in demanding payments from employees Often
employees would agree to wage assignments, so amounts
ranging from $10 to $30 a week were deducted from
paychecks in order to reduce outstanding balances
Sometimes employees would make larger payments in
order to reduce the size of their accounts. Extracts from
the accounts receivable ledger entered into evidence in
this case indicate that, over the years, Burrows regularly
had outstanding balances of several hundred dollars and
frequently owed the Company in excess of a thousand
dollars for personal purchases made on its account.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 27, 1983, Phillip C. Thompson asked Bur-
rows for permission to take a wage assignment out of his
check each week to reduce the outstanding balance
owed, which at that time was $829.33. Reductions in the
outstanding balance of $10 per week had been made
during the preceding 2 weeks but this amount was appar-
ently insufficient to satisfy Thompson. Burrows objected
to having amounts deducted from his paycheck but told
Thompson that he would be glad to pay him periodically
by check." Thompson asked for $30 a week and Burrows
offered $10. They agreed upon a payment of $20 a week,
which Burrows preferred to pay by check rather than by
deductions from his weekly pay. The records in evidence
indicate that regular $20 weekly payments were made by
Burrows, plus additional payments in larger amounts. By
August 2, 1983, Burrows' balance was reduced to $35.16.
During this discussion, Thompson also complained
that matters which had been discussed in confidence in
the office had not been kept confidential He asked Bur-
rows if he was going to report this conversation to the
NLRB. Burrows replied that he might. Thompson went
on to say that he was "pissed off' that so many griev-
ances (i.e., charges) were being filed with the Board.
Burrows suggested that if Thompson would communi-
cate with employees, such matters could be worked out
within the Company. Thompson's reply was "bull shit,"
insisting that the employees cared nothing about the
Company and would do nothing to help it.
A hearing was scheduled to be held on Monday,
March 14, by the Illinois Department of Labor on the
wage claim which Burrows had filed in December. A
few days before this hearing was scheduled to take place,
Burrows and Thompson had an acrimonious discussion
concerning the amount of back wages due to Burrows.
Thompson gave Burrows a check for $72, which was
one of the items in Burrows' claim However, he with-
held payment of $30, which was another element of the
claim Burrows told Thompson on this occasion that he
would not be charging any more purchases to his ac-
count, to which Thompson replied, "I know you won't "
As indicated in footnote 8, infra, Burrows in fact made
five additional charges for small items which he pur-
chased in the months of March, April, and May.
Thompson did not appear at the March 14 hearing. He
had previously informed the hearing examiner that the
claim had been settled. Burrows did appear and insisted
that he had not received the portion of his claim relating
to his savings account. Apparently the examiner agreed
that this amount was still due and owing, since he en-
tered an award of $30, which was collected by the De-
partment and turned over to Burrows on April 8.7 When
6 The records in evidence indicate that , in addition to two payments
credited to Burrows ' account in December when Respondents refused to
give him his paychecks , Burrows had made payments during calendar
year 1982 of $ 1535 19 Despite these payments , his balance had grown
from $538 88 at the beginning of the year to $875 51 , and had, at one
time, been as large as $1165 64 because of purchases which he continued
to make on the Company 's account and with company permission Bur-
rows' purchases during 1982 of personal items charged to the Company's
account was Just under $2000
The award , dated March 25, 1983, is quite peremptory in its tone In
addition to making a determination of what Thompson ' s Gas owed Bur-
rows, the Illinois Department of Labor informed Respondent herein that,
Thompson received a notice from the Department of
Labor demanding $30, he called Burrows in for an expla-
nation. Burrows said the amount represented the unpaid
amount in his savings account. Thompson reluctantly
agreed to pay the award but threatened Burrows to take
him to small claims court if he did not pay his entire
charge account in full within 10 days
When Burrows received from Respondents the month-
ly statement for March showing how much he owed for
personal purchases, the statement contained entries for fi-
nance charges for March and a retroactive charge for
February.8 This was the first time that Burrows had ever
received an actual finance charge and it was the first oc-
casion on which Respondent had ever levied such a
charge on any employee creditor. At the same time, Re-
spondent imposed a finance charge of $4.21 on Jacque-
line Carter Burrows, a former clerical employee of Re-
spondents, for purchases which she had made before she
resigned in early February. Charges of $4.21 and $3.99
were levied thereafter on Mrs. Burrows during the
months of April and May, respectively. There is no
record evidence that finance charges were levied on any
other employees, except for James Heap, Darus Jackson,
and Ronnie Touchette. On March 25, a finance charge of
$6.51, retroactive to February 25, was imposed on Heap.
