C.D.S. Lines

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 296 (N.L.R.B. 1993)

296
313 NLRB No. 40
3DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We have reviewed the judge’s recommended Order under the
standard of Hickmott Foods, 242 NLRB 1357 (1979), and have con-
cluded that the narrow cease-and-desist language ‘‘in any like or re-
lated manner’’ is appropriate rather than the broad cease-and-desist
language ‘‘in any other manner’’ used by the judge. We shall mod-
ify the judge’s recommended Order accordingly.
1 The principal docket entries in this case are as follows:
Charge filed by Marilyn J. Bungard, an individual, against the Re-
spondent on December 22, 1992; complaint issued against the Re-
spondent by the Regional Director for Region 6, on February 5,
C.D.S. Lines, Inc. and Marilyn J. Bungard. Case 6–
CA–25147
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 9, 1993, Administrative Law Judge Wal-
ter H. Maloney issued the attached decision. The Re-
spondent filed exceptions and a brief and the General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, C.D.S.
Lines, Inc., Canonsburg, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Offer to Marilyn Bungard, Ronald W. Bungard
Sr., and Ronald W. Bungard Jr. full and immediate re-
instatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to seniority or other rights previously en-
joyed and make them whole for any loss of pay or
benefits suffered by them by reason of the unfair labor
practices found herein in the manner described above
in the remedy section, with interest.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discipline or discharge employees be-
cause they have engaged in concerted, protected activi-
ties.
WE WILL NOT in any like or related matter interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
Those rights include the right to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid and protection.
WE WILL offer to Marilyn Bungard, Ronald W.
Bungard Sr., and Ronald W. Bungard Jr. full and im-
mediate reinstatement to their former jobs or, if such
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights previously enjoyed, and WE WILL make them
and other employees whole for any loss of pay or ben-
efits suffered by them by reason of the unfair labor
practices found in this case, with interest.
WE WILL remove from our files any references to
such unlawful discharges and WE WILL notify the em-
ployees who received such discharges that this has
been done and that the discharges will not be used
against them in any way.
C.D.S. LINES, INC.
Patricia Scott, Esq., for the General Counsel.
John F. Cambest, Esq., of Pittsburgh, Pennsylvania, for the
Respondent.
DECISION
STATEMENT OF CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Pittsburgh, Pennsyl-
vania, upon an unfair labor practice complaint,1 issued by the
297C.D.S. LINES
1993; Respondent’s answer filed on February 22, 1993; hearing held
in Pittsburgh, Pennsylvania, on June 3, 1993; brief filed by the Gen-
eral Counsel with me on or before June 28, 1993.
2 Respondent admits, and I find, that it is a Pennsylvania corpora-
tion which maintains its office and place of business in Canonsburg,
Pennsylvania, where it is engaged in the interstate transportation of
freight. In the course and conduct of this business, it annually de-
rives gross revenues in excess of $50,000 in the transportation of
freight from the Commonwealth of Pennsylvania directly to points
and places outside the Commonwealth of Pennsylvania. Accordingly,
the Respondent is an employer engaged in commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act. There is no labor orga-
nization involved in this case.
3 The errors in the transcript have been noted and corrected.
4 The conversations which the Bungards held with Lape are
uncontradicted in this record, since Lape was not summoned to tes-
tify.
5 When asked if their interviews included any discussions about
Company benefits, Bungard replied that there were no company ben-
efits.
Regional Director for Region 6, which alleges that Respond-
ent C.D.S. Lines, Inc.,2 violated Section 8(a)(1) of the Act.
More particularly, the complaint alleges that the Respondent
discharged Charging Party Marilyn J. Bungard, her husband,
Ronald W. Bungard Sr. (Senior), and her son, Ronald W.
