D. J. W. Cartage

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1757 (N.L.R.B. 1977)

D.J.W. CARTAGE
John Warner d/b/a D. J. W. Cartage and Local No.
544, Over-'k he-Road, City Transfer, Cold Storage,
Grocery and Market Drivers and Helpers , Inside
Employees, affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America . Cases 18-CA-4926 and
18-RM-954
January 31, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On October 1, 1976, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions 1 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, John Warner d/b/a D. J. W. Cartage, Min-
neapolis, Minnesota, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 1(b):
"(b) In any other manner interfering with, restrain-
ing, or coercing their employees in the exercise of
their rights protected by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Administrative Law Judge, in his Conclusion of Law, inadvertently
failed to mention that the discharge of Wesley Warner violated Sec. 8(a)(3),
as well as Sec . 8(a)(l), as he had previously found in his Decision Such a
violation warrants the broad cease-and- desist language "in any other
manner" rather than the narrow language "in any like or related manner,"
and we shall modify the Administrative Law Judge's recommended Order
and notice accordingly See N LR B v. Entwistle Manufacturing Co, 120
F 2d 532 (C A 4, 1941).
227 NLRB No. 255
APPENDIX
1757
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employees because of their
concerted activities for mutual aid and protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed by the National Labor
Relations Act.
WE WILL offer Wesley Warner full and immedi-
ate reinstatement to his former position or, if that
job no longer exists, to a substantially equivalent
job without prejudice to his rights and privileges,
and WE WILL pay him for losses he suffered as a
result of our having discharged him, with interest
at 6 percent per annum.
JOHN WARNER D/B/A
D. J. W. CARTAGE
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge : Case 18-
CA-4926 is before me pursuant to charges filed March 22,
1976, and a complaint issued May 11, 1976, alleging that
Respondent violated Section 8(a)(1) and (3) of the Act by
discharging Wesley Warner . In Case 18-RM-954, an
election was conducted on March 19, which resulted in two
votes for, and two against , the Union, with one challenged
ballot, that of Wesley Warner. Common to both cases is the
question whether Wesley Warner is an employee or an
independent contractor. Accordingly , the Regional Direc-
tor ordered that Case 18-RM-954 be consolidated with
Case 18-CA_4926.1 A hearing was held before me at
Minneapolis , Minnesota , on June 21 , 1976. Thereafter, a
brief was submitted by Respondent.
Upon the entire record in the case , including my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent is an individual business known as D. J. W.
Cartage, owned and operated by John Warner. It is
engaged in the local cartage business at Minneapolis,
Minnesota. During the 1975 calendar year, it derived
revenues in excess of $50,000 from Airborne Freight
Corporation, which conducts business throughout the
I The Employer contended, alternatively, that Wesley Warner, even if an
employee, was ineligible because he enjoyed a special status with the
Employer. This issue, too, is before me, as, of course, are all the issues
relating to the discriminatory discharge allegations of the complaint
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States, has revenues in excess of $1 million
annually, and derives more than $50,000 of such revenues
from services outside the State of Minnesota. I find, as
Respondent admits, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
Respondent is a "local cartage carrier," whose sole
business is hauling air freight for Airborne Freight Corp. It
employs five drivers, four of whom drive Respondent's
trucks, with the fifth, Wesley Warner, a brother of Respon-
dent's owner, John Warner, driving his own truck. Wesley 2
began working for the Company in July 1966. He had been
hauling gravel , "it was going slow," and John offered him a
job driving for the Company which Wesley accepted,
altering his truck somewhat to meet the needs of his new
job. A contract between Wesley and the Company, dated
November 2, 1970, recites that Wesley Warner shall be an
"independent contractor," and goes on to state:
THIS CONTRACT, made this 2 day of November, 1970,
between John F. Warner, doing business as D.J.W.
Cartage, hereinafter called "First Party" and Wesley F.
