Black���s Railroad Transit Service

National Labor Relations Board - Board Decisions

Jul 21, 2004

342 N.L.R.B. 549 (N.L.R.B. 2004)

BLACK’S RAILROAD TRANSIT SERVICE
342 NLRB No. 48
549
Black’s Railroad Transit Service, Inc. and Candice L.
Bowles. Case 33–CA–13903
July 21, 2004
SECOND SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On March 30, 2004, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed a brief in support of the judge’s
decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Black’s
Railroad Transit Service, Inc., Galesburg, Illinois, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(a) and reletter
the subsequent paragraphs accordingly.
“(a) Discharging or otherwise discriminating against
any employee for supporting Teamsters, Chauffeurs &
Helpers, Local Union No. 627, International Brotherhood
of Teamsters, or any other union.”
2. Substitute the following for paragraph 2(d).
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
However, Member Schaumber finds it unnecessary to pass on the
judge’s finding and conclusion pertaining to the 8(a)(4) allegation. He
agrees that Bowles was unlawfully discharged in violation of Sec.
8(a)(3) and (1).
2 We shall modify the judge’s recommended Order to conform to his
findings. In addition, we shall modify the recommended Order in ac-
cordance with our decision in Ferguson Electric Co., Inc., 335 NLRB
142 (2001).
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the attached notice for that of the admin-
istrative 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Teamsters, Chauffeurs
& Helpers, Local Union No. 627, International Brother-
hood of Teamsters, or any other union.
WE WILL NOT discharge or otherwise discriminate
against any of you for cooperating with an investigation
by the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Candice L. Bowles full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Candice L. Bowles whole for any loss
of earnings and other benefits resulting from the unlaw-
ful discrimination against her, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Candice L. Bowles, and WE WILL, within
3 days thereafter, notify her in writing that this has been
done and that such action will not be used against her in
any way.

BLACK’S RAILROAD TRANSIT SERVICE, INC.

Deborah A. Fisher, Esq., for the General Counsel.
Roma B. Larson, Esq. (Scott & Scott, PC), of Springfield, Illi-
nois, for the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Peoria, Illinois, on December 3, 2003. The charge
was filed January 31, 2002,1 and the complaint was issued
March 28. The complaint alleges that the Respondent, Black’s
Railroad Transit Service, Inc., violated Section 8(a)(4), (3), and
(1) of the National Labor Relations Act (the Act) by terminat-
ing Candice L. Bowles (Bowles) on or about January 23 be-
cause she joined Teamsters, Chauffeurs & Helpers, Local Un-
ion No. 627, International Brotherhood of Teamsters (the Un-
ion), engaged in concerted activities, filed unfair labor practice
charges with the National Labor Relations Board (the Board),
and participated in Board investigations and proceedings. In
lieu of an answer to the complaint, the Respondent’s president,
Richard Black, responded with a letter, dated April 10, explain-
ing that he decided to terminate Bowles on January 23 because
(1) she engaged in personal activities while on duty, (2) had
scissors, which were unsafe, in her work van, and (3) stored
bulky plastic bags, which interfered with her ability to perform
her job, in the van.2 The Respondent served a formal answer
denying the allegations on September 19, 2003.
At the hearing, the parties were afforded a full opportunity to
call and examine witnesses, present oral and written evidence,
argue orally on the record, and file posthearing briefs. On the
entire record, including my observation of the demeanor of the
witnesses, and after considering the briefs filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Illinois corporation with an office and
place of business in Galesburg, Illinois, has been engaged in
business as a transportation service. During the 12-month pe-
riod ending December 31, the Respondent performed services
in excess of $50,000 in states outside of Illinois, and purchased
and received at its Galesburg facility goods valued in excess of
$50,000 directly from points outside of Illinois. The Respon-
dent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
For the past 10 years, the Respondent has had a contract with
the Burlington Northern Sante Fe Railroad (railroad) for the

