Ram Construction Company, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1982

263 N.L.R.B. 258 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ram Construction Company, Inc. and Bradley E.
Foster. Case 6-CA-13658
August 9, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On July 9, 1981, Administrative Law Judge
James P. Timony issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in answer to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
The General Counsel has excepted, inter alia, to
the Administrative Law Judge's failure to find that
Respondent additionally violated Section 8(a)(l) of
the Act by twice threatening employee Foster with
discharge because he had filed grievances. We find
merit in these exceptions for the reasons given
below.
On May 13, 1980, Respondent's president, Las-
tooka, received employee Foster's written com-
plaint about the order in which employees were
being recalled from layoff and about not being paid
for the days he had trained on the triaxle truck,
both matters which Lastooka thought had been re-
solved with Foster several weeks before. Lastooka,
who was admittedly upset, called Foster at home
I The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis foir re-
versing his findings.
2 It appears, based on his credibility resolutions, that the Administra-
tive Law Judge found that Respondent's president, Lastooka, used strong
language in telling Charging Party Foster not to talk to his sister about
the argument in the Company's trailer on May 13, 1980. However, it is
not clear whether the Administrative Law Judge found that Lastooka
specifically stated "he would have Foster taken care of one way or the
other." Even assuming, arguendo, that the Administrative I aw Judge
made such a finding, we conclude that the General Counsel has not es-
tablished that Respondent threatened Foster with bodily harm. In so
doing, however, we disavow the Administrative Law Judge's reliance on
the subjective testimony of Foster's sister about the alleged threat.
I We shall include in our new notice language that more closely con-
forms to par. I(a) of the Administrative Law Judge's recommended
Order.
and arranged to meet with him later that day at the
jobsite trailer. Immediately before entering the
Company's trailer, Lastooka heard from Castagna,
Respondent's vice president of construction, that
Foster previously had filed a grievance on a differ-
ent matter. Once inside the trailer, Lastooka told
Foster that he would have fired Foster had he
known about the earlier grievance. At another
point during their loud and heated argument,
Foster lunged at Lastooka as if to strike him, and
Lastooka suggested that it might be better for ev-
eryone if Foster would seek other employment.
Eventually, both men stopped shouting and talked
calmly about the matters raised in Foster's com-
plaint.
The Administrative Law Judge failed to make
any finding regarding the lawfulness of Lastooka's
remarks about Foster's earlier grievance. We find
that Lastooka's remarks constituted an explicit
threat to Foster that his filing of grievances would
result in his discharge. Such a threat reasonably
tends to interfere with, restrain, or coerce employ-
ees in the exercise of their Section 7 rights and is
violative of Section 8(a)(1). 4
The Administrative Law Judge concluded, with
regard to Lastooka's suggestion that Foster seek
other employment, that Lastooka's words did not
amount to an actual discharge. In so concluding, he
relied, in part, on the fact that Lastooka's words
were spoken in heat and shortly after Foster had
lunged at him. He also relied on the fact that the
parties eventually cooled down and parted amica-
bly. The Administrative Law Judge found that in
these circumstances no reasonable employee would
have considered himself terminated as a result of
Lastooka's words.5 The Administrative Law Judge
made no finding, however, as to whether Lastoo-
ka's words constituted an unlawful threat of dis-
charge, as urged by the General Counsel.
It is clear from the record that Lastooka's sug-
gestion that Foster seek employment elsewhere
constituted an implied threat of discharge for en-
gaging in protected activities, which reasonably
tended to interfere with, restrain, or coerce em-
ployees in the exercise of their Section 7 rights.
United Parcel Service, 247 NLRB 861, 865-866
(1980). Moreover, the fact that Lastooka's words
may have been spoken in anger does not nullify
their coercive impact. See Bell Burglar Alarms,
Inc., 245 NLRB 990 (1979); Oscar Enterprises, Inc.,
OMCO, Inc., Halvin Products Co., 214 NLRB 823
(1974).
4 See, eg., Servomation Corporation, 248 NLRB 106 (1980).
5 No party has filed exceptions to the Administrative Law Judge's
finding that Lastooka's words, in themselves, did not amount to an actual
discharge of Foster.
