Lou's Transport, Inc. and T.K.M.S., Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1446 (N.L.R.B. 2014)

1446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lou’s Transport, Inc., and T.K.M.S., Inc. and Mi-
chael Hershey

T.K.M.S., Inc. and Jeffrey Rose. Cases 07–CA–102517
and 07–CA–113640
December 16, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON,
AND SCHIFFER
On June 5, 2014, Administrative Law Judge Paul Bo-
gas issued the attached decision. The Respondents filed
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondents filed a
reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions as
modified below and to adopt the judge’s recommended
Order as modified and set forth in full below.4
Michael Hershey was employed by the Respondents as
a truckdriver, hauling dirt and clay at a limestone and
1 The General Counsel has moved to strike transcript excerpts at-
tached to the Respondents’ brief. We have reviewed the transcript in
its entirety and have not selectively relied on the Respondents’ excerpts
in reaching our decision. The General Counsel’s motion is therefore
denied. The Respondents moved to strike the General Counsel’s an-
swering brief on three grounds: (1) that it was not double-spaced as
required by the Board’s Rules; (2) that it allegedly included evidence
not admitted at the hearing; and (3) that it allegedly addressed issues
outside the scope of the Respondents’ exceptions. The Board’s policy
permits a party to resubmit a brief that conforms to the Board’s Rules,
and the General Counsel has done so. We have carefully reviewed the
General Counsel’s brief and find the Respondents’ other allegations
without merit. The Respondents’ motion is therefore denied.
2 The complaint alleged that Respondent Lou’s Transport, Inc. and
Respondent T.K.M.S., Inc. are a single employer and/or joint employ-
ers. The judge accepted the parties’ stipulation that the Respondents
are jointly and severally liable for any remedies found appropriate in
this case. He therefore made no findings with respect to their single-
and/or joint-employer status. Accordingly, we will delete reference to
the legal status of the Respondents’ relationship other than to adopt the
judge’s recommendation, based on the stipulation, that they are jointly
and severally liable to remedy the unfair labor practices found in this
case.
3 There are no exceptions to the judge’s findings that the Respond-
ents violated Sec. 8(a)(1) of the Act by inviting employees to quit be-
cause they engaged in protected concerted activity and by warning
employees for engaging in protected concerted activity. There are also
no exceptions to the judge’s dismissal of the allegation that the Re-
spondents violated Sec. 8(a)(1) by discharging Jeffrey Rose.
4 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedies. In adopting the judge’s recommended tax-
compensation and Social Security Administration reporting require-
ments set forth in the remedy section of the judge’s decision, we rely on
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014).
We shall substitute a new notice to conform to the Order as modified.
sandstone quarry in southeastern Michigan. Hershey and
the other drivers were dissatisfied with various aspects of
their working conditions, including the safety of the un-
paved roads within the quarry and the condition of their
trucks. The Respondents’ site supervisor testified that
every driver complained to him about these issues.
The Respondents promulgated several documents to
employees that set out, among other things, certain “core
values.” One of these “core values” is to “overlook”—
i.e., disregard, ignore—the “chatter” of drivers talking to
one another on the radio. The Respondents’ manager,
Jeffery Laming, testified that “chatter” “stir[s] up the
crowd” and “gets the people going.”
On January 7, 2013,5 Hershey and another driver en-
gaged in a conversation over their company radios about
working conditions and safety concerns. This conversa-
tion was overheard by some of the Respondents’ offi-
cials, and Hershey and the other driver were subsequent-
ly disciplined for “talking bad” about the Company and
violating its “core values.” Around the same time, Her-
shey began displaying signs in his truck window for the
other drivers to see. Some of the signs commented on
the same concerns regarding safety and working condi-
tions that were the subject of the drivers’ complaints.
On a day in late January or February, the drivers col-
lectively agreed to stop working for the rest of the day
because of the dangerous condition of the quarry roads.
On March 25, the manager of the quarry held a safety
meeting; Sean Schmidt, the Respondents’ manager for
the quarry project, was in attendance. Several drivers,
including Hershey, criticized the maintenance of the
roads.
On March 27, Manager J. Laming learned that drivers
had been talking about Hershey’s signs. He character-
ized Hershey’s signs as “visual chatter” and inconsistent
with the Respondents’ “core values.” He further testified
that some of the signs, including those stating “paycheck
on order” and “brakes on order,” were “stirring up the
crowd.” J. Laming told Manager David Laming about
the signs. The two of them also discussed the January 7
incident and observed that Hershey was “still talking
bad” about the Respondents. When Hershey arrived for
work on March 27, J. Laming discharged him. D. Lam-
ing testified that, in addition to the signs, Hershey was
discharged because D. Laming “had already spoken to
[him] about conversations over the radio.” “Then I saw
these signs,” D. Laming continued, “and I thought . . .
this isn’t the kind of person we want working for us. So
I told Jeff Laming it [would] probably be best if we ter-
minate him.” D. Laming then reiterated that Hershey
5 All dates are in 2013, unless stated otherwise.
361 NLRB No. 158

LOU’S TRANSPORT, INC. 1447
was discharged “due to the signs” and “also the fact that
[D. Laming] had previously spoken to [Hershey] regard-
ing his behavior.”
For the following reasons, we agree with the judge that
the Respondents violated Section 8(a)(1) of the Act when
they discharged Hershey.6
An employer violates Section 8(a)(1) of the Act by
discharging an employee “if the employee was engaged
in an activity which is ‘concerted’ within the meaning of
Section 7, the employer knew of the concerted nature of
the employee’s activity, the concerted activity was pro-
tected by the Act, and the discharge was motivated by
the employee’s protected, concerted activity.” Correc-
tional Medical Services, 356 NLRB 277, 277 (2010) (cit-
ing Meyers Industries, 268 NLRB 493, 497 (1984) (sub-
sequent history omitted)).7
The Respondents contend that Hershey was discharged
solely for displaying signs in his truck, and that display-
ing those signs was not protected concerted activity. The
evidence discussed above demonstrates, however, that
Hershey was fired for displaying the signs and for his
January 7 radio conversation with a fellow driver. We so
find. The Respondents did not except to the judge’s
finding that Hershey’s participation in the January 7 con-
versation was protected concerted activity.8 In any
event, we agree with that finding. During the conversa-
tion, Hershey and his fellow driver discussed their con-
cerns about working conditions—specifically, the condi-
tion of their trucks and the safety of the quarry roads on
which they had to drive—and all the drivers complained
to the Respondents about these very issues. The Board
has found protected concerted activity under circum-
stances closely resembling those presented here. See
Salisbury Hotel, 283 NLRB 685, 686–687 (1987) (find-
ing employees’ complaints among themselves about new
lunch policy concerted where employees also protested
individually to management). Because the protected
concerted radio conversation was a reason for Hershey’s
discharge, we find the discharge unlawful.
6 In his decision, the judge cited several Board cases decided at a
time when the composition of the Board included two persons whose
appointments the Supreme Court subsequently held were not valid. See
NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). In affirming the
judge’s finding that Hershey’s discharge was unlawful, we have not
relied on any of those cases.
7 There is no contention that Hershey, in the course of his protected
concerted activity, engaged in opprobrious conduct that caused him to
lose the protection of the Act. Accordingly, in determining whether
Hershey’s discharge was unlawful, we do not rely on the judge’s analy-
sis under the framework set forth in Atlantic Steel Co., 245 NLRB 814
(1979).
8 In the absence of exceptions, Member Johnson adopts the judge’s
conclusion that the January 7 conversation was concerted and protect-
ed, and finds it unnecessary to independently consider the question.
But even assuming, as the Respondents contend, that
Hershey was discharged solely for displaying his signs,
we would still find his discharge unlawful.9 Regardless
whether displaying the signs was itself concerted activi-
ty, the evidence demonstrates that the Respondents be-
lieved it was. J. Laming’s testimony establishes that he
believed the signs were “stirring up the crowd.” Moreo-
ver, some of the signs bore messages that related to terms
and conditions of employment. An employer violates
Section 8(a)(1) by discharging an employee because the
employer believes he or she engaged in concerted activi-
ty for mutual aid or protection, regardless whether the
employee’s activity was in fact concerted. See, e.g., U.S.
Service Industries, 314 NLRB 30, 30–31 (1994) (finding
discharge unlawful where employer believed employee’s
complaints to her supervisor in the presence of other em-
ployees were “stirring up the other workers”), enfd.
mem. 80 F.3d 558 (D.C. Cir. 1996). We need not and do
not reach the issue of whether Hershey’s display of the
signs constituted protected concerted activity.10 Accord-
ingly, we find that the discharge would be unlawful even
if the Respondents’ sole reason for the discharge had
been Hershey’s posting of the signs in his truck window,
because the evidence shows that the Respondents regard-
ed Hershey’s signs as protected, concerted activity.
ORDER
The National Labor Relations Board orders that the
Respondents, Lou’s Transport, Inc., Pontiac, Michigan,
and T.K.M.S., Inc., Pontiac, Michigan, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, warning, or otherwise discriminating
against any employee for engaging in protected concert-
ed activity.
(b) Inviting any employee to quit because he or she
engaged in protected concerted activity.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Michael Hershey full reinstatement to his former job or,
9 In reaching this conclusion, Member Johnson has considered that
the Respondents did not assert that a reason for the discharge was a
purported opprobrious or egregious nature of the signs’ messages.
10 Although Member Schiffer agrees that Hershey’s discharge was
unlawful based on the rationale stated above, she also affirmatively
finds that the display of the signs constituted protected concerted activi-
ty. Thus, she would find Hershey’s discharge unlawful even assuming
the display of the signs was the sole reason for the discharge, regardless
of what the Respondents did or did not believe.

