Air Express International Usa, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 932 (N.L.R.B. 1986)

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Air Express International USA, Inc. and Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
961. Cases 27-CA-9289 and 27-CA-9374
30 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 31 March 1986 Administrative Law Judge
James M. Kennedy issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a cross-excep-
tion and an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions as modified2 and to adopt the recom-
mended Order as modified.
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 4, and
reletter the subsequent paragraphs.
"4. The Respondent violated Section 8(a)(1) 20
May 1985 when Lynn Derbin unlawfully threat-
ened to discharge employees Jan Paschal and Mary
Eckhout because of their union activities."
1 The Respondent has excepted to some of the judge 's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cit. 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge found that shortly after Manager Derbin received a letter
from the Union demanding recognition , she called Operations Supervisor
Swift into her office and told him , among other things , that she did not
understand why the employees had gone to the Union and that the insti-
gators would be discovered and terminated According to Swift's cred-
ited testimony , Derbin then called employees Paschal and Eckhout into
her office, asked if they and signed union cards and why they had "gone
union," and then "threatened them with their positions" and said "if she
could not terminate their employment , she would make life very difficult
for them at [Air Express International] "
The judge found that Derbin unlawfully interrogated Paschal and Eck-
hout , but that Derbin did not unlawfully threaten to discharge them In
this respect, the judge stated that Swift "testified only that Derbin
'threatened their jobs,' testimony that must be regarded as conclusion-
ary " He thus concluded that "Swift 's testimony is not sufficiently com-
plete to support the allegation" and, therefore, the allegation was unpro-
ven.
Contrary to the judge, we find that Derbin unlawfully threatened to
discharge employees Paschal and Eckhout because of their union activi-
ties In dismissing this complaint allegation, the judge failed to consider
fully Swift's testimony that Derbin said if she could not terminate their
employment , she would make life very difficult for them We agree with
the General Counsel that Swift described this threat with sufficient speci-
ficity to support finding a violation of Sec 8 (a)(l) of the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Air Express International USA, Inc.,
Denver, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Interrogating employees about their union
activities , sentiments , and desires; threatening to
discharge employees because of their union activi-
ties; threatening to close the Denver facility be-
cause of the employees' union activities; threaten-
ing to refuse to bargain in order to force a strike so
that the employees could be replaced; soliciting
employee grievances and promising to remedy
them in order to deter the employees' desire for
union representation; telling employees that oppor-
tunities for promotions and pay raises will be lost if
they persist in seeking union representation ; issuing
false warning slips to an employee because of his
union activities; and discharging employees who
engage in activity protected by Section 7 of the
Act, including union organizing."
2. Substitute the attached notice for that of the
administrative 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 ordered us to post and abide by this notice.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT threaten to discharge you because
of your union support or activities.
WE WILL NOT threaten to close our office be-
cause you choose to engage in union activity.
WE WILL NOT threaten to refuse to bargain with
a union that represents you in order to force you
on strike and replace you.
WE WILL NOT Solicit grievances from you and
promise to remedy them in order to deter you from
seeking union representation.
WE WILL NOT tell you that opportunities for
promotion and pay raises will be lost if you persist
in seeking union representation.
WE WILL NOT issue false warning slips to you
because you engage in union or protected activity.
281 NLRB No. 127
AIR EXPRESS INTERNATIONAL 933
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting Teamsters
Local 961 or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Terry Nielsen immediate and full
reinstatement to his former job , dismissing if neces-
sary any employee hired to replace him, or, if his
job no longer exists, to a substantially equivalent
job, without prejudice to his seniority or other
rights and privileges , and WE WILL make him
whole for any loss of earnings and other benefits
resulting from his discharge, less any net interim
earnings , plus interest.
WE WILL remove from our personnel files and
all other records any reference to Nielsen's dis-
charge and to the false warning slips we issued to
him and WE WILL notify him in writing that we
have done so and that these matters will not be
used against him in any way.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally , and to file briefs. The
General Counsel and Respondent have filed briefs and
they have been carefully considered . Based on the entire
record, as well as my observation of the witnesses and
their demeanor , I make the following
FINDINGS OF FACT
1. INTERSTATE COMMERCE
Respondent admits that it is a corporation having an
office and place of business in Denver , Colorado (al-
though its corporate headquarters appear to be in Con-
necticut) where it is engaged in the business of domestic
and international air freight forwarding . It further admits
that it annually performs services within Colorado
valued in excess of $50,000 for firms that are located out-
side Colorado. It also admits that its gross revenues
within Colorado exceed $50,000 in the transportation of
freight and commodities in interstate commerce pursuant
to arrangements with and as agent for various common
carriers that operate between and among various states.
Accordingly, it admits it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
AIR EXPRESS INTERNATIONAL USA,
INC.
Michael J. Belo , for the General Counsel.
Richard A. Levin of Summit, Rovins & Feldesman, of
New York, New York, for the Respondent.
John A. Criswell, of Branney, Hillyard, & Criswell,
Denver, Colorado, for the Charging Party.
DECISION
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me in Denver , Colorado,' on De-
cember 4 and 5, 1985 . 2 It is based on charges filed by
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local 961 (the
Union) filed on June 17 and August 28. The consolidated
complaint alleges that Air Express International USA,
Inc. (Respondent) has engaged in certain violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (the Act).
Issue
The principal issue is whether Respondent discharged
its employee Terry Nielsen because he had engaged in
organizing activity on behalf of the Union . Subordinate
to that question is whether Respondent committed vari-
ous acts of restraint and coercion designed to deter em-
ployees from seeking union representation . As will be
seen this case principally turns on the relative credibility
of the witnesses.
i Respondent's unopposed motion to correct the record is granted with
the caveat that additional clerical errors remain . None is substantively
significant.
2 All dates are 1985 unless otherwise noted
II. LABOR ORGANIZATION
Respondent admits that the Union is now and has been
at all material times a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Participants
Respondent operates a freight-forwarding station in
Denver where it consolidates and ships freight both do-
mestically and internationally . In addition , it receives do-
mestic and international freight from its other offices,
which are destined for customers located in the Denver
area. The Denver office is managed by Lynn Derbin.
