Advance Transportation Co.

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 920 (N.L.R.B. 1993)

920
310 NLRB No. 147
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 We note that the judge did not find, as alleged in the complaint,
that the Respondent violated Sec. 8(a)(4) by discharging employee
Tuffs and converting his discharge into a suspension. The General
Counsel did not except to the judge’s failure to find this violation.
We find no merit to the Respondent’s contention that the violation
regarding the unlawful posting of no-solicitation rules was remedied
pursuant to an order of the election officer. The election officer or-
dered the rules rewritten and reposted pursuant to the court-super-
vised election procedures. There is no evidence that the Respondent
repudiated its unlawful conduct under the standard articulated in
Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
In adopting the judge’s decision that the Respondent violated the
Act by unlawfully issuing a warning letter to Tuffs on May 25, we
also rely on its shifting explanation for the warning, which was for
alleged ‘‘harassment of supervision.’’ At the hearing and in its ex-
ceptions, the Respondent has contended that Tuffs’ conduct violated
Federal and state driver safety regulations and has not relied on the
alleged harassment.
4 We shall modify the judge’s recommended Order and substitute
a new notice to employees to conform to our usual language for
broad cease-and-desist orders. 5 Member Raudabaugh does not rely on this factor.
Advance Transportation Company and Harry
Bidwell and Charles Coleman and John Reed
and Daniel A. Tuffs, Jr. Cases 13–CA–29721,
13–CA–29805, 13–CA–29879, 13–CA–30285,
13–CA–30302, and 13–CA–30412
March 31, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On June 24, 1992, Administrative Law Judge Harold
Bernard Jr. issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel and the Respondent filed reply briefs.
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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 and to adopt the recommended Order, as
modified.4
In adopting the judge’s finding that deferral to a de-
cision by Arbitrator Herbert M. Berman regarding
Charles Coleman’s discharge is inappropriate, we find
that the Board’s standard for deferral has not been sat-
isfied.
In Olin Corp., 268 NLRB 573 (1984), the Board
held that it would defer to an arbitrator’s award where
the proceedings before the arbitrator were fair and reg-
ular; all parties were bound; the arbitrator’s decision
was not clearly repugnant to the purposes and policies
of the Act; and the arbitrator considered the unfair
labor practice issue. The Board explained that it would
find that the arbitrator had adequately considered the
unfair labor practice if the contractual and unfair labor
practice issues were factually parallel and the arbitrator
was presented generally with the facts relevant to re-
solving the unfair labor practice.
Here the sole issue before the arbitrator was whether
Coleman’s alleged falsification of records and verbal
exchange with Sharon Henzel, a J. C. Penney Com-
pany supervisor, on August 28, 1990, constituted just
cause for discharge in accordance with the parties’ col-
lective-bargaining agreement. There is no evidence that
the arbitrator was presented with or considered facts
concerning Coleman’s protected concerted activities,
the Respondent’s antiunion animus and its pattern of
discriminatory conduct, and whether the Respondent’s
claimed basis was a pretext. Thus, the contractual un-
fair labor practice issues were not factually parallel.
See M & G Convoy, 287 NLRB 1140 (1988). There-
fore we do not defer to the award.
With further respect to the discharge of Coleman,
we note that this matter was also ruled upon by Elec-
tion Officer Holland and Independent Administrator
Lacey. These officials were empowered to act as a re-
sult of a consent decree entered by the U.S. District
Court for the Southern District of New York. (U.S. v.
Teamsters, 88 Civ. 4486, Mar. 4, 1989). See also U.S.
v. Teamsters (Yellow Freight), 948 F.2d 98 (2d Cir.
1991). Respondent seeks deferral to decisions by these
officials that the Coleman discharge was not unlawful
under the consent decree. We do not pass on whether
such nonarbitral decisions could provide the basis for
deferral. Rather, assuming arguendo that they could do
so, we note that Lacey, in affirming Holland, said that
neither of them had ‘‘addressed the merits of Cole-
man’s NLRB action.’’ In addition, we rely, as did the
judge, on Respondent’s ‘‘marked proclivity to violate
the Act.’’5
With respect to the discharge of Tuffs, we note that
this matter was processed as a grievance and was re-
duced to a suspension and then to a warning. The
warning was considered by Election Officer Holland,
and he ordered that it be removed. Holland’s order was
affirmed by Lacey. It is not clear whether the warning
was in fact removed. In these circumstances, and again
without passing on whether there could otherwise be
deferral to such nonarbitral rulings, we agree with the
judge that the Board should not defer.
921ADVANCE TRANSPORTATION CO.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ad-
vance Transportation Company, Chicago, Illinois, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(l).
‘‘(l) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT issue warning letters to employees be-
cause they oppose our profit-sharing plan or because of
their support for any candidates in a union election.
WE WILL NOT order any employee to stop wearing
buttons or other insignia opposing our profit-sharing
plan.
WE WILL NOT threaten to call police if any em-
ployee continues to circulate a petition for a group em-
ployee grievance on our parking lot.
WE WILL NOT maintain or enforce any rule prohib-
iting an employee on nonworking time from distrib-
uting literature or buttons relating to protected activi-
ties in nonwork areas, or from soliciting their fellow
employees during nonworking times to engage in such
protected activities.
WE WILL NOT prohibit employees from such dis-
tribution if performed off our property or if on our
property, such distribution is on the employees’ non-
working time and in nonwork areas.
WE WILL NOT maintain or give effect to employee
rules 6, 7, 11, and 12 as they existed after August 20,
1990, which prohibit our employees from engaging in
protected activities. WE WILL NOT discriminatorily
deny any employees use of the lunchroom because of
their protected concerted and union activities.
WE WILL NOT confiscate or destroy literature or
campaign materials, relating to employees’ protected
concerted and union activities, posted on company bul-
letin boards of general use.
