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

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