She is the Denver area district manager having responsi-
bility for Colorado and nearby states . She oversees a
staff of roughly seven people, including salespersons and
freight agents . It is the freight agents with whom we are
concerned here.
At the time in question , May through August 1985,
Respondent employed five freight agents including the
alleged discriminatee , Terry Nielsen. The others were
Jan Paschal , Paula Howard , Mary Eckhout, and part-
timer Alma Hunter (Valadez). All five were supervised
until June by Operations Supervisor Hank Swift. In addi-
tion , Manager Derbin had an administrative assistant,
Linda Armstrong. Armstrong had preceded Swift as op-
erations supervisor but had been transferred in early 1985
to open an office in Colorado Springs . When the Colora-
do Springs operation was closed shortly thereafter, she
returned to Denver as Derbin's administrative assistant.
Nielsen had been hired in May 1984 as a night oper-
ations agent . Unlike the others, he worked from approxi-
mately 4 p .m. to approximately midnight , depending on
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workload. He performed this job alone until the hiring of
part-timer Valadez in early 1985.
The job performed by each operations agent was prin-
cipally clerical. They created the documents for freight
being shipped from Denver. This included determining
the rates and the routes that the freight was to travel.
They were also to enter billings into the computer
system as well as to alert the receiving station that
freight was enroute and should be picked up. These
alerts were also sent by computer. The actual cartage of
freight from Respondent's facility to the airlines at Sta-
pleton Airport in Denver was handled by an independent
cartage company. That company also provided the ware-
housemen stationed at Respondent's warehouse.
B. The Organizing
According to night operations agent Terry Nielsen,
one day during mid-May while he was at home he re-
ceived a telephone call from another agent who asked if
he would be interested in seeking union representation.
The record does not reflect who made the actual re-
quest, but it appears to have been prompted by an inci-
dent involving operations Supervisor Hank Swift and
agent Paula Howard. Howard says that Swift had scold-
ed her publicly in the presence of other operations
agents for being rude to a customer. She thought the
manner in which he had handled it to be unfair. As a
result she and others decided that union representation
should be considered.
Although Nielsen agreed to investigate which union to
approach, he did not know exactly where to turn. He
knew, however, that Swift had previously worked for
Airborne Air Freight, a competitor, and that Airborne's
employees were represented by a union. Accordingly, he
asked Swift which union he should approach and wheth-
er Swift knew who to contact. Swift did know which
union as well as the name of a contact person, for some
15 years before he had assisted the Union to organize
Airborne. He gave Nielsen appropriate directions and
Nielsen made an appointment with Local 96l's represent-
atives for Saturday, May 18.
On that day all the operations agents, except one, at-
tended a meeting at the union hall conducted by Business
Agent Joe Martin and another. All of the employees
who were present signed authorization cards. Shortly
thereafter Nielsen took an authorization card to the miss-
ing employee who also signed.
On Monday, May 20, Martin hand delivered a letter
demanding that Respondent recognize the Union. He tes-
tified that he attempted to give it to Derbin, but she was
absent at that moment so he gave it to a "subordinate."
It is unclear from the record who that subordinate was,
but it seems likely to have been Administrative Assistant
Armstrong.
Derbin agrees that she got the letter that afternoon
and was totally stunned by it. She had not been district
manager for very long and had no training in what to
do. She says the first thing she did was to call Swift to
her office and ask him what he knew about the letter. He
replied he knew nothing about it. His answer was essen-
tially true, although of course he did know that Nielsen
had intended to approach the Union. He also had had
some discussion with Nielsen and perhaps one or two
other employees about the probable effects of union rep-
resentation. Even so, he did not actually know the letter
was coming.
Derbin told Swift she did not understand why the em-
ployees had gone to the Union. She told him she wanted
to talk to "the girls," i.e., the day shift. Swift agrees
Derbin said she did not understand why the employees
had gone to the Union, but said she also told him that
the "instigators" would be found out and terminated. He
responded he did not think she could legally do so, but
she said she could terminate them "one way or another."
Derbin denies telling Swift that she would terminate any-
body. She does say, however, that Swift warned her to
be careful about what she said to the employees when
she called them to her office.
The two employees who were present that day were
Jan Paschal and Mary Eckhout. Derbin admits that she
called both to her office and asked if they had signed
union cards. They replied they had. She denies that she
told them she didn't understand why they had gone to
the Union and asked them what their problems were.
She says Paschal replied they wanted better wages while
Eckhout said that there was a "lack of trust." Swift adds
to that Derbin "threatened their positions" saying if she
could not terminate them she would make their life very
difficult. Derbin denies the latter two statements.
Later that afternoon, after Nielsen had arrived for
work, Derbin came to his desk and asked him if he had
signed a union card . Neilsen said he had . She also asked
if he was the one who had started the union. He replied
he had not. Nielsen says she then asked, "Why have you
done this? Why didn't you come to me first?" According
to Nielsen she began to ask more questions but he told
her that if she had further questions she should talk to
his business agent. According to him, she hotly replied
that the company "had agents too." Then she told him
that she expected him to stay until midnight.3
Derbin agrees that she asked Nielsen if he had signed a
union card and he replied that he had. She told him she
did not understand why. At that point, she says, he told
her to speak to his business agent . She denies saying that
the Company "had agents, too." She does not deny Niel-
sen's testimony that she told him to stay until midnight.
On the following day, according to Swift, he had an-
other conversation with Derbin in the sales office. In
that discussion Derbin told him that Company President
Joe Berg had been in the Denver office (about 2 years
previously to interview her for the Denver district man-
ager's job) and that she had overheard a telephone con-
versation between Berg and the Dallas office. Derbin
told Swift that the Dallas office "had gone union" but
upon receiving the union's demand letter she had heard
Berg order Dallas to close its doors and to lock the em-
ployees out. Because of that incident, she said to Swift,
' It should be observed here that Nielsen 's expected shift was from 4
p in until midnight . It is undisputed, however , that he usually came to at
3 30 and he was expected to stay only until 10 o'clock if no further work
remained If further work remained , he was to stay either until it was
done or until midnight if not It is further undisputed that on occasions
he did stay past midnight
AIR EXPRESS INTERNATIONAL 935
he was "to make it explicit to the Denver employees that
it could happen here ." Swift said he followed Derbin's
instruction by repeating to all of the day-shift employees
what Derbin had told him about the Dallas office. Later
that afternoon he repeated it to Nielsen.