Warner, (hereinafter called "Second Party"), for the
following purpose: Second party , acting as an indepen-
dent contractor, shall transport and handle air freight
for the First party; it is mutually agreed as follows:
1. The Second party shall furnish his own motor
vehicle or vehicles.
2. The First party shall be furnished, before com-
mencement of any work, with a certificate of
insurance covering the vehicle or vehicles used by
the Second party against liability and property
damage . The premiums for said insurance shall be
the expense of the second party.
3. The Second party shall, at his own expense, obtain
all licenses and/or permits required by the State
of Minnesota or any local government body for
the operation of the Second party's vehicle or
vehicles, and the Second party shall obey all laws,
ordinances, and regulations applicable hereto.
4. Either party may terminate this contract, without
prejudice, to any other right or remedy, after
fourteen (14) days written notice to the other
party.
5. If the Second party should neglect to prosecute the
work properly, or shall fail to perform any
provision or this contract, the First party may
deduct the cost thereof from the payment then or
thereafter due to the Second party.
2 To avoid confusion, I generally refer to the Warners by their first names
hereafter
3 The last clause of the first contract is changed somewhat, limiting the
carrying of airfreight for l year only with respect to two Minnesota counties.
4 On two occasions, Wesley lent his truck to his son to move items for his
mother-in-law . On one of these occasions , John asked Wesley what his truck
was doing in St Paul , whether he was "scabbing on the truck hauling"
6. The Second party shall indemnify and save harm-
less the First party from any and all claims for
damages for personal injury or injury to property
that may arise or may be alleged to arise, in any
manner from the carrying out of this contract.
7. Neither party to this contract shall assign the
contract or any interest therein, without the
written consent of the other.
8. The First party shall pay the Second party for the
performance of work under this contract as
follows:
SECOND PARTY SHALL NOT HAUL FOR ANOTHER
AIRFREIGHT CO. FOR ONE (1) YEAR AFTER LEAVING D.J.W.
CARTAGE EMPLOYMENT.
There is another contract between the two in evidence,
dated November 17, 1970, with virtually the same provi-
sions,3 and setting forth the rates (blank on the November 2
agreement) as "$1.40 per bill or .55¢ per 100 lbs whichever
is more. Area B's at present rates. Raise given each time I
receive one from Airborne." There is no explanation in the
record as to why the two contracts were executed within 13
days of each other, and there has not been any new contract
signed since 1970. An earlier contract, in July 1969, was
also virtually identical - with the rates then stated as
"$1.15 per bill, or 50¢ per 100 lbs, whichever is more. Area
B's at present rates. Raise given when I receive one."
Wesley owned his own truck, purchased without any
financial assistance from Respondent. He pays for tires,
gas, and all other expenses relating to the operation of his
truck, including repairs and maintenance. He also pays any
fines or penalties that may be imposed. He is licensed by
the State of Minnesota as a "Local Cartage Carrier." He
pays the annual license fee for this, and fills in various
forms and reports in connection with his "LCC" license.
The cab of his truck has Wesley Warner on it, and his LCC
number. The body of the truck bears an "Airborne Freight"
designation. For the last 6 or 7 years, Wesley reported for
work at 7 on Monday morning, and 7:30 the rest of the
week. If any problem arose, Wesley would call John, at
John's request, to let him know he would be late. Wesley
worked a particular area of metropolitan Minneapolis, as
did each of the other four drivers.
From 1966, when he began working for the Company, to
the time his contract was canceled in March 1976, Wesley
did no hauling for anyone other than the Company, and did
only Airborne's work.4 With the exception of a total of
some 30 to 40 days, Wesley drove only his own vehicle.
