Trayco Of S C , Inc

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 630 (N.L.R.B. 1990)

630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Trayco of S C, Inc and General Drivers, Warehou-
semen and Helpers Local Union No 509, affili-
ated with International Brotherhood of Team
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO Case 11-CA-13170
January 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 22, 1989, Administrative Law
Judge J Pargen Robertson issued the attached de
cision The Respondent filed exceptions and a sup-
porting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and bnef and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Trayco of S C, Inc. Florence, South
Carolina, its officers, agents, successors, and as
signs, shall take the action set forth in the Order as
modified
1 Substitute the following for paragraph 1(a)
'(a) Warning employees because they engage in
protected concerted activities or because we be
heve they are threatening to file charges with the
National Labor Relations Board
2 Insert the following as paragraph 1(b) and re
letter the subsequent paragraph accordingly
(b) Discharging employees because they engage
in protected concerted activities'
3 Substitute the attached notice for that of the
administrative law judge
' The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
'Although the judge found that the Respondent s discharge of em
ployee Katie Marlowe violated Sec 8(a)(1) of the Act the recommended
Order and notice as written by the judge erroneously encompass a vio
lawn of Sec 8(a)(4) in addition to Sec 8(a)(1) We shall modify the rec
ommended Older and notice accordingly
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES
GOVERNMENT
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT warn you because you engage m
protected concerted activity or because we believe
you are threatening to file charges with the Nation-
al Labor Relations Board
WE WILL NOT discharge you because you
engage in protected concerted activity
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the nghts guaranteed you by Section 7 of
the Act
WE WILL offer Katie Marlowe immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi
tion, without prejudice to her semonty or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings, plus interest
WE WILL notify her that we have removed from
our files any reference to her warning and dis
charge and that the warning and discharge will not
be used against her in any way
TRAYCO OF S C, INC
Rosetta Lane Esq and Patricia L Timmins Esq for the
General Counsel
Jeffrey M Bernbach Esq of New York, New York for
the Respondent
DECISION
STATEMENT OF THE CASE
J PARGEN ROBERTSON Administrative Law Judge
This matter was heard in Florence South Carolina on
August 7 1989 The complaint issued on March 16, 1989
297 NLRB No 97
TRAYCO OF S C 631
It was based on a charge filed on February 3 amended
on February 24 and second amended on March 7 1989
The complaint alleges that Respondent violated Sec
tion 8(a)(1) and (4) of the Act by first warning then dis
charging employee Katie Marlowe on January 6 1989
All parties were given the opportunity to file briefs
The deadline for briefs was set for September 14 1989
Briefs were filed by General Counsel and Respondent
On the entire record including my observation of the
demeanor of the witnesses and after considering briefs
filed by the parties I make the following determinations
Respondent admitted in its answer and in stipulations
on the record, the commerce allegations of the com
plaint Respondent admitted that it is engaged in the
wholesale and retail sale of plumbing goods at its facility
in Florence South Carolina, and that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act Respondent stipulated that the Charg
ing Party (Union) is a labor organization within the
meaning of Section 2(5) of the Act
The issues involve employee Katie Marlowe—her dis
cussions about whether recent hires were earning higher
wages than more senior employees and whether those
discussions played a part in her being disciplined then
discharged on January 6 1989
The record illustrated that for some time before her
discharge, Katie Marlowe discussed with other employ
ees the question of whether newer employees were paid
more than more senior employees According to Mar
lowe s testimony she questioned her supervisors mclud
mg President James Turner, during midsummer 1988
and Warehouse Manager Ben Hewett around the last of
November or early December 1988, as to whether new
hires were earning more than more senior employees
Marlowe testified that she and other employees dm