Derbin partially admits the conversation but has a
slightly different slant . She admits having a conversation
with Swift about the closing of the Dallas office saying it
occurred in the presence of Linda Armstrong . She says
she told Swift that the Dallas office had closed as a
result of a union situation but says she specifically told
him not to relay that story to the other operations
people . On cross-examination she said she could not re-
member whether it was she or Swift who brought up the
Dallas matter . Derbin also said that although she told
Swift to keep quiet about Dallas she did not give a simi-
lar admonition to Armstrong . Armstrong testified that
she did not remember any conversation between Derbin
and Swift about the Dallas office.
Shortly thereafter Paschal told Swift that it was "a
fine mess" he had gotten the employees into . Paschal ap-
parently blamed Swift for having started the Union and
thereby having gotten all of the employees in Dutch
with Derbin . She, and it would appear others such as
Eckhout and Howard , began to have second thoughts
about the wisdom of having sought union representation.
Willoughby's Involvement
On May 29, Respondent's regional manager, Dan Wil-
loughby , who was stationed in Phoenix , arrived in
Denver with the specific purpose of soliciting complaints
from employees about their working conditions so that
the Company could attempt to resolve them . Willoughby
readily admitted that he would not have come to Denver
had the Union not demanded recognition.
It should - be observed , here, that Derbin had been in
touch with Willoughby from the beginning . In fact, de-
spite her denial, it appears that she spoke to Willoughby
on May 20 before questioning Paschal and Eckhout. Her
first request for information went to Swift both because
he worked directly with those employees and because
she was aware of his past employment as a union -repre-
sented employee at Airborne. During that conversation
he cautioned her to be careful about how she ap-
proached the employees . Even so, she was totally igno-
rant about how employees went about getting unions to
represent them. She was unaware that unions commonly
obtain the signatures of employees on authorization
cards. Yet she asked Paschal , Eckhout, and Nielsen if
they had signed union cards . The only way she could
have learned about the procedure was through Wil-
loughby.
Willoughby admits Derbin had called him and that he
in turn had told her to wait until he contacted company
headquarters in Darien, Connecticut . He says when he
got back to her he told her to get in touch with the
Company's personnel department and its lawyers. Obvi-
ously, at some point during this scenario Derbin learned
enough to ask the employees if they had signed cards. It
would appear that , contrary to Derbin's contention that
she was acting impetuously and out of ignorance, it was
likely she was acting on instructions when she asked em-
ployees if they had signed cards . Indeed , it would not be
unusual for higher company officials to want to know
the extent of the Union 's organizing before they began to
counter it.
The next step that they took was to send Willoughby
to Denver . He admits that his purpose there was to "find
out what the problems were " and try to devise a way to
resolve them . To this end on May 29 and 30 he had pri-
vate conversations with each of the operations agents.
Nielsen testified that Willoughby met with him in the
sales office about 6 p .m. on May 29 . He remembers that
Willoughby told him "he wasn't there to fire anybody"
but "to find out what the problems were and to try to
solve them ." Nielsen says Willoughby told him that the
Company was against unions and that there would not
be a union in Denver . He recalls Willoughby had a copy
of a newspaper or a trade journal article that described a
company official in New York having been indicted for
criminal conspiracy along with a labor union official.
Willoughby denies having had such an article.
As the conversation went on , according to Nielsen,
Willoughby told Nielsen that he deserved a raise and a
promotion to a supervisory level and that such a promo-
tion would carry a 5 - or 10-percent raise . However, ac-
cording to Nielsen, Willoughby also told him that if the
employees went through with the Union there would be
nothing Willoughby could do about the promotion. Niel-
sen remembers Willoughby then said that if the employ-
ees voted the Union in, the Company would either close
the Denver office or refuse to bargain , thereby forcing a
strike in order to replace them . He says Willoughby told
him that if the employees struck , the Company would
only have to offer their jobs back once.
The other employees tended to downplay Wil-
loughby's statements during their meetings . It would
appear that Willoughby spent a great deal of time solicit-
ing from the employees their complaints and grievances
about the operation . However, Howard says Willoughby
spoke "a little" about the union claiming she was the one
who brought the subject up. She told him she had gone
to the Union because of company problems. Willoughby
replied that he wanted to solve those problems . She says
Willoughby made no promises or threats nor did he dis-
cuss any picketing during this meeting. Despite her asser-
tion that Willoughby was making no promises , Howard
testified she was well aware that Willoughby's purpose
was to determine what had provoked the employees into
going to the Union . Howard reports during the private
meeting Willoughby told her he did not know if Re-
spondent could afford a union in Denver . She says she
cannot recall whether anybody spoke about wages or
pay increases. Eckhout also said that she did not recall
anything about wages being discussed on May 30. None-
theless, Howard had a private meeting about a week
later with Willoughby during which he presented her
with a wage survey showing the union rates and non-
union rates for similar companies in Denver and com-
pared that with what employees were now making. It
appears to me that wages were likely to have been dis-
cussed during the May 29-30 meetings because otherwise
Willoughby would not have made the subsequent effort
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to have obtained the wage survey and then to have
shown it to Howard. He undoubtedly knew from Der-
bin's questioning of Paschal that wages were one of the
reasons the employees had given for going to the Union.
Eckhout testified that Willoughby told her the em-
ployees had "raised a flag" that they were having prob-
lems. She says he almost immediately stated he was not
there to discuss the Union but instead to discuss the in-
ternal problems and how to solve them. She says he
downplayed the Union saying that the union question
would be solved separately by a vote of employees.
On May 30 Willoughby also held a group meeting.