1448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Michael Hershey whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision as modified.
(c) Compensate Michael Hershey for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(d) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful verbal
warnings issued to Michael Hershey and Timothy Pledg-
er, and within 3 days thereafter notify those individuals
in writing that this has been done and that the discipline
will not be used against them in any way.
(e) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful discharge
of Michael Hershey, and within 3 days thereafter notify
him in writing that this has been done and that the dis-
charge will not be used against him in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
their Pontiac, Michigan facilities copies of the attached
notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondents’ authorized repre-
sentative, shall be posted by the Respondents and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondents cus-
tomarily communicate with their employees by such
means. Reasonable steps shall be taken by the Respond-
ents to ensure that the notices are not altered, defaced, or
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
covered by any other material. If either of the Respond-
ents has gone out of business or closed its facility in-
volved in these proceedings, the Respondents shall du-
plicate and mail, at their own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondents at any time since January 8,
2013.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge, warn or otherwise discrimi-
nate against any of you for engaging in protected con-
certed activity.
WE WILL NOT invite you to quit because you engage in
protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Michael Hershey full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Michael Hershey whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate Michael Hershey for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file a report with the Social Se-
curity Administration allocating the backpay award to
the appropriate calendar quarters.

LOU’S TRANSPORT, INC. 1449
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warnings issued to Michael Hershey and Timothy
Pledger, and WE WILL, within 3 days thereafter, notify
them in writing that the warnings will not be used against
them in any way.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Michael Hershey, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge will not be used against him in any
way.

LOU’S TRANSPORT, INC., AND T.K.M.S., INC.

The Board’s decision can be found at
www.nlrb.gov/case/07-CA-102517 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.

Donna M. Nixon, Esq., for the General Counsel.
Amy D. Comito, Esq. and Kelly M. Kammer, Esq. (Steven A.
Wright, P.C.), of Shelby Township, Michigan, for the Re-
spondents.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. These consolidat-
ed cases were tried in Detroit, Michigan, on February 24 and
25, 2014. Michael Hershey, an individual charging party, filed
the initial charge in Case 07–CA–102517 on April 11, 2013,
and amended charges in that case on May 30 and September
26, 2013. Jeffrey Rose, an individual charging party, filed the
charge in Case 07–CA–113640 on September 18, 2013. The
Regional Director for Region 7 of the National Labor Relations
Board (the Board) issued the consolidated amended complaint
(the complaint) on January 31, 2014. The complaint alleges
that Lou’s Transport, Inc., and T.K.M.S., Inc., a single employ-
er and/or joint employers (TMKS) discriminated in violation of
Section 8(a)(1) of the National Labor Relations Act (the Act)
when they encouraged employees to resign their employment,
issued verbal warnings to employees, and discharged employ-
ees, because those employees engaged in protected concerted
activity and to discourage such activities. The Respondents
filed a timely answer in which they denied committing any of
the violations alleged.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondents, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent Lou’s Transport and Respondent TKMS (collec-
tively referred to herein as the Respondents) are corporations
with offices and places of business in Pontiac, Michigan, and
are engaged in the intrastate transportation of freight including
aggregates of various kinds. In conducting their operations
during the fiscal year ending December 29, 2012, each of the
Respondents has provided services valued in excess of $50,000
to the Barton Malow Company, an enterprise within the State
of Michigan that is directly involved in interstate commerce.
The Respondents admit, and I find, that individually and collec-
tively they have been employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent Lou’s Transport and Respondent TKMS are
trucking companies owned by Dan Israel. The Respondents
have a number of managers and supervisors in common, share
the use of some equipment and facilities, and also use the same
written statements of “core values” and “6 cardinal safety
rules,” and the same team member handbook.1 This case con-
cerns the Respondents’ treatment of its employees working as
truckdrivers at the “Sylvania quarry” jobsite. The Sylvania
jobsite is a limestone and sandstone quarry that is owned by
Great Lakes Aggregate (Great Lakes), a nonparty. Great Lakes
contracts another nonparty, Dan’s Excavating (Dan’s), to ex-
tract and load material from the quarry. In order to reach the
quarry’s reserves of limestone and sandstone it is necessary for
Dan’s to remove a top layer of dirt and clay. That is where the
Respondents come in. Dan’s subcontracts with the Respond-
ents to transport this dirt and clay from the pit area to a
dumpsite at another location on the quarry property. Individu-
als working for Dan’s direct the Respondents’ drivers to specif-
1 The complaint alleges that Respondent Lou’s Transport and Re-
spondent TKMS are a single employer and/or joint employers. At the
start of the trial, the General Counsel and the Respondents submitted
written stipulations providing that the Respondents would be jointly
and severally liable for any remedies found to be appropriate and that,
for purposes of this litigation only, all individuals alleged to be agents
in the complaint (Dan Israel, Bruce Israel, David Laming, Jeffery Lam-
ing, Sean Schmidt, and Tony Allen) were agents of both Respondents
with respect to the discipline and termination of the Charging Parties.
The understanding was that this would alleviate the need to litigate the
question of single/joint employer status. Given that understanding, the
relationship between the two Respondents is discussed in this decision
only for the purposes of providing context. I make no finding regarding
the alleged single/joint-employer status of the Respondents.

1450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ic locations at the pit area and load the Respondents’ trucks
with dirt and clay. The Respondents’ employees then drive to
the dumpsite where individuals working for Dan’s direct them
to the specific location where the material is to be unloaded.
The round trip route from the pit area to the dumpsite and back
is less than a mile, and the drivers cover that route approxi-
mately four or five times every hour. Dan’s pay the Respond-
ents on a per truck/per hour basis for these services. Each of
the Respondents’ trucks at the quarry consists of a tractor and a
trailer, and transports loads in excess of 100,000 pounds.
During the relevant time period, up to 6 of the Respondents’
drivers at the quarry were employees of Respondent Lou’s
Transport, and from 8 to 20 were employees of Respondent
TKMS.2 All of the Respondents’ drivers, whether employed by
Lou’s Transport or TKMS, do exactly the same work at the
quarry, and park their trucks overnight at the same TKMS-
operated yard facility. The quarry is considered a mine for
purposes of regulation by the Mine Safety and Health Admin-
istration (MSHA).
The record shows that working conditions for the Respond-
ents’ drivers at the quarry are challenging. The route that the
drivers traverse at the quarry consists almost entirely of non-
paved, onsite, roads of clay, dirt, and stone. These roads are
very slippery and become more so when they are wet or thaw-
ing after a freeze. Dan’s is responsible for maintaining these
onsite roads, which deteriorate quickly and require daily resur-
facing and rebuilding. The condition of the onsite roads is
often quite poor and this results in extreme wear and tear to the
trucks.
During the time period at issue here, the Respondents’ driv-
ers were dissatisfied with the efforts that the Respondents and
Dan’s were making to keep the onsite roads and the trucks in a
safe and appropriate condition. Sean Schmidt, the Respond-
ents’ manager for the quarry project, stated that every driver
complained to him about the roads and the condition of the
trucks. According to Hershey, drivers complained to Schmidt
at least three times a week about roads and equipment. Drivers
also complained about what Hershey called “messed up
paychecks.” David Laming (D. Laming) a higher-level official
with authority over the Respondents’ other managers also re-
ceived complaints from drivers. Jeffrey Laming (J. Laming),
the Respondents’ operations manager, testified that he was
aware that there were issues with the condition of the tires on
the trucks used at the quarry. Drivers also noted problems with
the trucks on the daily pretrip inspection reports that they sub-
mitted to the Respondents. The parties disagree about the rea-
sonableness of the efforts that the Respondents and Dan’s were
making to maintain the roads and equipment, but it is not nec-
essary for me to wade into that disagreement in order to resolve
the questions presented here. I do, however, find that the driv-
ers were complaining in good faith about what they believed,
correctly or not, were unreasonable deficiencies affecting their
2 At the times relevant to the claims in the complaint, the Lou’s
Transport drivers were represented by Teamsters Local 614, and the
TKMS drivers were not represented by a union. The complaint does
not allege any violations based on employees’ union activities or affil-
iation.
safety. I am persuaded of this by the undisputed testimony that
every driver who worked at the quarry complained to Schmidt
and that in about February 2013 the drivers became so alarmed
about the safety of the onsite roads that they collectively re-
fused to continue the day’s work and were sent home. The
record shows that one of the Respondents’ trucks had flipped
over at the quarry, that the trucks were frequently damaged due
to the condition of the roads, and that the trucks were operated
in proximity to drops of as much as 200 feet.
The lines of authority at the quarry were overlapping to some
degree. Schmidt, who managed the Respondents’ nearby yard,
visited the quarry up to four times a day and was the Respond-
ents’ supervisor for the drivers there. He inspected the onsite
quarry roads, checked in with the drivers, and answered ques-
tions that Dan’s or Great Lakes personnel had for the Respond-
ents. Schmidt reported to J. Laming who also visited the
jobsite from time to time. As noted above, personnel from
Dan’s, a nonparty, gave the Respondents’ drivers direction at
the quarry. Vito Stramaglia, who worked for Dan’s, was the
superintendent of the quarry operation and was there through-
out the day overseeing the project. In that capacity, he, inter
alia, signed the Respondents’ drivers “in” and “out” and di-
rected their work. Bill Begley, who was the Great Lakes man-
ager for the quarry, rarely interacted directly with the Respond-
ents’ drivers.
B. Rules and Values Promulgated by the Respondents
The Respondents justify the disciplinary actions they took
with respect to Hershey, Rose, and a third driver, Timothy
Pledger, by referencing three documents that they promulgated
to employees—specifically, a statement of “core values,” a
statement of “6 cardinal safety rules,” and the rules of conduct
set forth in the team member handbook. The clause in the
“core values” document that the Respondents rely on directs
employees to “overlook the chatter.” J. Laming explained this
“core value” by stating, that “drivers especially, they get on
their CBs and they, you know chatter about things, you know;
overlooking the rumors and all the stuff that goes on.”3 He
said, “chatter” is “what gets people going.”
The Respondents also relies on two of their “cardinal safety
rules”—one that concerns the use of cell phones and the other
the use of hardhats. The cell phone rule requires “100% Com-
pliance with absolutely no cell phone use while driving forward
or reverse in commercial vehicles or heavy equipment.” In the
absence of a medical emergency, an employee who needs “to
send or receive a phonecall” is to “do so in a designated break
location at the facility.” The evidence showed that drivers of-
ten use their cell phones while stopped in their trucks and that
the Respondents condoned such use. However, the evidence
did not show that the Respondents condoned drivers’ use of cell
phones while their trucks were moving.4 The drivers were,
3 The other core values set forth by the Respondents’ document on
the subject are: never say can’t; honor all commitments; proactive
communication (good and bad news must travel fast); details make the
difference; T[ake] A[im] A[nd] F[ire]; desire to be part of something
special; willingness to change and grow; home grown; and built to last.
4 Charging Party Rose, who the Respondents state that they dis-
charged in part for talking on a cell phone while driving his truck,