WE WILL NOT warn, suspend, discharge, or other-
wise discriminate against any of you because of your
protected concerted and union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind letters of warning issued to em-
ployees Charles Coleman, Harry Bidwell, and Daniel
Tuffs.
WE WILL rescind the discharge and suspension of
Daniel Tuffs, and WE WILL make him whole for any
loss of earnings and other benefits resulting from his
discharge and suspension, plus interest.
WE WILL offer Charles Coleman immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any interim earnings,
plus interest.
WE WILL notify each of the employees named above
that we have removed from our files any reference to
the warnings, suspension, and discharge, and that the
warnings, suspension, and discharge will not be used
against them in any way.
ADVANCE TRANSPORTATION COMPANY
Jessica T. Willis, Esq., for the General Counsel.
John M. Loomis, Esq., of Chicago, Illinois, and Leonard R.
Kofkin, Esq., of Milwaukee, Wisconsin, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR., Administrative Law Judge. I heard
these cases on January 21–23, 1992, in Chicago, Illinois,
pursuant to a consolidated complaint issued on September
27, 1991, based on charges filed respectively according to
the above caption on September 19, October 29, December
20 and November 21, 1990, and on June 3 and August 2,
1991. The complaint alleges that Respondent unlawfully
maintained and enforced a no-solicitation rule prohibiting
employees from engaging in protected concerted and union
activities, unlawfully interrogated employees concerning such
activities, issued warnings and letters of reprimand to em-
ployees for engaging in protected concerted activities, dis-
charged employee Charles Coleman, and suspended/dis-
charged employee Daniel A. Tuffs Jr. thereby violating Sec-
tion 8(a)(1), (3), and (4) of the Act. (G.C. Exh. 1cc.)
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent’s unopposed motion to correct transcript errors is
granted.
2 299 NLRB 900 (1990); and 300 NLRB 569 (1990).
Based on the entire record1 and my observation of the wit-
nesses and after considering the briefs filed by counsel for
the General Counsel and the Respondent, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
As admitted, I find that Respondent, an interstate trucking
firm based in Bedford Park and Bloomington, Illinois, annu-
ally receives revenues in excess of $50,000 for transporting
freight from its described locations directly to points outside
Illinois, and that as an essential link in the transportation of
such commodities in interstate commerce, is an employer
within the meaning of the Act. Admittedly, the Highway
Drivers, Dockmen, Spotters, Rampmen, Meat, Packing House
and Allied Products Drivers and Helpers, Office Workers and
Miscellaneous Employees, Local Union No. 710, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America AFL–CIO is a labor organiza-
tion as defined in the Act.
II. THE UNFAIR LABOR PRACTICES
Prior Cases
In two prior cases Respondent was found to have violated
Section 8(a)(1), (3), and (4) of the Act by discharging an em-
ployee, Harry Bidwell, because he engaged in the protected
concerted activity of opposing Respondent’s profit-sharing
plan and other union activities and for filing charges or giv-
ing testimony under the Act; and by discharging employees,
including Daniel A. Tuffs, Jr., for also opposing the profit-
sharing plan. Respondent was further found therein to have
unlawfully created the impression that employees’ protected
concerted activities were under surveillance, unlawfully
threatened employees with discharge and loss of job ad-
vancement, and unlawfully issued instructions to an em-
ployee not to associate with other employees because of their
protected concerted activities.2
The July 31, 1990 Drivers’ Meeting
Respondent, already shown to harbor strong animus to-
wards employees who voiced or otherwise expressed opposi-
tion to a profit-sharing plan instituted in April 1988 by dis-
charging Bidwell and Tuffs, continued to manifest such ani-
mus immediately following a meeting held by management
with its first shift city drivers at 8 a.m. on July 31, 1990.
Scheduled as a safety meeting, Respondent’s regional man-
ager Thomas Horvath used the opportunity to speak to the
assembled drivers about the plan, pursuant to which employ-
ees must give back 12 percent of their weekly earnings to
the Company to buy equipment and make investments so as
to hopefully enable Respondent to continue operating and
also furnish employees biannual payments from profits.
Among assembled employees were Bidwell and Charles
Coleman, who both actively opposed the plan by distributing
literature, petitions, and by wearing and distributing to other
employees buttons bearing the inscription ‘‘Ban the 12%.’’
They did so part and parcel with their allegiance to, and
membership in the ‘‘Eagle Slate,’’ union members supporting
a reformist group headed by opposition candidates in a recent
Teamsters national election, Coleman like Bidwell, being
particularly active in this regard, his briefcase also bearing
the opposing candidates’ stickers.
Horvath told employees that their checks in payment of
plan proceeds would be bigger than previous ones setting off
a series of remarks, catcalls in nature, but short of any hoot-
ing and hollering or rowdiness. At some point during the
voiced responses by employees, Horvath recognized Cole-
man’s request to speak, indicated by his hand being raised
for permission to do so. Before Coleman could begin, an-
other employee asked if the amount would be enough to take
his wife out to dinner, and another driver, Lawrence Reilly,
asked if he would be surprised by the amount. Coleman then
said by the way of replying to Reilly that it wouldn’t be as
much as they had taken out of his paycheck. Freeze-framing
matters at this point, it was easily foreseeable by Respondent
representatives that the discussion was heading towards some
heat yet Respondent, free to avoid disputatious discourse by
ending the meeting, or changing the subject, chose freely to
turn the meeting into a forum-like defense of the plan.
Horvath, hot under the collar, said if it wasn’t for the plan,
the drivers would not be working. Coleman and Horvath then
got into it, the former saying he didn’t believe that, and the
plan was just a band-aid on a larger problem such as, among
other things, poor management—Coleman’s latter comment
being offered in response to Horvath’s express question for
Coleman to explain what Coleman meant by the band-aid
reference. Respondent’s terminal manager Tom Harper then
asked Coleman what he meant by poor management, still
further inviting the employee to speak his mind on the sub-
ject, Respondent again passing up another opportunity to end
matters there. Coleman said there were a lot of management
people not doing anything for the dollars employees paid
into the plan, and that this plan was stealing from employees.