cussed the question of whether Respondent was paying
new employees higher wages than it paid more senior
employees On January 6 Marlowe saw another employ
ee s paycheck Subsequently she talked with another em
ployee regarding that paycheck and about whether
newer employees could advance like that over the ones
with more experience
Later on January 6 Marlowe went to Warehouse
Manager Hewett
I told Ben that he had never gotten back to me
about the conversation we had had a month or so
earlier and I wanted to know you know what was
the reason for it and I told him that it wouldn t [sic]
right about the wage situation
I told him, you know I repeated again, it
wouldn t right you know that newer employees
were making more That there had to be a reason
for it and I d like to know what it is and he said
Mr Turner said no raises So I said I 11 go over
his head then
After lunch on January 6 Hewett issued a written
warning to Marlowe Marlowe testified about the written
warning
It was marked job dissatisfaction and threatening at
titude and said that my performance was affected
by my attitude at times and that I d made state
ments that wouldn t [sic] true about employees
starting at higher rate of pay than I had been
According to Marlowe when she asked Hewett about
the comment on the written warning regarding threat
emng attitude Hewett said He said I assumed that
you were going to the Labor Board
Hewett told Marlowe that he was going to talk with
Respondent President James Turner about the warning
Subsequently Hewett told Marlowe to see Turner Mar
lowe testified about her meeting with Turner in his
office
[Turner] said Ben tells me that you re dissatisfied
with your job
Q Did he say—what if anything else did he
say?
A Well I said No sir I like my job I enjoy
my job And, he says I don t know that else we
can do for you We supply your uniforms We pay
for single health insurance we have paid vacations
profit sharing And he said that I had made state
ments that wouldn t [sic] true about the rates of pay
concerning other employees That I had said that
they were started at a higher rate of pay I said
No sir I did not say that I said that there were
newer employees who were making more And, I
said Get Ben in here
Q Did he call Mr Hewett in?
A Yes, he did and Mr Turner told me before
Ben got there that they had checked the records
that morning and found that it wouldn t [sic] true
about other employees starting at a higher rate of
pay but that was not what I said
Q What happened after Mr Hewett came in?
A Mr Turner told Ben says Katie says you re
telling a lie and we got to talking about the con
versation by Eric Grottic and Mr Turner said that
I had said that I would go over his head And I
said Yes I did say that I did say that I would go
over your head but I was referring to a conversa
tion that I had had with one of the other employ
ees
Q What did Mr Turner say next, if anything?
A He threw his pencil on the desk and said
That s it You talk to everyone out there You ve
talk enough to my employees You re fired I said
Mr Turner, I need my job I d like to keep my job
and—
Q What happened next?
A He told Ben to punch me out punch my time
card
Respondent responded to a questionnaire from the em
ployment security office in South Carolina regarding
Marlowe s discharge
Katie was employed by Trayco Inc January 25,
1988 starting salary of $5 50 per hour She was
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
raised on 2-15-88 to $600 per hour Also on 5-24-
88 to $6 25/hr 7-26-88 to $6 50/hr 9-5-88 to
$6 80/hr We also pay single coverage health insur
ance furnish uniforms and have a profit sharing
program We have an absence report dated 5-12-88
for personal reasons She was out as our report in
dicates, a total of 58 hours in August due to her
son s accident She was warned 1-6-89 (date of her
release) as she indicated to our warehouse foreman
if a raise was not in order she would go to higher
authority than myself, even though I am president
of Trayco She was under the illusion that she
should earn at least what other employees were
which is far from the truth We pay strictly on satis
factory work She excused herself from several
duties that other employees encounter such as trash
detail occasionally any heavy work she excluded
herself like unloading trucks And she was constant
ly causing dissension among other employees and
was so warned accordingly As the above figures
will indicate, she was raised $1 30 per hour for the
11 months while employed, which should speak for
itself on fairness to our employees
Discussion
Warehouse Manager Ben Hewett testified that Katie
Marlowe asked him for a raise in pay on January 6 1989