Eckhout claims that it occurred "voluntarily" as Wil-
loughby and Derbin had gone to the employees and had
asked if they would like a group meeting to voice their
complaints. Obviously, however, the meeting was trig-
gered by management and Willoughby was seeking an
opportunity to speak to them as a group. During the
course of this meeting, according to Nielsen, Willoughby
told them that what had been said in the individual meet-
ing was confidential, but he still wanted to get employ-
ees to bring their problems out into the open. Howard
testified that during this meeting Willoughby said there
was "a lot of tension" and that employees should sit
down and talk together to see if they could work the
problems out.
C. Nielsen's Discharge
According to Swift, it will be recalled, one of the first
things that Derbin said after receiving the Union's May
20 demand for recognition was that she would find out
who the instigators were and figure out a way to fire
them. Immediately thereafter she interrogated three em-
ployees including Nielsen. When she asked Nielsen for
further information he, defensively, referred her to the
business agent. Stunned, she reportedly responded that
the company "had its own agents" and that he was to
work until midnight, although usually that was a matter
to be determined by the amount of work to be per-
formed.
Subsequently, Derbin came to believe that Operations
Supervisor Swift was responsible for the union organiz-
ing and on June 12 he was discharged . It may be true
that Swift had neglected some duties, which led to his
discharge, although that is not altogether clear. Nonethe-
less, Swift was discharged by Willoughby who told him
he "knew" the reasons he was being fired. Acting on in-
structions from higher management , Derbin issued Swift
a discharge letter stating he was being discharged "for
cause ." At no time did Derbin or Willoughby tell Swift
why he was being fired. Willoughby says they were
silent because higher management had ordered them to
say nothing.
On June 17, the Union filed the original charge in this
matter. It was actually received on June 19. It alleged
that Respondent had promised increased benefits if the
employees rejected the Union and that Respondent had
threatened to shut down the facility if the employees se-
lected the Union. The charge was obviously aimed at the
Willoughby meetings and Swift's reiteration of the
Dallas closing story.
Also on June 17 , Derbin issued two warning notices to
Nielsen . The first dealt with an alleged unexcused ab-
sence on June 14 even though Nielsen had called in sick;
the second dealt with Nielsen 's allegedly having re-
moved some confidential rate documents from the office
after having been told not to do so. The Union had filed
a petition seeking a representation election among Re-
spondent's employees. A hearing on that petition had
been scheduled for June 24. On that day, Nielsen was the
only employee who attended. He sat with the union offi-
cials . Derbin was also present and noticed Nielsen with
them. A hearing was not actually conducted, however,
as the parties reached an agreement to conduct the elec-
tion.
A few days later, Nielsen gave the Board an affidavit
regarding what Derbin, Swift, and Willoughby had said
during the days immediately after the Union served its
demand for recognition. He also reported the two warn-
ing letters that he had received . He was the only em-
ployee who gave an affidavit to the Board.
On July 1, 6 days after the representation case hearing
Derbin issued two more warning letters to Nielsen. The
first accused Nielsen of failing to update the exception
tariff and the routing guide ; the second was character-
ized as a final warning and admonished him for failing to
follow a memo directing him to stop using the "Inter-
pak" service for international shipments unless specifical-
ly requested by the shipper.
On July 3, Nielsen called in ill and was then absent
from July 5 through 18 for vacation (July 4 was a holi-
day). During that period Respondent received some
complaints that certain special invoices that were to be
used for a large customer (Caterpillar Tractor Co.) were
not being processed correctly. Responsibility for these
invoices was shared by Nielsen, Valadez, and Arm-
strong. No one in the Denver office appeared to be han-
dling them properly. This was a source of irritation to
Derbin , though she blames Nielsen more than the other
two.
Subsequently, Nielsen worked during the week of July
22-26 and on Monday and Tuesday, July 29 and 30. On
one of those evenings , apparently July 30 , Nielsen says
he experienced some difficulties with the computer
system, saying the terminals would neither take entries
nor send alerts. He says he had to telephone the alerts to
various stations and he was unable to get much of his
work done that evening . He testified that he called the
computer control office in Connecticut and was told that
the system would be operational in 20 minutes . Howev-
er, when he left at midnight the computers were still in-
operable.
The following morning, according to Howard, she and
Paschal came to work and discovered the computers
were still not working. After checking with Connecticut
and continuing to be unable to make them work, they
discovered that the power plugs on each system had
been removed from their outlets. They reported their
findings to Derbin. It should be noted here that only
Howard testified about this incident . Paschal was not
called as a witness.
AIR EXPRESS INTERNATIONAL 937
As a result of that incident Derbin determined to dis-
charge Nielsen . He did call in ill on July 31 but was pre-
pared to work on August 1. She told him not to bother.
On August 2 he was given his final paycheck . As in the
case of Swift , Derbin's letter discharging Nielsen stated
simply that he was terminated from employment "for
cause." No other explanation was given him at the time.4
IV. ANALYSIS AND CONCLUSIONS
A. Credibility
As initially noted in the beginning of this decision, the
outcome of this case depends on the relative credibility
of the witnesses . If the General Counsel's witnesses are
to be believed, he has clearly made out a prima facie
case . Respondent has gone to great effort to attack the
credibility of the General Counsel' s witnesses, specifical-
ly Nielsen and Swift. The General Counsel on the other
hand has challenged the credibility of Derbin and Wil-
loughby and, to a lesser extent, the employee witnesses.
In my view, the significant question is what Respond-
ent's motive was in reaching its decision to discharge
Nielsen . That evidence is principally in the hands of Re-
spondent , most specifically Derbin. Thus, what Nielsen
and/or Swift have to say is mostly secondary . It is true
that Swift says Derbin told him and two employees that
she would discharge the union instigators . However,
even without that expressed motive there is significant
evidence to be found within Respondent 's own case
tending to show the same motive.
Before reaching that evidence , however, I should note
that Respondent accuses Swift of having been a secret
union organizer and acting contrary to his responsibilities
as one of Respondent 's supervisors . Frankly, I am unim-
pressed with the argument . It is true that many years
before , Swift was involved in organizing Airborne. He
later worked for that company on two other occasions.
