Graves Trucking, Inc.

National Labor Relations Board - Board Decisions

Nov 2, 1979

246 N.L.R.B. 344 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Graves Trucking, Inc. and William Nash. Case 25-
CA- 10045
November 2, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E
On June 29, 1979, Administrative Law Judge Karl
H. Buschmann issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions and a supporting brief, and Re-
spondent filed cross-exceptions and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
We agree with the Administrative Law Judge's
finding that by various conduct of Supervisor Rich-
ard Hanes, including the violent choking of union
shop steward and truckdriver William Nash for en-
gaging in protected concerted activities, Respondent
violated Section 8(a)(l) of the Act. The General
Counsel contends that the Administrative Law Judge
properly recommended that to remedy the choking
incident Respondent be required to offer Nash rein-
statement, but excepts to the Administrative Law
Judge's failure to find specifically that to make Nash
whole Respondent should be required to pay the
wages and benefits Nash would have earned with Re-
spondent and subsequent employers but for the dis-
abling injury caused by the choking incident. Respon-
dent, on the other hand, contends that Nash has
never been discharged and that a reinstatement order
is therefore inappropriate; that a disabling physical
injury of this type is properly remedied by a common
I In par. I(c) of his recommended Order, the Administrative Law Judge
used the broad cease-and-desist language. "in any other manner." However,
we have considered this case in light of the standards set forth in Hickmort
Foods, Inc., 242 NLRB 1357 (1979), and have concluded that a broad reme-
dial order is inappropriate inasmuch as it has not been shown that Respon-
dent has a proclivity to violate the Act or has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for employees'
fundamental statutory rights. Accordingly, we shall modify the recommend-
ed Order so as to use the narrow injunctive language. "in any like or related
manner."
The General Counsel has excepted to the Administrative Law Judge's
recommended remedy insofar as it recommends that interest on backpay
should be computed at a rate other than the 9 percent requested by the
General Counsel. The issue is presently under consideration by the Board. In
the meantime, we will adopt the Administrative Law Judge's reliance on
Florida Steel Corporation, 231 NLRB 651 (1977).
law tort or a workmen's compensation claim and not
the Board's remedial backpay award, which is appro-
priate only in circumstances where an employee has
been unlawfully discharged or denied reinstatement;
and that Respondent's backpay liability, if one exists,
should be limited to the period Nash would have
worked for Respondent absent the disabling injury,
i.e., until the work for which Nash had been em-
ployed by Respondent ran out.
Absent evidence that Nash was ever discharged by
Respondent or that he was otherwise prevented by
Respondent for reasons other than his neck injury
from returning to work for Respondent, we find, con-
trary to the Administrative Law Judge, that a rein-
statement order is unwarranted. However, we find,
for the reasons set forth below, that Nash should be
awarded backpay for the period of the disabling in-
jury in order to make him whole for losses resulting
from Respondent's unlawful conduct which rendered,
and continues to render, Nash medically unfit to per-
form his former, or a substantially equivalent, job for
any employer.
As more fully discussed by the Administrative Law
Judge, the record establishes that the hauling work
for which Nash had been referred by the Union, in
accordance with the collective-bargaining agreement
between Respondent and the Union, ran from about
June to November 1978;2 that on June 21, Supervisor
Hanes, annoyed by Nash's challenge on behalf of
himself and the other drivers to Respondent's newly
implemented substantive change in working condi-
tions, violently grabbed Nash around the neck and
choked him;3 that as a result of the choking incident,
which occurred in the presence of other employees,
Nash suffered contusions and immediate pain in his
throat, tongue, and temple: that Nash worked the
balance of that day and reported to work the follow-
ing morning, but was forced to leave work when the
pain in his throat and head became too severe; and
that since June 22 Nash has been under a physician's
care for injuries stemming from the choking incident
and has remained under medical orders not to return
to work. Thus, Hanes' vicious physical assault on
Nash, which directly caused an incapacitating phys-
ical injury precluding Nash's resumption of work
with Respondent or any other employer, occurred be-
cause of Nash's protected concerted activities and
constituted a serious interference with and restraint
on Nash's Section 7 rights.