Harper told Coleman to shut up, angry over Coleman’s re-
sponse to his question, whereupon employee Bidwell coun-
tered that it was still America, that Coleman had a right to
his opinion and that’s what Coleman was doing, voicing his
opinion. Harper then ordered Coleman and Bidwell to his of-
fice, Horvath pointedly directing Coleman to bring his suit-
case covered by opposition candidate Ron Carey stickers on
both sides along with him. Dispatcher Richard Blake, Harper,
and Director of Labor Relations William Close, along with
Union Steward George Leicht were also present. Close told
Coleman he had no business disrupting the meeting, and
Coleman said he didn’t think employees should be required
to take part in the plan. Other comments were exchanged
mutually critical and growing out of the opposition by Cole-
man and Bidwell to the plan until the meeting ended.
Warning Letters to Bidwell and Coleman
The very next day, August 1, Respondent issued letters of
warning to both employees citing disruptive behavior by
them towards Horvath at the general drivers meeting, and
signed by Harper, neither of which Respondent representa-
tives testified at the hearing contrary to the descriptive testi-
mony of Coleman and Bidwell about events at the meeting.
(G.C. Exhs. 15, 20.) The letters warned the two employees
about further discipline, including discharge, for further simi-
923ADVANCE TRANSPORTATION CO.
lar conduct, but Respondent issued no such warnings to other
employees in attendance at the meeting though some openly,
jokingly, derided the plan.
There is no question that the two employees engaged in
protected concerted and union activities openly and known to
Respondent by voicing their opposition to the profit-sharing
plan, and by supporting an opposition slate of candidates in
the Union’s election. Advance Transportation Co. I and II
cited above; and Office Employees, 307 NLRB 264 (1992).
Respondent’s animus to both such forms of employee activ-
ity is established by the above-cited recent Advance Trans-
portation decisions. The lack of a justifiable reason for
issuing its warning letters to the employees is likewise evi-
dent. Coleman’s right to express himself was warranted by
his protection under the Act to voice disapproval of working
conditions along with the other employees at the meeting in
concert with them, as was Bidwell’s to support Coleman in
said regard and neither lost that protection by their conduct.
It was Respondent’s general manager and terminal manager
who invited Coleman’s opinions and Coleman’s elaboration
of same after Coleman had sought permission to speak in the
generally acceptable manner of raising his hand. Having
raised the subject, encouraged further discussion about it, and
pursued it into heated disputes, it ill behooved Respondent
to claim Coleman and Bidwell ‘‘disrupted’’ the meeting. I
further find Respondent’s reference to ‘‘anarchy’’ and ‘‘dis-
ruption’’ ill chosen to support the issuance of warnings to
Bidwell and Coleman. Paralleling their rights under the Act
they both had the right to question the profit-sharing plan’s
performance under Respondent’s management since the two,
and other employees occupied a shareholder-like status with
a clear stake in the plan’s performance since they helped fi-
nance it. Therefore, direction of comments to how the plan
was performing was appropriate and to be expected. It is ap-
parent that Respondent’s explanation for its discipline of
Coleman and Bidwell does not stand up to scrutiny, sup-
porting the view that its conduct was discriminatory. C-F Air
Freight, 247 NLRB 403 (1980). I find that contrary to Re-
spondent’s contentions it was the disfavored content of Cole-
man’s and Bidwell’s comments that motivated the warning
letters issued to them, and not any unproven disruption.
Fairprene Industrial Products, 292 NLRB 797, 804 (1989).
Counsel for General Counsel having established a prima
facie case, it was then the Respondent’s burden to go for-
ward with evidence showing it would have issued the warn-
ing letters apart from the employees’ described protected ac-
tivities and this it failed to do as it offered no evidence why
the two were singled out for discipline and no others, and
failed to present any convincing evidence why the employ-
ees’ conduct warranted discipline or in any manner had lost
the protection of the Act. Accordingly, I find that by issuing
Coleman and Bidwell the warning letters Respondent vio-
lated Section 8(a)(1) and (3) of the Act. Wright Line, 251
NLRB 1083 (1980), enfd. as modified 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983).
Coleman’s Discharge
Soon after issuing the illegal warning letters, Respondent
terminated employee Charles Coleman by letter dated Sep-
tember 6, 1990, citing as the reasons for this action that
Coleman had falsified company records pertaining to a deliv-
ery and pickup at J. C. Penney on August 28, 1990, and
while there was belligerent and insulting to a supervisor,
Sharon Henzel, causing her to call Respondent and ask that
Coleman not be allowed to return to J. C. Penney in the fu-
ture. The dismissal letter added that Coleman’s prior
‘‘record’’ in light of these incidents also warranted his imme-
diate discharge. (G.C. Exh. 17.)
For the day in question, Coleman’s timecard and delivery
manifest, argues Respondent, proves that he falsified the time
he worked because Coleman thereon claimed pay for a full
day’s work when, according to Respondent’s information
from J. C. Penney, it believed Coleman had finished work
unloading at 1:15 p.m. and since, in addition he could not
have been ‘‘working’’ while on the phone with Respondent’s
dispatcher and dispatch manager concerning a drawn-out
problem over Coleman’s lunchtime, location, and appro-
priateness, from 1:45 to 2:30 p.m. could not have been
‘‘working’’ then either. Respondent claimed Coleman had
stolen this amount of time. Respondent’s brief at 19–20.