263 NLRB No. 31
258
RAM CONSTRUCTION COMPANY, INC.
Accordingly, we conclude that Respondent,
through Lastooka's statements, violated Section
8(a)(l) of the Act by threatening Foster with dis-
charge because he had filed grievances. 6
AMENDED CONCLUSIONS OF LAW
Insert the following new Conclusion of Law 4
and renumber the subsequent conclusion according-
ly:
"4. Respondent violated Section 8(a)(l) of the
Act by unlawfully threatening its employee Brad-
ley E. Foster with discharge because he had filed
grievances."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Ram Construction Company, Inc., Canonsburg,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as new paragraph I(b)
and reletter the subsequent paragraph accordingly:
"(b) Threatening its employees with discharge
because they have filed grievances."
2. Substitute the attached notice for that of the
Administrative Law Judge.
6 The finding of these additional violations of Sec. 8(a)(i) are insuffi-
cient to affect our conclusion, in agreement with the Administrative l aw
Judge, that Respondent did not constructively discharge Foster on May
13, 1980,
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with
more onerous and rigorous terms and condi-
tions of employment because they have filed
grievances.
WE WILL NOT threaten employees with dis-
charge because they have filed grievances.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the Act.
RAM CONSTRUCTION COMPANY
DECISION
STATEMENT OF THE CASE
JAMES P. TIMONY, Administrative Law Judge: This
case was heard before me in Pittsburgh, Pennsylvania, on
May 7, 1981, upon the complaint issued on September
26, 1980, based on a charge filed by Bradley E. Foster.
The complaint alleges that Ram Construction Company,
Inc. (herein called Respondent or Ram), engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, by
threatening employees with bodily harm and with more
onerous and rigorous terms and conditions of employ-
ment because they had filed grievances, and by causing
the termination on May 15, 1980, of employee Foster be-
cause of his union activities.
By its answer, Ram admits service of the charge, com-
merce facts and conclusion, the labor organization status
of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Building Mate-
rial and Construction Drivers, Local 341, and the super-
visory status of President John M. Lastooka, Vice Presi-
dent of Construction Rich Castagna, and Vice President
of Equipment Maintenance Michael Shuler. Ram denies
the commission of the unfair labor practices alleged in
the complaint.
Issues
I. Whether Ram violated Section 8(a)(1) of the Act by
threatening employees with bodily harm because they
filed grievances.
2. Whether Ram violated Section 8(a)(1) of the Act by
threatening its employees with more onerous and rigor-
ous terms and conditions of employment because they
filed grievances.
3. Whether Ram violated Section 8(a)(1) and (3) of the
Act by causing the termination of its employee, Bradley
Foster, because of his union activities.
Upon consideration of the whole record, and my ob-
servation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Ram admits and I find that (1) it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that (2) the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
11. THE EVENTS
Ram is a general contractor engaged in heavy and
highway construction in the Pittsburgh area. Lastooka
started the Company 15 years ago and directs operations
as its president. Castagna directs daily operations at the
jobsites, including the extension of a taxiway at the Pitts-
burgh International Airport. Shuler is responsible for the
maintenance of trucks and other equipment and dis-
patches drivers to the various jobsites.
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bradley Foster was discharged from the Navy in 1979
and went to work for a gas company in Illinois. After 2
months he returned to Pittsburgh because he was accept-
ed by the University of Pittsburgh. He was employed by
Respondent as a laborer in August 1979.
Foster obtained employment with Respondent through
his sister, Rhonda Mlatnik, who was Lastooka's personal
secretary and payroll supervisor. She asked Lastooka to
hire her brother.
After Foster worked for a few days as a laborer, Las-
tooka realized that he was not capable of doing heavy
manual work and that the foreman would shortly dis-
charge him. Lastooka drove a new truck costing
$265,000 to the jobsite and offered Foster a job as a
truckdriver, at higher pay. Lastooka personally trained
Foster to drive the truck and got him in the Union. In
the history of the Company only experienced truck-
drivers had been hired and no other laborer had become
a truckdriver. Lastooka never before personally trained a
truckdriver.