Thereafter, charges of $10.72 and $8.24 were imposed in
April and May on a balance ranging from $772.88 to
$529. Nominal monthly charges of $1 were levied in the
ensuing 3 months on significantly reduced balances. Tou-
chette received a $1.28 charge on August 28, and Jack-
son received nominal charges of $1 or slightly more for
May, June, and July.
During the period of time that Burrows was in dis-
charge status, Respondents purchased and installed a
new timeclock. There is no suggestion that this innova-
tion was brought about for discriminatory reasons. In a
memo dated December 27, 1982, and addressed to both
drivers and clerical workers, Thompson stated, inter alia:
Effective January 1, 1983, all employees listed at
bottom of memo when working for Thompson's
Gas, Inc, will be required to "punch in and out"
for any of the following:
1. Arriving at work.
2 Leaving for lunch or just checking out and
eating here.
3 Returning from lunch and starting back to
work
4. All other times you may leave and/or return
on personal business, illness, etc
unless the award was paid within 15 days, criminal charges would be
filed by the State against the Company and a penalty of 1 percent per
day would begin to accrue
R The accounts receivable ledger for Burrows shows seven entries for
finance charges. On March 25, 1983, three finance charges were levied,
one of $12 94 for February and two of $7 61 and $7 96 for March The
following additional charges were thereafter levied-April 25, $6 70,
May 23, $491, June 30, July 2, and August 2, $1 each The account also
shows the following purchases in the period of March through June
1983, which purchases were paid immediately upon the entry of the
charge-March 2, $24 06, March 17, $23 97, April 1, $23 97, April 14,
$16 98, May 4, $21 23, and June 4, $12 74
THOMPSON'S GAS
Time will be paid based on 15 minute units. No
pay is made for fractions of a unit. For example, if
you are four minutes late, you will lose fifteen min-
utes pay, if you are eighteen minutes late, you will
loose thirty minutes pay, etc. There will be no un-
authorized overtime.
When he announced this policy orally to the employ-
ees, Thompson explained that he would permit a 2- or 3-
minute grace period for employees who punched in late.
After Burrows returned to work, Clymer explained to
him that there would be a 2- or 3-minute grace period
allowance, but he also informed Burrows that he would
be docked 15 minutes' pay if he punched in after the un-
written grace period. A chart prepared by the General
Counsel from time and pay records in evidence shows
that, during a 3-week span in April Burrows was docked
15 minutes for tardiness on eight occasions, although his
lateness did not exceed 3 minutes on any occasion and
was often less than what was allowed under the grace
period Meanwhile, other employees with whom Bur-
rows' record was compared were repeatedly late for pe-
riods of time far in excess of the grace period but were
not docked at all Respondent gave no explanation for
this disparity. Burrows brought to Clymer's attention the
fact that he had been repeatedly docked for trivial in-
stances of lateness and asked him why. Clymer's reply
was "I guess the love affair between you and Phil
Thompson is over." It should be noted that thereafter
Burrows was docked for minor latenesses on only two
occasions.
On May 13, 1983, Burrows filed an individual charge
which was the basis of the complaint which was issued
in this case on June 13.
Burrows testified without contradiction that, through-
out each of the summers from 1977 through 1982, he had
never been laid off despite the fact that some drivers
were seasonally laid off. In the summer of 1982, he regu-
larly worked a 44- to 46-hour week, being assigned to
the dock on Saturdays to fill out his week. During this
period of time, he performed a mixture of unit and non-
unit jobs. However, after he returned to the Company
about January 14, he was given no more dock work.
Moreover, he did not act as a mechanics helper nor did
he fill cylinders, motor fuel tanks, set tanks, or make in-
stallations in houses.
