Carry Cos. of Illinois

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 1058 (N.L.R.B. 1993)

1058
311 NLRB No. 107
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its brief in support of exceptions, the Respondent argued, inter
alia, that the judge, in finding certain violations of Sec. 8(a)(3),
failed to properly cite and apply the analysis set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Having reviewed the judge’s deci-
sion, we find that the judge’s discussion properly set forth the Gen-
eral Counsel’s prima facie case and the Respondent’s burden to
rebut it in the case of each of the alleged discriminatees. Accord-
ingly, we find that the judge’s decision ‘‘fully satisfies the analytical
objectives of Wright Line and no purpose is served by recasting his
findings to achieve formalistic compliance with the Wright Line
analysis.’’ Family Foods, 300 NLRB 649 fn. 3 (1990).
The Charging Party has excepted to the judge’s finding that dis-
patchers are not supervisors within the meaning of the Act. It argues
that this issue has never been litigated by the parties. We disagree.
The Charging Party argued this issue in an earlier representation
case, and its arguments were rejected on the merits. In this case it
was afforded the opportunity to show that the dispatchers’ status had
changed, but the judge found that the evidence failed to show any
change that would warrant a different finding on their status. Ac-
cordingly, we agree with the judge that the dispatchers are not super-
visors within the meaning of the Act.
Member Devaney agrees that the judge reached the correct conclu-
sion regarding the dispatchers’ alleged supervisory status. See Serv-
U-Stores, Inc., 234 NLRB 1143 (1978).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the preponderance
of all the relevant evidence convinces us that they are incorrect.
Standard Drywall 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.
In addition, in light of the judge’s finding, which we affirm, that
the Respondent violated Sec. 8(a)(1) of the Act on September 23,
1990, by engaging in surveillance of union representatives distrib-
uting leaflets to employees, we find it unnecessary to pass on the
second allegation of the Respondent’s surveillance approximately 2
weeks later on October 7, 1990. This allegation is cumulative and
does not change our remedy and Order.
We also find it unnecessary to pass on the judge’s finding that the
statements contained in the Respondent’s March 29, 1991 letter con-
stituted an unlawful threat of discharge or loss of employment. In
light of our finding that the Respondent violated Sec. 8(a)(1) of the
Act by threatening discriminatees Peralta and Rosenberg with dis-
charge or loss of employment, this alleged violation would be cumu-
lative and would not change our remedy and Order.
Because we do not pass on the judge’s finding that the Respond-
ent’s March 29, 1991 letter was unlawful, and because we affirm the
judge’s dismissal of the allegation that the Respondent’s February
28, 1991 letter was unlawful, our colleague’s description of both of
these letters as ‘‘unlawful’’ represent simply his own position.
Member Devaney would reverse the judge’s finding that the Re-
spondent’s unlawful February 28, 1991 letter was cured by the Re-
spondent’s second unlawful letter of March 29, 1991. He notes that
while an employer may repudiate his unlawful conduct, such repudi-
ation must also be timely and free from other proscribed illegal con-
duct. Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
Member Devaney notes that the Respondent’s letter of March 29
issued some 4 weeks after the Respondent’s unlawful statements
issued in the first letter. Most significant is that the Respondent’s
second letter contained language, as the judge found, that could be
perceived as a veiled threat that employees could lose their jobs.
Under these circumstances, Member Devaney would find that the
March 29 letter was ineffective to repudiate the Respondent’s unlaw-
ful statement contained in the February 28, 1991 letter.
In his decision, the judge inadvertently referred to two incidents
of Herman Rosenberg’s tardiness for work dated July 27 and Octo-
ber 30, 1991. We correct the judge’s decision to reflect that these
incidents occurred on those days in 1990.
3 We do not affirm the judge’s unsupported conclusion of law that
the Respondent violated Sec. 8(a)(1) and (3) of the Act by sus-
pending Herman Rosenberg and by issuing warnings to him for late-
ness on October 30 and December 28, 1990. The complaint alleged,
inter alia, that the Respondent violated the Act by suspending Rosen-
berg on December 28, 1990, and by issuing warnings to him on the
above dates. The judge, however, made no findings of fact related
to these allegations, and neither the General Counsel nor the Charg-
ing Party has excepted to the judge’s failure to discuss them. Ac-
cordingly, we find that the record does not support the judge’s con-
clusion that the warnings to Rosenberg cited above or his suspension
violated the Act. This finding, however, does not affect our affirma-
tion of the judge’s finding that the Respondent’s discharge of Rosen-
berg on February 28, 1991, violated Sec. 8(a)(1) and (3) of the Act.
We also do not affirm the judge’s finding that Rosenberg’s De-
cember 28, 1990 incident of lateness resulted in his discharge. Rath-
er, we note that Rosenberg’s discharge was precipitated by the
events on February 28, 1991. As to those, the judge found, and we
agree, ‘‘that the Respondent waited for just such an incident as a
pretext to rid itself of the principal union activist.’’
Carry Companies of Illinois, Inc. and Local 705,
International Brotherhood of Teamsters, AFL–
CIO. Cases 13–CA–29715, 13–CA–29768, 13–
CA–29910, 13–CA–30075, 13–CA–30219, and
13–RC–18093
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 30, 1992, Administrative Law Judge Karl
Buschmann issued the attached decision. The General
Counsel filed exceptions and a supporting brief and the
Charging Party filed cross-exceptions and a supporting
brief. The Respondent filed an answering brief to the
General Counsel’s and Charging Party’s exceptions.
The Respondent also filed exceptions and a supporting
brief. The General Counsel and the Charging Party
each filed answering briefs to the Respondent’s excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision in light of
the exceptions and briefs1 and has decided to affirm
the judge’s rulings, findings,2 and conclusions of law3
only to the extent consistent with this Decision and
Order.
The complaint alleged that the Respondent reduced
the overtime and weekend work assignments given to
its driver, Edward Peralta, in retaliation for Peralta’s
union activity, causing him to suffer a loss of income.
Although the judge found that Peralta lost a significant
amount of overtime pay, he concluded that the record
did not establish that this reduction was attributable to
Peralta’s union activities and he dismissed the perti-
nent complaint allegations. The General Counsel and
1059CARRY COS. OF ILLINOIS
4 At the time of Peralta’s inquiry, Hoekstra was a dispatcher. He
became the operations manager in January l99l. The Respondent ad-
mits this manager slot is a supervisory position.
5 The judge appears to have credited Albright’s testimony in its en-
tirety. He found Albright to be an honest witness and stated that her
testimony was candid, honest, plausible, and credible.
6 In yet another conversation, placed about a week before the elec-
tion, dispatcher Hoekstra told Albright that the Respondent intended
to cut back on Peralta’s work assignments in an effort to induce
Peralta to quit.
the Charging Party have excepted to this conclusion.
For the reasons discussed below, we find merit in
these exceptions.
Facts
Peralta, employed by the Respondent as a road driv-
er since December 18, 1989, became involved with the
union organizing campaign as one of the Union’s lead-
ing activists in July 1990. Peralta’s union activity con-
sisted of distributing union authorization cards and at-
tending the petition hearing as the witness for the em-
ployees on August 28 and 29, 1990. On August 27,
1990, Peralta informed the Respondent’s vice president
of operations, Randal Tamminga, that he had been sub-
poenaed to appear at the hearing. Later that same day,
the Respondent’s vice president of safety and per-
sonnel, Mike Tallaksen, had a conversation with
Peralta. The credited testimony shows that Tallaksen
asked Peralta why he had been subpoenaed and also to
identify the union ‘‘ring leaders.’’ When Peralta denied
knowing the identity of any ‘‘ring leader,’’ Tallaksen
asked if Peralta himself was involved with the Union.
Again, Peralta denied his involvement with the Union.
Tallaksen responded by threatening that if he found out
the identity of the ‘‘ring leaders,’’ ‘‘heads are going to
roll.’’
After his attendance at the hearing and on his return
to work, Peralta found the inside of his cab ransacked
and his personal belongings disturbed. Peralta reported
the incident to both Tamminga and the Respondent’s
operations manager, Dave Hoekstra, who laughed and
speculated that the perpetrator may have been ‘‘another
union driver.’’
On August 31, 1990, Peralta inquired of Hoekstra as
to his work assignments for the following Saturday and
Sunday.4 Peralta was usually given assignments every
Saturday and as often on Sunday as possible. Hoekstra
responded that Peralta’s weekend assignments would
cease, that he would no longer be permitted to work
any overtime, and that he no longer existed in the eyes
of the Respondent’s owner and chairman, Tom
Wieranga, and the Respondent’s president, Howard
Hoving.
In early September 1990, Peralta also talked to dis-
patcher Ron Oldenberg about driving a Sunday assign-
ment, but was told by Oldenberg that management had
instructed him not to permit Peralta to work weekends.
Later the same day, Peralta asked Hoving directly
about his overtime assignments and about Hoekstra’s
comment that Peralta did not exist in the eyes of man-
agement. Hoving declined to answer Peralta’s ques-
tions directly, but merely informed Peralta that he con-
sidered the issue closed and that he did not want to
discuss the matter further. The judge found that
Peralta’s overtime work assignments decreased, al-
though he did work some weekends. In addition,
Peralta’s name was frequently ‘‘whited out’’ from a
list of volunteers for weekend work assignments.
Hoekstra, when asked by Peralta about this situation,
claimed to know nothing about it.
On October 4, 1990, Peralta approached Tallaksen
to inquire again about his overtime work. Tallaksen
initially responded to this inquiry by interrogating
Peralta about an NLRB subpoena that the Respondent
had recently received. After Peralta denied knowledge
of the matter, Tallaksen told Peralta to ‘‘keep his nose
clean, stay straight, keep a low profile.’’ Tallaksen
then promised to assist Peralta in getting his Sunday
and overtime work reinstated, cautioning Peralta to
‘‘watch your ass. They are after you and they want
you.’’ Finally, Tallaksen volunteered to Peralta that the
Respondent had hired 16 new employees to ‘‘squash’’
the ‘‘problem with the Union and the Labor Board’’
and that the Respondent was willing to hire 20 or more
employees to do so.
Also in October 1990, a number of conversations
took place concerning Peralta between the Respond-
ent’s management and Valerie Albright,5 a non-
supervisory assistant to Tallaksen. Albright was told by
Tallaksen in early October (or a few weeks before the
representation election on November 8, 9, and 10,
1990) that Peralta was one of the employees who was
‘‘pushing for the union.’’ In a later conversation, also
placed before the union voting, Tallaksen told Albright
that the Respondent was looking for a reason to termi-
nate Peralta (as well as Herman Rosenberg, another
union activist), that it would have to be after the elec-
tion, but that both would definitely be terminated.6
The credited testimony also shows that, subsequent
to the election on November 10, 1990, Tamminga told
Peralta that, ‘‘when this union mess is done, you are
done.’’ Between November 13 and December 5, 1990,
the Respondent also issued several warnings to Peralta
for his inability to be available for work because of his
function in the election; for his request for an early
dispatch on the Monday following the election; and for
allegedly being late to work. Also in December 1990,
the Respondent suspended Peralta for 3 days, citing
two prior incidents of tardiness in addition to the one
in December. Finally, the Respondent discharged
Peralta on April 30, 1991, allegedly for parking a load-
ed trailer in an unauthorized truckstop.
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The judge found, and we agree, that the Respondent violated the
Act by Tallaksen’s interrogation and threatening of Peralta on Au-
gust 27, 1990; by Tallaksen’s threats and promises related to
Peralta’s weekend and overtime work on October 4, 1990; by
Tamminga’s threats to Peralta on November 10, 1990; by issuing
warnings to Peralta between November 13 and December 5, 1990;
by suspending Peralta in December 1990; and by discharging Peralta
on April 30, 1991.
