Greenwood Trucking, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1987

283 N.L.R.B. 789 (N.L.R.B. 1987)

GREENWOOD TRUCKING
Greenwood Trucking, Inc. and George C. Hartsell.
Case 17-CA-12976
29 April 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 13 January 1987 Administrative Law Judge
Bernard Ries issued -the attached decision . The Re-
spofident filed exceptions and-a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to. a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Greenwood
Trucking, Inc., Greenwood, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law fudge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Member Johansen, who did not participate in Meyers Industries, 281
NLRB 882 (1986), agrees with the result.
Lyn R. Buckley, Esq., for the General Counsel ,
William C. Martucci Esq. (Spencer, Fane, Britt &
Browne), of Kansas City, Missouri, for the Respondent.
DECISION
BERNARD RTES, Administrative Law Judge. This
matter was tried in Kansas City, Kansas, on 8 September
1986,1 on a charge filed on 16 May and a complaint
issued on 27 June. The complaint alleges that Respond-
ent violated Section 8(a)(1) of the Act'about 28 April by
refusing to continue the employment of Charging Party
George C. Hartsell and his wife Dorothy. The answer
denies material allegations of the complaint.
Briefs have been filed by the General Counsel and the
Respondent. Having carefully considered the transcript
of proceedings, the exhibits, the briefs, and my recollec-
tion of the demeanor of the witnesses, I make the follow-
ing findings of fact, conclusions of law, and recommen-
dations.
1 All dates hereafter refer to 1986.
1. THE FACTS
789
Greenwood Trucking, Inc. is located in Greenwood,
Missouri, where its trucks and drivers haul loads of ma-
terials for other businesses . The firm was formed' in Feb-
ruary 1984 by David E. Pemberton, who also runs a
truck repair business and has other employment, and
Herbert L. Wagner. In the spring of 1986„ the two decid-
ed ' to terminate their relationship, which at that time
nominally owned 10 trucks (1 of which was not oper-
ational).
Two of Greenwood's drivers at the time were George
C. Hartsell, the senior employee of the concern, and his
wife Dorothy, who began driving as a team with George
around the end of February. The record shows that
some ' runs were -driven by teams and others by single
drivers, but does not show precisely how many drivers
were teamed and how many not. We know, for example,
that the Peterbilt truck was -driven by the Hartsells, who
were succeeded by the Jordans, also a married couple;
and Respondent Exhibit 4 shows that, like the Hartsells
and the Jordans, drivers Paddock and Alsup, together
made the run from Lenexa, Kansas, to Reno, Nevada,
and back. On the other hand, the two trucks used to ful-
fill the Bones Transportation contract were driven by
single drivers.
The Hartsells drove a regular weekly run from Lenexa
to Reno, carrying J.C.' Penney goods under contract
with National Transportation and Delivery Service
(NTDS); a Georgia firm; four, other Greenwood trucks,
presumably driven by two drivers each, made the same
3200-mile run every week.
The first oral divorce agreement between Pemberton
and Wagner provided for a 50-50 division of the equip-
ment (and the drivers), and the agreement was so an-
nounced to most of the employees in March or early
April, along with an invitation to the drivers to go to
work for whichever ex-partner "you want to work
with." When Hartsell was informed of this on the fol-
lowing day, having just returned from a trip, lie told
Pemberton and Wagner, in the words of the former, that
"him and Herb had built a good friendship and he hoped
there was no hard feelings and he wanted to go with
Nero" Pemberton responded, "Fine, no problem what-
soever."2
When Wagner and Pemberton delved into the fman-
cial realities, however, they ultimately agreed, on 20
April, to what the record refers to as a 70-30 split, with
Pemberton on the long end. Actually, Wagner got only
two operable trucks and one truck "too old to put out on
the road," and he took the two drivers who, having been,I I
by the Bones Company to drive dump trucks,
had been operating those trucks under the Bones con-
tract. Because Wagner'did not need the Hartsells' serv-
ices, accordingly, and because Pemberton required a
driver team to operate the run that the Hartsells had
been driving, the obviously logical arrangement would
have been for the Hartsells to continue driving the Peter-
hilt from Lenexa to Reno and back, working for Pember-
2 Hartsell gave a somewhat different, but not here importantly so, ac-
count of the meeting.
283 NLRB No. 127
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ton instead of the preferred Wagner . Matters did not so
eventuate ; on 28 April, the Hartsells were denied further
employment, by Pemberton , who continued operating as
Greenwood Trucking, Inc.