1 Unless otherwise indicated, all dates refer to 2002.
2 On April 30, 2003, the Board issued a Decision and Order holding
Respondent in default for failing to file an answer. On May 22, 2003,
the General Counsel filed a motion to correct the record and for recon-
sideration on the ground that Richard Black’s April 10, 2002 letter,
constituted a timely response to the complaint. On July 10, 2003, the
Board issued a Supplemental Decision and Order vacating and remand-
ing this matter for hearing.
transportation of railroad personnel between three locations at
the Galesburg, Illinois railroad yard (Galesburg Yard)—the
trimmer building, hump tower, and diesel pit. In its operations
there, the Respondent utilizes 25 employees, including drivers.
The drivers operate five to eight vans, in three 8-hour shifts, 7
days a week. The basic responsibility of a driver is to sit in the
van and wait for a railroad employee to get in the van or for the
railroad’s dispatcher to direct them to a certain location for a
pickup. The drivers usually have a significant amount of
“downtime” between pickups. For a small portion of that time,
drivers are required to dust their vans and clean the windows.
During their remaining downtime, drivers engage in assorted
activities. Some read, eat lunch, or engage in other activity in
their van, while others stand outside their van and converse
with other drivers.
Richard Black is the Respondent’s owner and president.3
The Galesburg Yard is one of 20–25 terminals served by his
company. He visits the Galesburg Yard once or twice a month.
Glenda Black, his sister, is employed there by the Respondent
as a driver. Since the late 1990’s, she has also served as a su-
pervisor. Bowles, the alleged discriminatee, was employed by
the Respondent as a driver at the Galesburg Yard from 1992
until 2002. This case revolves around Bowles’ activities during
her downtime. On average, she had 3 to 4 hours of downtime
per shift. Approximately 20–30 minutes of that time was spent
cleaning her van. Two or three times per week, Bowles spent
her remaining downtime doing needlework in her van. Bowles
kept quilting materials in plastic bags and scissors, which were
used to cut the material into smaller pieces, in the van’s glove
compartment.
Glenda Black was aware that Bowles’ quilted and knitted in
her van during the 10 years that she worked for the Respondent.
In fact, she was in Bowles’ van on 50 to 70 occasions while she
quilted or cross-stitched, and complimented Bowles on the
quality of her crafts. However, neither Glenda Black nor Rich-
ard Black ever told Bowles that she could not do quilting dur-
ing downtime.4 Other drivers who stitched during downtime
were Diana Aaronson and Sally Byrd. However, unlike
Bowles, who quilted or cross-stitched in her van, Aaronson
would cross-stitch at the trimmer building and Byrd would
cross-stitch at the diesel building.5
Several years earlier, the Respondent removed first aid kits
from its vans after the railroad informed it that the scissors in
the kits were dangerous to the occupants of the vehicle in event
of an accident.6 However, Bowles and other employees were

3 He was not a credible witness. During the early part of his testi-
mony, he was evasive in refusing to even acknowledge the title to a
supplement to the drivers’ handbook. Tr. 22.
4 There was no dispute between Bowles and Glenda Black as to the
latter’s awareness of Bowles’ quilting activities during her downtime.
Tr. 100, 160–164.
5 Lila Magnison, a driver employed by Respondent from 1997 to
2001, recalled seeing Aaronson cross-stitching in her van during down-
time. Tr. 130–131. However, there was no evidence that either Rich-
ard or Glenda Black ever saw her knitting in the van.
6 I did not credit Richard Black’s testimony that he told drivers at
employee meetings that they were not to have scissors in the vans. He
did not keep minutes, nor provide the dates, of the meetings. Tr. 218.
BLACK’S RAILROAD TRANSIT SERVICE 551
unaware that scissors should not have been in the van. Bowles
used scissors, which were approximately 4 inches in length, to
cut quilting material.7 The scissors were normally kept in the
open glove compartment and would have been within the plain
view of Glenda Black on those occasions when she saw Bowles
knitting. However, Glenda Black never told Bowles that she
should not quilt or have scissors in the van. Moreover, prior to
January 24, the Respondent never disciplined an employee for
quilting, stitching, or having personal items in the vans.8
B. The Union Campaign
Bowles was instrumental in the campaign to get union repre-
sentation for the drivers.9 In October 1998, she signed a union-
authorization card and distributed cards to the other drivers. On
October 23, 1998, the Union filed a petition in Case 33–RC–
4339 for certification as the representative of the Respondent’s
van drivers at the Galesburg Yard. A preelection hearing in
Case 33–RC–4339 was held on November 17 and 19, 1998.
Bowles testified pursuant to subpoena by the Union on Novem-
ber 19, 1998. A mail ballot election in Case 33–RC–4339 was
conducted from January 8 through 21, 1999. Bowles was the
only driver to attend the ballot count on February 26, 1999. On
April 20, 1999, she testified, again pursuant to subpoena by the
Union, at a hearing on objections that had been filed by the
Respondent. The Board certified the Union on September 21,
1999.10 However, on October 4, 2001, the Union disclaimed its
right to act as the exclusive bargaining representative for the
Respondent’s drivers.
After the election and before the Union disclaimed interest in
representing the Respondent’s drivers, Bowles continued to
attend union meetings. Glenda Black attended two of those
meetings. In addition, Bowles handed out fliers to the drivers
publicizing union meetings held on August 1 and August 20,
2001.11 This activity did not escape the attention of the Re-
spondent. Glenda Black reported to Richard Black that Bowles
was passing out fliers about the August 20, 2001 union meeting