8 The evidence relating to this finding consists of the Respondent’s
internal incident report dated June 13, 1990, signed by Tallaksen,
which explains that he went over Peralta’s logbook with him and in-
formed Peralta that he ‘‘cannot log off duty when he is working and
he can’t work 7 days a week as he [sic] will put him over 70 hrs.’’
(Emphasis added.) In the ‘‘Action Taken’’ space on the form,
Tallaksen wrote ‘‘Told dispatch not to work Ed [Peralta] 7 days a
week.’’
9 See fn. 4, supra.
10 We do not take issue with the Respondent’s claim that the June
1990 incident report was motivated by its attempt to comply with
Federal regulations, which prohibit drivers from working more than
70 hours per consecutive 8-day period and by its concern at that
time, pursuant to this regulation, that if Peralta worked the ‘‘Sunday
shuttle’’ he could be unavailable for work early on Monday morn-
ings.
11 The judge found that ‘‘Tallaksen had instructed the dispatch of-
fice already in June 1990 not to permit Peralta to work 7 days a
week. [Tr. 880; R. Exh. 13.]’’ Our review of the transcript reveals
that Tallaksen testified only that he ‘‘told [Peralta] he couldn’t work
seven days a week.’’ Although R. Exh. 13 indicates that Tallaksen
told dispatch of the incident report, we note that Tallaksen did not
testify that he had told dispatch nor did he testify that he had told
Peralta that dispatch was informed of the incident report. There is
also no corroborating testimony from dispatch that it was informed
on that day. Thus, Tallaksen’s testimony fails to corroborate R. Exh.
13 and, indeed, it contradicts that exhibit.
12 We also note Hoekstra’s conversation with Albright, in which
he indicated that the Respondent intended to reduce Peralta’s work
assignments in an attempt to induce him to quit (see fn. 4). Although
we cannot attribute this statement of Hoekstra to the Respondent (he
was a dispatcher at the time he made it and, thus, not a supervisor),
the conversations between Hoekstra and Peralta, Peralta and Hoving,
and Hoekstra and Albright—taken together—strongly suggest that
Analysis
The judge found numerous violations directed at
Peralta7 and that Peralta lost a ‘‘significant’’ amount of
overtime pay and conceded that an inference was pos-
sible that this reduction was ‘‘union related,’’ but he
nevertheless dismissed this aspect of the complaint. In
dismissing this allegation, he noted that Tallaksen had
ordered a reduction in Peralta’s overtime and 7-day
workweek in June 19908 and concluded that the reduc-
tion in Peralta’s overtime was ‘‘effectuated’’ prior to
Peralta’s union activity, which began in July 1990. He
also found that the reduction in late August 1990 was
a ‘‘direct result’’ of the June 1990 incident report. In
addition, he noted that the extent of Peralta’s reduction
in overtime, if at all, as a result of his union activity
is unclear. He also found that other drivers with simi-
lar seniority also worked on a reduced schedule at a
reduced level of income. Therefore, he concluded that
the record does not establish that any reduction in
Peralta’s income was directly attributable to his union
activity. We are persuaded, for the reasons described
below, that the Respondent has not satisfied its burden
to rebut the General Counsel’s prima facie case of dis-
crimination.
The General Counsel has established a strong prima
facie case that Peralta’s weekend and overtime work
assignments were reduced as a result of his union ac-
tivity. Here, the Respondent admits that it had knowl-
edge of Peralta’s union activity. Further, the numerous
8(a)(1) violations consisting of interrogations, threats,
and promises, including many aimed directly at
Peralta—amply establish the requisite element of union
animus.9 Finally, the credited testimony of Albright, an
assistant to the Respondent’s vice president, Tallaksen,
that Tallaksen told her that the Respondent intended to
terminate Peralta after the election is evidence of the
Respondent’s discriminatory motive.
We disagree with the judge that the Respondent car-
ried its Wright Line burden because we find that the
record fails to support his finding that the reduction in
Peralta’s overtime and weekend work was either effec-
tuated prior to Peralta’s union activity or that the re-
duction in August 1990 was related to that incident re-
port.10
The Respondent has not established that Tallaksen
told dispatch, or that dispatch was otherwise informed,
of the incident report at the time it was made on June
13, 1990.11 The payroll records in evidence as the
General Counsel’s exhibit do not show a decrease in
Peralta’s average weekly earnings (as would be ex-
pected after an implemented reduction in overtime
hours) immediately following the June 1990 report.
Rather, the payroll records reveal that Peralta’s average
weekly earnings remained approximately the same or
even increased after June 1990, and began to discern-
ibly decrease only after August 1990. Indeed, the
record is silent on the matter of the incident report
until August 31, 1990. On that date—2-1/2 months
after the incident report and just 2 days after Peralta
served as an observer at a Board hearing in the rep-
resentation case—Peralta discussed his weekend as-
signment with dispatcher Hoekstra. The credited testi-
mony shows that Hoekstra informed Peralta that his
weekend work assignments would cease, that he would
no longer be permitted overtime work, and that he ‘‘no
longer exists’’ in the view of management. When
Peralta questioned the Respondent’s president, Hoving,
about Hoekstra’s statements, Hoving responded that he
considered the issue closed and did not care to discuss
the matter any longer. We note that if the Respond-
ent’s motive for the reduction was based on
Tallaksen’s June 1990 incident report, this simple ex-
planation could have been conveyed by Hoving to
Peralta. Indeed, Hoving’s failure to repudiate
Hoekstra’s comments suggests that he confirmed
them.12 Additionally, soon after these conversations,
1061CARRY COS. OF ILLINOIS
what Hoekstra told Albright was not based on mere conjecture but
accurately represented the Respondent’s motive for conversations,
dispatcher Oldenberg told Peralta in early reducing Peralta’s over-
time and weekend hours. Thus, Hoekstra’s statements to Peralta,
which were effectively confirmed by Hoving, coupled with
Hoekstra’s statements to Albright, indicate that Hoekstra, as the Re-
spondent’s dispatcher, had knowledge of the Respondent’s discrimi-
natory intent relating to Peralta’s work assignments.
13 We note that the judge’s reliance on the fact that other drivers
also worked at a reduced level of income is also not compelling.
Even assuming that average weekly earnings decreased for these
drivers, the record is devoid of any explanation for such a decrease
and we note that the Respondent has declined to posit one. If the
Respondent’s rebuttal argument is that it did not single out Peralta
for discriminatory treatment, but rather reduced all drivers’ overtime
and weekend hours in an equal or nondisparate fashion, it has the
burden of coming forward with evidence of such a general plan. It
is not enough for the Respondent merely to show that other employ-
ees’ income also decreased.
14 The General Counsel, the Charging Party, and the Respondent
each have urged their respective methods of computation of Peralta’s
loss of income (or lack thereof). Although we do not adopt any one
of these methods, we do find that Peralta’s earnings discernibly de-
creased as a result of the Respondent’s unlawful discrimination, and
that such a decrease was greater than de minimis. We leave to com-
pliance the determination of the exact amount of that loss.
dispatcher Oldenberg told Peralta in early September
that he had received instructions from management
that Peralta could not work on weekends. This testi-
mony suggests that the dispatchers were not informed
of the reduction in Peralta’s hours until late August or
early September, after the Respondent’s knowledge of
Peralta’s union activity.
It is also significant that both Hoekstra’s and
Oldenberg’s statements describe new limitations on
Peralta’s work schedule that go well beyond the June
1990 incident report. That report indicated only that
Peralta would not be allowed to work 7 days a week,
or more than 70 hours in an 8-day period. Hoekstra in-
formed Peralta, however, that his weekend and over-
time work would cease entirely. Oldenberg also in-
formed Peralta that he could not work weekends at all.
Thus, the Respondent’s reliance on the June 1990 re-
port to explain the reduction in Peralta’s overtime
hours is undermined not only by the delay in imple-
menting it but also by the imposition of different and
harsher terms.
The Respondent’s asserted reason for the reduction
in Peralta’s overtime hours also is belied by
Tallaksen’s comments to Peralta on October 4, 1990.
The credited testimony establishes that Tallaksen, the
author of the June 1990 incident report, promised to
intercede with management to restore Peralta’s Sunday
and overtime work, and cautioned that management
was after him. The judge found, and we agree, that
these statements violated Section 8(a)(1) of the Act.
These promises, then, that Tallaksen would lobby
upper management to reinstate Peralta’s overtime and
weekend hours (if Peralta kept his nose clean, stayed
straight, and kept a low profile) establish that Peralta’s
overtime hours were being reduced for union reasons
and not because of Tallaksen’s June 1990 report.
In sum, we find that the Respondent failed to show
that the reduction in Peralta’s overtime and weekend
hours resulted from the June 1990 incident report.
Rather, the record establishes that the Respondent re-
duced Peralta’s overtime and weekend hours only after
it learned of his union activities in August 1990. At
that time, contrary to the language of the June 1990
incident report, Peralta was told that his overtime and
weekend work would be eliminated, not merely re-
duced to 70 hours in an 8-day period. Therefore, the
Respondent’s reliance on the June 1990 report to ex-
plain the reduction in Peralta’s overtime and weekend
work after August 1990 is pretextual. This is especially
true in light of both Albright’s testimony about the Re-
spondent’s general intent to terminate Peralta and
Tallaksen’s unlawful promises and threats specifically
related to Peralta’s work assignments. Thus, we cannot
agree that Peralta’s overtime reduction was ‘‘effec-
tuated’’ prior to his union activities or that such reduc-
tion in August 1990 was a ‘‘direct result’’ of that re-
port. Accordingly, we conclude that the Respondent
has failed to rebut the prima facie case of discrimina-
tion,13 and that by reducing Peralta’s weekend and
overtime work, causing him to suffer a loss of in-
come,14 the Respondent has violated Section 8(a)(3) of
the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 9.
‘‘9. By reducing the overtime and weekend assign-
ments of Edward Peralta causing him to suffer a loss
of income because of his union activity, the Respond-
ent violated Section 8(a)(3) of the Act.
‘‘10. By warning Herman William Rosenberg, by
warning and suspending Edward Peralta, and by dis-
charging them and Dean Ridder and Dean Jones be-
cause of their union activities, the Respondent violated
Section 8(a)(1) and (3) of the Act.’’
ADDITIONAL REMEDY
Having unlawfully reduced the overtime and week-
end assignments of Edward Peralta, the Respondent
shall make him whole for any loss of earnings he may
have suffered by reason of discrimination against him
with interest. Backpay will be the computed in the
manner prescribed in Ogle Protection Service, 183
NLRB 682, 683 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest to be computed in the manner set
forth in New Horizons for the Retarded, 283 NLRB
1173 (1987).
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 We have modified the judge’s notice to conform to the language
in par. 2(b) of his recommended Order.
16 We have modified the judge’s recommended Order to require
the Respondent to post the attached notice at its Lafayette, Indiana
facility in addition to its Bridgeview, Illinois facility. In so doing,
we note that discriminatee Dean Jones was based out of the Lafay-
ette terminal. Accordingly, we find it appropriate to notify any other
employees employed out of that facility of the Respondent’s unlaw-
ful action and of its assurances that other employees will not be
similarly adversely affected because of their union activities.
17 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Carry Companies of Illinois, Inc.,
Bridgeview, Illinois, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Engaging in the surveillance of employees’
union activity.
(b) Coercively interrogating its employees con-
cerning their union activities.
(c) Threatening employees with discharge, loss of
employment, or loss of overtime work because of their
union activities.