Those 30 to 40 days he used a company truck, all these
occasions being when his own truck was not in running
condition, and his rate of compensation remained the same
during those periods. His truck's cab was painted red and
the body white, those being Airborne's colors when Wesley
began working, and, as noted above, the words "Airborne
Wesley replied that he had just "borrowed the truck to my son who was
moving his mother-in -law " On another occasion , Wesley was informed by
John Fleming, of Airborne , that he should make a particular pickup,
requested by a Tom Davis of the 3-M Company. John spoke with Wesley on
the radio, wanting to know "what the deal was" and , when informed by
Wesley, said, "Well, Tom Davis doesn 't run this damn outfit "
D.J.W. CARTAGE
Freight" appeared on the body. On one occasion, some 6
years ago, when Wesley asked John if he should hire a
driver while he, Wesley, was on vacation, John said no, that
he would cover Wesley's area himself.5
Wesley had early in his employment, back in 1966, been
given a verbal guarantee by John of $150 per week. This
was never repeated, or put into any contract, but the
question is academic as to whether the guarantee remained
in effect as Wesley always earned much more than that.
Although the last written contract provided that Wesley
would receive $1.40 per bill, he has received increases over
the years and at the time the relationship was severed he
was receiving $1.75 per bill. The other four drivers were
receiving $1.35 at the time of the hearing. Wesley computed
his own earnings (subject to check by the Company),
submitting a bill to the Company once a week for payment.
The other drivers turned in their bills of lading to the
Company, which computed their earnings.
There was considerable testimony concerning the "exclu-
sivity," or lack thereof, of the territories covered by the four
drivers other than Wesley, and Wesley himself. Respondent
argues that Wesley's territory was exclusive, but that the
other drivers' territories were not. The testimony does not
support this contention. It is clear that, as John Warner
stated at the outset, each driver has an "exclusive geograph-
ic area." It is also clear that other drivers on occasion, when
the one whose territory is involved is unable to make a
particular pickup, for example, will go into that territory to
"help out." This is as true for Wesley's territory as it is for
the others. The touchstone for one driver going into
another's territory was whether the latter was able to make
the necessary pickup or delivery in time in all cases. And it
is clear that John Warner decided whether or not this would
be done. Any acquiescence by Wesley to someone coming
into his territory in these circumstances was obviously, as
driver Bruce Kupfer's testimony makes clear, pro forma.
Respondent also asserts that Wesley was not subject to
discipline, unlike the other four drivers. The testimony does
not bear this out. Thus, John Warner testified, when asked,
with respect to all his employees "how do you go about
disciplining them," "I just talk to them, normally." The
only "discipline" other than "talking to" that Respondent
testified to concerned John's son, Pat, who was pulled off
making deliveries to a particular customer because of his
difficulty in getting along with that customer. That John
also "talked" to Wesley concerning the latter's performance
is also manifest by John's testimony that he told Wesley "to
clean up his act a little bit," when he received a complaint
about Wesley throwing paper on the ground and acting
rude, and that he (John) never "got no more complaints
from the guy or . . . heard any more about it."
According to John, Wesley came in between 7 and 7:30
in the morning and "then he worked until he got done, but
he never worked Saturdays." There is no evidence that the
other drivers worked any different hours, except that the
four of them apparently rotated working Saturdays. Wesley
testified that he was not asked to work Saturdays over the
5 John Warner denied this conversation . I credit Wesley as, in my
opinion , John dissembled with respect to the basis for severing his
relationship with Wesley, as will be set forth later in more detail. Respondent
argues in its brief that Wesley 's use of the word "should" indicates that he
was asking what Respondent wished him to do, not what he was empowered
1759
past 5 years, that "If I was asked to work on Saturday, I
would fill in on Saturdays."
When Wesley reported for work on the morning of
March 15, 1976, there was a picket line in front of the
Company's premises, with picket signs saying that Local
544 was on strike for recognition against D. J. W. Cartage.
Wesley did not cross the picket line that day or the next.