Coleman had been delayed in leaving the terminal that
morning through no fault of his own due to truck mechanical
problems. He unloaded the truck at J. C. Penney and made
several calls to Respondent’s dispatcher about taking lunch,
not getting through on several unsuccessful attempts, and
after getting through, becoming involved in time consuming
discussions over where to get lunch. He finally was given
permission to take lunch but, aware that this could cause a
delay in a pickup at J. C. Penney, decided to take a ‘‘no-
lunch’’ and get the matter resolved later. Respondent does
not allege the lunch-no-lunch issue as a basis for Coleman’s
discharge, relying on the alleged falsification of company
records. The record shows, however, that the Respondent did
not contest Coleman’s testimony that he was on the dock at
J. C. Penney premises during the period in question, and, in
fact, Respondent relies on the work-related calls made by
Coleman to Respondent from J. C. Penney to support its
claim that Coleman ‘‘falsified’’ the timecard and driver re-
port—because he couldn’t have been ‘‘working’’ during such
calls. Respondent failed to show that any of its drivers are
docked for work-related calls or the time it takes to resolve
problems arising therefrom during the normal work day, and
there is uncontroverted testimony by driver-employee
Bidwell that such work-related delays and resulting phone
calls to Respondent while a driver is away from his truck is
considered working time and not unpaid breaktime so it
would be entirely appropriate under normal circumstances for
Coleman not to have deducted from his timecard the time
consumed by the work-related phone calls. Moreover, Re-
spondent’s claim that Coleman finished on-hands work un-
loading at 1:15 p.m. is based on a notation on the manifest
of J. C. Penney to such effect. Witness J. C. Penney Dock
Supervisor Robert Smith testified that this merely showed the
time the last merchandise was unloaded and not other time
the driver needed to unload the conveyor, close the doors,
and pull out. (R. Br. at 47.) The amount of time in issue be-
comes even less. For Respondent to therefore exaggeratingly
and erroneously use a seemingly innocent and commonplace
practice wherein employees are not docked for work- and de-
livery-related duty time as grounds for branding Coleman’s
recordkeeping as a theft of time, belies its claim that it
would have fired Coleman for such unsuspicious conduct
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
even without regard for his protected concerted and union ac-
tivities.
While taking a break in his truck cab, Coleman thereby
made J. C. Penney loading employees delay working which
led to an encounter with J. C. Penney Supervisor Sharon
Henzel whose testimony as a witness called by Respondent
is straightforward, thoughtful, unbiased, and wholly credible.
Henzel attempted to determine from Coleman why the driver
was taking a break at a time inappropriate to the J. C.
Penney employees and a minor tiff between the two ensued,
Coleman explaining he was on break and manifesting in
Henzel’s understandable view an undesirable attitude.
Henzel’s account has it that when she approached Cole-
man who was in the cab she said something like is there a
problem or do we have a problem here, and that Coleman
said he was tired and he had worked without a break and
lunch and he was having a break asking then if Henzel had
a problem with that. Henzel replied no but that usually
breaks are not taken in the middle of a shipment causing
other employees to stand around; and by the same token she
told Coleman we try not to take breaks which cause drivers
to wait. Coleman told Henzel his break was almost over
now, and she said she’d have to call Advance asking for
Coleman’s name and Coleman replied to you—Mr. Charles
Coleman. She then identified herself. Henzel recalls Coleman
said he didn’t care what Henzel did there, what Penney does,
that he didn’t ask for her name, and he was taking his break
and you do whatever you have to do.
Henzel called Respondent’s office and reported Coleman’s
behavior both in Coleman’s timing of his break and a
grumpiness or belligerent-like attitude. While a simple writ-
ten apology by Respondent could well have resolved matters
of concern by Respondent over its relationship with a major
company customer, and discipline of Coleman calculated to
prevent any recurrence of such conduct by him, Respondent
instead launched a major investigation into the matter and
chose to terminate Coleman partially over the incident. I find
that the rather extraordinary investigation into an incident
blown way out of proportion—after all, encounters on the
loading dock between supervisors and truckdrivers are not
reasonably to be expected to be governed by polite rules of
gentility, there were in fact prior such encounters at J.C
Penney by driver Bidwell and Coleman used no vulgarity,
profanity, intentionally insulting words, and made no
threats—again reveals an animus-driven decision against
Coleman. It is highly significant that in its discharge letter
to Coleman Respondent made the express representation that
his conduct caused ‘‘the manager [Henzel] to call Advance
and ask that you not be allowed to return to J. C. Penney.’’
(G.C. Exh. 17.) p.2 (Emphasis added.) But when called to
testify by Respondent, Henzel testified, ‘‘I want you to know
that it came up later that somebody had felt that I had asked
for this driver [Coleman] never to come back. I would never
do that everybody has bad days.’’ During her turn at the wit-
ness, counsel for General Counsel confirmed Henzel’s ac-
count: Q. ‘‘It was not your suggestion this driver [Coleman]
not be sent back?’’ A. ‘‘No.’’ Respondent’s false claim ap-
pears to be an animus-driven effort to buttress the alleged
cause for discharging Coleman into something stronger than
the reported facts which belies any assertion of a purely non-
discriminatory motive for its action. Lastly, Respondent
made no effort at trial or on brief to identify the ‘‘prior
record’’ of Coleman which it asserts as a still further basis
for the discharge. The record shows that Coleman’s ‘‘prior
record’’ with Respondent contains the results of grievances
resulting in favor of the employee. Respondent can therefore
rely neither on an undescribed ‘‘prior record’’ or the conduct
therein nor Coleman’s protected activity utilizing the griev-
ance machinery in the agreement between Respondent and
the Union, as a basis for penalizing Coleman by discharge.