During the spring of 1983, Thompson hired a new em-
ployee, Jeff Davis, for $3 an hour. Davis was and is paid
as a personal retainer to Thompson but is assigned a vari-
ety of jobs He started, as did Burrows during his first
year or so of employment, doing personal chores at
Thompson's house such as mowing the lawn, landscap-
ing, and other yard work. However, Davis has also been
assigned miscellaneous duties at Thompson's Gas, Inc.
On some occasions he has assisted Burrows. Burrows tes-
tified that Davis worked 30 to 40 hours per week
throughout the summer of 1983 Respondent's informal
record reveals pretty much that schedule, although it
shows that Davis was off entirely for 5 different weeks
in July, August, and early September. There is credited
record evidence that, on some occasions, Davis was
working when Burrows was in layoff status.
663
Weekly timesheets in evidence show that Burrows
worked the following hours beginning in April 1983:
Week ending Hours worked Week ending Hours
worked
April 10 31-1/2 July 10 32
April 17 39-3/4 July 17 16
April 24 38-3/4 July 24 40
May 1 42 Aug 1 37
May 8 40 Aug. 7 24
May 15 32 Aug. 14 0 (vac.)
May 22 39 Aug. 21 39-3/4
May 29 39 Aug. 28 16
June 5 32-1/2 Sept 4 16
June 12 35 Sept 11 16
June 19 24 Sept. 18 16
June 26 24 Sept. 25 24
July 3 40
Not shown in this compilation are incidental days of va-
cation, sick leave, or holiday pay which may have sup-
plemented certain weeks.
On August 30, Burrows had a conversation with
Clymer in which he asked Clymer why Thompson had
been in a good mood early in the day and later appeared
to be upset. Clymer replied that it was a combination of
the fact that Local 50 contract negotiations were in
progress and the fact that Burrows' NLRB hearing was
coming up Burrows then asked Clymer whether he was
going to be laid off the following day. Clymer replied
that Burrows should know better than to ask before the
end of the day, saying that he would not know unil 5
p.m. after he had heard from Thompson He indicated
that Thompson was over in St. Louis at his lawyer's
office. Later in the day, after receiving a call from
Thompson, Clymer laid off Burrows for 8 days. He also
told Burrows that, because he would be working less
than 20 hours a week, he was, in effect, a part-time em-
ployee and would thereby lose his hospitalization insur-
ance.9 He suggested that, if Burrows wanted to do any-
thing about it, he could sit down and "talk to Phil
[Thompson] " Burrows inquired, "Talk to him about
what?" Clymer replied casually, "About whatever,"
adding a moment or so later, "Off the cuff, you known
you can do something about this thing " Burrows
punched out and returned to work a week or so later
The hearing in this case began on October 6. In the
interim between the outset of the hearing and its resump-
tion on October 27, Burrows resigned. When Clymer
called him on Sunday, October 23, to instruct him to
report for work the following day, Burrows informed
Clymer that he had obtained other employment.
9 Despite Clymer 's statement , it does not appear that Respondents in
fact revoked Burrows' health insurance coverage during his term of em-
ployment
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis and Conclusions
The record in this case is redolent with animus Re-
spondents10 admit that Burrows was fired initially on
December 8 because he had joined Local 50 Their argu-
ment that they had no union work for Burrows to do
does not erase the discriminatory coloration from their
act The parameters of the represented bargaining unit in
this case are, if anything, flexible Over the years the
scope of the unit has been the subject first of dispute,
then of negotiation, and finally of agreement. Its descrip-
tion was never established by a Board certification. Ini-
tially, Burrows did work which was both in and out of
the unit. Then the unit was so defined that he lost work
and was eventually the subject of periodic and intermit-
tent layoffs which substantially reduced his earnings, but
which were so short lived that he was ineligible for un-
employment compensation.
Whether Burrows was a unit or a nonunit employee,
or whether he worked both in and out of the represented
bargaining unit, he was entitled under the Act to union
representation. When, on December 8, 1982, Respond-
ents discharged him, as it admittedly did, for seeking
such representation, Respondents clearly violated the
law. While this violation is not the subject of the com-
plaint herein, the facts and circumstances of that dis-
charge are inextricably linked to the actions of Respond-
ents which occurred in the following months. While
Thompson reinstated Burrows and compensated him for
time lost, he neither forgave nor forgot Burrows' act of
disloyalty, and the grudge he acquired against Burrows
has lingered on into these proceedings.