The picketing ceased after March 16 and Respondent took
back the two drivers who were picketing, but not Wesley,
who was informed by two union representatives the evening
of March 16 that he would not be taken back. On March 25,
1976, Respondent sent the following letter, signed by John
Warner, to Wesley Warner:
D.J.W. CARTAGE
7836 - 13th Avenue South
Bloomington, Minnesota 55420
March 25, 1976
CERTIFIED MAIL NUMBER 517204
Mr. Wesley F. Warner
1401 East 62nd Street
Minneapolis, Minnesota 55423
Dear Mr. Warner:
Your Failure to perform duties for D.J.W. Cartage on
March 15 , 1976 and March 16, 1976 constitutes a
breach of the contract between you and D.J.W. Cartage
which is dated November 17, 1970.
Therefore, in accordance with Section (4) of the
aforementioned contract, you are herewith advised that
without prejudice to any other right or remedy, I am
exercising my right to terminate the contract and hereby
give you notice of such termination.
In conjunction with the above , demand is herewith
made upon you to return the RCA Super Car Phone
`500' mobile radio previously issued to you by D.J.W.
Cartage. This unit must be returned in proper working
order immediately to the Airborne Freight Corporation
office at 7500 - 24th Avenue South, Minneapolis,
Minnesota . You will be given a signed receipt upon
proper return of the unit.
D.J.W. CARTAGE
John Warner
Owner
John Warner, when asked why he terminated the most
recent contract between himself and Wesley, testified:
"Well, after the voting he never called or came back to
work or anything. I had no choice but to terminate the
to do. I attach no such significance to the word used, particularly since
Wesley himself did not; his full testimony being, "I asked him if I could hire a
driver. I said should I have a driver while I was on vacation." (Emphasis
supplied.)
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract . . . . That was in the 26th of March." Asked
further by his counsel, "Did you discharge or terminate
Wesley Warner because he was engaged in activities on
behalf of the union," John Warner replied "No," then
repeated, "He never called or showed up for work, I had
nothing else I could do." Later, on cross-examination, John
Warner replied, "No, I did not" to the question "Did you
talk to the other employees on March 17th to ask them to
come back to work?" And he then stated that a Mr.
Goldberg did, to his knowledge, have conversations with
union representatives, as his representative, concerning the
return to work of the employees, but that he gave Goldberg
no instructions , hejust left it up to hun.
Dennis Goldberg, the representative in question, was
then called as a witness by the Union. He testified that he
was employed by Industrial Relations Associates Inc.,
engaged in consulting and advice on labor relations, that
Respondent was a client, and had consulted Goldberg in
connection with the 2-day strike of March 15 and 16. In the
course of a long discussion with Union Representative
Chuck Madden, concerning the strike, the filing of unfair
labor practice charges by the Company against the Union,
and the filing of a representation petition by the Company,
Goldberg told Madden that the Company believed that
Wesley Warner was an independent contractor and ineligi-
ble to vote, that the Company would take back striking
drivers Bruce Kupfer and Glen Duncan, but would not put
Wesley back to work "until his status was clarified by the
National Labor Relations Board." Goldberg testified that
he had been in communication with John Warner, and had
authority to enter into the agreement on his behalf, but that
he had not cleared his specific actions with John Warner.
Although Goldberg answered, "No, sir," to my question
"And the way he breached his contract was to not cross the
picket line, is that correct," he further testified that, on
advice of counsel, that the basis was Wesley's failure to
perform work under his contract, the failure being, how-
ever, clearly the refusal by Wesley to cross the picket line.
B. Discussion
As the termination of Wesley Warner's contract was
based on his refusal to perform work on March 15 and 16,
and this refusal was because he was respecting the Union's
picket line at his work premises, Respondent's refusal to put
him back to work clearly violated the Act, unless, as
Respondent contends, he was an independent contractor,
not subject to the Act's coverages That latter question,
therefore, is the only issue in this case, with respect to the
unfair labor aspect thereof.