In the meantime , however, he had worked for other em-
ployers. During his last tenure with Airborne, he had
failed to comply with the union-security provision of the
collective-bargaining contract and found himself out of a
job. As a result of that experience, it seems unlikely that
he continued to maintain the prounion fervor he had had
years before . In fact, losing his job in that circumstance
might easily have led him to reverse his prounion feel-
ings.
In addition , there is no showing that the Union paid
him or induced him in any way to assist in organizing
Respondent . The organizing effort in fact was triggered
by Swift's alleged mistreatment, while a supervisor, of
employee Paula Howard . She was most upset about his
criticism of her and after she consulted others, including
Paschal , the employees themselves decided to inquire
into union representation . They deputized Nielsen, who
was free during the day, to make the necessary inquiries.
Ironically , Nielsen used Swift as a resource . Yet, all
4 Nielsen did ask Derbin if she was discharging him because she
"hated him ." She replied that was not the only reason During the course
of the NLRB investigation , the NLRB attorney had apparently learned
from Derbin that she did not like Nielsen very well . He reported that to
Nielsen , thus prompting his question . Neither the question nor the answer
has probative value.
Swift did to assist Nielsen was to direct him to the
Teamsters Local that represented air freight employees
and to tell Nielsen some considerations to look for before
deciding whether union representation was appropriate.5
Thus, I conclude that Respondent's attack on Swift as a
union organizer fails.
Swift, however, may be vulnerable to a charge of bias
on the grounds that he was discharged in June without
having been given an accurate reason . Swift may well
resent his job loss and may desire to vindicate himself
against Respondent by his testimony . As I observed him
on the stand , however, I could not detect such a bias
though I was alert for it . He testified in a dispassionate,
controlled manner and appeared quite truthful to me.
On the other hand I did not find Derbin and Wil-
loughly to be as convincing . On several points Derbin
was quite inconsistent . She tried hard to make it appear
that she had had no corporate input before questioning
Paschal, Eckhout, and Nielsen on May 20. Yet it is clear
to me that she had spoken at least to Willoughby and
that either Willoughby or someone in personnel had di-
rected her to ask about authorization cards.
Second , with regard to what supposedly had happened
in Dallas a few years before, she says she specifically
told Swift not to repeat the story. This directive oc-
curred in the presence of a statutory employee, Arm-
strong , who was not given a similar directive. Arm-
strong, of course, although a statutory employee, was
Derbin's administrative assistant and had previously held
supervisory jobs with Respondent . Perhaps Derbin
thought she could be trusted while Swift could not.
Nonetheless, merely telling a story as inflammatory as
that suggests that Derbin well knew that it would be re-
peated , either by Armstrong, the statutory employee
who might be counted upon to conceal the source, or
Swift . I note here that Derbin was present during Swift's
testimony and had ample opportunity to adjust her testi-
mony to deal with it. Moreover , her claim not to remem-
ber whether it was she or Swift who brought up Dallas
is disingenuous . Only she could have done so, for Swift
was ignorant of it. Even Armstrong would not corrobo-
rate her . Frankly, I am of the view that Swift's version is
absolutely accurate.
In addition , Derbin has a tendency to exaggerate. For
example, when Nielsen was absent on June 14, which
particularly annoyed her, she described him as having an
"absenteeism" problem . It may be that she was correct
that Nielsen was malingering that day (although proof
on point is virtually nonexistent), she instead accused
him of excessive absenteeism . Yet, up to that time he had
been absent only three times since February, once for ill-
ness and twice for approved "personal days ." Thus, she
began at this point to tar Nielsen with a brush blacker
than he deserved.
Furthermore, her affidavit was inconsistent with her
testimony . In describing her questioning of Eckhout and
Paschal on May 20, her affidavit states they did not
answer her at all . Orally, she testified they answered that
5 The written "list" of questions that Nielsen had with him at the
union meeting was not provided by Swift, except perhaps orally.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one was concerned about wages and the other one about
lack of trust . She had no explanation why she omitted
their answers in her affidavit . Similarly, in her affidavit
she omitted describing having overheard Company Presi-
dent Berg issue instructions to the Dallas office.
I should point out that Eckhout appears to have been
overly influenced by Derbin here . I find it significant
that Eckhout, like Derbin 's affidavit , claimed that she did
not answer when Derbin asked the two employees if
they had signed the cards . Was Eckhout aware of the
version in Derbin 's affidavit? Was she trying to corrobo-
rate that version?
Eckhout also testified that Swift had "given" Nielsen a
list of questions to ask the union . Then she admitted she
had not seen that occur at all; she had only seen the two
talking . She further contended that the group meeting of
May 30 called by Willoughby and Derbin was an em-
ployee idea rather than one that originated with manage-
ment . In both instances she overreached a factual de-
scription.
Returning to Derbin , Derbin also claimed there were
various telegraphic directives that came to the office
dealing with Interpak that she could not find. Eckhout
remembered one, too, saying she even had to initial it,
but could not find it either . Eckhout's loyalty to Derbin
is most remarkable.
Similarly, Howard appears to have now sworn fealty
to Derbin asserting that it was Derbin who told her the
truth during all of these incidents , not Swift. Howard,
like Eckhout, claims that there were memos regarding
the use or nonuse of Interpak but she could not find
them either . With respect to an incident leading to a
warning issued to Nielsen , Howard said she was held
over that night to look for Nielsen 's "red book" (a
volume of exception tariffs that Nielsen had been told
not to remove from the office). Yet she testified she
"couldn't remember" if the red book had been found or
not. It is undisputed that the book was not found that
night . Surely if she had been asked to stay late she
would have remembered whether it had been found.
And, Howard also testified that before the employees
went to the union hall Swift gave the employees ques-
tions to ask the union officials . Yet, she really did not
know for, as she later conceded , she was not present
when it occurred ; she relied solely on her interpretation
of something Nielsen had told her. She, too, seems here
to be pushing a company legal position rather than de-
scribing factual matters.
Frankly, I am of the view that Howard and Eckhout
have been so influenced by the unfair labor practices and
are so frightened for their jobs that they are corroborat-
ing Derbin as a result of their fear , not as a result of
their truthful and accurate recollections.