Lastooka put Foster on a construction crew that
worked a lot of overtime. From August to December,
Foster averaged 58 hours a week. In October 1980,
Foster negligently destroyed the pump on the back of a
fuel truck. His supervisor, Castagna, wanted to fire him
but Lastooka intervened and kept Foster on the payroll
for a few weeks until the winter layoff so that Foster
could qualify for unemployment benefits.
In April 1980, after the winter layoff, Ram gradually
started to recall employees. On April 21, employee Jim
Green was recalled to drive a triaxle truck, a large dump
truck. It is a complicated machine requiring a special li-
cense and requires a skillful driver, since it is dangerous
to drive, especially when being driven loaded on the
highway. Green was junior to Foster, having been hired
after him. He was, however, licensed and qualified to
drive a triaxle truck. Foster was not.
Foster's sister noticed that Green had been recalled.
She confronted Michael Shuler, who was in charge of
dispatching Ram's equipment, and demanded to know
why Green was working when her brother had not yet
been recalled. Shuler explained that the Company
needed triaxle drivers and Green had been driving a
triaxle before the layoff and was licensed to do so
whereas Foster was not. Mlatnik then went to Lastooka,
complaining that Shuler had recalled Green but not her
brother. Foster also went to see Lastooka about this
matter. Lastooka agreed to pay him for the 2 days on
which the junior driver worked and Foster did not. Las-
tooka said he would pay him for 2 rain days, on which
he did not work, so that Shuler would be unaware that
Foster was being paid. Lastooka also decided to have
Foster trained to drive the triaxle.
That night Shuler telephoned Foster telling him to
ride with Green in a triaxle truck the next day. Foster
rode with Green on April 24, watching him operate the
truck. At the end of the day, when Foster attempted to
turn in his timesheet, Shuler told him that he probably
would not be paid for the training period.' Foster again
There apparently was no precedent for this question since the Union
normally trained drivers before they took a job driving a truck.
rode with Green in the triaxle on April 28 learning how
to operate the truck, and again Shuler told him he would
not be paid while training. The following day, Foster
was allowed to drive an unloaded triaxle to the airport
jobsite, where he operated it alone on the jobsite all day.
He did not operate the truck successfully, and at one
point raised the body up in the air loaded with 25 tons of
dirt and rock, which would not come out because he had
forgotten to release the tailgate catch. Shuler felt that
Foster was not qualified to drive the triaxle.2
After Foster's unsuccessful training period, Shuler
continued to give work to Green but not to Foster.
Every day that Green drove out the gate and Foster did
not, Mlatnik would badger Shuler and Lastooka about it.
She became sullen and irritable and unable to do her
work properly. She was so emotionally upset that she
had to go to the hospital with stomach ulcers.
Although Lastooka discussed the matter with Shuler
several times, Shuler continued to oppose recalling
Foster to drive the triaxle truck because he did not be-
lieve Foster could handle the truck safely. Lastooka was
concerned about his secretary's health and did not want
to upset her. He considered her a key employee and did
not want to lose her in the dispute concerning her broth-
er.
On May 13, Foster filed a written complaint, asking
for 7 days' pay.3 Castagna forwarded the complaint and
Mlatnik took it into Lastooka's office. After reading the
complaint, Lastooka called Foster and arranged to meet
him at the trailer office of the airport jobsite. Lastooka
was upset about the complaint. He felt that his office was
in turmoil because of an unjustified complaint which he
thought he had settled, and he thought Foster was un-
grateful for all that he had done for him.
Lastooka entered the trailer and commenced a loud,
bitter argument remonstrating Foster with coarse and
vulgar language for filing the complaint. Foster shouted
back his views on the matter. Lastooka reviewed what
he had done for Foster and asked if he thought it was
fair to cause the controversy between his sister and
Shuler. He shouted that Foster could put himself in one
of two classifications. He could be a company man as he
had been, and the Company would take care of him the
way it had with overtime and a brand new truck, or he
could be a union radical and he would drive an old truck
to jobsites far from home. Foster shouted back and at
one point lunged at Lastooka with his fists clenched as if
I Driving the triaxle carries prestige among the truckdrivers as recog-
nition of a job requiring skill but was compensated at the same rate as
driving the other trucks operated by Foster-$9.43 per hour.
s The written complaint differed from Foster's oral complaint in which
he claimed that he should have been allowed to drive the triaxle. Cas-
tagna and the union business agent met with Foster about the oral com-
plaint and he admitted that he was unqualified to drive the triaxle. He
now alleged that another driver, Louis Johnson, who was qualified to
drive the triaxle, should have been recalled before Jimmy Green. If John-
son had been recalled first for the triaxle, then Foster would have had
seniority over Green for other trucks. Ram did not recall Johnson before
Green because Johnson had already refused to drive a highway truck.