There is a plethora of Board cases determining whether
owner-operators of trucks are employees or independent
contractors, with all of them stating the test in substantially
these words. "In determining whether owner-operators .. .
are employees or independent contractors, the Board has
uniformly held to be crucial the extent to which they are
6 Respondent 's brief apparently recognizes this, stating "It has, of
course , long been held that the discharge of an employee for refusing to cross
a picket tine at his place of employment constitutes interference with the
protected rights of employees within the meaning of the Act But where, as
here , Wesley Warner was not an employee, but an independent contractor,
Section 8 (axl) does not apply" Elsewhere in its brief, Respondent argues
subject to the control of the carrier, not only with respect to
the result to be achieved, but also with respect to the means
to be used in achieving that result." Local 814, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Molloy Brothers Moving and Storage,
Inc.), 208 NLRB 276, 277 (1974). The problem, of course,
comes in applying the word "extent," for nowhere does the
Board define "extent" in this context; one can glean its
meaning only by looking at the particulars of a given case
and the result thereof. The fact that the putative employee
is named as an "independent contractor" in the agreement
between him and the employer does emerge as an irrelevant
factor, for that is true in virtually every case where the issue
has arisen.
The fact that Wesley owned his own truck is the starting
point for the Respondent's contention that he had indepen-
dent contractor status - absent that fact, there would be
no issue in that respect. Other supporting factors are that
Wesley purchased the truck himself, with no assistance
from Respondent, and that he was responsible for all
repairs and maintenance of the vehicle, and all expenses
necessary to its operation, including gas and oil and
insurance. Further, he was licensed by the State of
Minnesota as a "Local Cartage Carrier," a license he
applied and paid for, and for which he continues to pay an
annual fee. Wesley also kept his bills of lading during the
week, computing what Respondent owed him and submit-
ting a bill to Respondent for payment each week. He was
paid $1.75 per bill, the other drivers $1.35 per bill. In all the
above-mentioned respects , Wesley Warner's status was
different from that of the other four drivers employed by
Respondent.
On the other hand, although Respondent made no
deductions from Wesley's revenues for taxes, social securi-
ty, insurance of any sort, pension programs, and the like,
this was equally true of the four other drivers. None of the
five received any extra pay for working holidays; none
received paid vacations. The hours of the five drivers are
substantially the same , with all supposed to inform John
Warner if they are going to be late, except that, as noted
above, Wesley has not worked Saturdays for a number of
years, not having been asked to do so. Also, as noted above,
the "exclusivity" of the territory covered by each driver is
subject in all cases to John Warner telling any driver to
make a pick up or delivery in another's territory when the
latter is unable to complete the work. To the extent that
Wesley's territory was more "exclusive ," the difference was
minuscule . Nor, as the facts set forth above demonstrate,
was there any perceptible difference in the "discipline," or
lack thereof, imposed on Wesley from that which the other
four drivers were subject to.
The work of the five drivers is precisely the same , making
the necessary deliveries and pickups in their assigned areas
- areas assigned to them by John Warner. There is very
little "supervision" of any of the drivers. As John Warner
testified, "Well, more or less routine, I mean after a guy has
that there is no evidence that it was motivated by any antiumon purpose in
terminating the employment contract with Wesley Warner. Where , as here,
the very breach of contract in question is respecting the picket line of fellow
employees (assuming Wesley Warner to have been an "employee,") no
evidence of unlawful motivation is required to establish a violation of the
Act. Great Dane Trailers, Inc v N LRB, 388 U.S 26 (1967)
D.J.W. CARTAGE
been there a while you don't have to supervise them that
much. I give him his bills, he loads his truck, he tears down
his yellow copies, gives them to me and leaves. . . . At
noon he will come back in, write down pick ups if he had
any . . . ." The testimony does not support Respondent's
contention that John Warner exercised "direct control"
over the other four drivers' daily activities in any way
different from the way he controlled Wesley's activities.