Bowles recalled that first aid kits were removed from the vans, but was
unaware that they contained scissors or that there was a rule against
having scissors in the vans. Tr. 90. In addition, two other credible
witnesses, Magnison and Richard Carroll, a driver for Respondent from
1997 to 2000, were not aware of such a rule. Tr. 132, 136–141.
7 Glenda Black identified a photocopy of 4-inch scissors as a fair and
accurate depiction of the scissors that she observed in Bowles’ van. Tr.
172–173; GC Exh. 25. Peters, another driver who allegedly observed
them on January 22, initially testified that the scissors were 1 foot long.
His testimony was inconsistent in several respects and he was not a
credible witness. In this instance, when confronted with the photo-
graph, he changed his testimony and concurred with Glenda’ Black’s
estimate. Tr. 195–196.
8 Richard Black conceded that no one else at the Galesburg Yard has
ever been disciplined or terminated for having personal items in the
vans. Tr. 41–43.
9 The history of the union campaign, and Bowles’ involvement in it,
were based entirely on her testimony and records from prior Board
proceedings. This aspect of Bowles’ testimony went unchallenged by
the Respondent.
10 Tr. 54; GC Exh. 3.
11 Tr. 55–56; GC Exhs. 21–23.
and intended to become a union representative.12 Furthermore,
in an affidavit, sworn to on November 6, 2000, and submitted
to the Board in connection with the disputed election, Richard
Black opined that Bowles caused unrest among the drivers and
that it was dangerous to have her in a group situation.13
Bowles’ disciplinary history during the period of her activity
on behalf of the Union has been the subject of several Board
cases. On August 9, 1999, Bowles filed a charge in Case 33–
CA–3101 alleging discrimination by the Respondent in her rate
of pay, shift assignments, and the loss of opportunity for extra
work and weekend days off. On August 23, 1999, the Union
filed a charge in Case 33–CA–12960, in which it named
Bowles as a discriminatee. In that case, she alleged that the
Respondent, on or about November 1, 1998, discriminated
against her “by cutting her wages, reassigning her, and chang-
ing her work schedule because of her union activities.” On
November 9, 1999, a consolidated complaint issued in Cases
33–CA–12960 and 33–CA–13101 alleging that Bowles was an
8(a)(3) discriminatee. On June 1, 2000, after issuance of the
consolidated complaint in Cases 33–CA–12960 and 33–CA–
13101, Bowles attended a settlement conference at the Board’s
Regional Office. Richard Black and Glenda Black were also
present. The conference resulted in a settlement agreement, but
not before Richard Black commented that “if it wasn’t for
Candy we wouldn’t be here.”14 The settlement provided for
Bowles to receive $832 in backpay, including interest, and the
posting of a notice by the Respondent at the Galesburg Yard.
The notice stated, in pertinent part, that it would “make Candy
Bowles whole for any losses she suffered as a result of our
cutting her wages, reassigning her, and changing her work
schedule because of her union activities, sympathies and de-
sires. In lieu of reassignment to the position she held on No-
vember 1, 1998, Candy will be assigned to 5 8-hour days per
week on the first shift (6:00 a.m.–2:00 p.m.) keeping her cur-
rent days off (Friday and Saturday).”15
On March 27, 2000, Bowles filed a charge in Case 33–CA–
13289 alleging continued harassment by the Respondent. Spe-
cifically, Bowles charged that, on March 22, 2000, she “re-
ceived a threatening letter to terminate me because I needed
daily sheets, log books or if I have a flat tire—to do my job, it
sometimes requires the assistance of another driver.” However,
after investigating the charge, the Regional Director of Region