Furthermore, he was in poor health and had a heart attack shortly there-
after. He never filed a grievance about the matter.
260
RAM CONSTRUCTION COMPANY, INC.
he were going to strike him.4 Lastooka said that because
of all the controversy and for the benefit of the Compa-
ny and Foster and his siter, it might be better for him to
look for other employment. 5
After they finally started to calm down, Lastooka
warned Foster not to tell his sister what had occurred in
the trailer. She had been in the hospital for treatment of
ulcers and had been discharged only 4 days earlier. The
doctor had told her not to get upset, and Lastooka did
not want to worry her. Lastooka agreed to pay Foster
an extra rain day but said that he would not let him
drive the triaxle truck. He explained that he could not
back down from what the dispatcher had decided. The
two men talked calmly for a few minutes and parted
with a handshake.6
The next day Foster called Shuler and told him he
was taking Lastooka's advice and was looking for an-
other job.7 His sister did not come to work on that day
and quit-the next day.
11. DISCUSSION
A. Threat of Bodily Harm
Lastooka threatened that if Foster told his sister about
the argument "he would have had Foster taken care of
one way or the other."8 The General Counsel argues
that this amounted to a threat of bodily harm.
Lastooka admitted warning Foster not to tell his sister
about the trailer argument. Because of his desire to pro-
tect Mlatnik's health and to retain her as a key employee,
Lastooka undoubtedly stated this warning with strong
emphasis. I do not believe, however, that Foster felt that
his life or health were in danger because he had filed a
complaint.9 His union business agent, Thomas Lively,
4 Lastooka did not mention this point in his testimony at Foster's un-
employment compensation hearing, and he testified at the hearing that he
did not remember what he had said that caused this response. Iastooka's
testimony at the hearing on this point, however, was uncontested by
Foster in his testimony as a rebuttal witness. 2 Wigmore, Evidence §§ 285,
289 (3d ed. 1970).
b Just before the argument in the trailer, Castagna told Lastooka that
Foster had previously filed a grievance in an unrelated matter and that he
had been paid for 2 days' work. Lastooka told Foster in the trailer that if
he had known about the previous gnevance he would have fired Foster.
I Foster did not file the written complaint with the Union (which
turned it into a "grievance") until June, after he no longer worked for
Ram. With the help of the union business agent. he settled the matter for
2 days' pay.
7 Foster applied for unemployment compenlsationl and a hearing was
held. He was denied benefits on the ground that he had voluntarily quit
his job.
8 Foster's description of Lastooka's threat at the hearing differed from
his description at the compensation hearing where he testified that Las-
tooka told him not tell his sister At the hearing he testified that Lastooka
told him not to tell anyone and especially his sister.
I found the testimony of both Foster and Lastooka to be self-serving
and at times inconsistent with their testimony at the unemployment com-
pensation hearing. I therefore rely on facts in their testimony which were
not refuted or which were corroborated by Thomas Lively, the union
business agent, Shuler, and Castagna, who appeared to be relatively
credible witnesses.
9 Foster's testimony on direct examination, while purporting to recount
every vulgarity used by Lastooka during the argument in the trailer,
omits a mention of his lunging at his employer, clearly a threat of bodily
harm greater than shouted epithets and perhaps even justifying a strong
response. Cf. Associated Transfer Company of Texas. Inc., 173 NL RB 100.,
and Michael Shuler both credibly testified that shortly
after the trailer argument they talked to Foster and he
did not mention the threat of physical violence. In an in-
terview with a state employment representative on June
10, 1980, less than a month after the argument, Foster
did not mention that he had been threatened with bodily
harm. And his sister testified as to her understanding,
which she got from Foster, of the threat that had been
made by Lastooka:
. . I knew that if Brad chose to stay with the
company and be subjected, probably to humiliation,
Mr. Lastooka was extremely hurt by that grievance,
I think. He would probably humiliate Brad or [belit-
tle] him or [demean] him among his peers and possi-
bly put him into the . . . old equipment or what-
ever, he would have to serve as a visual reminder
to his peers this is what can happen.