The question before the Board is whether such un-
lawful conduct is appropriately remedied by a back-
pay order. Congress charged the Board, in Section
2 All dates pertinent hereto are in 1978.
3As noted by the Administrative Law Judge, Respondent did not disavow
Hanes' actions.
246 NLRB No. 52
344
GRAVES TRUCKING, INC.
10(c) of the Act, 4 with the task of devising remedies to
effectuate the policies of the Act.5 A backpay order is
one of the remedial devices adopted to attain just re-
sults in diverse, complicated situations.6 The Board
has thus employed the backpay remedy in multifar-
ious circumstances, including those in which an em-
ployee has suffered loss of earnings resulting from a
discriminatory discharge, layoff, or refusal to rein-
state, or an unlawful change in job status such as
discriminatory demotion, transfer, or pay reduction.7
Like other Board remedies, backpay is intended to
dispel the effect of unlawful conduct, whether in re-
sponse to protected concerted activities or union ac-
tivities, by restoring discriminatees as nearly as possi-
ble to the economic position they would have enjoyed
in the absence of the unlawful conduct. In this case,
while the brutal physical assault on Nash is fortu-
nately not one of the more common forms of unlaw-
ful conduct the Board is called upon to remedy, we
find it a form of misconduct which the Act was
clearly designed to discourage and remedy in full. Ac-
cordingly, since the misconduct resulted in loss to the
employee, we find that a monetary award is appropri-
ate herein.
Contrary to Respondent's suggestion, such a mone-
tary award is not reparation for the physical injury
suffered by Nash,8 but a necessary remedy to vindi-
cate the purposes of the Act. The only way to restore
Nash as nearly as possible to the economic position
he would have obtained, but for Respondent's unlaw-
ful conduct, is to make him whole for compensation
lost as a result of Respondent's unfair labor practice.
The relationship between Respondent's unlawful con-
duct and Nash's injury is clear and direct. And it is
that injury which only prevented Nash from resuming
his former position with Respondent, but, following
the November completion of that job, precluded him
from securing substantially equivalent employment
with any other employer. Thus, while Nash was never
discharged per se, he suffered the monetary conse-
quence of discharge without the physical capacity to
mitigate his loss. Were we to withhold backpay in
these circumstances we would allow Respondent to
escape all liability for the loss of wages Nash suffered
because of factors Respondent unlawfully caused.
' Sec. 10(c) states, in pertinent part, that the Board shall "take such affir-
mative action including reinstatement of employees with or without back-
pay, as will effectuate the policies of the Act."
I See, generally, N.L.R.B. v. Seven-Up Bottling Company, of Miami, Inc.,
344 U.S. 344 (1953); Nathanson, Trustee in Bankruptcy of MacKenzie Coach
Lines v. N.L.R B. 344 U.S. 25, 30 (1952); Phelps Dodge Corp v. . L R B..
313 U.S. 177, 194 (1941).
6 Phelps Dodge Corp. v. N.LR.B., supra at 198.
'D. S. McDowell and K. C. Huhn, "NLRB Remedies for Unfair Labor
Practices" (Labor Relations and Public Policy Series, Report No 12), p. 81.
Philadelphia, University of Pennsylvania (1976)
8 As Respondent suggests, there are other forums available to Nash to
obtain compensation for his personal injuries.
Such a result would clearly be contrary to the reme-
dial purposes of the Act."
We shall, therefore, require Respondent to make
Nash whole for pay lost by him from June 22. 1978,
the date Nash was rendered unable to work because
of his physical injury caused by Respondent's unlaw-
ful conduct, until a reasonable period after he is
deemed physically able to resume his former or a sub-
stantially equivalent job with Respondent, or any
other employer. ° We have so framed the remedy to
afford Nash a reasonable period after he has satisfac-
torily recovered from his injury to secure the equiv-
alent employment which said injury has foreclosed
him from seeking and shall leave to the compliance
stage of this proceeding the determination of when
backpay shall be tolled." As indicated at footnote 1,
supra, backpay shall be computed in the manner pre-
scribed in F. W: Woolworth Company, 90 NLRB 289
(1950), with interest computed in accordance with
Florida Steel Corporation. 231 NLRB 651 (1977). '2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Graves
Trucking, Inc., Fort Wayne, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
I. Substitute the following for paragraph (c) of
the recommended Order:
"(c) In any like or related manner unlawfully inter-
fering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of
the Act."