Bungard Jr. (Junior) because they had engaged in concerted,
protected activities, namely registering with the Respondent
several complaints over unpaid wages and other terms and
conditions of employment. In its answer, the Respondent
specifically denied that the complaints made by Bungard re-
lated to wages, hours, and working conditions of its employ-
ees but ‘‘stemmed from her refusal to follow clearly defined
and promulgated company rules, regulations, and procedures,
particularly with respect to travel routes for pickup and deliv-
ery, the provisions of the drivers’ manual pertaining to
equipment care and maintenance and unauthorized use of
company equipment,’’ and stated that the allegations pertain-
ing to Senior and Junior ‘‘were immaterial and irrelevant’’
to the complaint since Senior and Junior did not file the
charge in this case. Respondent further answered that ‘‘any
action taken . . . towards the complainant was predicated
solely upon the implementation and enforcement of Respond-
ent’s work rules and regulations.’’ Upon these contentions
the issues herein were joined.3
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
From its headquarters and terminal at Canonsburg, Penn-
sylvania, the Respondent operates a large trucking business
which delivers freight from coast to coast. It claims to be
one of the largest refrigerated motor carriers in the United
States. Respondent also hauls freight for the Pittsburgh Plate
Glass Company. A typical run would be to deliver glass
from Canonsburg to California and return with a shipment of
fruit destined for an East Coast store or warehouse. In its op-
eration it uses about 240 team drivers and approximately 25
solo drivers. Whenever possible, Respondent tries to employ
husband and wife teams in its over-the-road operation and
has about 10 such teams at the present time. Respondent is
a nonunion company and has no bargaining history. All of
its employees are compensated on a mileage basis. Team
drivers are expected to drive their assigned runs straight
through from coast to coast, using the bedding facilities built
into the cab of each truck for sleeping while the other driver
continues at the wheel. Motel expenses to a maximum of $50
a day are reimbursed only on occasions when there is a lay-
over or breakdown. A typical coast-to-coast roundtrip takes
about 6 days and 2 such runs in immediate succession are
normally assigned to a team, followed by 4 of 5 days off
duty. While on the road, drivers are expected to call the dis-
patcher regularly to report any mishaps, to notify the Com-
pany of completed deliveries and any problems which might
occur in the course of making deliveries, and to get return
assignments. While at home, drivers are expected to call in
each day except Sunday to see if they have been given an
assignment.
On July 10, 1992, Bungard, a driver with about 4 years’
experience, and her husband, who has in excess of 15 years’
experience, applied for jobs as team drivers at the Respond-
ent’s terminal in Canonsburg. They had learned about the
openings from ads which the Respondent had placed in
truckers’ magazines. Featuring a tractor-trailer bearing the in-
scription ‘‘Collective Distribution Services, Inc.,’’ one such
ad stated, among other things:
$500 sign-on bonus to qualifying drivers
New rate levels increased to $.26 per mile, loaded or
unloaded
Mention this ad source & receive $50 if hired
After submitting their applications, the Bungards took and
passed written examinations, road tests, and drug screening
tests.
Otto Fox, the manager of operations and safety, has the
final word on the hiring of new applicants. However, most
of the discussions which the Bungards had concerning their
application were with Thomas Lape, the assistant operations
manager.4 In the course of these discussions, which included
information concerning wages and company requirements,5
Bungard brought up the $500 sign-on bonus mentioned in
the magazine ad, as well as the other $50 bonus, and asked
Lape if they would receive this money. According to
Bungard, Lape said that they would get the $500 bonus if
they were qualified, but did not say what the qualifications
were. Lape did tell the Bungards that, if they did not experi-
ence any breakdowns, they would possibly qualify. Lape said
that he knew nothing of the $50 bonus but told Bungard, ‘‘If
[the ad] said so, you should get it.’’ On one occasion, while
out on a trip, Bungard phoned Lape and asked when she and
her husband were going to get the bonuses. Lape did not
reply. Senior also asked Lape on several occasions after he
was hired about payment of the bonuses but received no an-
swer.
Lape offered them a job at 22 cents a mile to be split be-
tween both drivers. Senior objected, saying that he would not
accept such a rate since he was making more money with
his present employer. After checking with Fox, Lape then of-
fered the couple a joint rate of 24 cents an hour and they
accepted. He also told them that they might expect a raise
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Fox first acknowledged that claims for both the $500 bonus and
the $50 bonus were made by Senior. He then asserted that only the
claim for $50 was made by Senior. He later testified that he told
‘‘them’’ that they were not eligible for the $500 raise because Senior
knew that Bungard lacked experience. I credit Bungard’s testimony
that, in the presence of her husband, she inquired of Lape about both
bonuses. Neither employee was ever paid either bonus.