12 In yet another display of evasive and inconsistent testimony, Rich-
ard Black initially denied being told by Glenda Black that Bowles was
handing out fliers for the union meeting and was interested in becoming
a union representative. However, he admitted being told about such
activity after being shown a copy of, and taking a long pause to ponder,
a report given to him by Glenda Black in August 2001. Tr. 27–29; GC
Exh. 27.
13 Richard Black initially denied having such an opinion, but con-
ceded the point after being confronted with the affidavit. Tr. 33–35.
14 Although settlement discussions are normally inadmissible to pro-
vide liability for the matter being settled, Fed. R. Evid. 408 does not
preclude admissibility in a subsequent case of alleged threats made
during such discussions. See Miami Systems Corp., 1320 NLRB 71 fn.
2 (1995), mod. but affd. on point, 111 F.3d 1284, 1293–1294 (6th Cir.
1997).
15 Bowles’ specific recollection of the conference was not refuted by
Richard Black or Glenda Black. GC Exhs. 4–9; Tr. 62–63.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
33 did not find sufficient evidence to prove an unfair labor
violation and, on July 12, 2000, declined to issue a complaint.
On September 5, 2000, Bowles refiled her claim for continued
harassment by the Respondent in Case 33–CA–13424. How-
ever, Bowles withdrew that charge on October 10, 2000.16
On September 5, 2000, Bowles filed a charge in Case 33–
CA–13425 alleging harassment and the imposition of a 7-day
suspension in August 2000, for engaging in concerted activity.
On November 17, 2000, she amended the charge to assert that
she had been reassigned on September 4, 2000, from a van
stationed at the tower to one stationed at the trimmer in order to
isolate her from other drivers. A complaint, alleging violations
of Section 8(a)(3) and (1) of the Act, was issued November 30,
2000. Bowles’ case was consolidated with Case 33–CA–
13481, filed June 20, 2001, in which coemployee Richard Car-
roll asserted that he was terminated by the Respondent because
he also engaged in concerted activity. On June 20, 2001, the
Board issued a Decision and Order in Cases 33–CA–13425 and
33–CA–13481. The Board, on summary judgment, found that
the Respondent violated Section 8(a)(3) and (1) of the Act by
suspending Bowles on August 27, 2000, and reassigning her
from her station at the tower to the station at the trimmer on
September 4, 2000, as well as terminating Richard Carroll on
October 23, 2000. The Board ordered the Respondent to rem-
edy its unfair labor practices. Black’s Railroad Transit Service,
334 NLRB 325 (2001). The Board’s Order was enforced by an
Order of the Seventh Circuit Court of Appeals, dated March 7,
2002. NLRBv. Black’s Railroad Transit Service, Case No. 01-
3325 (7th Cir. 2002). Thereafter, on May 17, 2002, Richard
Black signed a notice to employees in which he stated, in perti-
nent part, that he would make Bowles whole for any loss or
earnings and other benefits suffered as a result of her unlawful
suspension and reassignment, and would offer her reassignment
to her former location.17
On December 7, 2001, shortly after submitting his Novem-
ber 6, 2000 affidavit to the Board, Richard Black issued a letter
to Bowles informing her that she was being placed on probation
for 90 days for the following violations: loitering on the second
floor of the trimmer building, thereby interrupting or distracting
railroad employees; transporting railroad employees in an inef-
ficient manner by using two vans instead of one; crying while
driving, driving while fatigued, engaging in emotional conver-
sations, distracting railroad employees riding in her van, and
having conflicts with railroad employees and/or other drivers;
unprofessional and demeaning conduct toward fellow drivers
and “others”; use of radio channels for personal and/or unau-
thorized reasons; attempting to help railroad employees do their
jobs, such as counting railroad cars; and conversing with com-
petitors, railroad employees and others “in a manner detrimen-
tal” to the Respondent.18 However, with the exception of taped
conversations over the radio involving Bowles, the issues de-
scribed in the letter were based on rumor. Furthermore, Rich-