This testimony' 0 shows that Foster felt he had been
threatened with a loss of preferential treatment, not with
physical harm.
B. Threat of More Onerous and Rigorous Terms and
Conditions of Employment
Lastooka himself testified, at the hearing and the un-
employment compensation hearing, that he told Foster
that unless the written complaint was withdrawn he
would no longer receive preferential treatment and
would, in fact, be treated as a "union radical," driving
the oldest truck Ram had at a jobsite farthest from home
with no overtime work. This testimony shows an imper-
missible union animus.
While it may be true that someone will drive the old
equipment and, in a company with jobsites in four States,
some employees will journey far in order to work, the
selection of which employees are to receive this treat-
ment should not be a punishment for filing a complaint,
regardless of how frivolous the grounds. Frivolous com-
plaints may be disposed of summarily. They cannot be
disposed of by punishment which might discourage le-
gitimate protected activity. Hankamer Ready Mix Con-
crete Company, 234 NLRB 608, 611 (1978); B & P Motor
Express, Inc., 230 NLRB 653, 654 (1977). See, especially,
John M. Lastooka. trading as Ram Construction Company,
228 NLRB 769, 771 (1977), enfd. 566 F.2d 1169 (3d Cir.
1977), where Lastooka violated the Act by transferring
an employee from a triaxle truck to a tandem truck be-
cause of his union activity.
C. Termination Because of Union Activities
Ram argues that, even assuming Lastooka threatened
bodily harm, the threat was not related to labor activities
and therefore cannot be an unfair labor practice, since
Lastooka threatened Foster because he might tell his
103 (1968), where a threat by an employer's representative, made in re-
sponse to a threat by an employee, was held not to be a violation.
'O Rhonda Mlatnik was not generally a credible witness. After she left
employment with Ram, she filed an unemployment compensation claim
falsely alleging that she left because of lack of work I believe that her
loyalty to her brother would be more important to her than accurate tes-
timony.
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sister, not because he had filed a complaint. Even a
threat so loosely connected to a labor practice, however,
may violate the law. I I
Ram further argues that a single employee acting
alone does not engage in concerted activity within the
meaning of Section 7 of the Act when he presses de-
mands to which he deems himself entitled under the pro-
visions of a collective-bargaining agreement.12 Foster
was not, however, acting as a single employee alone. He
filed a written complaint based on an alleged violation of
the union contract which, if true, also would have bene-
fited another employee, Louis Johnson. Further, the
Union later supported his grievance and eventually got
him 2 days' pay for the matter involving Jimmy Green.
Ram also argues that the facts of this case show that
Foster was not constructively discharged. As found
above, I do not believe that Foster was unlawfully
threatened with bodily harm. I have found, however,
that Lastooka unlawfully threatened more onerous and
rigorous terms and conditions of employment because
Foster had filed a complaint.
There are two elements to a constructive discharge.
The employer's conduct must have created working con-
ditions so intolerable that an employee is forced to
resign, and the employer must have acted to discourage
membership in a labor organization. N.L.R.B. v. Haber-
man Construction Company, 618 F.2d 288, 296 (5th Cir.
1980). Since Foster did not work after the argument in
the trailer, Lastooka's threat of changing Foster's work-
ing conditions was never carried out. A threat is not the
equivalent of actual imposition of intolerable conditions
of employment. Central Casket Co., 225 NLRB 362
(1976).
I do not believe that Lastooka's conduct can reason-
ably be construed as amounting to a discharge.' 3 Both
Lively and Shuler credibly testified that Foster told
them he quit and was going to school. He enrolled at
Pittsburgh University night school on the GI bill, plan-
'I See E. Mishan & Sons, Inc., 242 NLRB 1344 (1979), where the em-
ployer telephoned the employee's mother and told her that if anything
happened to the employer, the employee would be hurt. The Board
found a violation and a constructive discharge although the condition
which would trigger the violence was harm to the employer, not the ex-
ercise of some protected union activity.