When Hewett later told Marlowe that he had talked
with James Turner about her request and that Turner
had said no, Marlowe replied Well I 11 go over his
head
Hewett testified that he then wrote up Marlowe The
warning slip, according to Hewett indicated that Mar
lowe had job dissatisfaction and a threatening attitude
Hewett testified that the job dissatisfaction portion of
the warning resulted from his belief
An employee based on my experience at Trayco
an employee that wants something such as a raise or
something that cannot be obtained for whatever
reason does tend to make you dissatisfied with what
you're doing You can t be totally happy with your
work
As to threatening attitude Hewett testified that that
referred to Marlowe s threat to go over Turner s head
Hewett denied that he told Marlowe he thought she
was threatening to go to the Labor Board Hewett testi
fled that Marlowe said that she would go over Turner s
head to Respondent s treasurer Eric Grottic
I find that Katie Marlowe was a credible witness In
all respects her testimony, which preceded all the other
testimony, was substantially corroborated by Respond
ent s witnesses While there were conflicts including
those noted below, Warehouse Manager Ben Hewett and
President James Turner agreed in substance with the tes
timony of Marlowe especially as to the subjects covered
in their several conversations with Marlowe Marlowe
demonstrated excellent demeanor She appeared to re
spond responsibly to questions from both attorneys
As to the conversations between Marlowe and Hewett
on January 6 Hewett s recollection was that he went to
Turner with Marlowe s request for an increase and re
turned and told Marlowe that Turner had denied her re
quest before Marlowe threatened to go over Turner s
head On the other hand Marlowe recalled that every
thing occurred during one conversation and the matter
was not presented directly to Turner before her request
was denied
One of the disputes between the testimony of Marlowe
and that of Hewett involved Marlowe s testimony that
Hewett said the he thought she was threatening to go to
the Labor Board when she said she would go over Turn
er s head Hewett denied that he said that he thought she
was referring to going to the Labor Board
I am not persuaded by Hewett s denial that he felt
Marlowe was referring to the Labor Board when she
threatened to go over Turner s head I credit Marlowe s
testimony in that regard Marlowe impressed me as a
conscientious witness I am convinced that she testified
accurately as to Hewett s comment about the Labor
Board
After he issued the warning, Hewett took the written
warning to Turner and discussed what had precipitated
that warning Hewett told Turner that Marlowe had said
she would go over Turner s head Turner then told
Hewett that he would like to see Marlowe
James Turner testified about his meeting with Katie
Marlowe on January 6
When Katie came in I said Katie, I said How do
you know that we pay employees more money than
you? What access to the records do you have ? We
certainly don t discuss it I realize it s up to the
employees to discuss whatever they want to among
themselves but we certainly don t do it m here I
says the individual that you re talking about—we
sell a lot of toilet seats as an example And we buy
them in truck loads of 7 000 It s a rather tedious
job this kind of weather to go into that trailer for
two or three hours and unload those toilet seats and
Katie was never asked nor did she ever volunteer
to help unload those The same applies on some
heavy goods such as acid So therefore I felt a
couple of individuals who got back and literally
took their clothes off and wringing in sweat was en
titled to a little more money than some people that
didn t help to do that
Yes and during the conversation in my office I
said Katie it s highly apparent we just simply
cannot satisfy you I ve given you consistent raises
Now, you re threatening me of going over my
head I said Who are you going to? I m the Pres'
dent of the Company She says Well other em
ployees have gone to Eric and accomplished a raise
in the past I said Katie at this point I no longer
need your services On your way out you might
stop by Mr Grottic s office and ask him who signs
his check m the process -
Turner testified that although other factors including
her absentee record and her causing some dissention
among other employees contributed to his decision to
TRAYCO OF S C 633
discharge her, the "straw that broke the camel's back,"
was Marlowe's threat to go over Turner's head
The testimony of Marlowe, Turner, and Hewett is
similar especially as to the subjects covered in the con-