(d) Promulgating an overly broad no-solicitation rule
forbidding union solicitation on company time.
(e) Intimidating employees and interfering with their
protected rights.
(f) Threatening employees to hire additional employ-
ees in order to defeat the Union or promising employ-
ees to restore overtime work if they refrain from their
union activity.
(g) Reducing employees’ overtime and weekend
work assignments because of their union activities.
(h) Warning, suspending, or discharging employees
because of their union activities.
(i) 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 Dean Jones, Dean Ridder, Herman William
Rosenberg, and Edward Peralta immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed and make them whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them, including
reductions in overtime and weekend work assignments,
in the manner set forth in the remedy section of this
decision.
(b) Remove from its files any references to the un-
lawful discharges of the discharged employees, any
references to the warnings or suspensions of Edward
Peralta, and the warning of Herman William Rosen-
berg, and notify the employees in writing that this has
been done and that the discharges will not be used
against them in any way.15
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Bridgeview, Illinois, and Lafayette,
Indiana16 facilities copies of the attached notice
marked ‘‘Appendix.’’17 Copies of the notice, on forms
provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized represent-
ative, 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 no-
tices 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT engage in any surveillance of our em-
ployees’ union activities.
WE WILL NOT coercively interrogate our employees
about their union activities.
WE WILL NOT threaten employees with discharge,
loss of employment, or loss of overtime work because
of their union activities.
WE WILL NOT promulgate an overly broad no-solici-
tation rule forbidding union solicitation on company
time.
WE WILL NOT intimidate or interfere with the em-
ployees’ protected rights.
WE WILL NOT threaten to hire additional employees
in order to defeat the Union or promise to restore their
overtime work if they refrain from their union activity.
WE WILL NOT reduce the overtime or weekend work
assignments of our employees because of their union
activities.
1063CARRY COS. OF ILLINOIS
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 By order, dated March 20, 1992, Case 13–RC–18093 was sev-
ered and remanded to the Regional Director. The objections are ac-
cordingly no longer a part of the consolidated cases here.
WE WILL NOT issue warnings, suspensions, or dis-
charges or otherwise discriminate against our employ-
ees because of their union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Dean Jones, Dean Ridder, Herman
William Rosenberg, and Edward Peralta full and im-
mediate reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority and other
rights and privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings and other
benefits they may have suffered by reason of the dis-
crimination practiced against them, with interest.
WE WILL notify each of them that we have removed
from our files any reference to his discharge and that
the discharge will not be used against him in any way.
WE WILL notify Edward Peralta that we have re-
moved from our files any reference to his warnings or
suspension and WE WILL notify Herman William
Rosenberg that we have removed from our files any
references to his warning.
CARRY COMPANIES OF ILLINOIS, INC.
Richard S. Andrews and Aaron Karsh, Esqs., for the General
Counsel.
Frederic H. Fischer and James R. Beyer, Esqs. (Seyfarth,
Shaw, Fairweather & Geraldson), of Chicago, Illinois, for
the Respondent.
Martin P. Barr and William A. Widmer III, Esqs. (Carmell,
Charone, Widmer, Mathews & Moss, Ltd.), of Chicago, Il-
linois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. These
cases were tried at Chicago, Illinois, on August 12–15 and
September 3–6, 1991. The charges were filed by Local 705,
International Brotherhood of Teamsters, AFL–CIO1 (the
Union) on September 17, 1990, in Case 13–CA–29715, on
October 16, 1990, in Case 13–CA–29768, on December 5,
1990, in Case 13–CA–29910, on March 4, 1991, in Case 13–
CA–30075 as amended on April 1, 1991, and on May 2,
1991, in Case 13–CA–30219. The consolidated complaint in
Cases 13–CA–29715, 13–CA–29768, and 13–CA–29910
issued on February 28, 1991; an order consolidating those
cases and Case 13–CA–30075 issued on May 22, 1991. A
report on challenged ballots and objections and an order con-
solidating those cases with Case 13–RC–18093 issued on
May 30, 1991.2 And an order further consolidating the cases
with Case 13–CA–30219 issued on June 12, 1991.
The Respondent filed timely answers in which the jurisdic-
tional elements of the complaint were admitted and the sub-
stantive allegations of unfair labor practices were denied.
The alleged violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act) include threats of dis-
charge and other reprisals because of the employees’ union
activity, unlawful interrogations of employees about their
union activities, unlawful surveillance of employees’ union
activities, the promulgation and enforcement of overly broad
no-solicitation rules, and the unlawful discharges and other
discriminatory treatment of five employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel, the Company, and the Union,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, Carry Companies of Illinois, Inc., located
in Bridgeview, Illinois, has been engaged in the transpor-
tation, distribution, warehousing, and packaging of dry food
products and sterilization of tanks. In 1990, a representative
period, the Respondent sold and shipped from its
Bridgeview, Illinois facility products and materials valued in
excess of $50,000 directly to points outside the State of Illi-
nois. The Company is admittedly an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The Union, Local 705, International Brotherhood of Team-
sters, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
II. BACKGROUND
In the fall of 1989, Herman Rosenberg, an employee of
Carry Companies, contacted the Union, Local 705, and set
up a meeting to be held in January 1990 (Tr. 64, 768).
Rosenberg and two other truckdrivers met with the union
representatives, Richard Mall and Sam Tenuta, to discuss the
employees’ interest in union representation. The union agents
explained the benefits and handed out union literature and
union authorization cards (Tr. 65, 769). During a period after
the meeting, Rosenberg distributed union cards to fellow em-
ployees, the ‘‘city’’ drivers, and eventually received approxi-
mately 75 signed cards. Another employee, Edward Peralta,
who was classified as a ‘‘road driver,’’ assisted the union
campaign by soliciting the road drivers for the Union and by
requesting them to sign union cards. Employees Dean
Ridder, Dean Jones, and Raymond Krause also assisted the
union campaign (Tr. 67).
On August 6, 1990, the Union filed a petition in Case 13–
RC–18093 to represent the Respondent’s mechanics and
drivers. Pursuant to a Decision and Direction of Election
issued by the Regional Director on October 3, 1990, an elec-
tion was conducted on November 8, 9, and 10, 1990, involv-
ing two separate units, one for mechanics and the other for
the drivers (G.C. Exh. 1(u); R. Exh. 5). The National Labor
Relations Board dismissed the petition of the Union to rep-
resent Respondent’s mechanics as a separate unit (R. Exh. 6).
With respect to the unit of drivers, the election revealed that
the Union received 42 votes, 77 were against the Union and
62 ballots were challenged. The challenges and objections
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As already stated, on motion by the Union, Case 13–RC–18093
was severed from this case and remanded to the Regional Director.
4 The Respondent’s motion to amend his answer was granted
showing that Hoekstra became operations manager as of January 1,
1991, and that he was a dispatcher prior to that date. The Respond-
ent disputes his supervisory status prior to January 1, 1991.
5 The 8(a)(1) allegations in the complaint involving Hoekstra and
other dispatchers are therefore not supported by the record.
6 The General Counsel’s motions to amend the complaint with
substantive allegations are denied with the exception of a few inci-
dents which are closely related to and repetitions of existing allega-
tions.
filed by the Union were ordered consolidated with the hear-
ing in this case by order of May 30, 1991.3
III. THE CORPORATE HIERARCHY AND SUMMARY OF ITS
REACTION TO THE UNION CAMPAIGN
Carry Companies of Illinois, Inc. includes an operation
known as Carry Transit which performs the transportation
function and a warehouse operation known as Hollander Dis-
tribution Services. In addition to the headquarters in
Bridgeview, Illinois, the Respondent maintains facilities in
Decatur, Illinois; Lafayette, Indiana; Weaver, Iowa; Dayton,
Ohio; Vassar, Michigan; Lakeland, Florida; and Morrisville,
Pennsylvania. The owner and chairman of Carry Companies
is Tom Wieranga, the president is George Van Denend, and
president of Carry Transit, the subsidiary, is Howard Hoving
(Tr. 815–817). Other admitted supervisors are: Tim Van
Denend, vice president of Hollander Distribution, Randal
Tamminga, vice president of operations, Mike Tallaksen,
vice president of safety and personnel, and Dave Hoekstra,4
operations manager or manager of tank fleet operations (Tr.
821, 1188, 1345, 1414; G.C. Exh. 1(t)). Prior to January
1991, when Hoekstra functioned as dispatcher, he was, ac-
cording to the General Counsel, also a supervisor within the
meaning of Section 2(11) of the Act.
The Regional Director’s decision in Case 13–RC–18093
that dispatchers at Carry Companies are not supervisor em-
ployees was affirmed by the Board (R. Exhs. 5, 6).
The record here shows that the dispatchers, including
Hoekstra, possessed none of the indicia enunciated in Section
2(11) of the Act with the possible exception of the authority
to assign or responsibly to direct the drivers. In that regard,
the record shows that dispatchers used their discretion in di-
recting the drivers and generally had wide latitude in assign-
ing work. Dispatchers assigned work without prior consulta-
tion with higher supervision and based on their own evalua-
tion of the availability of a driver, also considering the mile-
age of a particular trip, the load time, as well as weather and
the traffic conditions. Randal Tamminga, vice president of
operations and a former dispatcher, testified that dispatchers
supervise the drivers (Tr. 1235). Dispatchers make the work
assignments and inform drivers where to drive to pick up a
load. Dispatchers are contacted when drivers encounter prob-
lems during their assignments (Tr. 1167–1170, 1333, 1365).
For example, Hoekstra dispatched Edward Perelta to Cali-
fornia, because he was experienced, qualified, and was rested
and ready to go (Tr. 1222–1223). Dispatchers also sign time-
cards when drivers failed to punch in or out, and they fill
out and sign ‘‘incident warning notices’’ or ‘‘incident re-
ports’’ on forms in a space marked ‘‘supervisor’’ (G.C.
Exhs. 14, 15, 18; Tr. 1365). In this regard, they function
more like observers and reporters of employee misconduct
than as disciplinarians. Nevertheless, dispatchers do not ap-
prove sick leave, grant time off, or make recommendations
for discipline. In determining which driver to dispatch for a
particular assignment, dispatchers consider certain established
criteria. (Tr. 1371–1386.) About half of the Respondent’s
dispatchers are paid a salary, the other half are paid on an
hourly basis. Dispatchers occasionally drive when the need
arises. I find no basis in the record in this case to warrant
reversing the finding of the Regional Director as affirmed by
the Board, and it is my conclusion that dispatchers, including
Hoekstra in his position as a dispatcher prior to January 1,
1991, are not supervisors within the meaning of the Act. Bay
Area-Los Angeles Express, 275 NLRB 1063, 1080 (1985);
Connecticut Distributors v. NLRB, 681 F.2d 127 (2d Cir.
1982); NLRB v. Hale Container Line, 943 F.2d 394 (4th Cir.
1991).5
The record shows that the principal union activists, Her-
man Williams Rosenberg, Edward Peralta, Dean Ridder,
Raymond Krause, and Dean Jones, were discharged under
different circumstances during and after the union campaign.
The General Counsel and the Charging Party have taken the
position that the discharges were motivated by the Employ-
er’s union animus and that management threatened some of
these employees with reprisals because of their union sup-
port, and that others were interrogated about their union ac-
tivity.6 The Respondent argues strongly that none of the dis-
charges were related to the employees’ union activity, that
management was unaware of the union activities of certain
employees, and that each discharge was the result of the em-
ployees’ misconduct. Following threats to discharge employ-
ees who engaged in union activities, the Respondent dis-
charged Dean Ridder on July 17, 1990, ostensibly for the
ofense of urinating in the trailer yard (G.C. Exh. 14). On
July 19, 1990, the Respondent discharged Raymond Krause
because, according to the Company, ‘‘he stole time’’ from
the Company (G.C. Exh. 21). These discharges occurred ap-
proximately 3 weeks prior to the Union’s petition filed on
August 6, 1990.