Willoughby , who candidly admits that his purpose in
coming to Denver was to respond to the Union's
demand by trying to resolve employee problems, can
nonetheless be seen as participating in a company deceit.
He had been advised by the personnel department to
refuse to tell Swift why he was being fired and to gloss
over the actual reasons by telling Swift that he was
being fired "for cause ." He also claimed it was his deci-
sion to discharge Swift . More likely it was a corporate
decision . Yet, he said that it was not unusual for a re-
gional manager such as himself to discharge a subordi-
nate supervisor , bypassing that individual's immediate su-
pervisor such as Derbin. Willoughby claimed he had
done so before and described how he had once fired a
salesperson , skipping the district manager . On cross-ex-
amination , however, he was forced to reveal that he
really had not discharged that person ; he had simply let
the individual's employment contract lapse . Obviously
Willoughby has a tendency to shade . Moreover, the "for
cause" blind in the Swift termination reappeared in the
Nielsen discharge . Whether this was Willoughby's idea
or came from corporate headquarters makes little differ-
ence , Willoughby clearly had a hand in trying to conceal
the true reason for Nielsen 's discharge.
Thus, when weighing the relative credibility of the
General Counsel' s witnesses versus those presented by
Respondent , I see Respondent 's resorting to deceit. I do
not see that same effort from Swift. And, although Niel-
sen perhaps was not the employee he could have been,
and although he had a tendency to exaggerate his abili-
ties, I do not find him to be nearly so vulnerable to an
attack on his credibility. In any event, whether he at-
tempted to color his performance favorably is not the
issue here . The real issue is why did Respondent dis-
charge him? The reason is to be found not in Nielsen's
testimony, but in the testimony of Derbin and Wil-
loughby. In conclusion , I find the latter to be most vul-
nerable to a charge of deceitful testimony and I further I
find that they have managed to influence the testimony
of rank-and-file employees Howard and Eckhout.
B. Restraint and Coercion
Little needs to be said about this . The complaint al-
leges that on May 20 Derbin unlawfully interrogated em-
ployees about whether they had signed union authoriza-
tion cards and started the union activity . It further as-
serts that she threatened them with termination because
of that activity. Derbin admitted the interrogation of
Paschal , Eckhout, and Nielsen and I find the violation to
have been proven. With respect to the threat of termina-
tion, the record shows that Derbin supposedly made the
threat twice. The first time was to Swift when he de-
scribed Derbin 's words . The second time was supposedly
to Paschal and Eckhout in Swift's presence . Paschal did
not testify and Eckhout denied it . Swift testified only
that Derbin "threatened their jobs," testimony that must
be regarded as conclusionary . It may be that Derbin did
threaten their jobs, but it is the General Counsel's duty
to adduce facts, not conclusions . I find, therefore, that
Swift's testimony is not sufficiently complete to support
the allegation . It is therefore unproven.
Swift's testimony regarding Derbin's first threat to dis-
charge the instigators is clear enough , and credible
enough to have supported a violation of Section 8(a)(1)
had a statutory employee been present to have heard it.
However, it was made instead to supervisor Swift. I do
regard it, as an admission of motive with respect to Re-
spondent 's subsequent discharge of Nielsen . Yet, as that
threat was not directed to a statutory employee, I cannot
find it to be a violation of Section 8(a)(1).
AIR EXPRESS INTERNATIONAL 939
The complaint also alleges that Swift transmitted the
threat of station closure by relating the Dallas story to
employees . It is undisputed that Swift told that story and
I fmd it must have had a coercive effect for it was a
thinly disguised threat of job loss to deter the Denver
employees from engaging in union organizing.
I note that Respondent later attempted to disavow
Swift's transmittal of the story by issuing an interoffice
memo on July 11 asserting that the story told by Swift
was untrue and that he had no authority to make any
statement suggesting that the Denver station would close
if the Union organized it. I have earlier observed that
Derbin's denial that she told Swift to repeat the story to
the employees is not believable . In fact, I find that she
specifically authorized him to tell the story and that he
did so . Frankly , her disavowal coming approximately 6
weeks after the event is simply disingenuous as well as
ineffective . I find that a Board order remedying the
threat to close is appropriate.
In addition, the complaint alleges that Willoughby,
during his May 29 and 30 interviews and meetings
threatened employees that Respondent would either
close or refuse to bargain and force a strike if they se-
lected the Union. The principal evidence here is Niel-
sen's testimony . I have earlier found that it was Wil-
loughby's admitted purpose to attempt to deter the em-
ployees from seeking union representation by soliciting
their grievances with a promise that they would be rem-
edied. He even goes so far as to say , "The employees
knew why I was there ." Furthermore, I have found that
the two employees who testified for Respondent, Eck-
hout and Howard , have been persuaded to soft-peddle
the truth. Thus, the most credible witness is Nielsen who
testified that on May 29 Willoughby made the threats al-
leged . His testimony has not been countered by credible
denials and I specifically fmd it to be true . Thus I find
that Willoughby both threatened to close the station if
the employees selected the Union and also threatened to
refuse to bargain to trigger a strike designed to cause the
employees to lose their jobs.
Finally, although it is not alleged in the complaint,
Willoughby admits he came to Denver to solicit employ-
ee grievances making the implied promise that he would
remedy those grievances all for the sole purpose of dis-
suading employees to seek union representation . I fmd he
also told Nielsen that he deserved a promotion and a 5-
to 10-percent raise , but if the Union came in, his hands
would be tied , suggesting that the promotion and pay
raise would not be granted . Both acts violate Section
8(a)(1). The fact that they were not alleged in the com-
plaint is of no significance ; he admitted the first and the
second was fully litigated . A remedial order is therefore
appropriate.
C. The Discharge of Terry Nielsen
As noted above, I have found that on May 20 Derbin
threatened to discharge employees who had "instigated"
the Union and that she and Willoughby , following com-
pany instructions , committed certain violations of Sec-
tion 8(a)(1) of the Act both by interrogating employees
about their union activities and by making an implied
promise that conditions would be improved if they re-
jected the Union . During Derbin 's May 20 interrogation
of Nielsen she became quite offended at his refusal to
discuss the matter with her when he referred her to the
business agent. Angered, she told him that the Company
had its own agents and that he was to work until mid-
night, thereby changing an option that until then he had
enjoyed.