versations on January 6 Both Turner and Marlowe
recall that Turner talked to Marlowe about the accuracy
of her statements to other employees regarding the pay
of new employees and both recall they discussed wheth-
er Marlowe had threatened to go over Turner's head
Moreover, Ben Hewett, in agreement with Marlowe, in-
dicated that the written warning he issued Marlowe was
based, at least in part, on her threat to go over Turner's
head
No one disputed that Marlowe's threat to go over
Turner's head was made in response to Hewett telling
her that Turner would not agree to grant Marlowe a
wage increase
A review of the record shows a dumber of factors in-
volved in Respondent's warning and discharge of Mar-
lowe It is apparent that Marlowe's threat to go over
Turner's head played a part in that decision The cred-
ited testimony of Katie Marlowe shows that her supervi-
sor took that statement to be a threat to go to the Labor
Board
The record indicates that additional matters were con-
sidered by Hewett in warning Marlowe, and by Turner
in discharging Marlowe Moreover, the threat itself fol-
lowed Marlowe's request for a raise which was based on
Marlowe's contention to Respondent and to fellow em-
ployees, that it was wrong for Respondent to pay newer
employees more than more senior employees
Findings
Employees are protected by the National Laboi Rela-
tions Act, as to vanous activities One of those protected
activities is discussions about wages between two or
more employees Marlowe's discussions with other em-
ployees about newer employees making more money is
activity protected , by Section 7 of the Act Some of the
evidence indicates that Marlowe's action in that regard
affected Respondent's decisions to warn and discharge
Marlowe
In that regard, Marlowe testified that "[Turner] threw
his pencil on the desk and said 'That's it You talk to ev-
eryone out there You've talk [sic] enough to my em-
ployees You're fired
On the termination notation supplied by Respondent to
the employment security office, the following was in-
cluded
And she was constantly causing dissension among
other employees and was so warned accordingly
Marlowe had an earlier discussion with Turner regard-
ing the employees' discussions about wages Marlowe
testified that she was granted a raise in pay after a con-
versation with Turner in midsummer 1988, during which
she requested the raise, telling Turner that she had heard
that two of the newer employees were making more than
she was ^
He asked me how did I know what Jackie Dawkins
and Michael Britt were making and I told him that
the employees run their mouths -
Q What, if anything else, did he say to you in
that conversation?
A He told me he ought to fire everybody in the
warehouse and start over and I didn't say anything
at that point cause I certainly didn't want to be
fired
James Turner testified as follows regarding his termi-
nal interview with Marlowe
When Katie came in I said Katie, I said, "How do
you know that we pay employees more money than
you? What access to the records do you have? We
certainly don't discuss it" I realize it's up to the
employees to discuss whatever they want to among
themselves, but we certainly don't do it in here I
says the individual that you're talking about—we
sell a lot of toilet seats, as an example And, we buy
them in truck loads of 7,000 It's a rather tedious
job this kind of weather to go into that trailer for
two or three hours and unload those toilet seats and
Katie was never asked, nor did she ever volunteer
to help unload those The same applies on some
heavy goods, such as acid So, therefore, I felt a
couple of individuals who got back and literally
took their clothes off and wringing in sweat was en-
titled to a little more money than some people that
didn't help to do that
Turner's above testimony illustrates that he was aware
of what Marlowe was saying to other employees about
new employees' wages It also shows that that was on
his mind when he decided to discharge Marlowe As
shown above, Turner testified that Marlowe causing
some dissention among other employees contnbuted to
this decision to discharge her There was no showing
that dissention was caused by anything other than Mar-
lowe's complaint regarding wage differentials
When asked to tell wli) he discharged Marlowe,
Turner testified
The records will so indicate that Katie had been
absent on several occasions without notifying the
warehouse She had caused some dissention among
other employees whom I found out about, but,
frankly, never said anything to her about it And,
this was what—the straw that broke the camel's
back, so to speak
Q What was the straw?