2. Substitute the following for paragraph 2(a) of
the recommended Order:
"(a) Make William Nash whole for any loss of
earnings he may have suffered, or will suffer, as a
result of Respondent's unlawful conduct against him
until a reasonable period after his injury resulting
9 Further, to deny Nash backpay would put him in a worse position than
a discriminatee who has suffered an industrial injury during the course of
interim employment, an occurrence which the Board has determined does
not toll backpay. Yet. Nash's injury is even more directly related to Respon-
dent's unlawful conduct than such industrial njunes, and we find he is enti-
tled to at least the same remedial relief American Manufacturing Companv of
Texas. 167 NLRB 520, 522 (1967).
to Becton-Dlckinson Compans, 189 NlRB 787, 789 (1971). cf A, Fl4. Mill-
ing Company. 170 NLRB 1079 (1968); Moss Planing Mill Co., 110 NLRB
933, 938 944 (1954).
1I The record establishes that, for some period following his injury. Nash
received workmen's compensation. To the extent that this award was in
replacement for lost wages, it shall be deducted from his gross hackpa).
,4 merican Manulacturing Compan' of Texas. supra
2 See. generally. lsis Plumbing & Heatzing Co. 138 NL.RB 716 (1962)
345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from said unlawful conduct no longer precludes him
from performing his former or a substantially equiv-
alent job with Respondent, or any other employer,
plus interest."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine wit-
nesses, the National Labor Relations Board has
found that we violated the Act and has ordered us to
post this notice.
The National Labor Relations Act gives all em-
ployees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representa-
tives they choose
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT verbally abuse and threaten our
employees with discharge because they engaged
in concerted activities protected by Section 7 of
the National Labor Relations Act.
WE WILL NOT physically assault or injure our
employees because they engaged in concerted ac-
tivities protected by Section 7 of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights protected by Section 7
of the Act.
WE WILL make William Nash whole for any
loss of earnings he may have suffered, or will
suffer, as a result of our unlawful conduct against
him until a reasonable period after his injury re-
sulting from said unlawful conduct no longer
precludes him from performing his former, or a
substantially equivalent, job for Graves Truck-
ing, Inc., or any other employer, plus interest.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of a
labor organization.
GRAVES TRUCKING, IN('.
DECISION
KARI. H. BUS(IIMANN, Administrative Law Judge: This
case arose upon the filing on July 25, 1978, of an unfair
labor practice charge against Respondent. Graves Truck-
ing, Inc., by its employee William Nash. The resulting com-
plaint, dated August 31, 1978, charged Respondent with
violations of Section 8(a)( ) of the National Labor Rela-
tions Act, as amended (referred to herein as the Act). Re-
spondent timely filed an answer denying all of the substan-
tive charges of the complaint.
A hearing on the complaint was held before me on Janu-
ary 9 and 10, 1979. The transcript of the post-hearing dep-
osition was filed by Respondent on February 9. 1978, pur-
suant to permission granted at the hearing.' Both sides filed
briefs on February 28. 1979.
Upon the entire record of the case, including the hearing
transcript, the deposition transcript, the briefs of both sides,
and from my observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACI
Respondent, Graves Trucking, Inc., is an Indiana corpo-
ration with its principal office located in Fort Wayne, Indi-
ana, and jobsites located in various areas in Indiana, in-
cluding the one involved here, the Interstate Highway 1-69.
It is engaged in the transportation and delivery of construc-
tion materials and is admittedly an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
Local Union No. 135. affiliated with the International
Brotherhood of Teamsters. Chauffeurs, Warehousemen and
Helpers of America (referred to herein as Local 135 or the
Union), is, admittedly, a labor organization within the
meaning of Section 2(5) of the Act.