7 The normal breakdown/layover pay is up to $50 a night for lodg-
ings, when authorized. According to Bungard’s computation, she and
her husband were owed $300 apiece in backpay. Each ultimately re-
ceived $200 as a result of the claim which was made.
at the end of 90 days and a second raise at the end of a year.
Their first run began on or about August 8.6
Junior had worked for the Respondent in 1986 for a short
period of time. On or about September 11, 1992, he applied
for a driving job with the Respondent and was immediately
hired. He was assigned to drive as a team with another driver
who quit after their first run. He was then assigned to a run
with a second driver. While out on a run, the results of his
drug screening test came back to the Company showing that
he had failed the test. He was informed of the results while
out on the road and instructed to return, whereupon he was
discharged. The October 6 separation notice, however, indi-
cated that Junior had voluntarily quit. The narrative descrip-
tion of the reason for ‘‘discharge’’ appearing on the notice
indicated that Junior ‘‘did not like running team. Found job
with another trucking firm.’’ The notice also indicated that
he would be eligible for rehire.
Shortly thereafter, Junior submitted to a second drug
screening test and passed. He was rehired by the Respondent
on or about November 27. At that time, Bungard wanted to
take some time off so Junior was assigned to drive with his
father. They drove two coast-to-coast runs. At the end of
their second run, all three Bungards were discharged.
Throughout the fall 1992, when and the Bungards were
driving as a team, Bungard normally made whatever contact
with the Company that was needed to be made on behalf of
her team. As she explained it, her husband sometimes spoke
before he thought. There was evidently some friction, from
time to time, between them and the dispatchers when they
called in. The Bungards complained of rudeness and lack of
consideration on the part of some dispatchers. The chief dis-
patcher, Maureen Brazen, testifed that she received com-
plaints from the dispatchers about the Bungards. Senior was
reportedly abrupt and used obscene language, though
Bungard was ‘‘not as harsh,’’ while Junior was ‘‘impatient
and demanding.’’ I credit her testimony that, on a few occa-
sions, Senior used obscene language to dispatchers and that
this fact was reported to Fox. However, his remarks were
never the subject of any predischarge reprimands or dis-
cipline. I credit Bungard’s testimony that she never used pro-
fanity or obscenity in dealing with dispatchers or any other
Company personnel.
On several occasions, the Bungards experienced break-
downs while on the road. On or about September 10, while
on the Ohio Turnpike enroute from California to Massachu-
setts, their truck experienced a leak in the left rear air bag
which made the vehicle difficult to control. They pulled over,
phoned the dispatcher, and, in accordance with instructions,
made arrangements to drop the trailer and bring the cab into
a shop at Stony Ridge, Ohio, for repairs. Upon examination,
the mechanic found that a valve regulating the air bag was
defective. The air bag assembly was replaced and the drivers
proceeded to their destination, arrivng about half a day late.
Sometime in October, shortly after delivering a load of
glass in Los Angeles, the Bungards phoned the dispatcher to
report what they felt was a damaged shield on the refrig-
erator reefer. They were afraid that it would affect the tem-
perature control necessary for hauling a return load of
produce. Because of uncertainty concerning the nature and
extent of any damage, they were allowed to proceed to Fres-
no where they picked up a load of grapes. By this time, it
appeared that the unit needed to be repaired so they pro-
ceeded to a repair shop and had a new reefer installed. Be-
cause of a billing problem arising from the fact that the Re-
spondent did not have an account with the repair shop, it was
necessary to call Fox to arrange for payment.