There being a prima facie case made out by counsel for
General Counsel that Respondent discriminatorily discharged
Coleman and Respondent having failed to establish that it
would have discharged Coleman aside from his protected and
union activities inasmuch as it asserted reasons, do not with-
stand scrutiny but are pretextual and without justification. I
find that Respondent, by discharging him because of his pro-
tected concerted and union activities, violated Section 8(a)(1)
and (3) of the Act. Wright Line, supra.; Limestone Apparel
Corp., 255 NLRB 722 (1981); Office Employees, supra. (Em-
ployee’s language though vulgar and offensive—far more
than Coleman’s—was held not so extreme as to render the
individual unfit for further service.)
Alleged Interrogation of Charles Coleman on
September 6
Counsel for General Counsel contends in complaint para-
graph 5k that Respondent’s director of labor William Close
just moments before the meeting on September 6 when Re-
spondent discharged Coleman, called Coleman into his office
where he questioned Coleman, asking if the employee had
decided to stop his campaigning and the wearing of the
‘‘buttons,’’ and that this constitutes unlawful interrogation in
violation of Section 8(a)(1) of the Act. It was her burden to
prove by a preponderance in the evidence that this occurred
and was such a violation. To this end Coleman testified to
the above occurring and that in response he told Close no,
Coleman believing it should have been obvious since he had
the buttons on and had his briefcase with him but answering
no anyway. Coleman then asked if there were anymore ques-
tions and when told no left Close’s office and returned
downstairs where he later received word from Union Steward
John Molenda that Close wanted to see them, in Regional
Manager Horvath’s office, this being a summons to a meet-
ing where Respondent informed Coleman he was being dis-
charged. Close flatly denied any private meeting alone with
Coleman anytime that day. Coleman had testified that on ar-
rival at 8 a.m., he was told by dispatcher Ray Litza that
Close wanted to see him in his office that morning and
Litza’s testimony on this point might have been helpful on
the issue, but though he testified, he was not asked about
this. Counsel for General Counsel tried to support the view
that Coleman should be credited over Close because a reli-
able employee and a company witness placed the time of the
meeting in Horvath’s office as 8:15 or 8:20 over others’ ac-
counts that the meeting began at 8 a.m. thereby precluding
the Coleman-Close private meeting at the same time from
having occurred. While persuasive on that point, namely the
time the meeting started—8:15 or 8:20 a.m., this only made
it possible for the alleged earlier Close-Coleman discussion
in Close’s office to have occurred—it did not go very far in
proving by a fair preponderance in the evidence that it had
occurred. In this connection, the record was not fortified with
any objective basis for discounting either Coleman’s or
925ADVANCE TRANSPORTATION CO.
Close’s testimony on a credibility basis. Furthermore, the
record did not provide any plausible basis why moments be-
fore a well planned and investigated-beforehand such meet-
ing, Close would go into a one-on-one with Coleman at all,
especially since it was obvious Coleman was continuing the
allegedly questioned activity in the open with the buttons and
other insignia on his briefcase. Further, Close knew that
Coleman knew about his longstanding opposition to what
Coleman was doing and that it, Close’s continuing opposition
to such activity, had had no effect on dissuading Coleman
from continuing on such course so there was no purpose
whatsoever in trying to dissuade Coleman then, just moments
before Close believed he was going to be rid of the activist
employee by discharging him. For these reasons this allega-
tion in the complaint was left unproven by any fair prepon-
derance in the evidence and will accordingly be dismissed.
Respondent’s Rules Against Solicitation
Respondent notified employees at Bedford Park on August
21, and Bloomington on December 13, 1990, in written post-
ed rules that employees were prohibited from, inter alia: (1)
not departing from the company premises, including the
parking lot, promptly after punching out; (2) discussing com-
pany affairs, activities, personnel, or any phase in operations
with unauthorized persons; (3) posting or circulation of unau-
thorized notices, posters, or handbills on company premises,
or distribution or circulation of written or printed matter in
any area of the terminal or its premises; and (4) harassment,
intimidation, distraction, or disruption of another employee.
(Rules 6, 7, 11, and 12 set forth in Respondent’s notice G.C.
Exh. 2.)
There can be little doubting that Respondent’s rules post-
ing was targeted at the employees’ union election activities
then underway. Respondent showed the importance it placed
on the survival of its profit-sharing plan , an election cam-
paign connected issue when it told assembled employees
they wouldn’t be working but for the plan. It was no secret
that the election contest could well mean the plan’s demise
if the incumbents in union office were unseated by the ef-
forts of those actively campaigning for the new Carey-led
slate, those who, also, wore antiplan buttons and were tar-
geted by Respondent with unlawful warnings in their file and
discharge from employment because of their conduct in op-
position to incumbent union officers and the officers Re-
spondent supported profit-sharing plan. Thus the rules’ publi-
cation arises in the well supported context of employee exer-
cise of protected and union activities described clearly in the
record. Advance Transportation I and II cited above, and Of-
fice Employees, supra. Evaluation of such rules, therefore is
guided by long settled Board precedent which sets limits on
how far an employer can go to prohibit employee freedom
to engage in these activities.
Under this guidance Respondent’s rules are unlawful on
their face, rule 1 because unjustified by business reasons Re-
spondent thereby denies off duty employees entry to parking
lots, gates, and other outside nonworking areas; rule 3 be-
cause it, likewise without business-related reasons overly
broad bans printed or written literature in any area of Re-
spondent’s premises from being posted or distributed; rule 2
because it fails to define the area of permissible employee
conduct thus it is calculated to cause employees to refrain
from engaging in any protected activities; and rule 4, as fur-
ther noted by counsel for General Counsel on brief, because
it is vague and ambiguous and so overly broad as to fail to
define permissible conduct thereby fortifying Respondent
with power to define its terms and inhibit employees in exer-
cising rights under Section 7 of the Act. See, respectively,
Tri-County Medical Center, 222 NLRB 1089 (1976); Elston
Electronics Corp., 292 NLRB 510, 528 (1989); Cincinnati
Suburban Press, 289 NLRB 966 (1988); and National Steel
Corp., 236 NLRB 1033 (1978).