On October 2, 1990—approximately 1 month prior to the
election on November 8, 9, and 10, 1990—the Respondent
discharged Dean Jones with the justification that he operated
a company vehicle with an unauthorized passenger, namely,
his son (G.C. Exh. 1(u), 17).
Drivers Rosenberg and Peralta functioned as union observ-
ers during the election. Following incidents of tardiness for
work and a suspension on December 25, 1990, Rosenberg
was terminated on February 25, 1991, based on being ‘‘three
times late in a 6-month period’’ (G.C. Exhs. 3(h), (m)). And
Peralta, who was assigned by Hoekstra to a trip to California
on November 5, 1990, even though it would have interfered
with his schedule as a union observer during that time and
who received several warning notices during the course of
the ensuing months, was finally discharged on April 30,
1991. The Company based the discharge on his unauthorized
dropping or parking the trailer at a truckstop close to his
home (G.C. Exhs. 10(a)–(e), (i), and (j)).
The Company’s union-related motive for the discharges of
Rosenberg and Peralta are well illustrated by the credible tes-
timony of Valerie Albright, who was employed by the Com-
pany from August to December 1990 as assistant safety di-
1065CARRY COS. OF ILLINOIS
rector in the office of Mike Tallaksen, vice president of safe-
ty and personnel (Tr. 740). According to Albright, Tallaksen
‘‘asked [her] if [she] wanted to know who was really push-
ing for the union. [She] said yes, and then he told [her] it
was Bill Rosenberg and Eddie Peralta’’ (Tr. 742). She also
testified as follows (Tr. 748):
That they were going to definitely find a way to ter-
minate Bill Rosenberg and Eddie Peralta, but it would
have to be something legitimate. But they couldn’t do
it before the union voting because it would come up in
a trial for the purpose that they would think that they
had terminated them for wanting the union into the
company. But they said that once the union vote was
over, that they were definitely going to work something
out to terminate them. That they were definitely out.
The Respondent argues that although Carry knew that
Peralta and Rosenberg were union advocates, this does not
mean that they could engage in misconduct with impunity,
indeed, ‘‘the Company knew that Peralta and Rosenberg
would file unfair labor practice charges if they were termi-
nated and therefore knew they would have to justify any de-
cision to terminate their employment, no matter how valid a
reason they had for the termination.’’ (R. Br. 65.) The Re-
spondent, however, denied any knowledge that Jones,
Krause, or Ridder had engaged in any union activity (R. Br.
29, 43, 58). Accordingly, their discharges could not have
been union related under the Respondent’s theory. The Re-
spondent further argues that it terminated those employees
for legitimate reasons and that none of the employees were
threatened, interrogated, or otherwise coerced about their
union activities.
IV. ALLEGED VIOLATIONS
The first incident of alleged misconduct occurred in June
1990. According to the testimony of Raymond Krause, How-
ard Hoving, president of Carry Transit, came out of his of-
fice on June 7, 1990, and saw four or five drivers, including
Krause, in the hallway of the dispatch office. The other driv-
ers identified by Krause were Rosenberg, Tony Rhodes, and
Al Kraal. Krause testified as follows (Tr. 615):
Mr. Hoving came out of his office and asked how
we were doing and how things were going. We voiced
our opinion. He said that there is an awful lot of con-
gregating going on out in the hallways, in the parking
lots, a lot of men spending time smoking cigarettes out
here and drinking coffee. He said that is all going to
come to a screeching halt, because he has new work
rules coming out next month.
Right after that he said he heard there was union ac-
tivities going on on the premises, on company premises
in Bridgeview and on company time, and if he finds
out who it is, he is going to fire him.
In his testimony, Hoving denied threatening the employees
or engaging in a conversation with them. He further stated
that the four or five other drivers identified by Krause could
not have been at the Bridgeview terminal at one point in
time based on his examination of the dispatch sheets (Tr.
1131, 1134–1136; R. Exh. 21). My analysis of the dispatch
sheets reveals that drivers Kraai, Rosenberg, and Krause,
who was driving the shuttle, could have been together at the
terminal that day shortly after 2 p.m.; however, the other
driver, Tony Rhodes, left the terminal at 2 p.m. and could
not have been among them as Krause testified. It is accord-
ingly unlikely that the conversation occurred as recalled by
Krause. In view of Hoving’s unequivocal denial of the con-
versation, I credit his testimony and find that he did not
make the threat attributed to him, nor did he promulgate an
unlawfully broad no-solicitation rule, as alleged in the com-
plaint.
The Discharge of Raymond Krause. The termination of
Krause on July 19, 1990, ‘‘for theft of Company time’’ was,
according to the General Counsel and the Charging Party,
motivated by his union activity. But the Respondent argues
emphatically that it was not even aware of Krause’s union
activity and did not have a pretextual reason. Krause was
hired on January 25, 1989, and worked as a city driver and
as a road driver. Krause first learned about the Union in No-
vember 1989 from Rosenberg and other drivers. In May
1990, he had a conversation with Rosenberg in the Com-
pany’s parking lot. Thereafter, he signed a union authoriza-
tion card, distributed about 30 to 35 union cards to other
drivers, and discussed the benefits of the Union with them
(Tr. 611, 617).
Krause attended a meeting in May 1990 in the conference
room with other drivers and two representatives from man-
agement, Howard Hoving and Tim Van Denend. The pur-
pose of the meeting was to iron out any difficulties with dis-
patch, to discuss company benefits, pay raises, mileage rates,
and hourly rates. Krause asked Hoving during the meeting
whether the employees deserved a pay raise of some sort.
Hoving replied, ‘‘Are you trying to put me on the spot,’’ but
agreed, saying, ‘‘yes, I do’’ (Tr. 613–614). Krause had an-
other meeting with Hoving in the end of June 1990. Hoving
called Krause into his office and said: ‘‘Ray I would like for
you to set a good example amongst the other workers at
Carry Companies by quit complaining about dispatching, the
hours you are spending on your pickups and deliveries. Quit
complaining and set a good example and be a better worker
and calm down. If you have any problems, come into my of-
fice and see me and we will try to straighten them out our-
selves, between us.’’ (Tr. 616.) Krause replied that he had
the same complaint right now, that he had 6 months ago, a
year ago, and that he hoped that he did not have the same
complaint 6 months from now. Krause thanked Hoving for
the opportunity to resolve problems with pay and dispatch
and left the office (Tr. 617).
The incident giving rise to the discharge began on July 16,
1991, when Krause was dispatched to pick up a load for
Borden Company in Milwaukee, Wisconsin. He arrived at
Borden at 9 a.m. on July 17, finished discharging the load
at 11 or 11:05 a.m., and, according to his testimony, returned
to the Bridgewater terminal at 1:35 or 1:40 p.m. He parked
his truck, completed his reports, and, after being told that
there was no more work, he punched out at 2 p.m. (Tr. 621–
623). According to the Respondent’s version of the events,
Krause lingered in the terminal from 1:15 p.m., the time he
actually arrived, until 2 p.m., when he punched out (G.C.
Exhs. 19, 21). Dispatcher Van Bruggen testified that Krause
returned from Milwaukee at approximately 1 p.m. and was
dismissed for the day. However, at 2 p.m., when Van
Bruggen proceeded to punch out, he observed that Krause
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The General Counsel’s motion to correct the transcript is granted
to reflect that ‘‘Ritter’’ should read ‘‘Ridder.’’
was still in the dispatch area and that he punched the time-
clock as Van Bruggen was leaving (Tr. 1285). An incident
report was completed by Al Kraai, stating (G.C. Exh. 19):
Ray was dispatched for next day at 1:15, was told he
was done for the day, waited until 2:00 p.m. to punch
out. Incident was noticed by Wes & Al. Suspended 7–
19—pending investigation.
Tallaksen testified that he relied on the reports of both dis-
patchers, Kraai and Van Bruggen, as well as his own inves-
tigation of the timing of the return trip. He testified that he
was unaware of Krause’s union activity (Tr. 840–849, 977).
According to Tallaksen, Kraai reported to him that Krause
had been observed at 1:15 p.m. in the dispatch area and did
not punch out until 2 p.m. Tallaksen checked with the other
dispatcher, Van Bruggen, at his home to verify the informa-
tion. Krause’s travel from Hammond, Indiana, to Borden in
Milwaukee was in excess of 100 miles and was therefore
paid according to mileage, but the return trip from Borden
to the Bridgeview terminal was less than 100 miles which
means that the driver returns ‘‘on the clock’’ (Tr. 841).
Tallaksen with his own car checked the time it took from the
Lake Forest Oasis, the last stop Krause made, and he also
checked with the receiving office at Borden to establish
when Krause left. In the meantime he had been in contact
with Krause and informed him that he was suspended pend-
ing review of the trip from Milwaukee. He testified, ‘‘I had
discussed with Ray the distance, the time it took, what Bor-
den had told me about the time that he left there. Ray stated
it wasn’t possible.’’ (Tr. 848.) Tallaksen became convinced
that his dispatchers were correct and made the decision to
discharge Krause (Tr. 977).
The General Counsel argues that Tallaksen’s time esti-
mates were erroneous and that Krause could not have arrived
in Bridgeview earlier than 1:35 or 1:40 p.m. For example,
a driver leaving around 10:50 a.m. or 11 a.m. from Borden’s
facility to the Bridgeview terminal would need about 2-1/2
hours for the 97-mile trip. Considering Krause’s stop at the
Lake Forest Oasis to make a telephone call to the dispatch
office would make an arrival time at 1:35 or 1:40 p.m. a rea-
sonable estimate, argues the General Counsel.
I find that Tallaksen reasonably relied on the report of his
two dispatchers and his estimate of the duration of the return
time of the driver. Moreover, I find Tallaksen’s testimony on
this issue credible, particularly when compared to that of
Krause. Krause’s testimony was at times unreliable and con-
tradictory. For example, he testified that the time 11 a.m. on
the dispatch sheet reflects the time when he ‘‘finished pump-
ing off the load’’ and that prior to leaving the Borden facility
the truck had to be weighed and paperwork had to be com-
pleted with an additional delay of 15 to 20 minutes prior to
departure. He then changed his testimony to reflect that the
11 a.m. time showed actual departure time and he finally
conceded that the 11 a.m. time which he noted on the report
was inaccurate (Tr. 1491–1492). Under these circumstances,
the Respondent was justified to conclude that this employee
had engaged in the conduct it referred to as ‘‘stealing time.’’
Krause’s prior misconduct includes a written notice, dated
February 10, 1990, reporting ‘‘log falsification’’ and two
written warnings in 1989, one for failing to turn in his logs
and another for driving in excess of the 10-hour driving rule
(R. Exhs. 1–3).
I also agree with the Respondent that the record does not
support a finding that Krause’s discharge was the result of
any disparate treatment, such as the current employment of
drivers who were accused of the same conduct. The Com-
pany’s Rules of Conduct contained in the employee manual
provides for but does not mandate ‘‘progressive discipline’’
for such offenses as ‘‘loafing’’ or ‘‘falsifying company
records’’ or ‘‘making false claims’’ (G.C. Exh. 20). In spite
of evidence of a poor work record, the record is not clear
whether the Company relied on Krause’s past violations of
company rules. Tallaksen explained that the Company’s pol-
icy is one of progressive discipline, but, on occasion a driver
may be discharged after the first offense (Tr. 832, 946, 967).