While moving skids in order to load the grapes for the re-
turn run, Senior injured his back. The pain bothered him con-
siderably on the ride east and he called the Company to in-
form them of the injury. Bungard told Lape that it might be
necessary for her to drive the entire trip east herself. Lape’s
reply was ‘‘do what you can do.’’ Later, Senior called Lape
and asked if they could bring the trailer directly into the yard
at Canonsburg and, presumably, have someone else finish the
delivery which was destined for Massachusetts. Lape refused
the request, directing them to proceed as scheduled to make
the delivery. They did and then returned to the terminal in
Pennsylvania. While making their return to the terminal, they
were directed to pick up a load at Connellsville, Pennsyl-
vania, and bring it with them. They complied with this re-
quest. Upon reaching the terminal, Bungard backed the truck
into the yard, informed Lape that her husband had a compen-
sable injury, and obtained a referral to the company doctor.
On or about November 6, the Bungards experienced a
third breakdown at Kingman, Arizona. I credit Bungard’s ac-
count of this incident. They were en route to California with
a load of hazardous chemicals when Senior, who was driv-
ing, heard a warning beeper in the cab of the truck. He
pulled over, looked under the hood, and found a great deal
of water in the motor. As it was dark, he was unable to de-
termine the source of the fluid. He telephoned Fox, reported
the incident, and was told by Fox to stay put and to call
again the following morning. The Bungards were then in-
structed to have the truck towed to a nearby garage and did
so. A mechanic determined that a fan had come loose and
had gone through the radiator. It took 2 or 3 days to repair
the vehicle. On their return trip to Pennsylvania, a fuel filter
broke and had to be replaced at a garage in Coalinga, Cali-
fornia.
During their final 2 weeks of employment, Bungard re-
mained at home and had an opportunity to examine some
pay sheets which had been issued by the Company to her
and her husband. She found from these documents that the
Company had failed to pay both her and her husband a sub-
stantial amount in layover and breakdown pay which was
owed as a part of previous weekly settlements.7 She gave the
documentation for her belief to her husband and asked him
to take it to the Company’s office on a Saturday late in No-
vember. He did so. The following Tuesday, when she went
to the office to pick up their paychecks, she noticed that the
claimed amounts were not reflected in the checks and
brought the matter to Fox’s attention. He told her not to
299C.D.S. LINES
8 In his testimony, Fox stated that he spoke at length with Senior
and told him why he was being discharged. I discredit his testimony.
There is no contention that Fox or anyone else spoke with Bungard
or with Junior, either to inform them that they had been discharged
or to discuss with them the reasons for their discharges.
worry about it, joking that he would take care of the matter
and put all the money in her husband’s check. When
Bungard went back to the office the following Tuesday, De-
cember 8, to pick up their paychecks, she again found that
the claimed amounts were not in the checks and asked
Kathy, the payroll clerk, about it. Kathy shook her head and
replied that she did not know what Bungard was talking
about. They both started to look through company files to
find any information which would backup the claim but were
unable to locate the appropriate records because Bungard
could not recall the trip numbers assigned to the trips in
question. She told Kathy that she would telephone her and
give her the trip numbers.
At this point Fox entered into the conversation. He told
Bungard that if she would put the proper information on the
settlement sheets after returning from a trip, she would not
have any trouble in getting paid. Bungard insisted that she
had filled out the forms correctly. Fox then became more
specific, pointing out to her on the sheets what information
should be placed at which locations. Again Bungard insisted
that she had filled out the forms correctly.
Fox complained that he had so many drivers that it was
hard to keep track of all of them and went on to accuse the
Bungards of having too many breakdowns. As the dispute
grew more heated, Bungard replied that the breakdowns were
the fault of company equipment, arguing that she and her
husband did not deliberately break down on trips simply to
become stranded on the road in the middle of the night. Fox
then mentioned that her husband and her son, who were on
a trip to California, were currently broken down. Lape, who
was also present, broke in to the conversation to say that the
Bungards were experiencing an electrical problem with their
truck. Fox’s reply to this remark was, ‘‘We’ll take care of
the Bungard boys when they come in.’’ Bungard then asked
him ‘‘Otto, what do you mean by that?’’, to which he re-
plied, ‘‘I’ll take care of all three of you when they get in.’’
Bungard then asked Fox if he was threatening to fire them.