Bidwell’s Warning Letter
Respondent was found earlier to have discharged driver
Bidwell for, inter alia, engaging in ‘‘the protected concerted
and union activities of attempting to induce his fellow em-
ployees to petition and vote against [the profit sharing plan]
. . . and [of] running for union office on a slate which op-
posed the [plan].’’ Advance Transportation Co., supra. Judge
Sherman’s decision finding this issued April 20, 1990. Yet
without flinching, Respondent’s director of labor, on August
29, 1990, told Bidwell Respondent would not allow him to
wear a button seeking to ban the 12 percent referring to the
profit-sharing plan compulsory deduction from employee pay
off the company premises. The button in question, shown in
General Counsel’s Exhibit 3, bears only the inscription
‘‘12%’’ with a line crossing out the numeral 12 percent, and
nothing further. Thus, there is no reference to Respondent’s
name or the union name, and Respondent offered no con-
vincing argument why the wearing of this button posed any
reasonable threat to its business then or expectably in the fu-
ture if worn by its employees off its premises. Its alleged
concern that customers might fear for their cargoes’ safety if
they saw such insignia is too remote, speculative, and
undemonstrated to outweigh employee rights to engage in
such conduct. Bidwell continued to wear the button and re-
ceived a written warning on September 7, 1990. (G.C. Exh.
21.) Bidwell’s open opposition to the profit-sharing plan has
earlier in this decision and Judge Sherman’s, already been
demonstrated to be an integral part of his protected
intraunion activities as well as protected concerted activities
which motivated Respondent’s discriminatorily discharging
him, and on August 1, 1990, issuing a warning letter against
him. (G.C. Exh. 20.) Its described September 7, 1990 warn-
ing letter against him is but a continuation in Respondent’s
unlawful conduct and a further violation, in such context, of
Section 8(a)(1) and (3) of the Act.
Respondent’s Further Enforcement of Solicitation Rules
The record amply supports allegations in the complaint
that Respondent enforced its invalid no-solicitation rules. On
or about August 1990 and shortly thereafter, Close told em-
ployee Coleman that employees were not to wear the button
reflecting opposition to the profit-sharing plan and that he
would no longer be allowed to distribute the buttons or cam-
paign on company premises in the Teamsters International
election. Close told him he would be subject to discipline if
he didn’t comply. Around August 23, 1990, Close also di-
rected employee Daniel Tuffs not to wear the button in front
of customers on pain of discipline or to distribute them to
fellow employees. On November 6, Close angrily refused to
grant permission to Tuffs and fellow employee Albert Brown
to either circulate a list of contract proposals among employ-
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees on a signature petition for opposition candidate Ron
Carey among employees. On November 14, and again on
November 28, Respondent through Terminal Manager Tom
Harper denied Tuffs permission to circulate election literature
during nonworktime in nonwork areas under the threat of
discipline if he did so.
Respondent’s unlawful curb on Tuffs is further highlighted
on April 17, 1991, when Dock Supervisor Bob Michaels
threatened to call the police when he discovered Tuffs in the
company parking lot soliciting employee signatures on a
group grievance, after Tuffs had completed his shift, unless
Tuffs stopped doing so, although other employees were al-
lowed to congregate there before and after work to sell raffle
tickets, work on their cars, or sell their school children’s
candy. On May 3, 1991, Respondent’s terminal manager
Harper removed and trashed fliers about a forthcoming con-
tract notification vote Tuffs had posted in the drivers lunch
room during nonworking time on an all-purpose bulletin
board.
Tuffs’ Warning Letters
Respondent issued Tuffs a warning letter on May 25,
1991, referring to ‘‘many’’ unidentified acts of insubordina-
tion and harassment of supervision by him in the past which
could no longer be condoned by Tuffs’ behavior on May 15,
1991, when, the letter alleged, Tuffs had mimicked the ac-
tions of a monkey or chimpanzee while waving to Supervisor
Sol Frelix from the cab of Tuffs’ truck, General Counsel’s
Exhibit 4, and concluded he had been engaged in harassment
and insubordination. While Frelix testified he interpreted the
gesture as a racially based degrading insult by Tuffs and al-
leged there had been many other confrontations with him, he
offered no such examples, and while there was little basis to
question Frelix’s resentment, the record contained no reason-
ably objective basis for concluding that Tuffs intended to in-
sult or ridicule his supervisor since the testimony—described
gestures by Tuffs do not admit of more than enthusiastic, al-
beit horseplay-like and non-too safe conduct since the truck
was in motion. There is moreover, no evidence that Re-
spondent considered, investigated, or interviewed Tuffs for
his version, which Tuffs had supplied by way of explanation,
so as to get to the truth. Such an omission justifies the view
that Respondent harbored a discriminatory motive when it
took this action. Impact Industries, 285 NLRB 5 (1987); and
Delta Gas, 282 NLRB 1315 (1987). I note further that Su-
pervisor Frelix effectively handled the situation promptly
after the incident admonishing Tuffs before other employee
witnesses, sternly. Based on these circumstances and counsel
for General Counsel’s fully demonstrated prima facie case, it
was Respondent’s burden to show it would have issued the
warning letter even without regard to Tuffs’ described pro-
tected and concerted activities and this it failed to do, so that
under the above-cited authority in Wright Line it is found
that Respondent further violated Section 8(a)(1) and (3) of
the Act.
By letter of June 5, 1991, Respondent accused Tuffs of
mishandling freight, alleging he had incorrectly delivered one
crate to a customer although marked for another and brand-
ing him guilty of carelessness causing inconvenience to the
two customers and expense to Respondent in a delivery on
May 28, 1991. (G.C. Exh. 5.) Tuffs unrebutted testimony
shows his truck was already loaded and ready to go on the
day in question, that he was given bills and dispatched; that
he delivered some 10 combined skids from different vendors
to Usco Distribution Services—the skids were unloaded by
forklift, Tuffs noticing that there were labels on the freight
and counting the pieces without noticing any labels ad-
dressed incorrectly. The count of pieces matched up with the
manifest—Tuffs checking the shipper name and the pieces.