LOU’S TRANSPORT, INC. 1451
however, permitted to communicate using citizens band radios
(CBs) and company radios while driving.
The safety rule regarding hardhat usage by drivers requires
“100% compliance with wearing [a] hard hat . . . all the time
out of the vehicle.” Because the quarry was considered a mine
for purposes of MSHA, the Respondents and Dan’s personnel
informed drivers that it was also necessary that drivers wear
hardhats while inside their trucks. The rule requiring the wear-
ing of hardhats inside the trucks was not one of the Respond-
ents’ written cardinal safety rules, but a site specific modifica-
tion of its rule. The record shows that, despite the site specific
rule, it was common for Schmidt to see drivers working inside
their vehicles without a hardhat on. Charging Party Rose was
the only driver to whom Schmidt ever issued discipline for such
conduct.
The Respondents’ employee handbook lists 50 rules of con-
duct, the violation of any of which “will, in the discretion of the
Company, result in disciplinary action up to and including dis-
charge.” The rule that the Respondents rely on here prohibits
the “[u]se of threatening or profane language toward a fellow
Team Member, Management, personnel, or a customer.” The
evidence showed that despite this rule, drivers at the quarry
regularly used profanity and sexually charged language. Most
of this occurred during conversations between drivers who
were speaking on the CBs or company radios in their trucks.
There was also credible testimony from Pledger5 that he heard
Israel, J. Laming, and D. Laming all use profanity on the com-
pany radio at one time or another. In one instance, Pledger
heard a manager tell employees to stop cursing on the radio,
however, not all drivers at the quarry received that instruction.
In particular, Charging Party Rose was never told to stop curs-
ing on-the-job prior to the day the Respondent discharged him.
The word “f—k” was used frequently by drivers, but most often
as an interjection (for example “f—k, I hit a rock,” Tr. 275), a
participial adjective expressing disparagement or discontent
(for example
“f—king weather,” Tr. 216), a verb (for example “weather—
it’s f—king us up,” Tr. 183), or an adverb (for example, “that
f—king sucks,” Tr. 292). On occasion the Respondents’ driv-
ers would direct the word at one another to express contempt or
hostility, as in “f—k you,” but there was credible testimony
indicating that this usage was less commonplace. (Tr. 344–
345.) While the record indicates that the Respondents general-
ly tolerated drivers using profanity in the ways set forth above,
there was no credible evidence that the Respondents had ever
tolerated drivers saying “f—k you” to personnel of their cus-
tomer at the quarry—i.e., Dan’s—or to using that, or compara-
ble language, to communicate refusal to accept direction from
Dan’s personnel. (Tr.292–293.) Schmidt stated that there is a
testified that he had seen other employees engaging in the same con-
duct. Rose did not state how often he witnessed such conduct, nor did
he claim that he ever witnessed it occurring in the view of supervisors
or managers of the Respondents. Even if I credit Rose’s testimony on
this subject, it would not show that such conduct was prevalent, or that
the Respondents’ officials knowingly allowed it.
5 Pledger was a former driver with the Respondents, who left that
position voluntarily and on good terms. The General Counsel is not
seeking any monetary relief for him.
difference between the Respondents’ drivers cursing at one
another and those drivers cursing at a customer such as Dan’s.
He testified that it is unacceptable for drivers to direct profani-
ties at a customer and that doing so is grounds for discharge.
C. The Respondent’s Reaction to Overhearing a Radio
Conversation between Hershey and Pledger
Hershey was hired by the Respondents as a driver in July
2012, and transferred to the quarry project in November 2012,
the same month that the Respondents began work there. Pledg-
er, another driver, began his employment with the Respondents
in August 2007 and also worked on the quarry project. On
January 7, 2013, Hershey and Pledger had a conversation over
the company radios in their trucks. They were using a channel
that drivers believed was neither monitored by the Respondents
nor used for any official purpose. Hershey and Pledger dis-
cussed the poor condition of the onsite roads and of the Re-
spondents’ trucks and tires. Pledger told Hershey that the Re-
spondents’ personnel had urged him to drive a truck even
though its tires were bad, that he ended up receiving a $600
traffic fine for driving on the bad tires, and that the Respond-
ents left him to pay the fine himself. Such incidents were a
matter of concern to Pledger not only because of the monetary
fine, but because such incidents could adversely affect his rat-
ing as a commercial driver. Hershey complained that he was
having trouble with the condition of his truck and that the Re-
spondents kept telling him that the necessary parts were “on
order.” Hershey and Pledger discussed their view that Israel
and D. Laming were “cheap” regarding how they maintained
equipment and ran the Company. One or both of the drivers
used profanity during the conversation. No one else participat-
ed in the conversation.
Unbeknownst to Hershey and Pledger, someone had alerted
D. Laming to their radio discussion while it was ongoing. D.
Laming reacted by clandestinely listening in on the conversa-
tion for 30 to 45 minutes. He testified that during that time he
heard Hershey and Pledger “badmouthing the company” and
complaining about the trucks, the tires on the trucks, the road
conditions, and the monotony of the work. He also heard the
drivers disparage Israel, J. Laming, and himself. One of the
two drivers said that Israel was an “asshole” and a “cheap-
skate.” While the conversation was ongoing, D. Laming alert-
ed Israel, who listened in as well. D. Laming testified that he
was “enraged” by what he heard Hershey and Pledger saying
and wanted to discharge them immediately. Israel, however,
said that Hershey and Pledger might just have been “blowing
off steam” and that D. Laming should talk to them.
The next day, January 8, D. Laming met with Hershey and
Pledger. Schmidt was also present. D. Laming revealed that he
had listened to Hershey’s and Pledger’s radio conversation the
day before and asked, “Why are you still here?” Pledger testi-
fied that he was worried that he might be fired depending on
how he answered the question. D. Laming went on to say that
he “didn’t like” their “attitudes” and that “complaining on the
radio is very unprofessional.” He said that the Respondents
spent “a lot of money and equipment to repair things and if
[Hershey and Pledger] have a problem, [they] need to find a
different place to work.” He also stated that “if . . . per your

1452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conversation you think this is terrible place to work, you know,
I would never work anywhere that I wasn’t happy working, and
why do you work here?” Hershey and Pledger apologized for
their comments and said that they were just venting and had not
meant D. Laming to hear them. D. Laming prepared discipli-
nary paperwork stating that Hershey had received a “verbal
warning for bad mouthing [the] company and improper lan-
guage on company radio.” He noted on the paperwork that
both Hershey and Pledger “were sorry for their actions” and
that he believed “they will both do a good job going forward.”
D. Laming testified that he created separate paperwork docu-
menting a verbal warning for Pledger based on the incident.
Shortly after hearing the radio conversation, D. Laming offered
to allow Hershey to transfer to a position away from the quarry
as a dirt dump supervisor. Hershey declined because he would
have earned less in that position.
D. Hershey’s Signs
In late December 2012 or early in January 2013, Hershey
began preparing handmade signs, each 8.5 by 11 inches in size,
that he would intermittently place in the lower left hand corner
of his truck’s windshield. Each time he made a new sign, Her-
shey would display it during one or two loops around the quar-
ry. The signs could be seen by the drivers, as well as by per-
sonnel of Dan’s and Great Lakes. Hershey meant for the signs
to amuse and boost the morale of the other drivers. A good
number of the signs carried messages that were critical of the
drivers’ working conditions, including the way the trucks and
the onsite roads were being maintained, and issues with
paychecks. Among the signs were ones that read: “BRAKES
ON ORDER”; “PAYCHECK ON ORDER”; “REAL LIFE ON
ORDER”; “ICE ROAD THIS!”; “GOT TIRES?”; “TIRES ‘R’
US”; “SLIPPERY WHEN WET”;6 “SHOOT ME PLEASE!”
and “HELP!” Several of Hershey’s signs also mocked the Re-
spondents’ “JDL” certification. J. Laming testified that the
Respondents never told drivers that this was anything more
than an internal certification, but Hershey was surprised when a
police officer informed him that it was not an independent safe-
ty certification and that “JDL” certified meant “Jeffrey and
David Laming” certified. Two of Hershey’s signs said “J.D.L.
THIS!” and one of those signs also included a stick figure
drawing of a person grabbing his or her crotch while dancing in
the manner associated with the entertainer Michael Jackson.
The drawing is very simple and does not include any represen-
tation of genitalia or other graphic details. Another sign carried
the message “I GOT YOUR J.D.L. RIGHT HERE.” Some of
the signs did not concern working conditions at all, including
one that made reference to a sex act. There was credible testi-
mony that drivers were amused by Hershey’s signs. Prior to
the day of Hershey’s discharge, no coworker, supervisor, or
manager had ever told him that the signs were inappropriate.
E. Rose
Rose was a driver on the quarry project who was hired by the
Respondents in late November 2012, and was terminated about
6 This was a reference to Hershey’s view that the Respondents re-
quired the drivers to operate even when the roads were wet and, there-
fore, particularly hazardous.
4 months later on March 25, 2013. During Rose’s tenure with
the Respondents, Schmidt heard him complaining on the radio
and came to see him as an instigator of negativity on the radio.
The record does not show when Schmidt overheard Rose make
these statements.
The disciplinary paperwork for Rose’s termination was pre-
pared and signed by Schmidt and dated March 25. It stated that
Rose was being warned and discharged that day on the basis of
insubordination, violation of a safety rule, and uncooperative
performance. In the “details” section of the document, Schmidt
wrote:

Issue #1: On 3/23/2013 I saw Jeff Rose Driving on the Syl-
vania [quarry] site without a hard hat on and asked him where
it was? He stated “the strap was broken on it.” I gave him a
new hard hat. Issue #2: It was brought to my attention that on
3/22/13 around 5:00 the Dan’s operator Gary Martin told Jeff
Rose “we are loading until 5:00 pm and to get another load.”
Jeff Rose responded, “f—k you and f—k Vito.” I didn’t
know about this until this morning when Vito Stramaglia
(Dan’s Superintendent) told me.