He mumbled an unresponsive reply, whereupon Bungard told
him that, if he was threatening to fire them over faulty com-
pany equipment, she would go to the NLRB. Before the con-
versation concluded, she again had voiced her determination
to go to the Board for assistance. After returning to her
home, Bungard was able to contact her son and her husband
on the road and warn them that they should expect to be
fired when they returned.
The Bungards, Senior and Junior, returned from the trip to
California on or about Friday, December 11. In the course
of this trip, they experienced electrical difficulties which
caused the taillights on the trailer to blink on and off. A sen-
sor on the truck also ceased functioning. After clearing with
the Company’s office, they had the sensor fixed but took no
action concerning the taillights, hoping that they could make
it back to the terminal without being noticed by the police.
During the trip, Junior phoned in and talked with Fox. He
asked Fox for a $50 trip advance. Fox replied, ‘‘I talked with
your mother. Now you want money,’’ and hung up. They
were told to clean out the truck and not to call in until Mon-
day. Normally drivers who are at home call in each day ex-
cept Sunday. Both Bungards were then summoned to the of-
fice, where Fox spoke to them. He told Senior that Marilyn
Bungard was ‘‘hard’’ and that, if she were his own wife, he
would ‘‘beat the hell’’ out of her.
On Monday, December 14, Senior called the office to get
an assignment and was told by Fox that the Company did
not need him any more. He also said that the Company did
not need his wife or his son. Senior asked Fox why he was
being discharged and Fox replied only that ‘‘good drives
[could] find a job anywhere.’’ Senior called Fox the follow-
ing day and asked again why he was being discharged. Fox
gave him the same reply.8
Over the extended weekend, the Respondent prepared no-
tices for each of the Bungards. The documents were written
out by Lape at Fox’s direction. While the forms in question
are styled ‘‘separation notices,’’ none of them were ever
given to the employees in question. Marilyn Bungard’s no-
tice, dated December 12, indicated that she had been dis-
charged for ‘‘insubordination.’’ In the section reserved for
‘‘detailed explanation of reason for discharge,’’ Lape wrote:
Just a handful of problems—always breaking down,
complaining about loads, a very negative attitude.
When I hired this team, they asked many questions . . .
at first, I was appreciative, however, after continuous
calls in the pre-hire period I began to develop a sus-
picion that they were a bit opportunistic and demand-
ing. After some time, my suspicions were confirmed. I
never received so many phone calls at night, calls from
a team broke down [sic] as I did from the Bungards.
It actually became a joke at the operation office among
people on call—‘‘How many times did you hear from
the Bungards?’’
Her termination form indicated that she was not eligible for
rehire.
Ronald Bungard Sr.’s separation notice indicated both that
he was a voluntary quit and that he had been discharged for
insubordination. In the narrative prepared by Lape, the form
read:
Ron we didn’t seem to have many problems with.
However, his family seemed to cause disturbances that
led to separation.
The form indicated that Senior was eligible for rehire.
The form prepared for Ronald W. Bungard Jr., dated De-
cember 12, indicated that he had been discharged for insub-
ordination. The narrative portion of the form read:
Ron failed the first drug screen but we gave him the
benefit of the doubt. We hired Ron and he quit us three
weeks later. But we still rehired him back . . . this
driver always seemed very impatient and on the last
day he worked he spoke very abusively to the assistant
operations manager.
The form indicated that he was not eligible for rehire.
Both Ronald Sr. and Marilyn Bungard were ultimately
paid $200 apiece for the layover and breakdown pay they
had claimed. Fox testified that he had paid them these sums
sometime before they had been discharged but Company’s
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
records support Bungard’s testimony, which I credit, that the
Bungards were not paid these sums until they received their
final settlement, sometime after they were discharged.
II. ANALYSIS AND CONCLUSIONS
In order to establish a violation of Section 8(a)(1) of the
Act on the part of the Respondent in discharging the
Bungards, it is necessary to establish that they had engaged
in activity which was both concerted and protected and that
such activity was the cause, in whole or in part, of the dis-
charges. ‘‘[I]t is obvious that higher wages are a frequent ob-
jective of organizational activity, and discussions about
wages are necessary to further that goal.’’ Jeanette Corp. v.