16 GC Exhs. 10–13.
17 GC Exhs. 14–19.
18 GC Exh. 24.
ard Black never spoke with Bowles about the issues mentioned
in the letter before placing her on probation.19
C. The Alleged Discriminatory Treatment of Candice Bowles
On January 22, Glenda Black, at Richard Black’s request,
went to the Galesburg Yard to ascertain whether any of the
Respondent’s vans had fliers critical of the Respondent for
filing for reorganization under Chapter 11 of the Bankruptcy
Act. Both were particularly concerned that Bowles was dis-
tributing such fliers. Glenda Black was driven to see Bowles
by Terry Peters, another driver. Bowles had just finished eating
lunch and was sitting in her van when Glenda Black got into
the passenger seat. Bowles had two small grocery type bags on
the seat next to her. One bag contained an empty lunch con-
tainer, eating utensils and an empty soda can. The other bag
contained small quilt pieces. Scissors, with the pointed end
facing down, were visible from the open glove compartment.
After an initial statement about an upcoming employee meet-
ing, Glenda Black asked Bowles whether anyone from the rail-
road ever told her that she could not do quilting while on duty.
However, she did not mention the scissors. Bowles responded
that railroad employees had seen her quilting and no one ever
told her that she could not do that during downtime.20 Glenda
Black then told Bowles that someone was distributing fliers
critical of the Respondent and proceeded to examine the docu-
ments on Bowles’ clipboard. She noticed a sheet containing a
reference to “old heads” and asked Bowles what that meant.
Bowles explained that the expression referred to railroad em-
ployees who signed her quilt pieces.
On January 23, Richard Black directed Glenda Black to go
back to the Galesburg Yard and have Bowles relieved. Glenda
Black went back to the Galesburg Yard, told Bowles that Peters
was relieving her due to “safety issues,” and had Bowles take
her personal items out of the van.21 Bowles asked her what the
safety issue was and Glenda Black, for the first time, informed
her that there was a problem with having scissors in the van.
However, Bowles did not have scissors and crafts in the van on
January 23.22 Glenda Black also told Bowles that she was to

19 Richard Black testified that, since the satisfaction of the railroad is
of “paramount importance,” he usually relied on rumor in suspending
employees. Tr. 220–223.
20 Glenda Black testified that she told Bowles on January 22 that she
was going to file a report about the presence of the crafts and scissors in
the van. Tr. 152–154, 170. I do not credit that testimony for two rea-
sons. First, Glenda Black did not file a report that day, nor did she ever
file a report about her observations on that day. Second, it was incon-
sistent with prior testimony in which she conceded knowing that
Bowles had quilted the entire time she worked for the Respondent. Tr.
160–164.
21 Richard Black testified that he directed Glenda Black to inspect
Bowles’ van on January 23 to see if the crafts and scissors were still
there and, later that morning, Glenda Black reported that the materials
were still in the van. He further asserted that he decided at that point to
relieve Bowles, but had not yet determined to terminate her. Tr. 209–
210. To the contrary, and consistent with Glenda Black’s December 9,
2003 affidavit, I find that Glenda Black did not conduct an inspection
on that day and that Richard Black sent her to the Galesburg Yard on
January 23 for the sole purpose of having Bowles relieved. R. Exh. 6.
22 Glenda Black and Peters testified that Bowles still had scissors
and crafts, as well as large needles, in the van on January 23. Tr. 156–
BLACK’S RAILROAD TRANSIT SERVICE 553
call Richard Black before she could return to work. Later that
day, Glenda Black faxed a report to Richard Black concerning
the events of that day.23
Pursuant to Glenda Black’s instructions, Bowles called
Richard Black on January 24. Richard Black tape-recorded the
conversation. Bowles acknowledged being placed on probation
for 90 days and explained her list with names on it. Richard
Black explained that he previously removed the first aid kits
from the vans because they contained scissors and had dis-
cussed that at employee meetings. He then discussed Bowles
going into the trimmer building the day before, which she de-
nied. Richard Black then told Bowles that doing crafts in the
van was prohibited. Bowles did not argue with him about that,
nor did she refuse to follow any instruction by Richard Black
that she was not to quilt or have scissors in the van.24 During
the conversation, Richard Black read from Glenda Black’s
report. However, her report referred to the events of January
23. She generated no written report of the events of January
22.25
Richard Black terminated Bowles based upon Glenda
Black’s observations on January 22 that Bowles was quilting,
and had scissors and bags in the van. Prior to speaking with
Glenda Black that day, Richard Black had not received any
complaints from anyone, including railroad employees, about
Bowles having scissors or bags in the van.26 In a May 7 letter
to the Board, Richard Black further explained that he made the
decision to terminate Bowles on January 23 because she had