In addition, Willoughby told Nielsen on May 29 that
he would be considered for a supervisory job and a raise
in the near future , but that if he persisted in seeking
union representation that opportunity would be lost. De-
spite these warnings, Nielsen did nothing to suggest to
management that he had changed his view favoring
union representation.
Thereafter, Derbin began to issue Nielsen warnings of
questionable validity . The first two warnings were on
June 17 when she accused him of having removed the
red book and also accused him of an unexcused absence
on June 14.
With respect to the missing red book , Nielsen credibly
denied that he had taken the book on that occasion,
saying that he had simply put its contents into a new
green 3-ring binder . It seems that the original red binder
was an old college notebook that he owned personally.
In fact, he had compiled the documentation in the red
book himself. It was not a volume that Respondent had
issued to him. Several months before , both Swift and
Derbin had told him not to remove the binder from the
facility as it now contained confidential contract infor-
mation. He agreed to do that and on the one occasion
when he had actually removed it thereafter , Swift had
specifically given him permission to do so. The testimo-
ny regarding the lost red book on June 14 described by
Derbin and the employees is not persuasive. Even if they
could not find the red book on that particular occasion,
it does not follow that Nielsen had removed it. He had
simply changed binders. Derbin would not, later , accept
his explanation even though she knew of the new binder.
Second , the warning relating to his unexcused absence
seems contrived . It is undisputed that Nielsen had earlier
called in to advise that he was ill and would not be able
to work that evening. Derbin became upset because she
had reason to believe, accurately , that Nielsen had
worked that day for another employer (he had a part-
time job) and she could not understand why he could
not also work for her . Instead of questioning him about
the reasons for his absence , she asked the part-time em-
ployer if Nielsen had worked there that day ; she did not
ask that employer if Nielsen had become ill. Nielsen said
that he had become ill while working at his part -time job
and had gone home sick. Derbin, however, did not fully
investigate the circumstances by calling Swift back. She
made no effort to fmd out if he was even at home.
I agree that there were circumstances here that would
justify Derbin becoming suspicious of Nielsen 's veracity,
but believe that she did not act reasonably before issuing
the disciplinary letter. I think it is fair to say that she did
not want to know Nielsen 's explanation.
The next two warnings were issued to Nielsen on July
1. The first warning of July 1 related to his update of the
exception tariff volumes. He admittedly had failed timely
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to update the volumes in the sense that he was not con-
solidating all the information on each destination page.
However, the volume did contain the customers' direc-
tives as issued . These pages were short and easy to
follow. It seems unlikely that anyone would have been
misled by the failure to update them . In fact, it appears
that Armstrong may have been partly at fault here, for
she removed some of the pages . After she put them back,
Nielsen says that the volume was somewhat in disarray.
Armstrong says it is possible that she did not put it back
together properly.
Frankly, this incident appears quite minor in the over-
view. The volume in question actually contained the
proper information and it was handy. It seems unlikely
that any customer's account was mishandled as a result
of his failure to consolidate the information immediately
on one page . The warning letter issued here also seems
somewhat contrived.
The second, characterized as a "final" warning, dealt
with his alleged failure to follow a directive to cease
using Interpak . Derbin agrees, however, that in March
and subsequent thereto, Nielsen had been directed, along
with the other agents, to artificially increase the use of
Interpak . Oddly, employees such as Armstrong and the
other two operations agents were unaware of that direc-
tive,e at least according to their current testimony. Thus,
at one point Armstrong put a note on the shift log asking
Nielsen why he was using Interpak . He responded with a
terse "Why not?" Armstrong did not care for that par-
ticularly, both because of his attitude and because she did
not understand that he was following Derbin's orders.
She complained to Derbin who at that time decided that
the use of Interpak was inappropriate as it was a money
loser . A memo was issued over Derbin's signature, draft-
ed by Armstrong, dated June 26, telling Nielsen to stop
using Interpak . Nielsen says he did not discover that
memo in his in-box until late June 28. Earlier that
evening he had sent three shipments by Interpak al-
though not specifically authorized by the customer. The
following day he told Derbin what he had done. She
was unsympathetic and unable to understand why he had
not received the June 26 memo . It was later determined
that the customer involved had given specific instruc-
tions that Interpak was not to be used . Thus, it appears
that Nielsen had failed to look at the exception tariff
volume . Had he done so the error would not have oc-
curred. I think it is fair to say here that Nielsen was der-
elict in this particular incident.
Finally, I note that these warnings followed immedi-
ately upon the heels of the representation case hearing
on June 24, which Nielsen attended, thereby clearly
marking him as an undeterred union supporter. -
The last incident that Respondent points to, is the un-
plugged computer incident on July 30. Basically this is a
"`tis-'tain 't" situation . Nielsen says that the computers
each evidenced power when he left at midnight although
he had been unable to make them accept instructions. He
6 Armstrong had been in Colorado Springs at the time the directive
was issued Howard was assigned to domestic freight and had no occa-
sion to use Interpak , a service involving foreign shipments . Neither were
likely to have been aware of Derbin's directive.
says he had called the computer headquarters in Con-
necticut and had been told that they would be back up in
20 minutes . Furthermore, he says, as he was unable to
enter alerts for other stations on his computer , he tele-
phoned those stations . Respondent did not present any
evidence that his testimony was untrue. It did not at-
tempt to demonstrate that he had failed to call Connecti-
cut or whether he had failed to make the alerts by tele-
phone . Finally, Respondent has shown no reason why
Nielsen would deliberately sabotage the computer system
by unplugging it. It may be , as Eckhout says, that when
she arrived in the morning the power plugs were out of
their socket. Even so, while Derbin might have been sus-
picious of Nielsen , there is no showing that she ever
checked with Nielsen or confirmed his contentions that
he had telephoned Connecticut and/or had telephoned
the other stations . Had she done so she might well have
discovered that Nielsen was telling the truth. Again
there is no evidence that she wanted to know the truth.