The exit interview form prepared by the Respondents that day
describes the reason for Rose’s separation as “Services are not
longer needed. Does not meet company core values.”
At trial, Schmidt testified that his decision to terminate Rose
was the result of a “culmination of things” and he discussed
purported shortcomings in addition to those described above.
Schmidt stated that in late February or early March 2013, Rose
had an accident while driving for the Respondents and that in
March 2013 Rose had been caught talking on a cell phone
while he was driving. Schmidt testified that the incident on
March 22 when Rose purportedly cursed at a customer was “the
straw that broke the camel’s back.”
Regarding the accident, the evidence showed that Rose had
been told to return the truck he was driving to the Respondents’
yard because the brakes were not working properly. As Rose
turned the truck while nearing the yard, the brakes malfunc-
tioned and the truck jackknifed. The first company official at
the scene, J. Laming, asked Rose: “What the hell happened?
What’d you do?” After Rose explained, J. Laming told him to
get another truck and keep working. J. Laming did not send
Rose for a drug test or testify that the accident was Rose’s fault.
Schmidt, however, testified that he subsequently examined skid
marks at the scene and formed the opinion that the skid marks
were created during the accident and showed that Rose had
been driving too fast. The Respondents did not issue discipline
to Rose at the time of the accident. Rose was discharged some
weeks later, but the paperwork explaining that decision did not
mention the accident.
Regarding the cell phone incident, the evidence showed that
one day in March 2013, as Rose was driving into the Respond-
ents’ yard, he received a call from a mechanic. Rose answered
the call while his truck was moving and Schmidt witnessed this
conduct. Schmidt reacted by yelling at, and verbally repri-
manding, Rose for talking on the cell phone while driving. At
the time of Rose’s termination, Schmidt told him that the cell
LOU’S TRANSPORT, INC. 1453
phone incident was one of the reasons for the action, although
the termination paperwork did not specify that as a reason.7
On two occasions, Schmidt saw Rose violating the quarry-
specific rule requiring drivers to wear hardhats while inside
their trucks. Schmidt witnessed the first violation on about
March 16 or 17, 2013, and alerted Rose to the violation. The
second violation was on March 22 or 23, and this time Schmidt
gave Rose a warning as part of the same March 25 disciplinary
paperwork that documented Rose’s discharge.8
There was an ongoing conflict at the quarry between Stra-
maglia (Dan’s quarry superintendent) and the Respondents’
drivers. Stramaglia wanted the drivers to continue receiving
loads until the shift ended. Drivers resisted taking loads close
to the end of the shift because they found that doing so meant
that they would not complete their work until after the shift
ended and would not be compensated for the postshift work.
On Friday, March 22, 2013, Rose stopped accepting loads
shortly before his shift was scheduled to end at 5 p.m. Stra-
maglia had told the Dan’s employees to continue loading the
Respondents’ trucks until the end of the shift. Consistent with
that instruction, one of Dan’s employees, an operator named
Greg Martin, told Rose to take another load. There is no dis-
pute that this led to a hostile exchange between Rose and Mar-
tin. Rose testified: “He’s like, f—k you go, go [take another
load]. And I’m like, no, f—k you. So he’s like, go or I’ll kick
you’re a—s.” (Tr. 209.)9 Stramaglia was not a witness to this
exchange, but his understanding was that when Martin relayed
the instruction to take another load, Rose responded, “f—k
you” and “f—k Vito too.”10 Subsequently, on Monday, March
7 At one point, Rose testified that Schmidt yelled at him because he
was driving while talking on the cell phone, and that, at the time of the
discharge, Schmidt stated that the cell phone was one of the reasons for
the discharge. (Transcript at page(s) (Tr.) 189, 190.) However, Rose
also testified that no supervisor spoke to him about his use of the cell
phone until subsequent to his discharge and that Schmidt never told
him that the cell phone usage was a reason for his discharge (Tr. 190).
Based on my review of Rose’s inconsistent testimony, I conclude that
Schmidt did talk to Rose about the cell phone violation at the time of
that violation and did mention it to Rose when terminating his em-
ployment. That testimony was specific and against Rose’s interests,
and therefore it is unlikely that he would fabricate it. In general, Rose
had a calm and measured demeanor while testifying. However, his
credibility was undermined by a number of inconsistencies in his testi-
mony which demonstrate lapses in memory and/or an eagerness to
harmonize his account with his own interests in this litigation.
8 According to Schmidt, in the second instance Rose stated that his
hardhat was broken, but when Schmidt examined it he discovered that
the hardhat was not broken. Neither Schmidt, nor any other witness for
the Respondent, claimed that Rose was discharged in whole or in part
for misrepresenting the condition of his helmet.
9 Here again, Rose gave inconsistent testimony. He initially testified
that “I’m like, no, f—k you,” to Martin, but later said that he had not
“sworn” at Martin. This inconsistency, along with others in Rose’s
testimony, leads me to consider him less than fully reliable as a witness.
10 Martin himself did not recall the incident at all, could not testify
about what Rose did or did not say, and, in fact, did not even remember
who Rose was. The General Counsel characterizes this as Martin deny-
ing that Rose cursed at him (brief of General Counsel at pp. 38 to 39),
but, in fact, Martin only testified that he could not recall whether Rose
had done so or not. (Tr. 265–266.)
25, Stramaglia informed Schmidt about the hostile exchange
between Rose and Martin. Stramaglia testified that his purpose
in doing this was to let Schmidt know about the difficulty he
was having with drivers who did not want to take loads as the
end of the shift approached. Stramaglia was not concerned
about the language that Rose had used, but nevertheless he
reported to Schmidt that Rose had said “f—k you” and “f—k
Vito too.”
The General Counsel argues that for purposes of assessing
the severity of Rose’s conduct during the March 22 incident
with Martin, I should not consider Dan’s to be the Respond-
ents’ “customer.” That argument is not persuasive. It is undis-
puted that the Respondents drivers were working pursuant to a
contract with Dan’s and that Dan’s was the party paying the
Respondents for these services. Multiple witnesses were asked
to weigh in on the question, and this testimony was consistent
with the Respondents’ characterization of Dan’s as their cus-
tomer. Not only did four of the Respondents’ witnesses (D.
Laming, J. Laming, Schmidt, and Stramaglia) state that Dan’s
was the Respondents’ customer, but two of the General Coun-
sel’s own witnesses (Pledger and Martin) agreed with that char-
acterization. Pledger even went a little further and stated that
the drivers were aware that Dan’s was their customer.11
F. Rose and Hershey Speak at March 25 Safety Meeting
On Monday, March 25, 2013, a safety meeting was held at
the quarry. Bill Begley, who manages the quarry for Great
Lakes, made a presentation at the meeting. A total of about 30
persons attended. Among the other supervisory and manage-
ment personnel present were Paul Cosgrow (project safety
manager) and Stramaglia from Dan’s, and Schmidt and Tony
Allen (dispatcher) from the Respondents. The evidence does
not suggest that J. Laming, D. Laming, or Israel were present.
The drivers working at the quarry that day, including Hershey
and Rose, attended the meeting.
Begley made his presentation to emphasize the importance
of MSHA rules regarding road maintenance and protective
equipment. During his presentation, Begley touched on a num-
ber of subjects including the importance of safety, the particular
hazards presented by the arrival of spring, the importance of
using care when crossing the public road that cut through the
quarry, and his commitment to maintaining the roads. He en-
couraged the drivers to give him their input. After Begley had
been talking for about 5 or 10 minutes, drivers began raising
complaints about the roads. Rose went first, stating, “[Y]ou
promised that you’d give us these good roads, and here we are
driving on the slop and slurry.” He said that Stramaglia was
“not taking care of the roads like they’ve been taken care of
before, and we need them taken care of.” Hershey joined Rose
in complaining about Stramaglia’s maintenance of the onsite
11 A contrary view was expressed by one former driver at the quarry,
Gary Grode, who testified that he did not consider Dan’s to be the
customer. Grode believed that customers were those persons who came
to the quarry to obtain product. I think Grode was confusing the ques-
tion of who was the customer of the quarry owners, with the question of
who was the customer of the Respondents’ trucking operation at the
quarry. At any rate, I find the contrary evidence more persuasive than
Grode’s opinion on the subject.