157, 184–186. Peters further testified that the knitting needles were 7
or 8 inches to a foot long. Tr. 189–190. However, the credible evi-
dence indicates that the materials were not in the van that day. Bowles
knew, based on prior experience, that Richard Black was likely to take
disciplinary action based on Glenda Black’s comment about the quilt-
ing on January 22. Tr. 255. Furthermore, Bowles explained that knit-
ting needles range from 6 to 18 inches in length, while needles used for
quilting measure one to 1 to 1-1/2 inches long. Tr. 250, 256.
23 Glenda Black originally testified that after she left Bowles on
January 22, she immediately wrote down what she had seen in Bowles’
van and faxed a copy to Richard Black. She also spoke to Richard
Black on her cellular telephone that day. Tr. 154–155, 161. However,
in an affidavit, sworn to on December 9, 2003, submitted posthearing at
my request, and hereby received in evidence as R. Exh. 6, Glenda
Black conceded that her report of January 23, 2002 was the only writ-
ten report submitted to Richard Black on either day. R. Exh. 6.
24 Richard Black testified that he explained to Bowles the safety
concern relating to scissors and the need to secure everything in the
van, including the first aid kit, radio, and fire extinguisher. He further
testified that Bowles indicated that she would not follow his orders and
“the decision to terminate her was because she would not recognize that
she shouldn’t have bags in the van and she shouldn’t have scissors in
the van. She could not recognize that that was . . . that they should not
be there.” Tr. 211–212, 219. However, there was no indication on the
recording that Bowles disagreed with him about any of those issues. R.
Exh. 5.
25 Glenda Black testified on December 3, 2003, that she faxed a re-
port to Richard Black on January 22. Tr. 237. However, in an affidavit
sworn to on December 9, 2003, and received in evidence as R. Exh. 6,
Glenda Black conceded that the report annexed to the affidavit was the
only one faxed to Richard Black on either day. That report referred
only to Glenda Black’s interaction with Bowles on January 23.
26 Richard Black conceded this point on direct examination. Tr. 38.
unsafe items, including scissors, stored in the van. He also
stated that he knew “of no activities that Candice Bowles had
participated in except that she in my opinion was likely in favor
of the union as she stated she was terminated for her union
activities.”27 There was no indication in the letter that he dis-
charged her because she refused to recognize his admonition
regarding the scissors in his discussion with her on January
24.28
III. DISCUSSION
A. The 8(a)(3) and (1) Violations
The General Counsel asserts that the Respondent violated
Section 8(a)(3) and (1) of the Act by terminating Bowles be-
cause she supported and assisted the Union, and engaged in
concerted activities. The Respondent contends that Bowles was
terminated for cause after she was discovered in violation of a
basic safety procedure, during a time “when she was already on
probation, and then refused to appropriately respond during a
telephone meeting over the incidents.”
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Gen-
eral Counsel has the initial burden of establishing that the em-
ployee engaged in concerted protected activity, the employer
had knowledge of the employee’s protected activities, the em-
ployer took adverse action against the employee, and there is a
connection between the protected concerted activities and the
adverse action. Once these elements have been established, the
burden shifts to the Respondent to prove, by a preponderance of
the evidence, that it took the adverse action for a legitimate
nondiscriminatory reason.
The facts establish the existence of all of the factors of a
Wright Line analysis. First, Bowles had been engaged in an
extended amount of concerted activity for over 3 years prior to
her discharge. She signed a union-authorization card, distrib-
uted fliers promoting the Union on the Respondent’s premises,
testified on behalf of the Union at two Board hearings, and was
the only driver to attend the ballot count for the union-
representation election on February 26, 1999.
Second, the Respondent knew that Bowles was actively in-
volved in union-related activity. Glenda Black, an admitted
supervisor, was present at two union meetings attended by
Bowles, and wrote a report to Richard Black in August 2001,
informing him that Bowles was passing out fliers publicizing
union meetings and intended to become a union representative.
Moreover, Bowles testified against the Respondent in several
Board proceedings and attended the counting of ballots during
the representation election.
Third, there is overwhelming evidence that the adverse ac-
tion against Bowles, her termination, was due to antiunion ani-