NLRB, 532 F.2d. 916, 918 (3d Cir. 1976).’’ [D]issatisfaction
due to low wages is the grist on which concerted activity
feeds.’’ Supra at 319.
In repeatedly pressing their claim for the $50 and $500
hiring bonuses with members of Respondent’s management,
both Ronald Sr. and Bungard, who were hired at the same
time as a husband and wife team, were acting for each other
with respect to a matter which has always been regarded as
protected activity. In pressing their later claim for unpaid
wages, Bungard was acting for her husband as well as her-
self and at his express request. When, during his last trip
with the Respondent, Junior phoned Fox and asked for a $50
trip advance, he was met with a response from Fox indicat-
ing that the Respondent regarded him as part and parcel of
an effort on the part of the entire Bungard family to make
the Respondent pay out money that he was extremely reluc-
tant to part with. Fox simply slammed down the phone on
Junior after complaining to him that his mother had also
been irritating him in her quest for backpay which she felt
was due and owing.
In Bungard’s separation notice, Lape wrote that ‘‘after
continuous calls in the prehire period I began to develop a
suspicion that they were a bit opportunistic and demanding.’’
(Emphasis added.) When translated this language meant that
the original claims of the Bungards for bonuses played a role
in her separation. Lape went on to write that ‘‘after some
time, my suspicions were confirmed.’’ This is a virtual ad-
mission that the latter claims asserted by Bungard and her
husband for layover and breakdown pay were instrumental in
prompting the Respondent to discharge her.
The timing of the discharges, following fast upon a heated
dispute between Fox and Bungard over the issue of non-
payment of layover and breakdown pay, further suggests that
this dispute and not some alternative explanation was the real
cause of the discharges. In fact, in the course of their discus-
sion, Fox even suggested that he would discharge her, al-
though he recited numerous breakdowns experienced by the
Bungards as the reason which might be used as the basis of
the Company’s action. He did not limit his proposed action
to Bungard, telling her that he would get rid of ‘‘all of the
Bungards’’ when her husband and her son returned from the
trip they were on. When, in fact, they did return, Fox again
vented his anger at Bungard by telling her husband that he
ought ‘‘beat the hell’’ out of her.
The fact that the Respondent failed and refused to give
any explanation, rational or otherwise, to any of the
Bungards for discharging them adds a further suspicious note
to its action. The causal connection between the backpay
claims and the discharge of the Bungards was further delin-
eated when Fox stated on the stand that
[Mrs. Bungard] was not [driving on the final run] and
she was part of the entity. She came to me as a hus-
band and wife team. She was very, very upset that this
layover and breakdown pay and I received her com-
plaints all the time about it. Every day it seemed like,
right towards the end every day, Marilyn Bungard was
on the phone and . . . .
In Fox’s testimony, the ‘‘straw that broke the camel’s
back’’ was his assertion that, on their last run, Senior and
Junior Bungard were late in making a delivery in Los Ange-
les and their lateness caused the Respondent to lose a cus-
tomer. Fox was unable to explain how the alleged work defi-
ciency on the part of these two individuals should play any
legitimate role in discharging Bungard, who was home in
Pennsylvania when the California deliveries were made. Ac-
cording to Fox, Junior and Senior left the Canonsburg termi-
nal on a Saturday morning in ample time to deliver a load
of merchandise they had brought from New Jersey for deliv-
ery at a K-Mart store in Los Angeles. The scheduled delivery
time was 7 a.m. the following Monday morning. They failed
to make the delivery on time and so were guilty of a derelic-
tion warranting separation from the Company (although Sen-
ior was still deemed eligible for rehire). Fox’s knowledge of
what occurred in California is necessarily hearsay, even if his
testimony concerning the events were to be credited. I credit
Junior’s account of what occurred, namely that when he and
his father arrived in Los Angeles, no delivery time had even
been scheduled and they had to phone the K-Mart store in
order to make an appointment to unload. They unloaded on
Tuesday morning and returned to Canonsburg promptly, their
return trip being delayed for repair of a sensor which had
broken on the truck. Accordingly, there is no factual founda-
tion for the Respondent’s description of the precise causal
events surrounding Fox’s explanation of the discharges at
issue.