The Charging Party, William Nash, was, at all times ma-
terial to the complaint, an employee of Respondent and the
union shop steward at Respondent's 1-69 jobsite near Gas
City. Indiana.
I. IlE AL.E(iEI) UNFAIR I.ABOR PRAC II(ES
Respondent is charged under Section 8(a)(1) of the Act
with interfering with, restraining, and coercing its employ-
ees in the exercise of their rights under Section 7 of the Act.
Specifically it is alleged that: () Respondent, through its
supervisor and agent Richard Hanes, subjected its employ-
ees to threats of discharge or other reprisals if they engaged
in concerted or other Section 7 activities and (2) Respon-
dent, through its supervisor and agent Richard Hanes, ver-
bally abused and physically assaulted employee and Union
Shop Steward William Nash because he was engaged in
protected activities.
II. BA(KGROUNI) AND SQUEN(I 01F EVENTNS
Respondent had contracted to haul asphalt construction
materials from a plant located near Gas City, Indiana, to
various highway construction sites on Interstate Highway
69. The job also involved hauling sand and gravel to the
asphalt plant from a nearby source. The work ran from
approximately June 1978 to November of the same year.
i Respondent's motion to accept as part rf the record the deposition of
Robert E. Nicholas is granted in accordance with Sec. 102.30 of the Board's
Rules and Regulations.
346
GRAVES TRUCKING. INC.
The asphalt plant jobsite is located approximately 50 to 60
miles from Respondent's home office in Fort Wayne.
William Nash and one other truckdriver, Mike Kissel,
were referred to the plant jobsite by Local 135 on May 31,
1978, in accordance with a collective-bargaining agreement
between the Union and Respondent. Nash was subse-
quently appointed shop steward on the site by the Union.
Richard Hanes and four other drivers arrived on the site on
June 6. With the exception of a number of additional driv-
ers hired later, Respondent had no other personnel at the
plant jobsite on any regular basis.
The normal paid workday at the asphalt plant jobsite
began at 5:45 a.m. for the drivers, which included an initial
15- to 20-minute safety inspection of the trucks which they
were to drive that day. The beds of the trucks were then
oiled and loaded with asphalt or were sent out to haul sand
or gravel back to the plant. All of Respondent's employees
at the jobsite, including Richard Hanes. performed similar
driving duties. Hanes, however, had additional responsibil-
ities and performed a number of other duties for Respon-
dent, described below.
On June 20, 1978, Hanes informed drivers Robert Moore
and Kissel that henceforth they were to have their trucks
ready at 6 a.m. and that their hourly wages would begin as
of that time. This meant that the drivers would no longer be
paid for the safety inspection period. Kissel and Moore in-
formed their shop steward about the change in working
conditions. Nash immediately went to Hanes, who merely
confirmed the new orders. At the end of the day, Nash
advised Moore and Kissel that they should not go to work
until 6 a.m. and asked them to wait for him before report-
ing for work on the following morning.
On June 21, 1978, Nash, Moore, and Kissell appeared at
the plant worksite at approximately 6 a.m. Hanes immedi-
ately confronted and berated them for their failure to be
ready with their trucks by 6 a.m. In the words of Michael
Kissel, an eyewitness, Hane's conduct was as follows:
A. He climbed down out of his truck. He was sling-
ing his arms around and he said, "Where in the hell
have you guys been? You was supposed to be under
the plant at 6:00." And Bill then stated that our time
didn't start till 6:00. And then he started cussing Bill
and calling him names, and he was right in Bill's face
when he was doing it.
Nash explained that they had reported at 6 a.m. because
their pay period was now scheduled to begin at 6 a.m. The
three drivers then proceeded to their trucks as Hanes con-
tinued his tirade and, punctuating his remarks with profan-
ities and obscenities. threatened that they would be fired.
Hanes said that he wanted them there at 5:45 a.m. but that
they would not be paid for the 15 minutes and that they
would be replaced if they did not report at the proper time.