1454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
roads. According to Gary Grode, a driver testifying for the
General Counsel, a total of three drivers raised complaints.
Hershey remembered himself and Rose being the main em-
ployee speakers during the meeting. Stramaglia defended the
efforts that Dan’s was making to maintain the roads. Hershey
and Stramaglia aired their disagreement, and then Begley stated
that he “did not want to get in an argument,” but rather wanted
“to talk about what we need to do.” He stated, “[W]e’re going
to see what we can do to get it solved so everybody’s happy.”
According to the accounts of Hershey and Rose, the disagree-
ment between employees and Stramaglia during the safety
meeting had become heated and involved some yelling before
Begley settled it down. Begley and Stramaglia, neither of
whom works for the Respondents, both credibly testified that
they did not recall the conversation becoming particularly heat-
ed. There is no claim that either Hershey or Rose directed any
of their complaints during the meeting at the Respondents or
engaged in any confrontation with the Respondents’ agents
who were present. I find that Schmidt was present at the safety
meeting and had knowledge of Rose’s and Hershey’s state-
ments at that meeting. I also credit Schmidt’s testimony that at
the time he was testifying (11 months later) he no longer had
any specific recollection of that meeting.
G. Respondents Discharge Rose on March 25
Later on March 25, the same day as the safety meeting,
Schmidt presented Rose with disciplinary paperwork stating
that Rose was being warned and discharged. According to
Schmidt, he began preparing this document as a written warn-
ing based on his observation that Rose was not wearing a hard
hat on March 22 or 23. Schmidt testified that after he began
preparing the paperwork, Stramaglia told him that, on March
22, Martin had directed Rose to take another load, but Rose had
refused and said, “F—k you” and “F—k Vito.” Schmidt modi-
fied the disciplinary paperwork to include this incident and
changed the disciplinary action from a warning to a waring and
discharge. On the form, Schmidt stated that Stramaglia told
him about the incident “this morning”—i.e., on March 25, the
same day as the safety meeting and the issuance of the disci-
pline. Schmidt testified that he discharged Rose based on a
variety of things and that the incident Stramaglia reported was
the “straw that broke the camel’s back.” Schmidt did not testi-
fy that he took any actions to investigate Stramaglia’s account
before terminating Rose. Schmidt also completed an exit inter-
view form for Rose on March 25. There, Schmidt wrote that
Rose “does not meet company core values.” At trial, Schmidt
testified that this meant Rose “didn’t meet our core values as
far as attention to safety and the way he conducted himself with
our customer.” Rose testified that at the time of the discharge,
Schmidt told him that the action was being taken because of the
hard hat incident, the cell phone incident, and “all the shit”
Rose was talking on the radio.
After he was discharged, Rose called Israel to discuss what
had happened. Rose told Israel that he “liked working” for the
Respondents and that he had “thought that [the Respondents’
operation] was going to be my home.” Israel asked Rose why,
if he liked working for the Respondents, he was “talking shit on
the radio.” Rose told Israel that his complaints were legitimate.
Israel asked, “[W]ould you take your job back?” Rose said he
would, and Israel said, “[L]et me call Sean [Schmidt] and . . .
talk to him.”12 About 3 or 4 days later, Rose called Schmidt
and asked if he had spoken with Israel. Schmidt said that he
had, but that they had decided not to rehire Rose “because there
was too much negativity on the radio.”13
H. Respondents Discharge Hershey on March 27
The Respondents’ terminated Hershey’s employment on
March 27, 2013. On that day, J. Laming became aware that
drivers had been talking about Hershey’s signs. He called
Schmidt at about 5 a.m., and asked him to check Hershey’s
truck, which was still parked in the Respondent’s yard, to see if
there were any signs in the truck. Schmidt found the signs in
Hershey’s truck and reported on them to J. Laming. Shortly
thereafter, J. Laming came to the yard. He testified that Her-
shey’s signs “upset” him because Hershey was “talking about”
the working conditions which “99.9 percent of us work so hard
to make right every day.” He found it “offensive” that Hershey
mocked the “JDL” certification which he viewed as the Re-
spondents going “out of our way to try to make a pleasant
working environment.” J. Laming characterized the signs as
“verbal chatter” and therefore inconsistent with the Respond-
ents’ core value of “avoiding the chatter.” He testified that
Hershey’s signs stating “JDL this,” “paycheck on order,” “real
life on order,” and “breaks on order” were “stirring up the
crowd.” J. Laming contacted D. Laming and told him about the
signs. The two discussed the January 7 episode when D. Lam-
ing heard Hershey and Pledger criticizing the Respondents, and
noted that Hershey was “still talking bad” about the Respond-
ents. D. Laming was unhappy that Hershey was displaying the
signs for other employees to see and felt that they were “espe-
cially inappropriate following the discussion” he had had with
Hershey in January about badmouthing the Respondents.
J. Laming and D. Laming decided to terminate Hershey for,
in D. Laming’s words, “his actions of creating the signs and
displaying the signs and negative attitude.” J. Laming pre-
pared the termination paperwork. As the reason for the termi-
nation, J. Laming wrote “employee does not meet our core
values.” When Hershey arrived that morning, J. Laming called
him into the office and fired him. J. Laming stated that the
reason was that Hershey did not meet the Respondents’ “core
values.” Hershey asked what that meant, and J. Laming an-
swered, “[W]e didn’t appreciate your signs,” they “pissed off
my brother, and you don’t meet our core values.”
12 Israel did not testify at the hearing and the Respondents did not
present any other evidence contradicting Rose’s facially plausible ac-
count of this conversation.
13 This quote is based on Rose’s testimony, which I credit regarding
this statement. Schmidt testified that he did not recall telling Rose that
he was “negative,” but Schmidt did not testify that he recalled that he
had not done so. In general, Schmidt’s recollection was rather vague
regarding the words he spoke to Rose that day. I note, moreover, that
Schmidt testified that he considered Rose an instigator of negativity on
the radio. The fact that Schmidt did, in fact, hold that view of Rose,
lends some support to Rose’s testimony that Schmidt expressed that
view.

LOU’S TRANSPORT, INC. 1455
I. Complaint Allegations
The complaint alleges that the Respondents violated Section
8(a)(1) of the Act on about January 7, 2013, by discriminating
against Hershey and Pledger when D. Laming encouraged them
to resign and issued verbal warnings to them because of their
protected, concerted, discussions about drivers’ working condi-
tions. The complaint further alleges that the Respondents vio-
lated Section 8(a)(1) of the Act on March 25, 2013, by discrim-
inatorily discharging Rose because he concertedly complained
about working conditions on March 25, 2013, and to discourage
employees from engaging in these or other concerted activities.
In addition, the complaint alleges that the Respondents violated
Section 8(a)(1) of the Act on March 27, 2013, by discriminato-
rily discharging Hershey because he: engaged in protected,
concerted, discussions regarding working conditions on January
7, 2013; concertedly complained about working conditions on
March 25, 2013; and publicized complaints regarding working
conditions by posting signs in his vehicle from January 14 to
March 27, 2013.
III. ANALYSIS AND DISCUSSION
A. Hershey’s and Pledger’s Conversation on January 7
The General Counsel alleges that Hershey and Pledger were
engaged in protected concerted activity when, during their Jan-
uary 7 conversation on the company radio, they complained to
one another about their working conditions and that the Re-
spondents’ violated Section 8(a)(1) of the Act when, because of
that conversation, they issued verbal warnings to Hershey and
Pledger and encouraged them to resign. D. Laming admitted
that the Respondents disciplined Hershey and Pledger on Janu-
ary 8 because of the January 7 conversation, but the Respond-
ents contend that the conversation was not protected activity.
Since there is no dispute that the Respondents issued the verbal
warnings based on Hershey’s and Pledger’s January 7 conver-
sation, this case is properly analyzed using the Atlantic Steel
Co., 245 NLRB 814 (1979), framework. Under that frame-
work, if Hershey’s and Pledger’s January 7 conversation was
protected concerted activity, the Respondents violated the Act
by taking action against them because of that activity unless
Hershey and Pledger lost the protection of the Act due to op-
probrious conduct. See Fresenius USA Mfg., 358 NLRB 1261,
1264 (2012).
I find that Hershey’s and Pledger’s conversation on January
7 was protected concerted activity. Section 7 of the Act states
that employees engage in protected activity when they, inter
alia, “engage in . . . concerted activities for the purpose of . . .
mutual aid or protection.” The Board has held that employees
engage in such activities when they complain about working
conditions affecting other employees as well as themselves.
Worldmark by Wyndham, 356 NLRB 765, 777–778 (2011)
(employees “engaged in concerted activities, privileged by
Section 7 of the Act” when they discussed compensation prob-
lems among themselves); see also Meyers Industries, 281
NLRB 882, 887 (1986) (Board clarifies that the standard re-
quiring that, in order to be concerted, the employees’ action
must not be engaged in “solely by and on behalf of the employ-
ee himself” encompasses, inter alia, “those circumstances
where the individual employees . . . prepare for group action”),
enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988). Where the complaint is
made to fellow employees it is “inherently concerted because it
involves a speaker and listeners.” Belle of Sioux City, 333
NLRB 98, 105 (2001).
The conversation at issue here primarily concerned the safety
of the onsite roads and the Respondent’s trucks—matters that
were of concern not only to Hershey or Pledger, but to both
Hershey and Pledger, Carrier Corp., 331 NLRB 126, 127
(2000) (“concerted activity may well include nothing more than
one speaker and one listener”), as well as to the Respondents’
other drivers at the quarry. The record shows that every one of
the more than 20 drivers at the quarry brought their complaints
about the condition of the roads and the trucks to Schmidt’s
attention, and in some cases to the attention of other manage-
ment officials. In one instance drivers became so concerned
about the safety of the onsite roads that they engaged in a group
work stoppage and were sent home. Employees’ expressions
of concern are protected concerted activity under such circum-
stances even if the employees had not agreed to act together to
seek change. See Salisbury Hotel, 283 NLRB 685, 687 (1987)
(employees engage in protected activity when they complained
about the employer’s lunch hour policy among themselves, and
some employees individually expressed their dissatisfaction to
management, even if the employees had not explicitly agreed to
act together to change the policy).
The Respondents contend that Hershey and Pledger were en-
gaged in “mere griping . . . not protected concerted activity”
because their statements were not made to management or on
behalf of other employees. This argument is not persuasive for
a number of reasons, among them that Hershey and Pledger
were not raising purely personal discontents, but rather discon-
tents that they shared with one other, and with the other drivers
at the quarry. In Phoenix Processor Limited Partnership, 348
NLRB 28, 46 (2006), petition for review denied sub nom. Cor-
nelio v. NLRB, 276 Fed. Appx. 608 (9th Cir. 2008), cert. denied
555 U.S. 994 (2008), the Board affirmed the administrative law
judge’s conclusion that an employee engaged in protected con-
certed activity by talking to other employees about their wages
and hours. The judge distinguished this activity from “mere
griping,” by explaining that “griping about a purely personal
concern is not ordinarily considered action undertaken for mu-
tual aid or protection,” but “voicing concerns that pertain to
working conditions affecting other employees as well as the
complaining worker is protected by Section 7 of the Act.” Id.,
citing Alaska Ship & Drydock, Inc., 340 NLRB 874 fn. 1
(2003). It is certainly the case that the safety issues discussed
by Hershey and Pledger fall into the category of working condi-
tions that affect other employees. Tampa Tribune, 351 NLRB
1324, 1334–1335 (2007) (employee’s complaints are concerted
protected activity, not mere griping, where coworkers were also
unhappy about the same issues), enf. denied on other grounds
by 560 F.3d 181 (4th Cir. 2009).
The Respondents contend that Hershey’s and Pledger’s con-
versation was not protected because they had not intentionally
included representatives of the Respondents in their discussion.
First, the record shows that Hershey and other drivers repeated-
1456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ly made the same complaints and related complaints to the
Respondents. Even if this were not the case, the Respondents’
argument would fail since the Board has made clear that em-
ployees’ “discussions with coworkers [a]re indispensable initial
steps along the way to possible group action” and therefore are
protected regardless of whether the employees have raised their
concerns with management or talked about working together to
address those concerns. Hispanics United of Buffalo, Inc., 359
NLRB 368,370 (2012), quoting Relco Locomotive, Inc., 358
NLRB 298, 314 (2012), enfd. 734 F.3d 764 (8th Cir. 2013).
Similarly, protection is not denied because other employees
have not authorized Hershey or Pledger to serve as their
spokesperson because coverage is not dependent on “employ-
ees combin[ing] with one another in any particular way,” NLRB
v. City Disposal Systems, 465 U.S. 822, 835 (1984), or on the
speaker being “specifically authorized” as a “group spokesper-
son for group complaints,” Worldmark by Wyndham, 356
NLRB 765, 778.
Hershey’s and Pledger’s conversation was part of the process
of building sentiment and solidarity around the view that the
safety of the roads and trucks had to be improved and, there-
fore, their conversation was part of the process that might, and
did, include employees seeking those improvements from the
Respondents. Even if I did not find that Hershey’s and Pledg-
er’s conversation was part of the ongoing efforts by drivers to
seek improvement of working conditions at the quarry, I would
find that the conversation was protected because complaints
about such serious perceived workplace safety hazards are a
funda-mental matter of concern to employees and are, on that
basis, inherently protected. See Hoodview Vending Co., 359
355, 357–358 (2012) (employee conversations are inherently
protected when they involve matters of fundamental concern to
employees such as wages, job security, and work schedules);
see also St. Bernard Hospital & Health Care Center, 360
NLRB 53, 61 (2013) (“The Board has held that an employee
who raises safety issues with his employer is engaged in con-
certed activity that is protected by Section 7 of the Act.”).
Since Hershey’s and Pledger’s January 7 conversation was
protected concerted activity the Respondents could not lawfully
discipline them for that activity unless the drivers did some-
thing so opprobrious or extreme in the course of the activity
that they forfeited the Act’s protection. See Fresenius USA
Mfg., supra; Atlantic Steel, supra. Under the Board’s decision
in Atlantic Steel, whether otherwise protected activity has lost
the Act’s protection depends on a “careful balancing” of the
following four factors:

(1) the place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and (4)
whether the outburst was, in any way, provoked by an em-
ployer’s unfair labor practice.

245 NLRB at 816. The Board has cautioned that while an em-
ployer may lawfully discipline an employee engaged in pro-
tected activity for making statements that threaten others with,
for example, physical harm, it may not discipline an employee
for making statements that simply make others annoyed or
uncomfortable. Chartwells, Compass Group, USA, 342 NLRB
1155, 1157 (2004); Alpine Log Homes, 335 NLRB 885, 894
(2001), RCN Corp., 333 NLRB 295, 300 (2001).
The Respondents make no argument that Hershey and
Pledger lost the Act’s protection under the Atlantic Steel fac-
tors. Based on my consideration of those factors, I find that
Hershey’s and Pledger’s activity were neither opprobrious nor
extreme. The “place” of the discussion weighs in favor of con-
tinued protection. The drivers were at work, in their trucks, and
conversing on a radio channel that the Respondents did not use
for any business purpose and which the drivers believed the
Respondents did not monitor. “The place of work is a place
uniquely appropriate for dissemination of views concerning . . .
the various options open to the employees.” NLRB v. Magnavox
Co. of Tennessee, 415 U.S. 322, 325 (1974). The fact that the
conversation occurred in a “place” where management officials
were exposed to the drivers’ negative opinions should not
weigh against continued protection since those officials were
only exposed because they chose to clandestinely eavesdrop on
the conversation and eavesdropping on protected activity is
itself an unfair labor practice. See Turtle Bay Resorts, 353
NLRB 1242, 1242 fn. 6 (2009), affd. by Board after remand
from court of appeals 355 NLRB 706 (2010), enfd. 452 Fed.
Appx. 433 (5th Cir. 2011). The subject matter of Hershey’s
and Pledger’s discussion also weighs in favor of continued
protection. As discussed above, the focus of the conversation
was the drivers’ good-faith concerns that management was
putting their safety at risk. Although the Respondents may
disagree that this belief was well founded, they cannot lawfully
muzzle coworkers’ discussion of it.14
The nature of the outburst here also weighs in favor of con-
tinued protection. The Respondents do not allege, and the rec-
ord does not show, that Hershey or Pledger made threats of
physical harm or improper action during their intercepted con-
versation. Although profanity was used and management offi-
cials were the subject of derogatory name calling, such lan-
guage was not extreme or opprobrious given that the use of
profanity on the radios was pervasive and generally tolerated,
and that neither employee had reason to believe that the offi-
cials to whom they were referring were listening in. It is not
surprising that D. Laming was annoyed and uncomfortable
because of what he overheard, but under Board precedent it
takes more than that to strip employees of the Act’s protection.
Chartwells, supra; Alpine Log Homes, supra, RCN Corp., supra.
14 The truth or falsity of an employees’ communications to others
generally is immaterial to the protected nature of the activity. Phoenix
Processor Limited Partnership, 348 NLRB 28, 46 (2006), petition for
review denied sub nom. Cornelio v. NLRB, 276 Fed. Appx. 608 (9th
Cir. 2008), cert. denied 555 U.S. 994 (2008); see also R. J. Liberto,
Inc., 235 NLRB 1450, 1453 (1978) (“Whether [an employee’s] facts or
interpretation were correct, he was entitled to discuss with his fellow
employees his perception of the working conditions and employee
problems. Respondent, to be sure had a right to try to counter his ar-
guments, but it had no right to attempt to muzzle his discussions with
fellow employees of issues relating to their working conditions.”), enfd.
mem. 591 F.2d 1336 (3d Cir. 1979), and Holyoke Visiting Nurses Assn.,
313 NLRB 1040, 1053 (1994) (disparagement defense only available to
employer if the employee’s statements were not only false, but made
with malice).

LOU’S TRANSPORT, INC. 1457
Regarding the final Atlantic Steel factor, the General Counsel
has not shown that any part of Hershey’s and Pledger’s conver-
sation was provoked by an unfair labor practice. This factor
however, does not weigh against continued protection since
their statements were meant for each other, not their supervi-
sors or managers. In Fresenius, 358 NLRB 1261, 1267, the
Board stated that where the employee’s message is directed
towards coworkers, not his or her superior, the “lack of em-
ployer provocation neither weighs in favor of nor against find-
ing the conduct protected.”
Three of the four Atlantic Steel factors weigh in favor of con-
tinued protection, and the fourth is neutral. I find that Her-
shey’s and Pledger’s January 7 conversation about their work-
place concerns retained the Act’s protection, and that the Re-
spondents violated Section 8(a)(1) of the Act on January 8,
2014, by issuing a verbal warning to them based on that con-
versation.
The complaint alleges that the Respondents violated Section
8(a)(1) of the Act not only by issuing verbal warnings in re-
sponse to the protected conversation, but also by responding to
that conversation by encouraging Hershey and Pledger to re-
sign. As discussed above, D. Laming’s initial reaction to over-
hearing the employees’ criticisms was that he should immedi-
ately discharge both employees. When D. Laming talked to the
employees about what he had overheard, he did not discharge
them, but did state that if they “ha[d] a problem [they] need to
find a different place to work.” He also opined that “if
. . . per your conversation you think this is a terrible place to
work, you know, I would never work anywhere that I wasn’t
happy working, and why do you work here?” D. Laming’s
hostile reaction to the protected activity caused Pledger, quite
reasonably, to be concerned that he might be fired. The Board
has repeatedly held that statements of the type that D. Laming
made to Hershey and Pledger are coercive in violation of Sec-
tion 8(a)(1). In Merit Contracting, Inc., 333 NLRB 562, 563
(2001), the Board affirmed that the employer’s statement to an
employee that he could “go work somewhere else” if he was
not happy was “implicitly threatening, and therefore had a ten-
dency to interfere with Section 7 rights,” in violation of Section
8(a)(1). Similarly, in House Calls, Inc., 304 NLRB 311, 313
(1991), the Board held that when an employer responded to
employee complaints about a paycheck delay by saying that “if
they did not like it, they could quit” the employer engaged in
coercive conduct in violation of Section 8(a)(1). In Worldmark
by Wyndham, supra, an employer responded to employees’
complaints about working conditions by saying “My dad al-
ways told me . . . if you didn’t like it some-where, rather than
whining and complaining about it, go find another job.” The
Board affirmed the administrative law judge’s conclusion that
this statement was coercive in violation of Section 8(a)(1). 356
NLRB 765, 779. The Respondents do not cite any contrary
precedent under which D. Laming’s statements to Hershey and
Pledger would be lawful.
I find, based on the Board precedent cited above, that D.
Laming coerced Hershey and Pledger in violation of Section
8(a)(1) when, on January 8, 2013, he responded to their pro-
tected activity by telling them that “if they did not like it, they
could quit,” and that if “per your conversation you think this is
terrible place to work, you know, I would never work anywhere
that I wasn’t happy working, and why do you work here?”
B. Discharge of Rose
The General Counsel alleges that, on March 25, 2013, the
Respondents violated Section 8(a)(1) of the Act when they
discriminatorily discharged Rose because he engaged in pro-
tected concerted activity by voicing complaints about road
conditions during a safety meeting earlier that day. The Re-
spondents counter that their action was not motivated by any-
thing Rose said at that meeting, but rather by his violation of
safety rules and the profanity he directed at a customer. The
Board applies the Wright Line framework to alleged violations
of Section 8(a)(1) that turn on employer motivation. American
Red Cross Missouri-Illinois Blood Services Region, 347 NLRB
347, 349 (2006). Under the Wright Line analysis, the General
Counsel bears the initial burden of showing that the Respond-
ent's decision to take adverse action against an employee was
motivated, at least in part, by unlawful considerations. 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). The General Coun-
sel may meet this burden by showing that: (1) the employee
engaged in union or other protected activity; (2) the employer
knew of such activities; and (3) the employer harbored animosi-
ty towards the Union or other protected activity. ADB Utility
Contractors, 353 NLRB 166, 166–167 (2008), enf. denied on
other grounds 383 Fed.Appx. 594 (8th Cir. 2010); Intermet
Stevensville, 350 NLRB 1270, 1274–1275 (2007); Senior Citi-
zens Coordinating Council, 330 NLRB 1100, 1105 (2000);
Regal Recycling, Inc., 329 NLRB 355, 356 (1999). Animus
may be inferred from the record as a whole, including timing
and disparate treatment. See, Camaco Lorain Mfg. Plant, 356
NLRB 1182, 1185 (2011). If the General Counsel establishes
discriminatory motive, the burden shifts to the employer to
demonstrate that it would have taken the same action absent the
protected conduct . ADB Utility, supra; Intermet Stevensville,
supra; Senior Citizens, supra.
The General Counsel has succeeded in demonstrating that
Rose engaged in protected activity when he raised safety com-
plaints regarding the onsite roads during the March 25 meeting.
Concerns about the safety of the onsite roads were shared by all
of the Respondents’ drivers and Rose engaged in collective
group activity when he brought those truly group complaints to
the attention of officials at the quarry. See Meyers Industries,
281 NLRB at 887 (concerted activities include “individual
employees bringing truly group complaints to the attention of
management). In addition, I infer that the Respondents knew of
these complaints since Rose made them in the presence of two
of the Respondents’ agents—Schmidt and Allen.15
15 Allen did not testify, or otherwise deny, that he had knowledge of
Rose’s comments. Schmidt did testify, and stated that he had no specif-
ic recollection regarding the March 25 meeting. However, even if, at a
trial 11 months after the meeting, Schmidt did not recall Rose’s re-
marks it would not rebut the reasonable inference that he recalled those
remarks at the time of Rose’s discharge, just hours after the remarks
were made.