There is little similarity between the reasons asserted for
the discharges, as set forth on the employees’ separation no-
tices in December, and the explanations given by Respond-
ent’s counsel in his opening statement and by Fox in his tes-
timony at the hearing in June. In addition to the designation
of ‘‘straw that broke the camel’s back,’’ as discussed above,
the Respondent claimed that the Bungards were insubordi-
nate, that they used foul language to dispatchers, and that
they were constantly experiencing breakdowns. By adding
these makeweight reasons to an already threadbare expla-
nation, the Respondent was simply making up its defense as
it went along. Such a shifting of reasons has long been held
to be a clear indicia of discriminatory or illegal intent. While
Junior was not one of the two claimants whose request for
backpay triggered the discharges of his parents, the Respond-
ent treated him as part of the problem it sought to eliminate
when it removed other employees who were, in its view,
‘‘opportunistic and demanding.’’ Accordingly, Junior is as
much a discriminatee as his parents. In light of the foregoing,
I conclude that, by discharging Marilyn Bungard, Ronald W.
Bungard Sr., and Ronald W. Bungard Jr., because they had
engaged in the concerted, protected activity of pressing wage
demands, the Respondent violated Section 8(a)(1) of the Act.
301C.D.S. LINES
9 F. W. Woolworth Co., 90 NLRB 289 (1950).
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 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.’’
CONCLUSIONS OF LAW
1. C.D.S. Lines, Inc. is now and at all times material here-
in has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging Marilyn Bungard, Ronald W. Bungard
Sr., and Ronald W. Bungard Jr., because they had engaged
in concerted, protected activities, the Respondent herein vio-
lated Section 8(a)(1) of the Act. The aforesaid unfair labor
practices have a close, intimate, and substantial effect on the
free flow of commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be re-
quired to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and
policies of the Act. Since the violations of the Act found
herein evidence an attitude on the part of this Respondent of
total disregard for statutory obligations and the rights of its
employees, I will recommend to the Board a so-called broad
8(a)(1) remedy designed to suppress any and all violations of
that section of the Act. Hickmott Foods, 242 NLRB 1357
(1979). The recommended Order will also provide that the
Respondent be required to offer full and immediate reinstate-
ment to Marilyn Bungard, Ronald W. Bungard Sr., and Ron-
ald W. Bungard Jr. and that it make them whole for any loss
of earnings which they have sustained by reason of the dis-
criminations practiced against them, in accordance with the
Woolworth9 formula, with interest thereon computed at the
rate prescribed by the Tax Reform Act of 1986 for the over-
payment and underpayment of income tax. New Horizons for
the Retarded, 283 NLRB 1173 (1987). The recommended
Order will also require the Respondent to remove from the
personnel files of these employees any unlawful disciplinary
actions and will further require it to notify them that their
files are being expunged and that the infractions formerly
noted will not be used as a basis for future discipline. I will
also recommend that the Respondent be required to post the
usual notice advising its employees of their rights and of the
results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, C.D.S. Lines, Inc., Canonsburg, Pennsyl-
vania, its officers, agents, supervisors, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or disciplining employees because they
have engaged in concerted, protected activities.
(b) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Marilyn Bungard, Ronald W. Bungard Sr., and
Ronald W. Bungard Jr., full and immediate reinstatement to
their former or substantially equivalent employment, without
prejudice to seniority or to other rights previously enjoyed,
and make them whole for any loss of pay or benefits suf-
fered by them by reason of the unfair labor practices found
herein, in the manner described above in the remedy section,
with interest.
(b) Remove from its files any references to unlawful dis-
charges or discipline of these individuals and notify them in
writing that this has been done and that the discharges or dis-
cipline will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
and its agents for examination and copying, all payroll
records, social security payments records, timecards, person-
nel records and reports, and other records necessary to ana-
lyze the amounts of backpay all due under the terms of this
Order.
(d) Post at the Respondent’s Canonsburg, Pennsylvania
terminal copies of the attached notice marked ‘‘Appendix.’’11
Copies of the notice, on forms provided by the Regional Di-
rector for Region 6, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately on receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.