A second confrontation between Hanes and Nash oc-
curred shortly after the drivers had finished the safety check
of their trucks and had lined them up to be weighed and the
truck beds oiled. Hanes had accidently torn down a power-
line at the oiler with the elevated bed of his truck. Nash had
been parked in line behind Hanes' truck, waiting to load.
when the accident occurred. And as soon as Nash stepped
out of his truck, Hanes again proceeded to berate Nash
because he and the other drivers failed to report on time.
Still angered because of the accident, he again threatened
that Nash and the other two drivers would be fired if they
did not work as directed. Nash calmly replied that they
would not be fired. Hanes, using a variety of expletives,
threatened repeatedly that they would be replaced unless
they would be on time. When Nash continued to disagree.
Hanes suddenly thrust his hands around Nash's neck, im-
pressed both his thumbs into his throat, and violently
choked him. bringing Nash to his knees before he was able
to struggle free. While Nash was still struggling to regain
his strength, Hanes said: "You son of a bitch, get up in your
truck ... god damn you, if you don't get in your truck I am
going to throw you in your truck .... I'll stick your god
damned head down in that water and drown you." As other
drivers approached the scene, Hanes got into his truck and
drove off.
With pain in his throat, at the base of his tongue. and in
his right temple, Nash immediately reported the assault to
Union Business Agent Arthur Hicks. Later that day Hicks
met with Nash and observed that his neck appeared red
and bruised. Hicks then questioned Hanes, who initially
denied everything, but then admitted choking Nash. He
also spoke with Respondent's owner, Charles Graves, by
telephone. Graves, however. discounted Hicks' assertion
that a problem existed and expressed more concern about
the drivers' having reported late for work than about
Nash's injury. Hicks stated that the drivers were not going
to report 15 minutes early without getting paid for it and
that he would not tolerate Graves' supervisor choking the
union steward. Graves replied that "Dick Hanes was going
to run that god damned job down there. that Bill Nash was
not going to run it." Graves stated that, if the drivers were
not going to take orders from Hanes, they would be fired.
Business Agent Hicks later met with Respondent's co-
owner and superintendent. Jim Schuhler. Schuhler de-
fended Hanes and indicated that Hanes had the authority
to fire anyone who refused to work for him.
Nash reported for work on June 22. the day following the
injury, but was forced to leave at 10 a.m. because the pain
in his throat and head had become too severe. He has since
been under a doctor's care for injuries stemming from the
choking incident and has remained under medical orders
not to return to work.'
Analysis
Employment status of Richard Hanes. Respondent argues
that it is not responsible for Richard Hanes' actions of June
2 Most of the factual sequence summarized abose is based upon noncon-
flicting or uncontroverted testimony The only major conflict centers around
Hanes' conduct during his assault on Nash. I have credited the testimony of
William Nash. Robert Moore, and Michael Kissel because it was consistent,
plausible, and straightforward. The testimony of Michael Hipskind and
Richard Hanes and the deposition of Robert Nicholas seemed inconsistent
and unconvincing. For example. Hipskind testified that, during the alterca-
tion between Hanes and Nash Hanes was backing away and tripped over
Robert Nicholas, who was working over the fallen powerline. According to
Hipskind. Hanes was falling backwards as he pushed Nash away Such con-
duct is obviously not the typical reaction of a person falling backwards
Hipskinds' recollection also appeared unclear, and his sor, shifted on a
number of points In the post-hearing deposition. Robert Nicholas indicated
that during this heated argument he heard Nash shout repeatedl. "Come hit
me." and that he felt Hanes' npping over him. et he did not observe an)
physical contact between the two or any other incidents, because it as none
of his business.