With respect to the method of payment, the only
difference is the amount paid to Wesley per bill; all five are
paid on a per bill basis. Wesley's 40-cents-per-bill differen-
tial is obviously for the purpose of compensating him for
the expenses he incurs in connection with the ownership of
his truck, and its operating expenses. Indeed, the system
seems to work out so that Wesley's "profit" is approximate-
ly the same as the other drivers' earnings, for the four
drivers other than Wesley are guaranteed $200 a week, and
Wesley's profit-and-loss statement for 1975 shows a "Net
income/profit" figure of $10,422.00. I realize, of course,
that the profit-and-loss statement net figure already has
income taxes of $2,297 taken into account, but I am entitled
to assume that with a $200-per-week guarantee, the other
four drivers must make somewhat more than that many of
the weeks, so that the figures are comparable.
In sum , other than the fact that Wesley owns his own
truck, and expenses and other matters directly related to
that ownership are therefore different for him, in terms of
his "conditions of employment," than they are with respect
to the other four drivers, his conditions of employment and
status is very little different from the others. It is true that
there is not much "control" exercised over any of the
drivers, for not much is necessary. But the control that is
exercised over Wesley Warner being virtually identical to
that exercised over the other four drivers, who are conced-
edly and obviously "employees," is sufficient, in my
opinion, to overcome the fact that Wesley owns his truck,
and to require the conclusion that he is an employee rather
than an independent contractor. I so find, and therefore
conclude that Respondent violated Section 8(a)(1) and (3)
of the Act by refusing to return him to work after March 16,
1976.
The Representation Case
Having found that Wesley Warner was an employee
rather than an independent contractor, that basis for
challenging his ballot in the election necessarily falls. There
remains for consideration the Company's contention that
Wesley nonetheless be found ineligible to vote because of
his "special status." In this connection, the Company urges
primarily the same factors that it contends makes Wesley
an independent contractor. In addition, the Company
points to his testimony that he "was not close to the
employees"; to the fact that he assertedly knew "virtually
nothing about" the other employees' ownership of trucks,
wages, and working procedures; to the fact that he is John
Warner's brother; and to the fact that he received increases
in his contract rate even though such increases were not
required by contract. None of these considerations, in my
7 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall , as provided in Sec 102.48
1761
view, endowed Wesley with such special status as tojustify,
let alone require, that he be excluded from the bargaining
unit. Far from showing that he received special consider-
ation as John Warner's brother, Wesley's rate of compensa-
tion, after 10 years with the Company, seems to have been
at about the same take-home level as the other four drivers.
Perhaps the failure of John Warner to ask Wesley to work
every fifth Saturday was due to his relationship, although
there is no evidence to show that, but that would be a thin
reed on which to predicate Wesley's exclusion from the
unit. The other "differences" are those that stem directly
from Wesley's ownership of his truck, and no more require
his exclusion from the unit than does the same ownership in
any of the cases involving owner-drivers not found to be
independent contractors. Accordingly, I recommend that
the challenge to Wesley Warner's ballot be overruled, and
that his ballot be opened and counted.
CONCLUSION OF LAW
Respondent, by discriminatorily discharging employee
Wesley Warner, engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices, that it offer reinstatement to
Wesley Warner, with backpay, computed as provided in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and take
certain affirmative action in order to effectuate the policies
of the Act.
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER?
Respondent, John Warner d/b/a D. J. W. Cartage,
Minneapolis, Minnesota, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against employees because they have engaged in concerted
activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Wesley Warner immediate and full reinstate-
ment to his former job, or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of earnings he may have suffered, in the
manner set forth in the section hereof entitled "The
Remedy."
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Minneapolis , Minneso-
ta, copies of the attached notice marked "Appendix." 8
Copies of the notice, on forms provided by the Regional
Director for Region 18, after being duly signed by an
8 In the event that the Board 's 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
authorized representative of the Respondent, shall be
posted immediately upon receipt thereof, and maintained
by it for 60 consecutive days thereafter, in conspicuous
places , including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."