I also find that despite Krause’s extensive union activity, the
record does not support a finding that management was
aware of his union activity. Krause may have been observed
by dispatchers as he talked to other drivers about the Union;
however, an inference that dispatchers informed management
would be speculative. And the various conversations between
Hoving and Krause did not pertain to the Union or the union
campaign. Neither can the General Counsel nor the Charging
Party rely on the small-plant doctrine considering the size of
the Respondent’s operation. In short the record does not es-
tablish any causal connection between Krause’s discharge
and his union activity. I accordingly dismiss the 8(a)(1) and
(3) allegations involving this employee.
The Discharge of Dean Ridder 4.7 According to the Re-
spondent, there was hardly ‘‘an employee whose termination
was more justified than Dean Ridder’’ (R. Br. p. 42). Yet the
Respondent and the Charging Party argue that the discharge
was motivated by union animus and discriminatory as al-
leged in the complaint.
Ridder began his employment at Carry in July 1985 and
was discharged effective July 20, 1990, as a warehouse em-
ployee. He first learned about the Union in April 1990 from
some of the drivers, and recalled he asked Alvin Harks about
the Union (Tr. 492):
I asked Mr. Harks what he thought about the union,
and Mr. Harks’ reply was that if the union was brought
in that Mr. Wieranga would close the doors.
Ridder referred to Harks as his supervisor; however, the
record shows that Harks was employed on a full-time basis
at Carry from March 3, 1986, to June 1, 1988, to establish
a warehouse operation and contract packaging (Tr. 1260–
1268). After that date until the end of 1990, Harks worked
on a consulting basis 20 to 30 hours a week and did not pos-
sess any indicia of supervisory authority (Tr. 1262–1272). He
routinely reported infractions of company rules to manage-
ment but did not make any recommendations that employees
be disciplined. In that capacity he also reported an incident
to management that Ridder had urinated outside in the yard
by the stairs in the propane tank area (Tr. 1258; G.C. Exh.
14). Harks did not recommend any discipline and can gen-
erally not be considered a supervisor within the meaning of
the Act.
1067CARRY COS. OF ILLINOIS
8 Ridder’s demeanor as a witness seemed honest, his testimony
was not inconsistent or evasive, and he freely admitted his prior mis-
conduct. I found his testimony credible (Tr. 1145).
Ridder credibly testified about another conversation which
occurred while his supervisor, Dave Amthor, verbally rep-
rimanded Ridder for loading too many pallets on a truck (Tr.
496, 531). Ridder’s reply to the reprimand was ‘‘it would
never happen again.’’ As Ridder was about to leave, Amthor
said, ‘‘the union was a crazy idea.’’ Supervisor Amthor did
not testify but this comment coming from an admitted super-
visor shows that management knew or suspected Ridder’s in-
volvement with the Union.
On July 16, 1990, Ridder was in the shipping office and
discussed the Union with Art Belstra, a fellow employee, in
the presence of Supervisor Kevin Oezer. Ridder informed
Belstra that the ‘‘drivers of Carry Transit had enough author-
ization cards signed to have an election for the union, and
that the warehousemen should decide what they were going
to do’’ (Tr. 499). Belstra said that he did not think that the
Union was the answer to their problems, although manage-
ment asked a lot of them. As he left the room, Supervisor
Oezer ‘‘said that he didn’t think the union was the answer
to [their] problems’’ (Tr. 500).
On July 20, 1990, Ridder was assigned to loading barrels
into a trailer. He needed a wooden block to brace the load
and was ordered by Amthor to look for one in the mechanics
shop or in the yard. While he tried to find a wooden block
in the yard outside the shipping office, Ridder felt the need
to go to the bathroom. Instead of using the inside bathroom
because of a locked door, Ridder ‘‘found a discrete place and
began urinating’’ (Tr. 501). At that moment, Harks walked
by and observed Ridder. Harks laughed at Ridder’s comment
‘‘Ha-ha, Al, you caught me’’ (Tr. 501). A few hours later
at approximately 2:30 p.m., Ridder learned that Tim Van
Denend, vice president in charge of the warehouse operation,
wanted to see him outside. Van Denend informed Ridder that
he was fired for urinating outside the building (Tr. 504). Ac-
cording to Van Denend, Ridder was discharged after Harks
had reported the incident and that Ridder’s past performance
was a contributing factor (Tr. 1414). Ridder’s past history
with the Company shows that he was fired in 1987 for using
abusive language. One week later he was rehired as a driver.
Some time later in 1987 he was discharged for driving under
the influence (DUI) and rehired within days. In 1989 he was
fired for a similar incident and rehired after 10 days and as-
signed to work in the warehouse (Tr. 506–509). Ridder also
received several verbal warnings, including a reminder by his
supervisor, Belstra, to clean up around his working area (Tr.
518–519, 540–541). Nevertheless, by letter of April 2, 1990,
Howard Hoving, the Company’s president, wrote the fol-
lowing comments to the local court on behalf of Dean Ridder
(G.C. Exh. 13).
We are writing this correspondence in an effort to ex-
press our satisfaction with the progress made by Dean
Ridder since his last DUI. Through many conversations
with Dean in the recent past, it is apparent that he has
a very strong commitment to turning his life around.
We have observed his steady growth both emotionally
and spiritually. It appears that he has accepted full re-
sponsibility for his past mistakes and is committed to
face the future without a reliance on alcohol. It is our
sincere desire that, through Dean’s ongoing association
with Alcoholics Anonymous, he will continue to
progress in his quest to defeat this illness.
The record shows extensively that other employees had
urinated in the yard without receiving any discipline. Ridder
testified that he had observed supervisors engaging in such
conduct, as for example Hoving several times and Tamminga
on one occasion (Tr. 504–505, 513). Peralta testified that he
observed dispatchers and other drivers urinating outside, in-
cluding the area between the tires of a truck (Tr. 292–293).
Robert Flutman and Tom Kampen, former truckdrivers at
Carry, testified that it was a common practice for drivers to
relieve themselves in the Bridgeview terminal parking lot
(Tr. 175, 435). Another driver, Dean Jones, recalled having
been observed by Supervisor Tamminga as he went behind
the trailer, yet Jones was not reprimanded (Tr. 581). Krause
also testified that drivers and dispatchers used the outside
premises to relieve themselves (Tr. 640, 659, 668–669). In
the face of such overwhelming record evidence that the con-
duct for which Ridder was fired had been a common practice
among the employees, including dispatchers and super-
visors,8 Van Denend’s testimony that he never saw any
Carry employee engage in such misconduct is unconvincing.
In any case, it does not resolve the issue whether the Com-
pany had otherwise known and tolerated the practice by other
employees. The only time the Respondent rebuked someone
for such conduct involved an employee of another company
as he used the Respondent’s property.
The record is clear that the Respondent’s reaction to
Ridder’s misconduct constituted disparate treatment. Consid-
ering Ridder’s past infractions which the Respondent had re-
peatedly tolerated and excused as recently as April 1990, as
evidenced by Hoving’s letter the inference is clear. The
Company used this incident as a pretext to rid itself of a
union supporter. The record shows that Ridder actively par-
ticipated in the union drive. He signed a union authorization
card, spoke about the Union with Rosenberg and other driv-
ers, solicited among the warehouse employees, and distrib-
uted union cards to them. He also spoke about the Union in
the presence of Supervisors Amthor and Oezer (Tr. 493–
500). Oezer’s comment directed at Ridder that the Union was
not the answer to the employees’ problems, as well as
Amthor’s remark that the Union was a crazy idea, indicate
Respondent’s antiunion animus and its knowledge of
Ridder’s union support. I accordingly find that the Respond-
ent violated Section 8(a)(1) and (3) by the discriminatory dis-
charge of Dean Ridder.
The Discharge of Dean Jones. Employed as an over-the-
road driver since December 4, 1986, Dean Jones was dis-
charged on October 2, 1990 (G.C. Exhs. 16, 17). Jones was
originally hired and assigned to the Bridgeview terminal. He
lived in Lafayette and had recommended that a terminal be
built there (Tr. 547). When the Company completed a ter-
minal in Lafayette, Indiana, in 1988, he was assigned to that
terminal. The Respondent’s reason for the discharge was:
‘‘unauthorized Passengers in Truck’’ (G.C. Exh. 17). The
General Counsel and the Charging Party argue that the real
reason for his discharge was his union activity, namely, the
holding of a union meeting at his home in Lafayette. In this
regard, the record shows that in the spring of 1990 Jones
signed a union card after meeting with Edward Peralta. At
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Drescher, as a current employee, had nothing to gain by his testi-
mony adverse to his employer’s interest. Moreover, his forthright de-
meanor as a witness rendered his testimony entirely credible.
the request of Bill Rosenberg, Jones agreed to hold a union
meeting at his home on September 15, 1990, at 9 a.m. For
that purpose, he passed out directions to his home among 10
or 11 of his fellow drivers, including Willus Drescher (Tr.
549–552). The meeting dealt with union benefit and insur-
ance plans. Jones also passed out union cards and received
one signed card. Several days later, on September 27, 1990,
Drescher met Jones in the Lafayette yard and told him that
he had a conversation with Randal Tamminga, vice president
of operations (Tr. 552).
Drescher testified about that conversation. According to
Drescher, approximately 1 week after the union meeting at
Jones’ house, Tamminga asked him ‘‘if [he] knew of a
Teamster meeting in Lafayette and Decatur, Illinois’’ (Tr.
593). Drescher replied, ‘‘no’’ and sarcastically commented,
‘‘why do we even need a Teamsters here because the dis-
patch is so fair for us and everything is so great’’ (Tr. 593).
Tamminga said that he was very unhappy with one of the
drivers in Lafayette, namely, Dean Jones, because ‘‘he is not
working for the company, he is not Carry material’’ (Tr.
594).
During the chance meeting on September 27, Drescher re-
ported to Jones the substance of this conversation with
Tamminga and advised Jones to stay away from Tamminga
(Tr. 594–595, 552–553).
In his testimony, Tamminga admitted the conversation
with Drescher and his disparaging remark about a Lafayette
driver but explained that his reference did not involve the
Union, but an incident dealing with the Pepsi account (Tr.
1209–1210, 1244, 1245–1246). That dispute arose when
Tamminga received a telephone call from the Pepsi customer
requesting that Jones be assigned to all the deliveries to
Pepsi in Indianapolis. Tamminga, suspecting that Jones had
prompted the Pepsi representative to make that request, con-
fronted Jones and caused an angry exchange among them
(Tr. 578–580, 114, 1208). In any case, I credit Drescher’s
forthright and plausible testimony9 despite Tamminga’s claim
that he was unaware of any union meeting, and presumably
could not have interrogated Drescher about the Union.
The incident leading up to Jones’ discharge occurred on
Sunday at 6:30 p.m., September 30, 1990, when Jones went
to the Lafayette terminal to get his tractor ready for a trip
on the following day. At the terminal Jones checked the oil
in the tractor, filled the gas tank, started the engine, and was
about to leave the terminal when one of the attendants asked
whether Jones was leaving on his assigned trip. Jones re-
plied, no, that he and his son Brook had come to take the
truck to his home to clean it. Jones, with his son in the bunk
of the tractor, left the terminal and drove to his home where
he washed the vehicle and cleaned the inside to prepare it
for his trip in the early morning of the following day (Tr.