27 ALJ Exh. 1; Tr. 226–229.
28 Richard Black shifted his position during trial and asserted that he
decided to terminate Bowles on January 24, 2002, after she failed to
recognize the safety problems posed by having scissors in the van.
However, that position was not credible, since the recording did not
support his version of the conversation on that date, and it was incon-
sistent with his prior oral testimony and affidavit that he decided to
terminate her on January 23, 2002.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
mus on the part of the Respondent. In Black’s Railroad Transit
Service, supra, the Board found that the Respondent, following
the Union’s successful organizing campaign, suspended Bowles
in August 2000, reassigned her in September 2000, and termi-
nated another driver in October 2000, all in violation of Sec-
tions 8(a)(3) and (1) of the Act. Based on the similarities be-
tween the two cases, the Board’s decision in the prior case is
evidence of the Respondent’s continuing antiunion animus in
the current case involving Bowles’ discharge. See Opelika
Welding, 305 NLRB 561, 566 (1991). Furthermore, Richard
Black made two significant statements revealing his hostility
toward Bowles for her role in the union campaign. In a June 1,
2000 settlement conference with the Board’s Regional Director,
Richard Black charged that, “if it wasn’t for Candy, we
wouldn’t be here.” In his November 6, 2000 affidavit to the
Board, he asserted that Bowles was causing unrest among the
drivers and was dangerous in a group setting.
Lastly, the evidence strongly suggests a clear connection be-
tween Bowles’ advocacy for the Union and her termination.
The Union had disclaimed interest in representing the drivers in
October 2001. However, at the time of Bowles’ termination,
Black’s Railroad Transit Service, supra, was pending enforce-
ment before the Court of Appeals. In that case, the Board
awarded backpay to Bowles and ordered her reassigned to her
former shift and work location. The Respondent evidently
sought to counteract the effect of that by placing Bowles on
probation for an assortment of frivolous reasons—all based on
rumor. Richard Black reinforced that conclusion with his shift-
ing testimony as to the reason why Bowles was fired. He as-
serted in a May 7 letter to the Board that Bowles was termi-
nated on January 23 because she was quilting while on duty and
had scissors stored in the van. However, during his initial hear-
ing testimony, Richard Black clarified that his decision to ter-
minate Bowles was based upon Glenda Black’s observations on
January 22. He changed his testimony, yet again, and asserted
that he made the decision to terminate Bowles on January 24
after she failed to “recognize” that she should not have either
scissors or bags in the van.
Since the General Counsel established a prima facie case, the
burden of persuasion shifted to the Respondent to prove, by a
preponderance of the evidence, that it would have discharged
Bowles even in the absence of her union activity. Monroe
Mfg., 323 NLRB 24 (1997). To meet its burden of persuasion,
the Respondent was required to do more than show that it had a
legitimate reason for its actions. Hicks Oil & Hicksgas, Inc.,
293 NLRB 84, 85 (1989), enfd. 942 F.2d 1140 (7th Cir. 1991).
Drivers had a significant amount of downtime and, aside
from a requirement that they keep their vans clean, had plenty
of time to engage in an assortment of activities while they
waited for the next pickup. Bowles consistently engaged in
quilting during her downtime. However, neither Richard Black
nor Glenda Black, as the Respondent’s supervisors, ever
warned or disciplined an employee based on how they spent
their downtime. Interestingly, Bowles was placed on probation
for frivolous reasons in December 2001, but neither her quilting
nor her use of downtime in general were mentioned among the
reasons listed for that adverse action. Furthermore, even
though Glenda Black was well acquainted with Bowles’ pen-
chant for quilting, including the use and storing of 4-inch scis-
sors, a small needle and craft materials on the van, she ex-
pressed nothing but praise for the quality of Bowles’ quilting.
No railroad employees ever complained about Bowles’ quilting
and the credible evidence indicated that Bowles kept the scis-
sors in a closed glove compartment while she operated the van.
Based on the foregoing, I find that the Respondent failed to
meet its burden of proving that Bowles would have been termi-
nated even in the absence of her activities on behalf of the Un-
ion. The reasons asserted by the Respondent were not relied
upon and were a pretext for its real reason—punishing Bowles
for persistently engaging in protected concerted activity.
B. The 8(a)(4) and (1) Violations
The General Counsel further alleges that the Respondent
terminated Bowles on January 23 in violation of Section 8(a)(4)
because she filed unfair labor practice charges with the Board
and participated in Board investigations and proceedings. The
Respondent also denies this charge on the basis of Bowles’
alleged misconduct in quilting and storing scissors in the van,
and her recalcitrance when confronted by Richard Black about
the prohibition against storing scissors and other crafting mate-
rial in the van.
Section 8(a)(4) makes it unlawful to discharge or otherwise
discriminate against an employee because she has filed charges
or given testimony at a Board proceeding. A Wright Line