The receiving supervisor at Usco, according to Tuffs, sees to
it that all the pieces are delivered and that the two agree on
this. Tuffs stated he had no shorts or overages on the deliv-
ery in question that week, that he made a proper delivery.
No testimony by Respondent to rebut Tuffs’ account was of-
fered but counsel for General Counsel neither questioned the
factual account in the letter nor the allegation therein that it
was Tuffs duty as driver to ‘‘carefully count and check your
freight against your freight bill at the time of delivery so that
costly errors such as this would not occur.’’ (G.C. Exh. 5.)
It is apparent that in the normal course of its business, if Re-
spondent delivers freight to the wrong address it is due to
oversight on Respondent’s personnel or employees but it is
not so apparent that in all cases it is the driver’s fault or
Tuffs’ alone in this case. Respondent called its city dispatch
manager Richard Blake to the stand to testify on other mat-
ters, but, though Blake signed the warning letter to Tuffs, he
was not asked why Tuffs was necessarily to blame, or
whether he had checked with the Usco supervisor who
checked in Tuffs’ load to see why or whether that official
had missed the errant freight. Nor did Blake testify whether
he had sought Tuffs’ version of the event before deciding it
was all his fault due to negligence—instead Respondent dis-
ciplined Tuffs within a few days. On balance, and given Re-
spondent’s earlier reported discrimination against Tuffs, in-
cluding a further finding below that it unlawfully discharged
him, I conclude a prima facie case is made out given that
Respondent with blinders on as to Tuffs’ version of events,
betrayed a discriminatory motive when it issued the warning
letter. With no proof such as its practice in such cases or
other employee like warnings offered that Respondent would
have done so even apart from Tuffs’ protected concerted and
union activities, I find it established that Respondent’s con-
duct again violated Section 8(a)(1) and (3) of the Act. Impact
Industries, supra; and Delta Gas, supra.
Respondent did not stop there. On July 19, 1991, Tuffs’
dispatcher told him that drivers couldn’t take any more
breaks at the terminal in the driver lunch room used gen-
erally by all other personnel and employees on the trans-
parently pretextual basis that it deprived dockmen the oppor-
tunity to do so. Equipped with six or seven 8-foot tables able
to accommodate 40 to 60 persons, the room was not shown
by Respondent to be suddenly unable to handle Tuffs or
other drivers as usual, rather, the only reason appears to be
based on Tuffs’ using the area to post the above-described
literature. On July 29, Respondent’s action was overruled by
an election official and Tuffs resumed his practice of posting
such material. (G.C. Exh. 7.)
Attempting to go on break on August 2, 1991, in the gen-
eral lunch room after dropping off his empty trailer at the
terminal, Tuffs, carrying campaign materials, told Dispatch
Manager Richard Blake he intended to take a break in the
lunchroom. Blake said no, a customer (Public) was waiting
for him and to go now with a load and take his break on
the way. Blake did not tell Tuffs about the specifics of any
927ADVANCE TRANSPORTATION CO.
need for the instant dispatch and the bills for the trip did not
indicate, as is the practice, any need for an immediate run
or that it was a ‘‘hot’’ load. Tuffs told Blake he wanted to
replace a torn down Carey poster and distribute campaign re-
lated literature and assumed Blake was ignoring the recent
ruling, described above, by which Tuffs was reauthorized to
use the lunch room for breaks and to campaign there. Tuffs
was then told by a nearby union steward to go ahead and
go—telling Tuffs he didn’t know anything about the ruling.
Tuffs then complied, hooking up the trailer for the bills he
got in the dispatch, did his pretrip check, and found nothing
wrong. He then, on the way out, parked in front of the build-
ing reserved for such purpose, entered the drivers room, and
posted a Carey poster whereupon Blake appeared asking
what he was doing and whether he was refusing to work.
Tuffs explained to Blake he was all hooked up and ready to
go, that he was going to take his break and after doing so
deliver the load. The two exchanged the same communica-
tion once again whereupon Blake told him he was fired.
Enroute outside, the two encountered Harper who was told
by Blake what had happened whereupon Tuffs again said he
wasn’t refusing to work but merely wanted to take his break
there and not on the street. Harper told Tuffs he was termi-
nated and to leave the property immediately. Tuffs filed a
grievance over the matter and the discharge was reduced to
a 1-day suspension—Respondent paying Tuffs 1 day ‘‘sick
leave’’ pay for the day. For all that Tuffs knew or could rea-
sonably understand that day, given the ongoing serious prior
unlawful discrimination against him, Blake’s orders that day
were designed to continue Respondent’s interference with his
rights under the Act, and further, to defy the recent election
officer decision by which Respondent’s refusal to allow driv-
ers to use the lunch room, was expressly set aside. Even
more significantly by telling Tuffs he should take his break
‘‘on the way’’ Blake was thereby indicating that any imme-
diate haste to get to the customer was not really the impel-
ling motive behind his order that Tuffs not take his break in
the lunch room, for a break on the way or in the lunch room
would alike consume the same amount of time and delay in
the shipment. This leaves two conclusions: the first being
that Tuffs’ conduct as reasonably known by management
arose not from any stubborn insubordination but from the
honest and justifiable impression that Blake was violating the
recent order, and the second, that Respondent’s true concern
was to deny Tuffs the opportunity to post and distribute cam-
paign literature in the lunch room rather than making an im-
mediate delivery. Under Wright Line authority set forth
above, including a prima facie case by counsel for General
Counsel, and the failure of Respondent to show that it would
have discharged him even aside from unlawful consider-
ations, I conclude Respondent further violated Section 8(a)(1)
and (3) of the Act by discharging Tuffs. Given some indica-
tion is in the record that Tuffs received a ‘‘sick day’’ it is
better to provide a standard Board remedy to secure Tuffs’
rights under the Act, including the need to erase the
discharge/suspension from his record.