553–558). Jones testified that it was not unusual for his 8-
year-old son to accompany him on trips between his home
and the terminal, that he had done so in the past and that
the Company’s owner, Tom Wieranga, knew about it since
the building of the terminal in Lafayette. At that time Jones
had come to the terminal with his son on a Saturday when
Wieranga was there and that Wieranga acknowledged it
without objecting to the practice (Tr. 556). Jones conceded
in his testimony that he was aware that the Company had
issued a new policy regarding the carrying of riders in com-
pany vehicles (Tr. 557, 1500–1514). But he had not seen the
policy in writing and was under the impression that it applied
only when he was driving on company business and not in
situations when he took his son with him from the terminal
to his home (Tr. 557).
Early the next morning, on October 1, 1990, Jones over-
slept and was about to leave his home around 5 a.m. when
a dispatcher called his home and told him that he was late
for his run. Jones, however, completed the delivery on time
to the Pepsi customer in Munster, Indiana. Nevertheless, the
dispatcher issued an incident warning notice, dated October
1990 (G.C. Exh. 15; Tr. 560–561). Jones had also incurred
a prior discipline on June 17, 1990, for two violations, fail-
ure to wear a Carry uniform and being unavailable for a Sat-
urday dispatch (G.C. Exh. 18). This report resulted in a 3-
day suspension and a 30-day probation (Tr. 573–577). Ex-
cept for another minor infraction, this was the extent of
Jones’ history of misconduct when on October 2, 1990, the
Company cited him for the violation of carrying an unauthor-
ized passenger in his truck on September 30, 1990.
The Respondent relied on a company policy entitled
‘‘Carry Transit Rider Program’’ which appears to be part of
a collection of company bulletins and was identified as a
Carry employee manual (Tr. 824; G.C. Exh. 7). The policy
permits drivers ‘‘to purchase insurance that will allow [them]
to take a rider with [them] for a period of up to two weeks
per year’’ and states in pertinent paragraphs several condi-
tions. Drivers who are caught with unauthorized riders could
be terminated according to this policy. The Respondent also
referred to the Federal Motor Carrier Safety Regulations,
which in subpart G prohibits the transportation of unauthor-
ized persons (R. Exh. 4, p. 15). During the conversation in
Tallaksen’s office on October 2, 1990, between Jones and the
Company’s officials Wieranga and Tallaksen, Jones admitted
that he had his son in his truck and that he had done so for
almost 4 years (Tr. 569, 837). Tallaksen informed Jones that
he was terminated and ordered him to clear out his truck (Tr.
569, 836). The Company issued two documents, one an inci-
dent warning notice, dated October 2, 1990, and another
form signed October 4, 1990, showing that Jones was dis-
charged (G.C. Exhs. 16, 17).
I find Jones’ testimony that he had transported his son in
his company vehicle on prior occasions and that the Re-
spondent had been aware of it for approximately 4 years en-
tirely credible and plausible. Indeed, the practice may still
not be contrary to the Respondent’s policy manual or the
Federal Safety Regulation. As argued by the General Coun-
sel, Jones was ‘‘off duty’’ when he took his tractor home for
cleaning. He was certainly not making a delivery and being
dispatched in the regular course of business. Significantly,
none of the other drivers when asked about the Respondent’s
rider policy knew about it or were familiar with such a pol-
icy (Tr. 1455, 1499, 1517, 1532). The Respondent’s reliance
on the subsequent discharge of a probationary employee on
November 20, 1990, for transporting an unauthorized pas-
senger while making an official delivery is not comparable
and is certainly not an indication of an even-handed policy
(G.C. Exh. 8). The sudden application of the policy appears
to be discriminatory. The timing of Jones’ discharge, ap-
1069CARRY COS. OF ILLINOIS
proximately 2 weeks after the union meeting at his home, the
Company’s knowledge of his union activity, and Tamminga’s
adverse comments about Jones, lead to the obvious inference,
the Respondent used the rider incident in a disingenuous at-
tempt to rid itself of a union supporter. In the absence of
Jones’ union activity, the Respondent would not have dis-
charged this employee. I also find that the Respondent’s in-
terrogation of Drescher under clearly coercive circumstances
amounted to a violation of Section 8(a)(1) of the Act.
The Discharge of Herman William Rosenberg. Conceding
that Carry knew the union activity of Herman Rosenberg and
Edward Peralta, it is the Respondent’s position that it ‘‘went
to great lengths to ensure that they were disciplined similarly
to all other drivers’’ particularly since the Company antici-
pated charges of unfair labor practices (R. Br. p. 64–65). The
General Counsel and the Charging Party submit that the
Company’s reason for Rosenberg’s discharge was pretextual
in nature and discriminatory. Employed as a truckdriver since
April 1983, Rosenberg was at first a road driver and became
a city driver at the Bridgeview terminal. He was discharged
on February 28, 1991, for being ‘‘3 times late in a six-
month period’’ (G.C. Exhs. 3k, m). The record shows that
Rosenberg was late for work on July 27, 1991, and on Octo-
ber 30, 1991 (G.C. Exhs. 3d, f, g). Rosenberg was warned
on November 5, 1990, that with another tardiness ‘‘he would
get 3 days off or terminated’’ (G.C. Exh. 3f; Tr. 89). Carry’s
employee manual does not provide for a mandatory termi-
nation for what it terms ‘‘incurring excessive absences or
lateness,’’ but states that ‘‘behavior which cannot be toler-
ated . . . may lead to corrective action up to and including
discharge’’ (G.C. Exh. 26). In any case, Rosenberg’s third
incident of lateness on December 28, 1990, resulted in his
discharge under the following circumstances. Rosenberg was
scheduled to depart the Bridgeview terminal at 3 a.m. on
February 28, 1991. At 3:30 a.m., dispatcher Van Bruggen,
who had noticed that Rosenberg had not made his dispatch
time, called Rosenberg’s home and left a message to wake
him up (Tr. 855). Rosenberg called the dispatch office about
5 minutes later and informed dispatcher Lance White that he
was sick and unable to report for work. About 4 p.m.,
Rosenberg called again to inform the dispatch office that he
could not work on the following day. He also spoke to
Tallaksen who accused him of being late and expressed
doubt about Rosenberg’s reported illness (Tr. 92, 856). On
the following day, March 1, 1991, Tallaksen called Rosen-
berg and recalled the following conversation (Tr. 857–858):
I asked Bill how he was feeling. He said he was
feeling a little better. I asked him if he could come in
and talk to me. He stated that no, he didn’t feel that
good. I then asked him what happened, why he didn’t
come into work. He told me that on his way to work
on 294 he had gotten sick, soiled his britches and
turned around on 95th Street and went back home. I
asked him why he didn’t call in. He then stated that he
couldn’t find a phone. I told him there were phones
right there at the 159th Street toll plaza. He said that
he didn’t want to offend anybody. . . . He also asked
me if he needed a doctor’s excuse and I said no, that
you didn’t need one. I said if you pay the money they
will give you a release, and he said yes, he knew that.
At that point I terminated him. . . . That I was termi-
nating him for three lates in a six-month period.
Rosenberg testified that he had a legitimate excuse for his
failure to report to work and that he was not late. His version
of the events is that he was on his way to work about 2:20
a.m. on February 28, when he suddenly became ill with diar-
rhea and had to return home to clean himself. During that
time the dispatcher called and spoke to his daughter who, un-
aware that her father had actually left for work, erroneously
told the caller that her father was still asleep (Tr. 90, 127–
128). Rosenberg obtained a doctor’s excuse on the next day,
March 1, 1991, and offered to show it to the Respondent
(G.C. Exhs. 7, 8). As Tallaksen testified he had already de-
termined that Rosenberg was late.
The written report prepared by the dispatcher reflects the
following scenario (G.C. Exh. 3k):
Bill had a 3 A.M. start. I called Bill’s house at 3:30
A.M. When a lady answered the phone, I asked if Bill
was still there, she said he was still sleeping. I asked
her to wake him up because he was late. She said she
would. I hung the phone up, 3:34 the phone rang and
Lance White answered it, Bill Rosenberg said he was
calling in Sick.
The record fully suppports a finding that the Respondent
waited for just such an incident as a pretext to rid itself of
the principal union activist. As aptly observed by the Charg-
ing Party, ‘‘Rosenberg’s claim to be ill the morning of Feb-
ruary 28, raised under the circumstances, valid grounds for
suspicion,’’ but the Respondent did not follow its usual and
past practice in situations when an employee calls the office
to report that he is sick and unable to report for work (G.C.
Br. p. 19). Tallaksen testified that he did not believe Rosen-
berg’s claim of illness but he also did not accuse him of fal-
sifying his reason for being late. Under these circumstances,
his usual practice is to require the employees to produce a
doctor’s release before they return to work (Tr. 1095).
Tallaksen did not follow this practice in Rosenberg’s case
and, instead, presumed that Rosenberg would simply obtain
a physician’s release by paying the fee (Tr. 1096). The Re-
spondent also deviated from its regular practice by treating
Rosenberg’s tardiness more severely than that of other em-
ployees. First, the employees’ manual does not reflect the
Respondent’s alleged policy requiring discharge after three
instances of lateness within 6 months (G.C. Exh. 26). The
handbook cites excessive absence or lateness which ‘‘may
lead to corrective action up to and including discharge’’ and
the progressive discipline outlined under ‘‘corrective action’’
may be applied by the Company in its discretion. Indeed,
Tallaksen conceded that a lot of times he did not hold an
employee to ‘‘the three times’’ rule and that he failed to in-
form the employees of the new policy (Tr. 851, 948). Several
drivers testified that they never heard of the policy (Tr. 1480,
1510, 1537). And the only examples among the employees,
John Rose and William Blake, who were disciplined accord-
ing to the policy, involved different circumstances (G.C.
Exhs. 9, 10). Blake had committed other offenses in addition
to tardiness and Rose was a probationary employee (Tr. 862–
863, 1105–1106). On the other hand, Scot DeBoer, a driver
who had been late at least five times, was not discharged (Tr.
749–750, 757–758). The record I shows that this employee
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Albright’s testimony was candid and appeared honest and plau-
sible. She impressed me as an honest witness.
11 On the basis of relevancy, I have omitted an episode about 1
month prior to the election when Rosenberg received a written warn-
ing for spitting into the back of a van (G.C. Exh. 3(b)). Rosenberg
claimed that he merely spat gum on the ground (Tr. 75–79).
was merely disciplined for being late twice in 1990 and for
two incidents of tardiness in 1991 (R. Exh. 12). In any case,
the record shows that Rosenberg’s performance and conduct
was treated differently than that of other drivers.
The reason for the disparate treatment is clear. As shown
by the testimony of Valerie Albright,10 Tallaksen was
‘‘going to definitely find a way to terminate Bill Rosenberg
. . . but it would have to be something legitimate’’ (Tr.
748). Rosenberg was the main union activist who initially
contacted the Union, scheduled a union meeting, distributed
union authorization cards, and enlisted the assistance of other
drivers to assist him. Rosenberg and Peralta appeared at the
representation hearing in August 1990 and were known by
the Respondent as the principal union advocates (R. Br. p.
64).
As early as July 1990, Hoving suspected that Rosenberg
was engaged in union activities. Hoving called Rosenberg
into his office and asked whether Rosenberg was involved in
union activity. Rosenberg recalled the conversation as fol-
lows (Tr. 68–69):
When I walked into his office, he asked me if I was
involved in union activity. At which time, I stated that
I was not. Basically due to fear of losing my job. He
then proceeded to tell me if the union was to get into
Carry Transit that it would be the down fall of the com-
pany.
Hoving also asked him if he passed out union cards.