A When she threatened to go over my head
that's when I called in—and told him what I said a
few moments ago It was highly apparent we
simply could not satisfy her and I suggested she
find employment elsewhere
Therefore, there is a question as to whether Marlowe
was warned or discharged, because she spoke with other
employees regarding the wages of new employees,
whether she was warned and discharged because she
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
asked for a wage increase and whether she was warned
and discharged because she threatened to go over Turn
er s head and if so whether that action was protected
In Meyers Industries 268 NLRB 493 497 (1984) the
Board stated
In general to find an employee s activity to be
concerted, we shall require that it be engaged in
with or on the authority of other employees and
not solely by and on behalf of the employee him
self Once the activity is found to be concerted an
8(a)(1) violation will be found if in addition the
employer knew of the concerted nature of the em
ployee s activity the concerted activity was pro
tected by the Act and the adverse employment
action at issue (e g, discharge) was motivated by
the employee s protected concerted activity [Foot
note citations omitted See also A N Electric Corp
276 NLRB 887 (1985) ]
In consideration of the above, the first inquiry must be
focused on Marlowe s relevant activity The record
shows that Marlowe complained about newer employees
receiving more frequent or higher wage increases than
more senior employees and she requested a wage in
crease for herself on the premise that she should be
making as much as employees hired after she was hired
In Oakes Machine Corp, 288 NLRB 456 457 (1988)
the Board stated
The Board in Meyers I supra overruled Alleluia
Cushion and stated that it will no longer regard an
individual s action as concerted merely because
the action ought to be of group concern [Footnote
omitted ]
Here there is evidence that Marlowe discussed with
other employees the matter of some newer employees re
ceiving more money than more senior employees
Under certain circumstances the Board has found inch
vidual action regarding wages does constitute concerted
activity For example in Whittaker Corp 289 NLRB 933
(1988) the Board in overruling an administrative law
judge s determination that the activity of an individual
did not constitute concerted activity dealt with the situa
non of one employee standing in an employer called
meeting, and speaking out against the employer For that
action the employee was fired for insubordination The
Board stated
The Board held in Meyers Industries 268 NLRB
493, 497 (1984) (Meyers I), remanded sub nom Frill
v NLRB 755 F 2d 941 (D C Or 1985) cert
denied 474 U S 948 (1985) reaffd 281 NLRB 882
(1986) (Meyers II), enfd sub nom Frill v NLRB
835 F 2d 1481 (DC Cir 1987) cert denied 128
LRRM 2664 (June 20 1988), that in general to
find an employee s activity to be concerted we
shall require it to be engaged in with or on the au
thority of other employees and not solely by and
on behalf of the employee himself The Board
thereby overruled Alleluia Cushion Co 221 NLRB
999 (1975) and similar cases which held that the in
dividual assertion of a matter of common concern
to other employees was concerted activity The
Board cautioned however that
the definition of concerted activity we set forth
is by no means exhaustive We acknowledge
the myriad of factual situations that have arisen
and will continue to arise in this area of the law
We also emphasize that under the standard we
now adopt the question of whether an employee
engaged in concerted activity is at its heart, a
factual one [268 NLRB at 496-497]
Specifically in Meyers I, 268 NLRB at 494 and
again in Meyers II 281 NLRB 882 we reaffirmed
Root Carlin Inc 92 NLRB 1313 1314 (1951) and
other cases holding that the guarantees of Section
7 of the Act extend to concerted activity which in
its inception involves only a speaker and a listener
for such activity is an indispensable preliminary step
to employee self organization Thus the activity
of a single employee in enlisting the support of his
fellow employees for their mutual aid and protec
non is as much concerted activity as is ordinary
group activity Owens Corning Fiberglas Corp v
NLRB 407 F 2d 683 685 (3d Cir 1964)
Furthermore the object of inducing group action
need not be express For instance [i]t is obvious
that higher wages are a frequent objective of orga
mzational activity and discussions about wages are
necessary to further that goal Jeannette Corp v
NLRB 532 F 2d 916, 918 (3d Cir 1976)
[D]issansfaction due to low wages is the grist on
which concerted activity feeds Id at 919
In Whittaker Corp the Board was dealing with events