12 This defense has been upheld in several circuit courts including
N.LR.B. v. Northern Metal Company, 440 F.2d 881 (3d Cir. 1971);
N.LR.B. v. Bighorn Beverage, 614 F.2d 1238 (9th Cir. 1980); ARO. Inc. v.
N.LR.B., 596 F.2d 713 (6th Cir. 1979); NL.R.B. v. Dawson Cabinet Co.,
Inc., 566 F.2d 1079 (8th Cir. 1977); N.L.R.B. v. Buddies Supermarkets,
Inc., 481 F.2d 714 (5th Cir. 1973). The Board, however, has held that an
employee who envokes the aid of a union to secure compliance with
terms of the collective-bargaining contract is engaged in protected con-
certed activity. G & M Underground Contracting Co., 239 NLRB 78, 80,
fn. 5 (1978); Perrenoud. Inc., 236 NLRB 804 (1978); Marmon Transmotive,
a Division of the Marmon Group. Inc., 219 NLRB 102, 108 (1975); Enduro
Metal Products Co., Inc., 160 NL.RB 1411 (1966); and Interboro Contrac-
tors, Inc., 157 NLRB 1295, 1301-02 (1966).
It is the duty of the administrative law judge to apply established
Board precedent, which the Supreme Court has not reversed, despite
contrary rulings by the circuit courts. Intermountain Rural Electric Associ-
ation, 253 NLRB 1153, 1165, fn. 20 (1981); Iowa Beef Packers, Inc., 144
NLRB 615 (1963); Insurance Agents' International Union, AFL-CIO [The
Prudential Insurance Company of America], 119 NLRB 768 (1957).
IS Michael Shuler gave credible, unrefuted testimony that on May 14,
1980, he told Foster he could return to his job driving a truck at the air-
port jobsite, and at the unemployment hearing on July 2, 1980, Lastooka
made it clear on the record that Foster's job was still available to him.
ning to become a lawyer and working as a desk clerk in
a motel. It is clear to me that Bradley Foster took the
opportunity to quit his job with Ram,t 4 having planned
months before to start school in June 1980. His construc-
tion work and hours were incompatible with night
school and neither Lastooka's threat of discriminatory
terms of employment nor his harsh language in the trail-
er amounted to a constructive discharge.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section (2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
unlawfully threatening its employee, Bradley E. Foster,
with more onerous and rigorous terms and conditions of
employment because he filed a grievance.
4. Except as found above, Respondent has not engaged
in any other unfair labor practices as alleged.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice, I find it necessary that Respondent
cease and desist therefrom and from any like or related
conduct, and to post an appropriate notice, attached
hereto as "Appendix."
Upon the foregoing findings of fact, conclusions of
law, and entire record, I hereby issue-pursuant to Sec-
tion 10(c) of the Act-the following:
ORDER 5
The Respondent, Ram Construction Company, Inc.,
Canonsburg, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with more onerous and
rigorous terms and conditions of emnployment because
they have filed grievances.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which will
effect the policy of the Act:
14 While Lastooka did suggest during the argument in the trailer that
Foster look for other work, the test for determining if the employer's
statements constitute an unlawful discharge is whether the words would
logically lead a prudent employee to believe his tenure has been terminat-
ed. Ridgeway Trucking Company, 243 NLRB 1048 (1979). While Lastooka
used harsh words in the trailer argument, he was, in part, justifiably re-
sponding to, and goaded by, Foster's physical threat and intransigence.
Considering that Lastooka's words were spoken in heat, shortly after
Foster had lunged at him, and that the parties later cooled down and
parted amicably, I do not believe a reasonable employee would consider
that his job had been terminated.
i' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
262
RAM CONSTRUCTION COMPANY, INC.
(a) Post in its office and provide each of its employees
with a copy of the attached notice marked "Appen-
dix."' 6 Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly signed
by an authorized representative of Respondent, shall be
'6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
posted by Respondent immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereaf-
ter, in a conspicuous places, where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notice is not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
263