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
21, since he was not a supervisor or agent of Respondent
within the meaning of the Act. This argument is unpersua-
sive, given the factual circumstances of this case. There are
a number of indicia of Hanes' supervisory status. Hanes
held himself out as "boss" of the job both before and after
the June 21 incident. Allen-Morrison Sign Co., Inc., 79
NLRB 904 (1948); Asheville Steel Company, 202 NLRB 146
(1973). Hanes testified on cross-examination that he was
responsible for seeing that the job was done and that the
employees reported for work on time. He indicated that
Respondent's owner, Charles Graves, had charged him with
this responsibility. Graves and co-owner Schuhler con-
firmed that Hanes was to run the job, and they referred to
him as "the boss" of the job to Business Agent Hicks. Both
Graves and Schuhler told Hicks that anyone refusing
Hanes' orders would be fired, and Schuhler further stated
that Hanes had the authority to fire employees who refused
orders. It is clear from these statements that Hanes consid-
ered himself the boss and that Respondent charged Hanes
with the responsibility of running the job and held him out
as the boss to the union and to the employees. Jas. H. Mat-
thews & Co. v. N.L.R.B. 354 F.2d 432 (8th Cir. 1965): Mur-
ray Equipment Company, Inc., 226 NLRB 1092 (1976);
Asheville Steel Company, supra. Significantly, there were no
other management representatives present at the 1-69 job-
site, which was 50 to 60 miles from the home office. With-
out Hanes as the supervisor, the employees would have
been effectively without supervision. Stephens Produce Co.,
Inc., 214 NLRB 131 (1974).
The record also shows that Hanes conveyed orders and
instructions from management and made sure that they
were carried out. He requested drivers for work based on
the union seniority list and was singularly responsible for
assigning drivers' work tasks. Pollack Electric Company,
Inc., 219 NLRB 1237 (1975); Murray Equipment Company,
Inc., supra, Asheville Steel Company, supra. Hanes also was
responsible for collecting and submitting drivers' time tick-
ets. He filled them out and submitted corrected tickets,
when he felt it necessary, to accurately reflect the hours that
a driver had worked. Murray Equipment Company, Inc., su-
pra. Hanes distributed paychecks at the jobsite and warned
employees when they were late. Samuel Liefer and Harry
Ostreicher, a Copartnership, d/b/la River Manor Health Re-
lated Facility, 224 NLRB 227 (1976). Additionally, Hanes
granted permission for employees to leave work, trans-
mitted employee grievances, helped resolve disputes over
pay, reported rule infractions to management, and exer-
cised other privileges and duties reserved only to supervi-
sory personnel, such as driving a company truck to and
from the worksite. Allen-Morrison Sign Co., supra.
The fact that Hanes spent most of his time doing the
same work as the other employees and acted in a supervi-
sory capacity during part of the time does not detract from
his supervisory status (Swift & Company, 129 NLRB 1391
(1961)), nor does the fact that Hanes was a member of an-
other local union. Section 14(a) of the Act permits union
membership for supervisors, a practice which is common-
place in the construction industry. Local 636 of the United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL CIO [Detroit Association of Plumbing Contractors] v.
N.L.R.B., 287 F.2d 354 (D.C. Cir. 1961). Moreover, Hanes'
actions on June 21, 1978, disprove the notion that Hanes
was merely a leadman and that his duties were ministerial
or routine in nature. Upon seeing that his revised time-pay
instructions were not being followed, Hanes used all the
power available to him, including the use of physical force.
Finally, assuming arguendo that Hanes was not a supervi-
sor, Respondent Graves certainly did not disavow Hanes'
conduct. On the contrary, Graves accepted it and made it
clear that the drivers who disagree with Hanes would risk
their employment.
All factors considered, it is clear that Richard Hanes
acted as an agent and supervisor of Respondent within the
meaning of Section 2(11) of the Act.
The Concerted Activity: The issue of Richard Hanes' su-
pervisory status having been resolved, it is clear that Re-
spondent is responsible for its supervisor's actions which
violated Section 8(a)(1) of the Act. The activities of William
Nash and the other two drivers on the morning of June 20,
1978, constituted concerted activities protected by Section 7
of the Act. Nash, acting in his capacity as shop steward,
advised the two other employees to report with him no
sooner than 6 a.m. on June 21 because they were not to
receive any pay for any earlier starting time under Hanes'
new directive. This directive constituted a substantive
change in working conditions, and the three acted collec-
tively to assert what they considered were their rights under
the bargaining agreement. The leading role in this dispute
was played by Nash, who was aided by the concerted ac-
tions of Moore and Kissell. This was obviously not a refusal
to work, for the men were ready to begin the working day
at 6 a.m., the time set by Hanes as the beginning of the pay
period. The men would have been ready to go to work at
5:45 a.m. as in the past, but it was Hanes who changed the
routine so that in the eyes of the three truckdrivers a legiti-
mate dispute arose as to whether the 15-minute safety
check of their trucks should be considered a part of their
worktime for which they should be compensated. Their
conduct in this instance was clearly protected by Section 7
of the Act. N.L.R.B. v. Washington Aluminum Company,
Inc.. 370 U.S. 9, 17 (1962).