The chronological sequence of events taking place
after Burrows' reinstatement demonstrates unmistakably
that the dispute over the scope of his duties was not put
at an end by the out-of-Board settlement It continued to
fester and, if anything, has become aggravated. As more
and more charges in the first case were being filed,
Thompson began the process of tightening the screws on
Burrows, first by initiating finance charges, then by
docking his pay for petty tardiness in contrast to the lib-
erality granted to others, and also by insisting that Bur-
rows discontinue making personal charges on the compa-
ny account.
Meanwhile, Burrows had filed and was collecting from
Respondents upon a complaint for unpaid wages made to
the Illinois Department of Labor At the time the unfair
labor practice complaint in this case was issued, any re-
10 Thompson's Gas, Inc and Del-Ro Transports, Inc are plainly a
single integrated enterprise The test for determining such a relationship
was announced by the Supreme Court in Radio Union v Broadcast Serv-
ice, 380 U S 255 (1965), as "interrelation of operations, common manage-
ment , centralized control of labor relations, and common ownership " All
of these elements are present here to a high degree Both corporations
are owned by members of the Thompson family and are engaged in oper-
ations which are closely related Both maintain their headquarters at the
same location and utilize the same facilities and headquarters personnel.
Both are run by Phillip C Thompson and his immediate subordinate,
Donald Clymer, and both utilize personnel on an interchangeable basis,
the only distinction in employment being different bank accounts from
which they are paid when performing services for each corporation
Labor relations for both are controlled by Thompson Prospectively, the
employees of both organizations will be covered by the same collective-
bargaining agreement
prisal taken against him for making a wage claim was
plainly a violation of the Act. See Alleluia Cushion Co.,
221 NLRB 999 (1975); see also University Heights Hospi-
tal, 239 NLRB 290 (1978), Santa's Bakery, 249 NLRB
1058 (1980); Cimpi Transportation Co, 256 NLRB 1064
(1981); NLRB v. B & M Excavating, 368 F.2d 624 (9th
Cir 1966) However, in a recent decision in Meyers In-
dustries, 268 NLRB 493 (1984), the Board reversed itself,
so employer reprisals for the activity in which Burrows
engaged are no longer violations of the Act According-
ly, any allegation in the complaint that Respondents
interfered with this protected concerted activity must be
dismissed
On May 13, 1983, Burrows himself filed the unfair
labor practice charge which resulted in the complaint in
this case. Burrows also roams his membership in Local
50, although there is some question as to whether his
dues are still current. Accordingly, it is clear that any
recent reprisals taken against him which were prompted
by these activities violate Section 8(a)(1), (3), and (4) of
the Act.
Some of Thompson's harassing actions were bluff and
some were not. However, regardless of whether he fol-
lowed through with his threats and restriction or wheth-
er he did not, the threat or attempt to impose a sanction
is itself violative of the Act, as well as a further demon-
stration of animus. A case in point is the withdrawal of
charging privileges. Thompson effectively told Burrows
on March 10 that he would no longer enjoy the right to
make personal purchases on Respondents' account as he
had been doing for the past 7 years. Thereafter, Burrows
made five small purchases, the last of which took place
in early June Thompson's act of withdrawing these
privileges, prompted as it was by discriminatory motiva-
tion and taken in reprisal for the filing of charges which
were still outstanding, is a violation of Section 8(a)(1),
(3), and (4) of the Act, notwithstanding the fact that Re-
spondents were slow in effectuating this edict. Its defense
that this action was taken because Burrows was not
making a good-faith effort to reduce his outstanding bal-
ance is unsupported by the evidence. On March 10, 1983,
Burrows' outstanding balance was $699, less than 60 per-
cent of the amount which he owed in October 1982
when he was ostensibly content with his lot as a Thomp-
son's Gas employee. At that time there was no sugges-
tion that Burrows should stop charging on Respondent's
account or that he should pay a finance charge. There is
no foundation for Respondent's contention that it was
cutting off charging privileges because Burrows was not
making any effort to reduce his outstanding balance. Be-
ginning February 2, Burrows regularly curtailed his obli-
gation by $20 a week, the amount he agreed to pay, and
he was not in default on his promise in any way. Threat-
ening or attempting to discontinue charging privielges
was merely Thompson's way of getting even with Bur-
rows, who was still the subject of an outstanding unfair
labor practice complaint and repeated charges which
were being filed on his behalf by Local 50. The Act does
not permit this kind of pressure to be brought to bear in
aid of a settlement.