Deferral
Respondent filed a motion to defer these matters with the
Board on July 25, 1991, contending that a decision by a pri-
vate arbitrator warranted deferral in the matter regarding
Coleman’s discharge. At this hearing, Respondent added to
the basis it alleged for deferral by the Board earlier, the deci-
sions of a court-provided election official and an election ad-
ministrator concerning Coleman’s discharge as well as the
discharge of Tuffs. (G.C. Exh. 1(ff), T–13–32.) The Board
denied Respondent’s motion on August 16, 1991. (G.C. Exh.
1(bb).) I find it would be particularly inappropriate to defer,
as well, to the election officials’ decisions, arising as they
did, in the context merely whether election activity had led
to the discipline of Coleman and Tuffs and admittedly with-
out finding whether the employee conduct constituted pro-
tected concerted and union activity under the Act. Further,
this is the third decision in a row wherein Respondent has
been shown to demonstrate a marked proclivity to violate the
Act by intensively targeting employee exercise of protected
concerted activities with intimidation, discipline, discharge,
warnings, and here unlawfully broad no-solicitation rules
within and outside its premises. Without flinching after prior
Board decisions against it, Respondent continued on its
course of illegal conduct, and there is therefore a need to as-
sure employees the protection of the statute they have been
shown to need so clearly as the temporary election problem
resolution procedure relied on by Respondent’s argument
does not guarantee employees the protection of their rights
under the Act after that procedure expires postelection. To
grant Respondent’s sought after deferral would deny or water
down employee rights under the Act severely by effectively
denying them Board processes and remedies simply because
a particularly hotly disputed election to determine the em-
ployees’ bargaining representative officers was underway—in
short, just when the Act’s role in ensuring employee rights
and stability in labor relations was most needed. The motion
is denied as deferra would not effectuate the policies of the
Act. Spielberg Mfg. Co., 112 NLRB 1080 (1950); Olin
Corp., 268 NLRB 573 (1984).
The activities of Respondent set forth above, occurring in
connection with Respondent’s operations described above,
have a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Specifically, I
shall recommend that Respondent offer Coleman and Tuffs
immediate and full reinstatement to their former positions or,
if those positions no longer exists, to substantially equivalent
positions without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them whole for
any loss that they may have suffered as a result of Respond-
ent’s discrimination against them. Backpay shall be com-
puted in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and interest shall be added thereto, to be
computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Advance Transportation Company, Chi-
cago, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Issuing warning letters to employees because they have
engaged in protected concerted and union activities.
(b) Maintaining, giving effect to, enforcing, or applying
any rule prohibiting its employees, when they are on non-
working time, from distributing handbills, leaflets, or similar
literature relating to concerted activities protected by the Na-
tional Labor Relations Act, in nonwork areas of Respond-
ent’s property.
(c) Prohibiting its employees, during nonworking time,
from soliciting their fellow employees to engage in activities
protected by the National Labor Relations Act.
(d) Maintaining, enforcing, or giving effect to rules 6, 7,
11, and 12, as they existed on and after August 20, 1990,
or any other rules or policies thereafter promulgated, main-
tained, or enforced, which prohibit its employees from en-
gaging in the conduct hereinabove described in paragraphs
(a) and (b).
(e) Disparately enforcing any rule, practice, or policy
which prohibits its employees from soliciting or distributing
leaflets or other literature where an effect thereof is inter-
ference with conduct described hereinabove in paragraphs (a)
and (b).
(f) Prohibiting its employees from distributing leaflets or
other literature relating to their wages, hours, working condi-
tions, or other terms and conditions of employment if per-
formed off Respondent’s property or, if on Respondent’s
property, if such distribution is on the employees’
nonworktime and nonwork areas.
(g) Ordering employees to cease wearing buttons or other
insignia in opposition to Respondent’s profit-sharing plan.
(h) Threatening employees that Respondent will call the
police unless employees cease destruction of a petition con-
taining an employees group grievance on the company park-
ing lot.
(i) Denying permission to employees to distribute buttons
on election campaign materials at any time anywhere on the
company premises.
(j) Confiscating and destroying employee contract ratifica-
tion materials posted on the all pay company bulletin board.
(k) Discharging, suspending, issuing a warning letter to, or
prohibiting any employee from using the employee lunch
room, or otherwise discriminating against any employee be-
cause of the employee’s protected concerted and union ac-
tivities.
(l) In any manner interfering with, restraining, or coercing
employees in the exercise of their rights under the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind employee rules 6, 7, 11, and 12 found to be
unlawful on their face and published on August 21 and De-
cember 13, 1990, and inform employees such rules will not
be enforced.
(b) Remove from its files the warning letter issued to
Coleman, Bidwell, and Tuffs and notify them in writing that
this has been done and that nothing contained in the letter
shall be used against them.
(c) Rescind the suspension of Tuffs and remove from its
files any reference thereto and notify him when this has been
done and that evidence of such action will not be used
against him in the future.
(d) Offer Charles Coleman and Daniel A. Tuffs, Jr., imme-
diate and full reinstatement to their former jobs or, if those
jobs no longer exists, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as result of the
discrimination against them in the manner set forth in the
remedy section of the decision.
(e) Remove from its files any reference to the unlawful
discharges of Coleman and Tuffs, and notify them in writing
that this has been done and that the discharge will not be
used against them in any way.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its facilities in Bedford Park, and Bloomington,
Illinois, copies of the attached notice marked ‘‘Appendix.’’4
copies of the notice, on forms provided by the Regional Di-
rector for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act not specifi-
cally found.