Hoving’s recollection of the conversation differs from this
version. According to Hoving, Rosenberg came to his office
and said that he was not the one behind ‘‘all this Union
stuff.’’ When Hoving inquired why Rosenberg came to tell
him that, Rosenberg said that other drivers may have erro-
neously informed him that he, Rosenberg, was pushing the
Union. Although Hoving admitted stating that a union would
not be in the Company’s interest, I find Hoving’s version
less plausible and not credible (Tr. 1137–1138). I seriously
doubt that Rosenberg would initiate a conversation with
Hoving to deny his union involvement. Accordingly, I con-
clude that the circumstances of Rosenberg’s interrogation
suggest a coercive and intimidating atmosphere, where a sen-
ior management official summoned the employee into his of-
fice and blatantly inquired into his union activity. Such con-
duct violates Section 8(a)(1) of the Act. Rossmore House,
269 NLRB 1176 (1984).
Another significant conversation occurred on August 31,
when Rosenberg returned from a trip to Milwaukee. At the
behest of Hoving, Rosenberg reported to Tallaksen’s office
where Tallaksen said that he had the proof he was looking
for, namely, that Rosenberg was passing out union cards.
When Rosenberg professed ignorance, Tallaksen said, ‘‘if it
was ever reported to him again that [Rosenberg] was passing
out union cards or talking union on company time that [he]
could be immediately terminated’’ (Tr. 71–72). Tallaksen re-
peated the threat more emphatically and added ‘‘consider
yourself warned, if it happens again you will be terminated’’
(Tr. 73, 873). Rosenberg had received a written warning,
dated August 31, 1990, for soliciting on company time (G.C.
Exh. 3(e)). The Carry employee manual contains a provision
prohibiting solicitation during ‘‘working time’’ and distin-
guishes between an employee’s own time and the time an
employee is working (G.C. Exh. 26). Although the rule in
the manual is presumptively valid, it is not the same prohibi-
tion which Tallaksen told Rosenberg. Both Rosenberg’s testi-
mony and the Carry Transit incident warning notice prohibit
solicitation on ‘‘company time.’’ Such a prohibition could
encompass both working and nonworking time on company
property. Accordingly, such a rule is overly broad and un-
lawful. Our Way, 208 NLRB 394 (1983); Hoyt Water Heater
Co., 282 NLRB 1348, 1357 (1987). The Company’s threat
to discharge an employee for a violation of such a rule is
also unlawful, particularly under the circumstances here,
where the Company professes to apply a progressive dis-
cipline policy. Yet the threat implies that a violation fol-
lowing the warning would result in an immediate dis-
charge.11
Rosenberg’s discharge following threats of discharge and
interrogations as well as Tallaksen’s threats to terminate the
leading union activist support a finding that the reason for
Rosenberg’s discharge was pretextual and discriminatory. In
the absence of his union activity, Rosenberg would not have
been discharged. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (lst Cir. 1981), cert. denied 455 U.S. 1989
(1982). I accordingly find that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
The Discharge of Edward Peralta. Peralta, another leading
union activist, lost much of his overtime work, was warned,
was suspended for 3 days, and was finally discharged. Em-
ployed since December 18, 1989, as a road driver for Carry
Transit, Peralta was discharged on April 30, 1991 (Tr. 195).
Peralta became interested in the Union in July 1990. He
passed out union authorization cards in various terminals
within the 500-mile radius of Carry Transit. While Rosen-
berg campaigned among the city drivers, Peralta’s efforts in-
cluded all road drivers. He also attended the petition hearing
on August 28 and 29, 1990, as a witness for the employees.
On the day prior to the hearing, Peralta informed Tamminga
that he was subpoenaed for the hearing. Later that day
Tallaksen and Peralta had a conversation which, according to
Peralta, was as follows (Tr. 202):
When I entered my office, he told me to sit down
that he wanted to talk to me. The questions that he
asked me, he says how did I get the subpoena. And
then he says who issued the subpoena to me, why was
I issued the subpoena, and if I was aware that he was
the disciplinarian or enforcer for Carry Transit, that he
wants to know who the ring leaders were for the Union.
I told him I had no idea who the ring leaders were for
the Union.
And then he said at that particular time that if I was
a part of the Union, and I told him right then and there
no. He says, ‘‘Are you sure, Eddie?’’ I says, ‘‘Mike,
make sure that you know I am part.’’ [sic] And he says,
‘‘I am telling you one thing, Eddie, if I find out who
the ring leaders are, heads are going to roll.’’
1071CARRY COS. OF ILLINOIS
Following the hearing, Peralta returned to work and no-
ticed that his belongings in his tractor had been disturbed and
the inside of the cab ransacked. When he reported the matter
to Tamminga and Hoekstra, they laughed and commented
that it may have been another union driver (Tr. 204).
On August 31, 1990, Peralta approached Hoekstra and in-
quired about his work assignment for the following Saturday
and Sunday, reminding him that he usually works every Sat-
urday and as often on Sundays as possible. Hoekstra replied
that his weekend assignment would cease, that he would no
longer be permitted overtime work, and that he did not exist
any more in the eyes of Tom Wieranga or Howard Hoving
(Tr. 206). Tallaksen had instructed the dispatch office al-
ready in June 1990 not to permit Peralta to work 7 days a
week (Tr. 880; R. Exh. 13). In early September 1990, Peralta
also talked to dispatcher Ron Oldenberg about driving the
Sunday shuttle. Oldenberg replied that he received instruc-
tions from management that he could not work on weekends.
Peralta approached Hoving on the evening of the same day
about the overtime assignments and the remark that he did
not exist anymore. Hoving smiled and said that he consid-
ered the issue closed and did not care to discuss the matter
any longer. The record shows that Peralta’s overtime work
decreased, although he continued to work on some weekends
(Tr. 222; R. Exh. 10). Peralta also noticed that his name was
occasionally removed or ‘‘whited out’’ from a list of volun-
teers for a weekend work list. Hoekstra, whom Peralta con-
fronted for an explanation, professed ignorance (Tr. 216–
217).
On October 4, 1990, Peralta had a conversation about his
overtime work with Tallaksen in his office. Tallaksen ini-
tially mentioned a subpoena from the NLRB and asked
Peralta what he knew about it. Peralta said that he knew
nothing about it. Tallaksen then told Peralta to ‘‘keep his
nose clean, stay straight, keep a low profile’’ and promised
Peralta to intercede with management to restore the Sunday
and overtime work. Tallaksen said: ‘‘In fact, watch your ass.
They are after you and they want you’’ (Tr. 224–225).
Tallaksen, referring to the recent hiring of 16 new employ-
ees, also said that the Company will squash the problem with
the Union and the Labor Board if it takes 20 or more em-
ployees (Tr. 225).
Peralta and Rosenberg were scheduled to serve as union
observers during the union election on November 8, 9, and
10, 1990. Yet on November 5, 1990, he was dispatched by
orders of Hoekstra to make a delivery to California. Peralta
promptly informed the dispatcher, Lance White, that he
would be unable to comply with the dispatch orders (Tr.
228–229). White, claiming that he did not know about
Peralta’s union obligation, nevertheless prepared a Carry
Transit incident report, dated November 5, 1990, critical of
Peralta’s failure to comply with the dispatch (G.C. Exh. 11;
Tr. 1398).
On November 10, 1990, Peralta asked Tamminga, who
was in charge of the dispatch office on that Saturday morn-
ing, if he could be dispatched early on Monday because he
had to take care of a personal matter. Tamminga became
angry and in obscene language told Peralta that he was tired
of the union mess and that, ‘‘when this union mess is done,
you are done[, t]ake the day off and get the hell out of here’’
(Tr. 239).
On Tuesday, following the election, Peralta went to work
and discovered several incident warning notices in his mail-
box (G.C. Exhs. 10(a), (b), (c)). These warnings criticized
Peralta’s inability to be available for work because of his
function in the union election and the request for an early
dispatch on Monday.
On December 5, 1990, Peralta received another incident
warning notice relating to an incident on December 3, 1990.
Peralta was cited for a ‘‘late 4 a.m. starting time.’’ (G.C.
Exh. 10(d).) His dispatch orders called for a 5 a.m. pickup
at American Maize in Hammond, Indiana, with a 4 a.m.
starting time. Peralta testified that he was at the terminal at
3:30 a.m., completed the usual preparations for his trip, and,
shortly after leaving the terminal, backed up his truck be-
cause he had neglected to turn in his papers from the pre-
vious day. He went to the dispatch office where dispatcher
Van Bruggen told him that he was late. Peralta expressed
disagreement, handed in his papers, and left for his scheduled
trip. He arrived on time at American Maize. The Company
suspended him for 3 days citing two prior incidents of tardi-
ness. Yet, according to company policy, a road driver is not
considered late if he is on time for his delivery or pickup
at the destination.
Peralta was finally discharged on April 30, 1991, under
unusual circumstances. Peralta had been warned by Tallaksen
during the October 4, 1990 meeting that Peralta would no
longer be permitted to take his truck home (Tr. 349–350). On
April 29, 1991, Peralta and several other drivers, including
Gus Iannotti, had returned to the Bridgeview terminal from
their respective deliveries about 12 or 1 p.m. when Hoekstra
instructed Iannotti and Peralta to have their driving units stay
hooked up because they were going to be dispatched to a
customer in Battle Creek, Michigan (Tr. 261–262). Peralta
was told to deliver the load at 6 a.m. local time or 7 a.m.
in Battle Creek. Peralta, reminding Hoekstra that his home,
located in Lake Station, Indiana, is en route to Michigan,
asked whether he could ‘‘head home and leave from the
house’’ (Tr. 202). Hoekstra replied, ‘‘Eddie I don’t care what
you do, just get out of here’’ (Tr. 262). Peralta assumed that
he had been given permission, noted on his dispatch sheet,
‘‘Lake Station, as per dispatch okayed Dave Hoekstra’’ and
punched the timeclock (G.C. Exh. 12).
Iannotti testified that he overheard Peralta talking for some
time to Hoekstra and that Hoekstra said something like ‘‘I
don’t care how you do it.’’ Iannotti also witnessed Peralta
making notations on his dispatch sheet and stamping or
punching it because he considered it unusual for a driver to
take such extensive precautions (Tr. 418).
Peralta left the Bridgeview terminal in the afternoon of
April 29, 1991, and parked his trailer at the Petro Truck Stop
near his home in Lake Station (Tr. 267). He secured the trail-
er with the usual precautions by locking it with a pin lock,
putting legs down, and putting padlocks on the hatch and on
the unloading doors (Tr. 268–269). He drove home in the
tractor and returned about 2 a.m. on April 30, 1991. He
made the delivery in Battle Creek about 4:30 or 5 a.m. From
there he returned to the Bridgeview terminal about 12 or
12:30 because he had received urgent instructions to see
Tallaksen. Tallaksen immediately demanded to see Peralta’s
logbook and expressed surprise on seeing that Peralta had
obtained permission: ‘‘Why, I will be a son of a bitch. I
Somebody is lying to me’’ (Tr. 277). Tallaksen called
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Hoekstra denied giving Peralta permission to drop his trailer at
the Petro Truck Stop but testified that he had given permission ‘‘to
sleep out with the load en route to the client, as his truck was
equipped with a sleeper berth’’ (Tr. 1350–1351, 928–929). I find
Peralta’s version of the events more specific and credible.