The last item of evidence dealing with Respondent's
decision to discharge Nielsen is Derbin's testimony that
Swift had earlier recommended Nielsen be discharged.
She says the recommendation came up at a time when
Nielsen was allegedly treating Valadez insensitively and
assigning her duties that he should be performing him-
self. Swift testified that Valadez ' complaint caused him
to counsel Nielsen about the matter and that Nielsen re-
sponded positively to the counselling . He specifically
denies that he ever recommended that Nielsen be dis-
charged. As noted above, I have determined that Swift is
more credible than Derbin . This incident is another in
which Respondent attempts to cast Nielsen in a light
more unfavorable than deserved.
All of the above leads to the conclusion that Respond-
ent was, as threatened by Derbin on May 20, seeking a
way to get rid of the union instigators. Derbin clearly
viewed Nielsen as a leader . She had been stung by his
remark on May 20 and later saw him assisting the union
officials during the negotiations leading to the consent
election . The only complaint of real substance that she
had during the period preceding his discharge was a
minor failure to follow the June 26 memo countermand-
ing her earlier directive to cease using Interpak unless re-
quested by the customer . All of the remaining attacks
Derbin made upon him are either false or tend to mis-
characterize the available evidence . That abuse suggests
that Respondent was seeking a way to rid itself of Niel-
sen whether justified or not . In fact, its use of the "for
cause" language in the discharge letter suggests that Re-
spondent did not wish to be pinned down to a specific
trigger incident but wanted to keep for itself the ability
to use any and all reasons that it could think of to justify
the discharge. It was not interested in giving Nielsen a
reason that he could refute . Instead it wished to build a
record against him even if based on flimsy grounds.
Three of the four warnings clearly were so based. In
fact, I conclude, as alleged by the amendment to the
complaint , that the warnings were issued simply to
create a facially credible impression that Nielsen was a
poor employee.
AIR EXPRESS INTERNATIONAL
In conclusion , I find that the General Counsel has
made out a prima facie case that Respondent discharged
Nielsen because he was engaging in union activity and
because he appeared to be a leader of that activity. I fur-
ther conclude that Respondent has failed to rebut that
prima facie case with credible evidence . Thus, the Gen-
eral Counsel has proven all the allegations in the com-
plaint , except for the claim that on May 20 Derbin
threatened statutory employees with discharge and the
Interpak disciplinary memo to Nielsen.
IV. THE REMEDY
Having found that Respondent has engaged in certain
violations of Section 8(a)(1) and (3) of the Act, I shall
recommend that it be ordered to cease and desist there-
from and to take certain affirmative action designed to
effectuate the policies of the Act. In this regard, Re-
spondent shall be ordered immediately to offer Terry
Nielsen reinstatement to his former position , dismissing if
necessary any replacement , or if that position no longer
exists, to a substantially equivalent position without prej-
udice to his seniority or other rights and privileges and
make him whole with interest for loss of earnings as de-
scribed by the Board in F. W. Woolworth Co., 90 NLRB
289 (1950) and Florida Steel Corp., 231 NLRB 651 (1977).
See, generally , Isis Plumbing Co., 138 NLRB 716 (1962).
In addition Respondent shall be required to expunge
from its records any reference to both the unlawful disci-
plinary letters issued to Nielsen and his unlawful dis-
charge . It shall also be ordered to provide written notice
of such expunction to him and to inform him that the
disciplinary letters and discharge will not be used as the
basis for further personnel action concerning him.
On the foregoing findings of fact and the entire record
in this case , I make the following
CONCLUSIONS OF LAW
1. Respondent Air Express International USA, Inc. is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 961, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent violated Section 8(a)(1) of the Act on
May 20, 1985 , when acting through Lynn Derbin it in-
terrogated employees regarding their union activity.
4. Respondent violated Section 8(a)(1) of the Act
sometime during the week of May 20 to May 24 when
Swift told employees that Respondent had closed its
Dallas-Fort Worth facility because of union activity
there, implying that a similar closure would occur in
Denver.
5. Respondent violated Section 8(a)(1) of the Act on
May 29 and 30 when Willoughby told employees that if
they selected union representation Respondent would
either close its facility, or refuse to bargain , thereby forc-
ing the employees to go on strike justifying their replace-
ment; by soliciting employee grievances promising to
remedy them in order to deter employees from seeking
union representation , and by telling employees that op-
941
portunities for promotions and pay raises would be lost if
they persisted in seeking union representation.
6. Respondent violated Section 8(a)(3) and (1) of the
Act by issuing warning letters to employee Terry Niel-
sen that were not supported by fact but were designed to
undermine his tenure with Respondent because of his
union activity.
7. Respondent violated Section 8(a)(3) and (1) of the
Act on August 3 when it discharged Nielsen as an em-
ployee because of his union activity.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed
ORDER
The Respondent, Air Express International USA, Inc.,
Denver, Colorado, its officers, agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Interrogating employees about their union activi-
ties, sentiments and desires ; threatening , whether directly
or indirectly, to close the Denver facility because of the
employees ' union activities ; threatening to refuse to bar-
gain in order to force a strike so that the employees
could be replaced ; soliciting employee grievances prom-
ising to remedy them in order to deter the employees'
desire for union representation ; telling employees that
opportunities for promotions and pay raises will be lost if
they persist in seeking union representation; issuing false
warning slips to an employee because of his union activi-
ties; and discharging employees who engage in activity
protected by Section 7 of the Act, including union orga-
nizing.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Terry Nielsen immediate and full reinstate-
ment 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 privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Remove from its personnel records and all other
files any reference to the disciplinary warnings issued to
Terry Nielsen found to be false as well as to Nielsen's
discharge on August 3, 1985, and notify him in writing
7 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this has been done and not to use these records
against him in any way.
(d) Post at its Denver, Colorado facility copies of the
attached notice marked "Appendix."S Copies of the
notice, on forms provided by the Regional Director for
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
Region 27, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.