1458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find, however, that the General Counsel has failed to estab-
lish that the Respondents bore hostility towards the protected
activity alleged in the complaint, i.e., towards Rose’s March 25
comments to Begley (a Great Lakes official) and Stramaglia (a
Dan’s official) at a meeting during which Begley was seeking
the drivers’ input. I recognize that the evidence establishes that
the Respondents were hostile to drivers complaining about the
Respondents’ own management during conversations between
themselves on the radios and CBs. However, that does not
mean that the Respondents were hostile towards drivers ex-
pressing their concerns about Great Lakes or Dan’s when asked
for their input by a Great Lakes official who was discussing
safety issues. The March 25 presentation, although attended by
two officials of the Respondents, was not being led by those
officials and the evidence does not show that Rose criticized
the Respondents at the meeting. The General Counsel points to
the purportedly heated exchange between the drivers and Stra-
maglia at that meeting. I doubt that the exchange was particu-
larly heated given the contrary testimony of Begley and Stra-
maglia—neither of whom is associated with the Respondents.
Even assuming that I accept the General Counsel’s characteri-
zation of the exchange between the drivers and Stramaglia as
heated, there is no claim that the Respondents’ officials were
involved in that exchange. Indeed, although the evidence
shows that the Respondents were hostile to drivers discussing
their work complaints with one another, the record does not
show that the Respondents were hostile to drivers reporting
their complaints to management. Drivers continually brought
complaints about the condition of the roads and the trucks to
Schmidt, and while it is true that this failed to generate the
changes some thought necessary, the evidence does not show
that Schmidt had reacted in a hostile or coercive manner when
drivers presented their complaints to him.16 The General
Counsel argues that the timing of Rose’s discharge is suspi-
cious because it occurred on the same day as the safety meet-
ing. However, that argument is not persuasive because it also
true that Rose was discharged on the same day that Schmidt
was informed that Rose had responded to an instruction to con-
tinue working by saying, “f—k you, and f—k Vito.”
Even if I concluded that the General Counsel had succeeded
in making a weak prima face case, I would find that the Re-
spondents met their responsive Wright Line burden by showing
they would have terminated Rose on March 25 for safety viola-
tions and cursing at a customer even absent his protected con-
duct at the safety meeting. ADB Utility, supra; Intermet Ste-
vensville, supra; Senior Citizens, supra. The uncontradicted
evidence shows that earlier that month, Schmidt had caught
16 I note that the complaint does not allege, and the General Counsel
does not argue in its brief, that the Respondents discriminated against
Rose because he instigated or participated in negativity on the radios
and CBs. The complaint does not even claim that Rose’s participation
in those discussions was protected concerted activity and the General
Counsel did not elicit testimony from Rose or other drivers regarding
Rose’s participation in those conversations. I make no finding regard-
ing the part that those discussions may have played in the decision to
terminate Rose since that question has not been raised or fully litigated.
Cf. Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990).
Rose violating one of the Respondents’ six cardinal safety rules
by talking on his cell phone while his truck was in motion. That
is a serious violation under the Respondents’ rules and one that
subjects employees to discipline up to and including immediate
dismissal. The undisputed evidence was that immediately upon
observing this violation, Schmidt “yelled” at, and verbally rep-
rimanded, Rose. Therefore it is clear that Schmidt considered
this a serious breach before Rose engaged in protected activity
at the safety meeting some days or weeks later. The General
Counsel did not show that the Respondents’ officials, or
Schmidt in particular, had ever observed, or condoned, other
drivers talking on cell phones while their trucks were in motion.
It was also, in my view, reasonable for Schmidt to be particu-
larly concerned about this safety violation given that Rose had
recently been involved in a serious accident and had continued
to violate the Respondents’ policy requiring employees to wear
hard hats while driving.
More importantly, on the day that Rose was terminated,
Stramaglia reported to Schmidt that one of Dan’s operators had,
in accordance with Stramaglia’s direction, told Rose to contin-
ue accepting loads until the shift ended, but that Rose had re-
fused and said, “fuck you” and “f—k Vito [Stramaglia] too.”
There was no evidence that Schmidt had reason to doubt the
veracity of this report from the Respondents’ customer. At any
rate, Rose himself testified that he had refused the direction to
take another load and had responded, “like, no, f—k you.” I
find that this complaint from the Respondents’ customer at the
quarry would, either alone or in combination with the cell
phone violation safety violation earlier that month, have led
Schmidt to terminate Rose regardless of anything that Rose said
at the safety meeting. In reaching this conclusion, I considered
the General Counsel’s argument that the Respondents tolerated
the use of profanity at the quarry. Rose’s use of profanity,
however, was more aggravated than that which was shown to
be common at the quarry. Rose did not simply use profanity,
but he directed the profanity at the Respondents’ customer as
an expression of hostility and to indicate his refusal of a cus-
tomer’s work-related direction. There was no evidence that the
Respondents had tolerated that type of aggravated behavior
from any other driver. I credit Schmidt’s testimony that he
considered cursing at a customer to be unacceptable and more
serious than when drivers used curse words among themselves.
The General Counsel argues that I should not give credence to
this explanation because Stramaglia testified that he was not
personally disturbed by the language that he reported Rose
using. However, the Respondents are not required to forgive
what they consider unacceptable conduct towards a customer
just because the customer forgives it. I conclude that the Re-
spondents have satisfied their burden of showing that Rose’s
behavior on March 22 would have been, in Schmidt’s words,
the “straw that broke the camel’s back” regardless of any pro-
tected activity that Rose engaged in at the March 25 safety
meeting.
For the reasons discussed above, I conclude that the allega-
tion that Rose was discriminatorily discharged in violation of
Section 8(a)(1) because of his protected concerted activity at
the March 25 safety meeting, should be dismissed.