that occurred during a mass meeting The employer
sought responses from the group regarding the matter of
wages Those responses were of necessity responses
from the group and therefore akin to concerted re
sponses
It is apparent that Marlowe s discussions with other
employees regarding the alleged wage differential be
tween newer and older employees was concerted activi
ty—i e several (more than one) employees were discuss
mg their wages For example in Brookshire Grocery Co
294 NLRB 462 (1989) the Board found that an employer
violated Section 8(a)(1) when it terminated an employee
for discussing wage rates with other employees
I must determine whether Marlowe s activity in dm
cussing wages with other employees played a part in her
warning and discharge and if so whether she would
have been warned or discharged in the absence of that
protected concerted activity (Wright Line 251 NLRB
1083 (1980), enfd 662 F 2d 899 (1st Cir 1981) cert
denied 455 U S 989 (1982) NLRB v Transportation
Management Corp 462 US 393 (1983), Delta Gas Inc,
283 NLRB 391 (1987) enfd 840 F 2d 309 (5th Cir
1988) Southwire Co v NLRB 820 F 2d 453 (D C Cir
1987)
TRAYCO OF S C 635
_
As I indicated above, I credit the testimony of Katie
Marlowe Marlowe's testimony, which was not specifi-
cally rebutted by James Turner, includes the following
[Turner] threw his pencil on the desk and said
"That's it You talk to everyone out there You've
talk [sic] enough to my employees You're fired"
The above shows that the one overriding reason given
by James Turner for the discharge of Katie Marlowe
was her talking to other employees The record clearly
demonstrates that her talking with other employees in-
volved the issue of disparity of wages between newer
and more senior employees That evidence regarding
comments by Turner illustrates that Marlowe's wage dis-
cussions with other employees played a part in Turner's
decision to discharge Marlowe Under the reasoning of
Wright Line, that evidence supports a finding that Gener-
al Counsel has established a prima facie case of unlawful
discharge, i e, Turner's comments establish that at least
one of the reasons for Marlowe's discharge was her talks
with other employees The record shows that those talks
involved the question of whether newer employees were
making more money See Hyatt Regency Memphis, 296
NLRB 259 (1989)
The Board in Hyatt Regency discussed the question of
burden of proof The Board explained that in mixed
motive situations, i e, where one, but not all, the reasons
for discharge involved protected activities, then General
Counsel must show just that General Counsel must
show that one of the reasons for the discharge involved
protected activity The instant case does involve a situa-
tion where at least one of the motives expressed by Re-
spondent involved protected activity I find that the
credited evidence shows that Katie Marlowe was
warned and discharged, at least in part, because she dis-
cussed the differential in wages between junior and more
senior employees, with other employees
As shown In Hyatt Regency, where, as here, General
Counsel has proved that at least one of the reasons for
the allegedly discriminatory action involved protected
activity, the burden of proof shifts to Respondent Re-
spondent must show that it would have warned and dis-
charged Katie Marlowe in the absence of her protected
activities
I find that Respondent failed to meet its burden The
record evidence shows that Respondent gave three rea-
sons for its warning to and discharge of Katie Marlowe
Those reasons include (1) Marlowe's discussions with
other employees, (2) Marlowe's threat to go over Turn-
er's head, and (3) Marlowe's absentee record
As to the above stated reasons, I am convinced that
the assertion that Marlowe's absentee record played a
part in the decision to discharge her is a pretext Nothing
happened on January 6 which would have caused Re-
spondent to consider Marlowe's absentee record absent
some other occurrence Even though her absences oc-
curred, well in advance of January 6, nothing had been
said to Marlowe regarding disciplinary action in that
regard The record showed no causal connection be-
tween her absences and her warning or her discharge
As to the threat to go over Turner's head, the credited
evidence shows that Warehouse Manager Hewett consid-
ered that threat as one to go to the Labor Board That
determination places the warning within the protective
scope of Section 8(a)(4) Moreover, the threat, if consid-
ered as a threat to go to Respondent's treasurer, was
clearly a threat to go further regarding the issue of al-
leged disparity between the wages of newer and older
employees, i e, the issue that was the subject of discus-