THOMPSON'S GAS
The same rationale applies to the imposition of finance
charges upon Burrows and his wife Such action, which
Respondents undertook on March 25 for the first time in
their corporate history, cannot be explained on nondiscri-
minatroy grounds, since Burrows, as noted above, was
regularly reducing the balance in his receivable account
The fact that two other employees were the subject of
similar finance charges does not negate the discriminato-
ry intent directed at Burrows, since the record indicates
that there were still other employees with far greater
outstanding balances who were not the subjects of fi-
nance charges. Indeed, decisions by Thompson to impose
finance charges on one employee and not to impose them
on others bore no relation to business judgment and was
wholly arbitrary on his part. The reason for his arbitrari-
ness towards Burrows has been convincingly explained
by the animus he continued to harbor.
The same animus serves to explain why Respondents
granted extended grace periods for lateness to several
employees while docking Burrows' pay for late arrivals
which did not exceed the 2- to 3-minute period which
Respondents announced they would allow without pen-
alty. The decision to grant or deny grace periods for
lateness was also wholly arbitrary and lacking in any le-
gitimate rationale, save the one which has permeated this
case from its outset, namely, Respondent's irritation that
Burrows joined the Union and then sought redress from
the Board for his abrupt and illegal termination.
Pay records demonstrated beyond argument that,
during the summer and early fall of 1983, Burrows
worked sporadically and was given far fewer hours than
in previous years, especially 1982. It is agreed that 40 to
50 percent of Burrows' former work was bargaining unit
work and that at least 10 to 15 percent of the work
which he previously did was being performed by a new
hire, Jeff Davis Far from providing Respondents with a
defense, these facts serve to implicate it in a calculated
and continuing effort to reduce Burrows' working time.
Respondents' argument seems to suggest that it was per-
fectly permissible to strike a bargain with the Union
which resulted in taking work traditionally performed by
Burrows, a nonunit and nonunion employee, and giving
it to other employees. Instead of exonerating Respond-
ents, this agreement with Local 50 serves to implicate
the Union in the unfair labor practice committed by Re-
spondents Both work assignments-to unionized em-
ployees and to Davis-were wholly consensual acts on
the part of Respondents and had the necessary and fore-
seeable effect of depriving Burrows of work opportuni-
ties. The lack of work assigned to him in 1983 was not
the result of impersonal economic forces or the overall
decline in Respondents' business 11 In the case of trans-
ferred bargaining unit work, this change stemmed from a
deliberate decision to assign Burrows' work to others on
the basis of a union membership. As such, it is a per se
violation of the Act. In the case of duties reassigned to
Davis, Burrows' detriment was the result of an act of a
partial replacement by another employee, the motive for
While evidence indicates that Respondents' profits were down in
1983, the Company was in much worse shape in 1981, but this fact did
not affect Burrows' job security in that year
665
which can be derived from other evidence. When reas-
signment of work became so severe that Burrows was
threatened with a loss of entitlement to health insurance,
Clymer flatly suggested that the problem could be cured
if Burrows simply sat down and worked out his differ-
ences with Thompson. This is tantamount to an admis-
sion that the whole scheme had been devised and perpe-
trated to pressure Burrows into abandoning his efforts to
join the Union and withdrawing pending charges. The
statement itself violates Section 8(a)(1) of the Act. Its
effect is to reveal illegal motives which prompted other
acts. Accordingly, I conclude that, by depriving Bur-
rows of normal work opportunities during the summer
and fall of 1983, and in laying him off during that period
of time, Respondent herein violated Section 8(a)(1), (3),
and (4) of the Act.