LOU’S TRANSPORT, INC. 1459
C. Discharge of Hershey
The complaint alleges that the Respondents violated Section
8(a)(1) by terminating Hershey’s employment on March 27,
2013, because of his protected concerted activities: during the
radio conversation with Pledger on January 7; at the safety
meeting on March 25; and/or when he posted signs in his work
vehicle that publicized complaints about terms and conditions
from January 14 to March 27.
The Respondents officials admit that they discharged Her-
shey because of his radio conversation with Pledger on January
7 and because of the complaints about working conditions that
he publicized on the signs he displayed in the truck he drove at
the quarry. Therefore, the question of whether those activities
were the Respondents’ motive for discharging Hershey is not
an issue here and the Atlantic Steel analysis, rather than the
Wright Line analysis, is applicable.
The first question under the Atlantic Steel analysis is whether
the basis upon which the employer acted was protected activity.
That question has already been discussed, and answered in the
affirmative, with respect to Hershey “badmouthing”/”talking
bad” about the Respondents during his January 7 conversation
with Pledger. Hershey also engaged in protected concerted
activity when he publicized the same, and other, complaints
using the signs that he displayed in his truck. The signs carried
messages related to the perceived failure of the Respondents to:
replace defective parts and tires on the trucks and generally
ensure that the trucks were safe to drive; take adequate steps to
ensure that onsite roads were maintained in a safe condition;
and eliminate paycheck irregularities. Hershey engaged in
protected activity when he raised these complaints with
coworkers since the complaints concerned working conditions
affecting other employees as well as himself. Worldmark by
Wyndham, supra; Hoodview Vending, supra; see also Belle of
Sioux City, 333 NLRB at 105 (communications between em-
ployees about pay are inherently concerted if there is a speaker
and listeners); and House Calls, Inc., 304 NLRB at 313 (em-
ployees engaged in protected concerted activity when they
complained that employer was late in distributing paychecks).
The Respondents argue that Hershey’s display of signs criti-
cizing management should not be considered protected because
Hershey “was not trying to get the other drivers to join him in
some kind of organized effort to have management do some-
thing,” or trying to “make management aware” of the com-
plaints. This argument is not persuasive for the reasons dis-
cussed above in reference to the January 7 conversation be-
tween Hershey and Pledger. As with that radio conversation,
Hershey was using his signs to “voic[e] concerns that pertain to
working conditions affecting other employees as well as [him-
self].” Phoenix Processor Limited Partnership, supra. The
Board has held that such communications between co-workers
are an indispensable step along the way to possible group ac-
tion and are protected even if the complaints are not being
made to management, Hispanics United of Buffalo, supra, and
even if the employees have not agreed to act together to seek
changes, Salisbury Hotel, supra. Hershey stated that he dis-
played the signs complaining about working conditions in an
effort to entertain and build morale among the drivers. This is
part of the process of building sentiment and solidarity around
the conviction that working conditions were unacceptable and
required change. J. Laming himself recognized this, testifying
that Hershey’s signs were “stirring up the crowd.” In fact, after
Hershey began displaying the signs, other drivers complained
to Schmidt about the condition of the roads and the trucks, and
in one instance engaged in a group work stoppage over safety
concerns.
Under facts similar to those present here, the Board has af-
firmed that employees engaged in protected concerted activity
when they displayed signs critical of their employer in their
vehicles. In RAI Research Corp., 257 NLRB 918 fn. 3 (1981),
enfd. mem. 688 F.2d 816 (2d Cir. 1982), the Board held that an
employee’s “display in the windshield of his automobile of a
sign reading ‘Please Don’t Feed the Management. They only
Suck Blood’ constituted protected activity under Section 7 of
the Act, and therefore, [the employer’s] discharge of [the em-
ployee] for this activity violated Section 8(a)(3) and (1) of the
Act.” Similarly, in Holyoke Visiting Nurses Assn., 313 NLRB
at 1052 and 1053, the Board affirmed that employees engaged
in protected activity by displaying signs in their car windows
that stated, “Union busting, Its illegal.” Under Board law, em-
ployees were protected even when they made “various extrava-
gant statements of opinion in describing unattractive features of
employers.” Id. at 1053.
The Respondents argue that Hershey’s display of the signs
was not protected because he displayed some signs that did not
reference complaints about working conditions affecting em-
ployees. It is true that Hershey displayed some signs that did
not relate to working conditions and that his display of those
signs was not protected. That, however, is completely irrele-
vant here since the Respondents do not claim that Hershey was
discharged because of those unprotected signs. D. Laming and
J. Laming testified that the signs they acted on were those that
were “badmouthing” or “talking bad” about, the Respondents.
Neither D. Laming nor J. Laming ever claimed that they were
motivated by, or would have taken action based on, the signs
that were unrelated to working conditions.
Since Hershey was engaged in protected concerted activity
when he displayed messages critical of working conditions, the
Respondents violated Section 8(a)(1) of the Act by discharging
him for that activity unless they can show that Hershey’s con-
duct was so opprobrious or egregious as to forfeit the Act’s
protection. I have considered Hershey’s activity under the fac-
tors set forth in Atlantic Steel, supra, and find that his action
was neither opprobrious nor egregious. The first factor—the
location of the activity—weighs in favor of continued protec-
tion. Hershey was displaying the signs at the jobsite where he
and the other affected drivers worked. Longstanding doctrine
establishes that employees have a right to display protected
messages at their workplace absent special considerations.
Pathmark Stores, 342 NLRB 378, 379 (2004); Ellis Electric,
315 NLRB 1187, 1203 (1994); United Artists Theatre, 277
NLRB 115, 128 (1985); see also NLRB v. Magnavox Co. of
Tennessee, 415 U.S. at 325 (“The place of work is a place
uniquely appropriate for dissemination of views concerning . . .
the various options open to the employees.”). Moreover, there
is no suggestion that Hershey attempted to display the signs in
areas at the jobsite that were off limits or where his normal
1460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
duties had not taken him. It is true that while driving at the
jobsite, Hershey’s signs could be seen by persons who worked
for Great Lakes and Dan’s. Those third parties were not the
intended audience for Hershey’s signs, but even if it they had
been that would not deprive Hershey of the Act’s protection
since an employee is presumptively privileged to display signs
bringing his work-related complaints to the attention of third
parties. See Hills & Dales General Hospital, 360 NLRB 611,
612 (2014) (employees “making statements to third parties
protesting their terms and conditions of employment . . . is
clearly protected by Section 7”).
In reaching the conclusion that the “location” of the activity
weighs in favor of continued protection, I considered the spe-
cific location of the signs within the truck. The Respondents
contend that Hershey’s placement of the 8½ by 11 inch signs in
the lower left-hand portion of his windshield created a blind
spot and was a safety hazard. This safety concern is clearly an
after-the-fact rationalization invented for trial and I do not cred-
it it. Hershey testified that his vision was not impeded by his
display of the signs. Neither D. Laming nor J. Laming initially
mentioned any safety concerns when testifying about why they
terminated Hershey for displaying the signs. It was only in
response to leading questions that D. Laming eventually assert-
ed that Hershey’s display of the sign would “absolutely” create
a blind spot and safety concern for himself and other drivers.
Any suggestion that safety played a part in the termination
decision, or would have led to Hershey’s termination, is contra-
ry to the reasons that the Respondents gave Hershey orally and
in writing at the time of his discharge. Moreover, during the 3
months that Hershey displayed the signs, no one ever told him
that doing so was a safety violation, even though the record
shows that officials at the quarry frequently counseled drivers
about workplace behaviors that were considered unsafe.
The subject matter of the messages at-issue also weighs in
favor of continued protection. The messages concerned safety
and paycheck irregularities. As discussed above, every one of
the Respondents’ drivers at the quarry had complained to
Schmidt about the safety of the trucks and the onsite roads and
at one point a group of drivers refused to continue to driving at
the quarry because of the perceived hazard. Paychecks prob-
lems involve employees’ pay and are matters of fundamental
concern to employees. Hoodview Vending, supra. It is particu-
larly important to employees’ rights under the Act that they be
permitted to communicate with one another about such signifi-
cant workplace concerns.
The third Atlantic Steel factor, “the nature of the outburst”
also weighs in favor of continued protection. In the signs over
which the Respondents took action, Hershey was using humor
and sarcasm to drive home his criticisms of the Respondents’
handling of working conditions. He did not make any threats
of violence or unlawful action or use any curse words. It is true
that one of the signs included a drawing of a dancing stick fig-
ure that was grabbing its crotch. Although this sign was in poor
taste, it did not approach being so opprobrious or egregious as
to cause Hershey’s safety related criticism to lose the protection
of the Act. The stick figure was drawn in a child-like, in no
way graphic, manner. The pose depicted was a reference to a
pose that Michael Jackson had performed in front of millions of
people, including on broadcast television. Moreover, to the
extent that the picture was suggestive it did not transgress the
standards of decorum at a jobsite, such as the quarry, where
profanity and sexually charged messages were commonplace
and generally tolerated. During the 3 months that Hershey had
been displaying the signs prior to his discharge, no one had
ever told him that the signs were not appropriate. I do not
doubt that, as J. Laming testified, he was personally stung by
Hershey’s criticism of the working conditions that the Re-
spondents provided to drivers, but the Board has made clear
that an employer may not discipline an employee for making
statements that simply cause another to feel annoyed or uncom-
fortable. Chartwells, Compass Group, USA, supra, Alpine Log
Homes, 335 NLRB 885, supra, RCN Corp., supra.
I find that the final Atlantic Steel factor—whether the out-
burst was a response to an unfair labor practice—weighs nei-
ther for nor against continued protection. Although Hershey
displayed the written criticisms primarily, if not entirely, after
the Respondents unlawfully disciplined him for the protected
radio conversation with Pledger, Hershey did not claim that he
resorted to the signs in response to the Respondents’ action to
muzzle his oral communications. Assuming that the signs were
not a reaction to that unfair labor practice, I conclude that this
factor weighs neither for nor against continued protection since
the Respondents and Hershey agree that Hershey was using the
signs to communicate with his coworkers, not with the Re-
spondents’ supervisors or other officials. See Fresenius, 358
NLRB 1261, 1267 (when employee’s message is directed to-
wards co-workers, not his or her superior, the “lack of employ-
er provocation neither weighs in favor of nor against finding
the conduct protected”).
I find that Hershey engaged in protected concerted activity
when he complained about working conditions during his con-
versation with Pledger and when he displayed signs carrying
messages critical of the drivers’ working conditions, and that he
did not engage in any behavior in connection with those activi-
ties that caused him to forfeit the Act’s protection. Therefore,
the Respondents violated Section 8(a)(1) when they discharged
Hershey on March 27, 2013, for engaging in those protected
concerted activities.17
CONCLUSIONS OF LAW
1. The Respondents violated Section 8(a)(1) of the Act: on
January 8, 2014, by issuing verbal warnings to employees Mi-
chael Hershey and Timothy Pledger because those employees
engaged in protected concerted activity; on January 8, 2014,
17 For the reasons already discussed with respect to Rose, I find that,
under Wright Line, supra, the General Counsel has failed to establish a
prima facie case with respect to alleged discrimination against Hershey
based on his statements at the March 25, 2013 safety meeting. The
Respondents deny that they were motivated by Hershey’s statements at
that meeting and the evidence did not show that the Respondents were
hostile to employees raising safety complaints regarding Great Lakes
and/or Dan’s at a Great Lakes safety presentation during which the
drivers’ input was sought. However, since the evidence shows that
Hershey was unlawfully discharged for his protected communications
with Pledger on January 7, 2013, and his display of signs from January
to March 2013, he is entitled to reinstatement and backpay.

LOU’S TRANSPORT, INC. 1461
when D. Laming reacted to Hershey’s and Pledger’s protected
concerted activity by telling those employees that “if they did
not like it, they could quit,” and that “I would never work any-
where that I wasn’t happy working, and why do you work
here?”; on March 27, 2013, when they discharged Michael
Hershey because he engaged in protected concerted activities.
2. The evidence does not show that the Respondents discrim-
inatorily discharged Jeffrey Rose in violation of Section 8(a)(1)
because of his protected concerted activity at the safety meeting
on March 25, 2012.
REMEDY
Having found that the Respondents engaged in certain unfair
labor practices, I shall order them to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. In particular the Respondents, having dis-
criminatorily discharged Michael Hershey, must offer him rein-
statement and make him whole for any loss of earnings and
other benefits. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010). The Respondents
shall file a report with the Social Security Administration allo-
cating backpay to the appropriate calendar quarters. The Re-
spondents shall also compensate the discriminatee for the ad-
verse tax consequences, if any, of receiving one or more lump-
sum backpay awards covering periods longer than 1 year, Lati-
no Express, Inc., 359 NLRB 518 (2012).
[Recommended Order omitted from publication.]