sions between Marlowe and other employees That carry
over in issues causes more difficulty in proof, i e, did
Respondent isolate the threat from its substances and
from the fact that it was a subject of discussion between
Marlowe and other employees The final comments
Turner made to Marlowe in her terminal interview, illus-
trate that Respondent did not separate the threat from its
substance
[Turner] threw his pencil on the desk and said
"That's it You talk to everyone out there You've
talk [sic] enough to my employees You're fired"
I find that Respondent did not prove that Katie Mar-
lowe would have been warned or discharged in the ab-
sence of protected activities The evidence shows that
Marlowe would not have been disciplined or discharged
on January 6 because of her absentee record Although
her threat to go over Turner's head did play a part in the
decisions to first discipline then discharge Marlowe, the
record shows that Respondent, through its supervisor
and agent Ben Hewett, took that threat to be a threat to
go to the Labor Board Moreover, that threat when
taken in the light most favorable to Respondent, flowed
from Marlowe's long running discussions with other em-
ployees about the perception that newer employees were
making more than some more senior employees Finally,
the third of Respondent's asserted reasons for Marlowe's
disciplinary actions was alleged dissention caused by her
The record showed the only area of possible dissention
involved Marlowe's discussions with other employees
about the apparent wage disparity between newer em-
ployees and some more senior employees I find that Re-
spondent did not show that it would not have discharged
Marlowe if she had not discussed the wage question with
other employees That constitutes activity violative of
Section 8(a)(1) (Brookshire Grocery Go, supra, L G Wil-
liams Oil Go, 285 NLRB 418 (1987))
Here, as in L G Williams, supra, there was no show-
ing that Respondent informed its employees that wage
information was confidential Despite Turner's comments
during the terminal interview that Respondent did not
discuss those matters, there was no showing that Mar-
lowe, as a function of her job, or otherwise, was ever in-
formed that she could not discuss employees' wages
Marlowe's warning issued by Hewett, indicates that
one of the reasons for the warning was her threatening
attitude As shown above, the credited evidence shows
that Hewett expressed that he considered Marlowe's
threat to be to go to the Labor Board Even though
Marlowe denied that she planned to go-to the Labor
Board, Heyett's expressed belief constituted a threat that
employees would receive a warning when supervision
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
felt they were threatening to go to the Labor Board Re
gardless of whether an employee actually plans to go to
the Labor Board the Employer s action on the basis of
its belief that the employee is threatening to go to the
Labor Board constitutes a violation of section 8(a)(1)
and (4) of the Act (National Bank & Trust Co 209
NLRB 95 (1974))
Respondent in its brief argues that a decision in this
matter is barred by the doctrine of collateral estoppel in
view of the fact that this matter has been decided by the
South Carolina Employment Security Commission
During the hearing Respondent offered documents
showing that the South Carolina Employment Security
Commission has found that Katie Marlowe was dis
charged for cause In that regard the decision, Respond
ent s Exhibit 2 shows the following
The issue in this matter is discharge with or with
out cause
The employer witnesses maintained that the
claimant was discharged after she voiced her dissat
isfaction concerning her hourly wages The employ
er witness, who is the President of the company
stated that he discharged the claimant after he was
informed by the supervisor that the claimant had
stated that she would go over his head if the raise
was not granted The witnesses stated and showed
that the claimant had received numerous raises in a
one year period prior to her separation
The claimant stated that she did ask her supervi
sor about the raise and did state to him that she
would go to the controller as she knew that this
had been done in the past
REASONS
Section 41 35 120 of the South Carolina Employ
ment Security Law provides for a disqualification of
from five to twenty six weeks and less a corre
spondmg monetary reduction when a claimant is
found to have been discharged for cause
In the case at hand, the testimony presented is
somewhat contradictory However, the preponder
ance of evidence shows that the claimant was dis
charged by the company president for making the
statement that she would go over his head concern