The economic impact of Respondents' discriminatory
and illegal activity became especially acute during the
month of September as the hearing date in this case drew
near. The amount of work given to Burrows was patent-
ly insufficient to permit him to earn a living Yet, be-
cause the layoffs were short term and intermittent, it was
impossible for him to collect unemployment compensa-
tion. Added to this fact was the threat that his health in-
surance would be canceled. By these acts, Respondents
turned the screw so tightly that, in order to survive, Bur-
rows had no alternative but to do what he did on Octo-
ber 23, namely, resign and take other employment. These
facts present the classic case of a constructive discharge,
a termination formally initiated by an employee but one
which he has been forced to undertake because of a de-
liberate and illegal plan designed to bring about this con-
clusion Burrows' termination, taking place as it did
during the interim between hearing dates in this case,
was simply the most recent of a series of ongoing acts
engendered by Respondents who have repeatedly acted
in total disregard of their obligations under the law and
the rights of their employees conferred by Congress in
the Act While a constructive discharge of James D.
Burrows was not formally alleged in the complaint, the
facts and circumstances bringing it about were fully liti-
gated in this case. Accordingly, the Board is authorized
to address this violation and to provide a remedy for it
In view of this state of the record, I conclude that, about
October 23, 1983, Respondent herein constructively dis-
charged James D. Burrows because of his union activi-
ties and because he filed charges under the Act, all in
violation of Section 8(a)(1), (3), and (4) of the Act
On the foregoing findings of fact and on the entire
record herein considered as a whole, I make the follow-
ing
CONCLUSIONS OF LAW
1. Respondents Thompson's Gas, Inc. and Del-Ro
Transports , Inc. and each of them, are now and at all
times material herein have been employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondents are a single integrated enterprise and
are alter egos.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 Teamsters, Automotive, Petroleum and Allied
Trades, Local Union No. 50, of the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
4. By selectively docking the pay of James D. Bur-
rows because of minor tardiness, by imposing upon him
and his wife finance charges on their accounts receiva-
ble; by terminating his privilege to make personal pur-
chases on Respondent's account; by periodically and
intermittently laying him off; and by constructively dis-
charging him, all in order to discourage his membership
in and activities on behalf of Teamsters, Automotive, Pe-
troleum and Allied Trades, Local Union No. 50, of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Respondents
violated Section 8(a)(3) of the Act
5 By the operative acts set forth above in Conclusion
of Law 4, which were also committed because James D.
Burrows filed charges under the Act and cooperated in
the investigation of charges filed on his behalf under the
Act, the Respondents violated Section 8(a)(4) of the Act.
6. The unfair labor practices set forth above in Con-
clusions of Law 4 and 5 violate Section 8(a)(1) of the
Act and have a close, intimate, and adverse effect on the
free flow of commerce within the meaning of Section
2(6) and (7)-of the Act.
Having found that Respondents have engaged in cer-
tain unfair labor practices, I will recommend that they be
required to cease and desist therefrom and to take certain
affirmative actions which are designed to effectuate the
purposes and policies of the Act. Since the violations of
the Act found herein are continuing, pervasive, and evi-
dence a firm intention on the part of Respondents to vio-
late the rights of their employees, I will recommend to
the Board a so-called broad 8(a)(1) remedy designed to
suppress any and all violations of that section. Hickman
Foods, 242 NLRB 1357 (1979). Since I have found that
Respondents constructively discharged James D. Bur-
rows, I will recommend that they be required to offer
him full and immediate reinstatement and to make him
whole for any loss of earnings he may have suffered by
reason of the several discriminations practiced against
him, in accordance with the Woolworth formula,12 with
interest thereon at the adjusted prime rate used by the
Internal Revenue Service for the computation of tax pay-
ments. Olympic Medical Corp., 250 NLRB 146 (1980); Isis
Plumbing Co., 138 NLRB 716 (1962). Inasmuch as a con-
structive discharge has been found, the running of back-
pay liability will not be tolled until full and immediate
reinstatement has been offered. I will also recommend
that Respondents be required to post the usual notice,
advising their employees of their rights and of the results
in this case.
[Recommended Order omitted from publication.]
12 F W Woolworth Co, 90 NLRB 289 (1950)