analysis is also applicable in 8(a)(4) cases. American Gardens
Management Co., 338 NLRB 644 (2002). As previously dis-
cussed, Bowles’ involvement with Board proceedings was ex-
tensive and the Respondent was well aware of her efforts. She
testified at a union representation hearing in October 1998 and
April 1999. In August 1999, she filed a charge with the
Board—and had another brought by the Union on her behalf—
for discrimination in cutting her wages, reassigning her, and
changing her work schedule due to her union activities. That
charge resulted in the issuance of a complaint in November
1999. It settled in June 2000. In March 2000, Bowles filed a
charge with the Board alleging harassment by the Respondent.
The Board declined to prosecute that charge. Bowles, claiming
continuing harassment by the Respondent, refiled that charge in
September 2000, but withdrew it in October 2000. However,
she had filed another charge in September 2000 due to the im-
position of a 7-day suspension for engaging in union activity.
In November 2000, Bowles amended that charge to assert an
unlawful reassignment and a complaint issued. The Respon-
dent defaulted on that complaint and, on June 20, 2001, a Deci-
sion and Order issued finding it in violation of Section 8(a)(3)
and (1).
There is no mystery as to the Respondent’s motivation with
respect to Bowles. The prior finding of antiunion animus in
Black’s Railroad Transit Service, supra, as well as Richard
Black’s implied threat at the June 1, 2000 settlement confer-
ence and in his November 6, 2000 affidavit to the Board, con-
stitute overwhelming evidence that he was extremely bitter that
Bowles sought assistance from, and cooperated with, the Board.
Furthermore, the credible evidence establishes a clear connec-
tion between Bowles’ cooperation with Board proceedings and
her discharge. At a time when the Board’s Order regarding
BLACK’S RAILROAD TRANSIT SERVICE 555
Bowles’ unlawful suspension and reassignment in 2000 was
pending enforcement before the Court of Appeals, Richard
Black dispatched Glenda Black to the Galesburg Yard on Janu-
ary 22 for the purpose of uncovering some evidence to justify
Bowles’ discharge. Finally, for reasons discussed above in
connection with the 8(a)(3) violation, the Respondent has failed
to sustain its burden to show that it would have discharged
Bowles even if she had not cooperated in Board proceedings.
CONCLUSIONS OF LAW
1. Black’s Railroad Transit Service, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Teamsters, Chauffeurs & Helpers, Local Union No. 627,
International Brotherhood of Teamsters is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Bowles due to her support for the Union
and cooperation with Board proceedings, the Respondent vio-
lated Section 8(a)(4), (3), and (1).
4. By engaging in the conduct described above, the Respon-
dent has committed unfair labor practices affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found the Respondent has engaged in the above vio-
lations of the Act, it shall be recommended that the Respondent
cease and desist from such actions and take certain affirmative
actions designed to effectuate the purposes and policies of the
Act and post the appropriate notices. It is recommended that
the Respondent offer immediate reinstatement to employee
Candice L. Bowles, who was unlawfully discharged. She shall
be reinstated to her prior position or to a substantially equiva-
lent one if her prior position no longer exists. She shall be
made whole for all loss of backpay and benefits sustained by
her as a result of the Respondent’s unfair labor practices.
These amounts shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended29
ORDER
The Respondent, Black’s Railroad Transit Service, Inc.,
Galesburg, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging, or otherwise discriminating against any em-
ployee for cooperating with an investigation by the National
Labor Relations Board.

29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer em-
ployee Candice L. Bowles full reinstatement to her former posi-
tion of employment or, if that position no longer exists, to a
substantially equivalent position, without prejudice to her sen-
iority or any other rights and privileges previously enjoyed.
(b) Make Candice L. Bowles whole for any loss of earnings
and other benefits suffered as the result of her unlawful dis-
charge, in the manner set forth in the remedy section of this
decision.
(c) Within 14 days from the date of this Order, remove from
the personnel files of Candice L. Bowles all references to her
unlawful discharge and, within 3 days thereafter, notify her in
writing that this has been done and that these unlawful actions
will not be used against her in any way.
(d) Preserve and, within 14 days of a 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, including
an electronic copy of the records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days and after service by the Region, post cop-
ies of the attached notice marked “Appendix.”30 Copies of the
notice, on forms provided by the Regional Director for Region
33, after being signed by the Respondent’s authorized represen-
tative, 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. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since January 24,
2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

30 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”