mg a raise she felt was due The Tribunal finds that
the actions of the claimant did show a disregard for
the Interests of the employer and finds that the
claimant was discharged for cause
DECISION
The determination of January 18 1989 whereby
the claimant was disqualified for ten weeks from
January 1 1989 through March 11 1989 and less a
corresponding monetary reduction for having been
discharged for cause is hereby affirmed
The Board has consistently found that while a finding
of another forum such as an employment security corn
mission, is entitled to consideration those findings are
not binding on the Board when it is shown that the
Issues are not the same Here the question involves
whether Katie Marlowe was disciplined and discharged
because of protected activity As shown above, the con
sideration of the employment security commission con
cerned whether Marlowe was discharged for cause I
find that I must reject Respondent s contention in this
regard H M Patterson & Son Inc 244 NLRB 489
(1979) Penntech Papers Inc 263 NLRB 264 (1982) Iron
Workers Local 433 266 NLRB 154 (1983)
CONCLUSIONS OF LAW
1 Trayco of S C Inc is an employer engaged in corn
merce within the meaning of Section 2(6) and (7) of the
Act
2 General Drivers, Warehousemen and Helpers Local
Union No 509, affiliated with International Brotherhood
of Teamsters, Chauffeurs Warehousemen and Helpers of
America AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act
3 Respondent by issuing a written warning to its em
ployee Katie Marlowe of January 6, 1989 engaged in
conduct violative of Section 8(a)(1) and (4) of the Act
4 Respondent by discharging its employee Katie Mar
lowe on January 6 1989 engaged in conduct violative of
Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tton 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act
Having found that Respondent has illegally warned
and discharged its employee in violation of sections of
the Act I shall order Respondent to offer Katie Mar
lowe immediate and full reinstatement to her former po
sition or if that position no longer exists to a substantial
ly equivalent position without prejudice to her seniority
or other nghts and privileges I further order Respond
ent to make Katie Marlowe whole for any loss of earn
mgs she suffered as a result of the discrimination against
her and that Respondent remove from its records any
reference to the unlawful warning and discharge award
ed Marlowe and to notify Katie Marlowe in wntmg that
Respondent s unlawful conduct will not be used as a
basis for further personnel action Backpay shall be corn
puted as described in F W Woolworth Co 90 NLRB
289 (1950) with interest as described in New Horizons for
the Retarded 283 NLRB 1173 (1987)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edl
1 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended Order
shall as provided in Sec 102 48 of the Rules be adopted by the board
and all objections to them shall be deemed waived for all purposes
TRAYCO OF S C

637
ORDER
The Respondent Trayco of S C Inc Florence
South Carolina, its officers agents, successors and as
signs shall
1 Cease and desist from
(a) Warning or discharging its employees because of
their protected activities or because we believe they are
threatening to file charges or give testimony under the
Act
(b) In any like or related manner mterfenng with re
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Katie Marlowe immediate and full reinstate
ment to her former job or if that job no longer exists to
a substantially equivalent position, without prejudice to
her semonty or any other rights or pnvileges previously
enjoyed, and make Marlowe whole for any loss of earn
ings plus interest, she suffered by reason of its illegal an
tions
(b) Rescind its written warnmg issued to Katie Mar
lowe of January 6, 1989 remove from its files any refer
ence to its warning and discharge of Marlowe, and
notify Marlowe in wntmg that this has been done and
that evidence of its unlawful warning and termination
will not be used against her in any way
(c) Preserve and on request make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records, and time
cards personnel records reports and all other records
necessary to analyze the amount of backpay due under
the terms of this Order
(d) Post at its facility in Florence South Carolina
copies of the attached notice marked Appendix 2
Copies of the notice, on forms provided by the Regional
Director for Region 11 after being signed by the Re
spondent s authorized representative shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced, or
covered by any other matenal
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
2 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board