Hanes' conduct, when he subjected the men to his verbal
abuse and repeated threats of discharge, was a direct inter-
ference with their protected activity and constituted a viola-
tion of Section 8(a)(1) of the Act. Similarly, the verbal
abuse and the vicious physical assault by Hanes, a 48-year-
old man of strong physical appearance, on William Nash,
an aging 62-year-old man, constituted an obvious interfer-
ence with and restraint on his Section 7 rights. The serious
and long-lasting effects of the assault may have incapaci-
tated Nash for a long time, perhaps for the rest of his natu-
ral life. His physical condition is not disputed in the record.
And it is clear that Respondent's actions against Nash were
significantly more serious an interference, restraint, or coer-
cion than a discharge; accordingly, I have no difficulty in
finding a violation of Section 8(a)(1 ) of the Act.
CONCLUSIONS OF LAW
I. Respondent, Graves Trucking, Inc., is, and was at all
material times, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
348
GRAVES TRUCKING. INC(
2. Richard Hanes was an agent and supervisor of Re-
spondent, within the meaning of Section 2(1 1) of the Act, at
all times material to the complaint.
3. By verbally abusing and threatening its employees be-
cause they engaged in protected concerted activities under
Section 7 of the Act, Respondent, through its supervisor
and agent Richard Hanes, violated Section 8(a)(1) of the
Act.
4. By physically assaulting and threatening William
Nash, an employee and union shop steward, for engaging in
concerted activities protected under Section 7 of the Act,
Respondent, through its supervisor and agent Richard
Hanes, violated Section 8(a)(1) of the Act.
5. The aforesaid practices are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I recom-
mend that Respondent be ordered to cease and desist from
its unlawful practices. I further recommend that Respon-
dent be ordered to post an appropriate notice and take affir-
mative action in order to effectuate the policies of the Act.
In addition, I recommend that Respondent offer William
Nash immediate reinstatement without prejudice to his se-
niority rights or other privileges and be provided with back-
pay and interest thereon, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977),5 and that he be made whole for any loss of pay or
other benefits which he suffered as a result of Respondent's
conduct found unlawful herein, in accordance with the ap-
plicable and above-cited legal precedents.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I recommend the issuance of the following:
ORDER'
The Respondent, Graves Trucking, Inc., Fort Wayne, In-
diana, its officers, agents, successors, and assigns, shall:
3 See, generally, Isis Plumbing & Heating Ca., 138 NLRB 716 (1962).
4 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.
1. Cease and desist from:
(a) Verbally abusing and threatening its employees with
discharge because they engaged in protected concerted ac-
tivity.
(b) Physically assaulting or injuring its employees be-
cause they engaged in protected concerted activity.
(c) In any other manner unlawfully 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 which will effec-
tuate the policies of the Act:
(a) Offer William Nash immediate and full reinstatement
to his former position or, if such position no longer exists, to
a substantially equivalent position. and make him whole for
any loss of pay that he may have suffered by reason of
Respondent's unlawful conduct against him in accordance
with the recommendations set forth herein under "The
Remedy."
(b) Provide the Regional Director, upon his request, with
all written and oral information relevant to the computa-
tion of backpay and the requirement for reinstatement of
William Nash.
(c) Post at its Fort Wayne, Indiana, office and plant cop-
ies of the attached notice marked "Appendix." Copies of
said notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's autho-
rized representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced. or covered by any other
material.
(d) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
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.
In the event this Order is enforced by a Judgment of the 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."
349