Hoekstra to his office telling him, Peralta ‘‘has got his ass
covered because . . . [h]e got permission to be in Lake Sta-
tion’’ (Tr. 276). During the meeting in Tallaksen’s office,
which included Hoekstra and Tamminga, Hoelskstra denied
giving Peralta permission to park his trailer near his home.12
Tamminga interrupted the dispute and sided with Hoekstra
and said to Peralta: ‘‘When his whole mess is over, you are
going to be gone’’ (Tr. 277). Tallaksen left he office momen-
tarily to make copies of Peralta’s papers, then informed him:
‘‘As far as I am concerned I am going to have to terminate
you . . . and the reasons are for unlawful use of a vehicle,’’
(Tr. 281) or ‘‘for unauthorized use of company equipment,
dropping a loaded food grade trailer in a truck top’’ (Tr. 281,
929–930). The Company issued incident warning notices
which reflect the same reason (G.C. Exh. 10i, j). Tamminga
added, ‘‘we got so many charges on you Eddie. We could
get you for falsifying a log, unlawful use of a vehicle, for
being late for accidents.’’ (Tr. 281.) Peralta replied, ‘‘Also
for being a part of organizing a union or being part of a
union’’ (Tr. 281). Peralta left the meeting to get his personal
belongings out of his truck. On his way he informed Tom
Kampen, a coworker, that he had just been discharged.
Peralta returned to Tallaksen’s office where Tom Kampen
overheard the ensuing conversation. According to Kampen’s
and Peralta’s testimony, Tallaksen said that he knew that
Hoekstra was lying to him and that Peralta would be back
if he could prove to him that Hoekstra was wrong (Tr. 284–
285, 430–433).
The record shows that the Company’s reason for Peralta’s
discharge was discriminatory. Initially, it is clear—
Hoekstra’s denial notwithstanding—that Peralta had obtained
specific permission. The dispatch notice and Iannotti’s testi-
mony clearly corroborate Peralta’s testimony. Moreover, the
parking of a trailer at a convenient location was a common
practice for other drivers. Kampen testified that many drivers
follow the practice, at least six or seven city drivers and nu-
merous road drivers, and that he considered it a common
practice (Tr. 433). Iannotti testified that he had obtained per-
mission to park his trailer and thought it was the usual prac-
tice for other drivers (Tr. 412–413). Dean Jones never heard
any dispatcher prohibit such a practice (Tr. 1509). Indeed,
the Respondent had prepared a list of drivers showing that
certain drivers had permission to ‘‘drop their trailers’’ near
their homes so long as there was a safe place to park (Tr.
1197; R. Exh. 22). The Petro Truck Stop, which is guarded
by a security guard and which is enclosed, was by all stand-
ards a secure, safe, and appropriate area in which to park a
loaded trailer (Tr. 1244). Considering the Respondent’s
threats to discharge ringleaders of the Union, the Respond-
ent’s admitted knowledge of Peralta as a leading union activ-
ist, the repeated references to Peralta that management was
out to get him, as well as Albright’s pointed testimony that
management was searching for a legitimate way to terminate
Peralta because of his union role, conclusively establish that
the Respondent violated Section 8(a)(1) and (3) of he Act.
The Respondent’s interrogation of Peralta in late August to
reveal the union ringleaders and the threat to discharge them
once their identity is established clearly violate Section
8(a)(1) of the Act. The interrogation accompanied by a threat
is by all accounts coercive and therefore meets the test in
Rossmore House, supra. The Respondent’s statements to
quash the problem regarding the Union and the Labor Board
as well as the statement that ‘‘Peralta was done’’ when the
union mess is over are clearly coercive and interfere with the
employees’ Section 7 rights and, accordingly, violate Section
8(a)(1) of the Act. The Respondent’s threat to hire additional
employees to defeat the Union and the promise to restore
overtime work if the employee refrained from union activity
are clear violations of Section 8(a)(1) the Act. I also regard
the warnings to Peralta and the 3-day suspension for tardi-
ness in December to be discriminatory. Peralta was only ar-
guably late in his starting time, but he made the delivery on
time which, under the Respondent’s own policy, is not con-
sidered late.
Insofar as the complaint deals with Peralta’s overtime and
weekend work is concerned, I find the record to be inconclu-
sive. Without a doubt, Peralta lost a significant amount of
overtime pay and an inference is possible that it was union
related, but the record also shows that Tallaksen ordered re-
ductions in Peralta’s overtime and his 7-day workweek al-
ready in June 1990 (R. Exh. 13, Tr. 880). This reduction in
overtime was effectuated prior to Peralta’s union involve-
ment which, according to his own testimony, began in July
1990 (Tr. 96). Peralta’s reduced overtime was a direct result
of the Respondent’s action taken in June 1990. To what ex-
tent his overtime was reduced if at all is a result of his union
activity is unclear. The record shows, for example, that
Peralta continued to work on weekends, albeit at a reduced
level during the period following the union representation
hearing (R. Exh. 14). He was no longer assigned to the Sun-
day shuttle to assure his availability for work early on Mon-
day mornings. The record shows that other drivers with simi-
lar seniority worked on a reduced schedule at a reduced level
of income (G.C. Exhs. 23, 24, 25). For example, Gregory
Cook suffered a similar reduction in warnings. The General
Counsel concedes this, but argues that the days in Peralta’s
pay were more precipitous. I find that the record supports a
finding that Tallaksen made promises and threats relating to
this issue, but the record does not establish that any reduc-
tion in his income was directly attributable to his union ac-
tivity. I would therefore dismiss this allegation in the com-
plaint.
Other Violations
In addition to the Company’s conduct violative of Section
8(a)(1) and (3) of the Act as it related to certain drivers, the
Respondent violated the Act in certain other ways.
On September 23, 1990, the Union’s business representa-
tives, Richard Mall and Jack Slattery, distributed union lit-
erature at the Bridgeview terminal for about 7 hours from 12
midnight to 7:15 a.m. They stood near the west entrance
which is the normal truck gate and passed out approximately
80 leaflets to the drivers as they entered the facility. About
4 or 4:15 a.m., Tallaksen approached the two men and asked
what they were doing. After the union representatives identi-
fied themselves, Tallaksen remained in their presence within
2 to 3 feet of them until 7:15 a.m. Mall asked Tallaksen to
1073CARRY COS. OF ILLINOIS
13 The second incident was closely related and was fully litigated.
leave the area because he seemed to intimidate the drivers.
Approximately 2 weeks later, Mall and another union agent
repeated their efforts to pass out union leaflets from 12 mid-
night until about 6 a.m. Tallaksen, accompanied by an off-
duty policeman, approached the union men and warned them
not to cross an imaginary yellow line separating the public
property from the Company’s easement or risk being ar-
rested. Tallaksen and the policeman then sat in a company
car parked within the Company’s entrance. Mall complied
with these warnings and did not cross the line. As a con-
sequence of the imaginary line, they stood closer to the
street. Mall testified that it was unsafe to pass literature to
the drivers under such circumstances (Tr. 772–779).13
Although an employer’s mere observation of open and
public union activity does not amount to unlawful surveil-
lance, it is another matter when the employer does so for the
entire duration of the union activity and in such lose prox-
imity that it well nigh interferes with the lawful activity and
in such a conspicuous manner, as here. Impact Industries,
285 NLRB 5 (1987). As alleged in the complaint, I find the
Respondent’s conduct to violate Section 8(a)(l) of the Act.
The complaint also alleges that letters written to the em-
ployees by George Van Denend, the Respondent’s president,
violated the Act because they threatened employees with a
refusal to grant pay raises and the loss of their employment.
The first letter, dated February 28, 1991, informs the em-
ployees about the Board’s decision dealing with the voting
unit and about the scheduling of the instant unfair labor prac-
tice hearing. In other pertinent parts, the letter states as fol-
lows (G.C. Exh. 5):
What does this mean to us as employees of Carry? The
wages and benefits of the drivers and mechanics based
in Bridgeview, who the NLRB determined to be an ap-
propriate unit, cannot be changed until this matter is re-
solved by the Administrative Law Judge, which could
be 3 to 12 months.
The second letter, dated March 29, 1991, also deals with
the unfair labor practice hearing and the filing of an election
petition. Of significance are the following two paragraphs
(G.C. Exh. 6):
Although this is all very confusing, there is one thing
that is very clear—we do know that today it is getting
tougher and tougher to get customers and to retain busi-
ness so that we can continue to employ approximately
331 employees. It’s even tougher when the Union keeps
filing petitions and unfair labor practices. These matters
take a lot time and effort for us to defend. The Union
is certainly not helping the job security of Carry em-
ployees by taking our attention away from trying to run
a business. If this is an indication of the type of turmoil
and controversy that we’d experience with a union, we
certainly don’t want any part of it. Not only is it bad
for business, but in turn, it’s not in the best interests
of the many households that depend on Carry running
a successful business.
. . . .
Because several questions arose out of our February
28th letter pertaining to this point, I want to make one
point very clear—that is, the Company can and will
continue with any wage progression plan and pattern of
merit reviews that were in effect prior to the filing of
the election petition. The thing the Company cannot do
is to unilaterally establish any unplanned wage or fringe
benefit program during the period between the filing of
an election petition and certification of the election re-
sults. While this may be unfortunate, we must abide by
the law!
It is true that the first letter does not accurately reflect the
company’s obligation during a union campaign. The with-
holding of a planned pay raise which would ordinarily be
granted in the normal course of business as if the Union had
not been on the scene violates Section 8(a)(1) of the Act.
Here, the letter blames the administrative hearing rather than
the union campaign for the withholding of any pay raises for
the duration of 3 to 12 months. The letter does not reflect
the Company’s implementation of a wage freeze but warns
the employees of those possibilities. Van Denend’s letter 1
month later attempts to correct this message by stating that
the Company will and can continue to effectuate any planned
pay raises and that it cannot unilaterally establish an un-
planned wage increase or fringe benefit program. Although
the General Counsel observed that the initial statement is an
unlawful attempt to coerce the employees in the exercise of
their Section 7 rights, I would dismiss this allegation in view
of the Company’s second letter correcting the prior state-
ment.
The Respondent’s statements in the second letter referring
to the Union ‘‘not helping the job security of Carry employ-
ees’’ and the Union’s creation of turmoil and controversy
which is not only ‘‘bad for business, but in turn, it is not
in the best interest of the many households that depend on
Carry running a successful business’’ could be perceived as
a veiled threat that the employees could loose their jobs be-
cause of the petitions and the unfair labor practice charges
filed by the Union. I agree that the language tends to coerce
the employees in their Section 7 rights in violation of Sec-
tion 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Carry Companies of Illinois, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local 705, International Brotherhood of Teamsters,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By coercively interrogating employees about union
meetings or union activities, the Respondent violated Section
8(a)(1) of the Act.
4. By threatening employees with discharge, loss of em-
ployment, or the loss of overtime work because of their
union activities, the Respondent violated Section 8(a)(1) of
the Act.
5. By promulgating an overly broad no-solicitation rule
forbidding union solicitation on company time, the Respond-
ent violated Section 8(a)(1) of the Act.
6. By intimidating employees and interfering with their
protected rights, the Respondent violated Section 8(a)(1) of
the Act.
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7. By engaging in surveillance of employees’ union activ-
ity, the Respondent violated Section 8(a)(1) of the Act.
8. By threatening to hire additional employees in order to
defeat the Union and by promising employees to restore
overtime work if they refrained from their union activity, the
Respondent violated Section 8(a)(1) of the Act.
9. By warning and suspending Herman William Rosenberg
and Edward Peralta and by discharging them and Dean
Ridder and Dean Jones because of their union activities, the
Respondent violated Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take pertain affirmative action designed to
effectuate the policies of the Act.
Having unlawfully warned and suspended Herman William
Rosenberg and Edward Peralta and having discharged Dean
Ridder, Dean Jones, Herman William Rosenberg, and Ed-
ward Peralta, the Respondent shall offer them reinstatement
and make them whole for lost earnings and other benefits
computed on a quarterly basis from the date of discharge to
the date of a proper offer of reinstatement, less net interim
earnings in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]