This case puts in issue the motivation for that denial.
The General Counsel contends that it was provoked by
the Hartsells' engagement in concerted activity protected
by Section 7 of the Act . Respondent argues that Pember-
ton, simply believed that Hartsell did not care to work
for him, and was not told otherwise by Hartsell until he
had already hired replacement drivers for the Hartsells.
The relevant background follows . In the early part of
1986, some of the salary checks paid to drivers by
Greenwood were returned for insufficient funds . The dis-
satisfied drivers , Hartsell testified , discussed the problem
with one another . On 11 , April, Hartsell deposited four
salary checks for him and his wife and , while in Reno,
received- a call from his daughter in Missouri that three
of the checks had again bounced . He talked the problem
over with his wife and , then called Pemberton 's wife,
who served as the Company's payroll clerk ; she told him
that Greenwood was not receiving payments on time
from NTDS, which accounted for the insufficient funds.
After further discussion with Dorothy, Hartsell called
his attorney in Kansas , who offered little immediate
relief. Then the Hartsells decided that he should call
Lamar Jones, -the NTDS traffic manager in Atlanta, a
man he often contacted while on the road about routine
problems . He repeated to Jones what Pemberton's wife
had asserted, and Jones denied that NTDS was behind in
its payments to Greenwood. Hartsell also told Jones that
there were "some other problems" at Greenwood as
well,s and when ' Jones said that NTDS was considering
changing contractors, Hartsell made a pitch to shift
NTDS ' business to Wagner.
This call was made on 18 April ; the Hartsells returned
to Kansas on Sunday , 20 April . He testified that he did
not visit or contact,the dispatching office before he left
again for Reno on 22 April, because he was "pre-dis-
patched," as usual, to leave Lenexa at 3 p.m. on that date
from the J . C. Penney warehouse , and it was not uncom-
mon, unless the-driver needed to pick up a paycheck or
anything else, to simply keep ` the truck with him. Pem-
berton challenged this testimony , saying that the Hart-
sells reported in. as usual to present their bills prior- to
leaving again for Reno.4
S Hartsell did not elaborate on this at the hearing , but he evidently
made reference here to "hot loads," discussed briefly infra.
4 This conflict is potentially material I was not particularly impressed
by either Hartsell or -Pemberton at the hearing Hartsell testified that it
was not unusual for a driver to take the truck home and not check in
with the office if he was predispatched . Pemberton did not quite abso-
lutely refute this- "Well , usually he always, brought the truck to the house
and picked up their check-or, you know , brought the truck by and said
they [sic] was nothing to do to it, we'd tell them to take it on home if
there was nothing to do to it " Sound business practice would seem to
suggest that the drivers would turn in their bills weekly, instead of wait-
ing until they felt like it .. On the other hand, as we shall see, after the
following weekend, Pemberton called Hartsell at home to have him bring
the truck in before it "leaves town again," which indicates that Hartsell
might have been anticipated to do so without making contact with the
office . Giving Respondent the benefit of the doubt, because it bases an
argument on the issue, I would credit Pemberton.
According to Hartsell, it was approximately 19 April
(probably 20 or 21 April) that he learned from other
drivers that the split was to be 70-30, and not 50-50, but
he admittedly made no effort to ask Pemberton while in
Kansas between 20-22 April if the latter intended to
employ him , he simply assumed that there "would be a
reevaluation and people would be reassigned to 'a truck,"
with him , the senior driver , and his wife presumably
continuing to drive the Peterbilt for Pemberton. The
Hartsells loaded the truck on Tuesday , 22 April, drove
to Reno, and `did not return to Kansas . until the evening
of Sunday, 27 April, having stayed over a day in Reno.
The following morning , Hartsell received a call at home
to bring the truck into the shop to get an oil sample ana-
lyzed before they left town again.
When Hartsell arrived , however, Pemberton told him
to remove his equipment from the truck . Hartsell quotes
himself as saying that , the split not having gone 50-50, "I
still need a job." Pemberton allegedly replied that he did
not have a "damn thing" for the Hartsells, and went on
to say, "I am not happy with the events of the last few
days and you calling Lamar at NTDS and telling them
that my checks were no good ." Pemberton then handed
Hartsell a cashier 's check payable to both Hartsells in the
full amount he owed them , including the trip they had
just finished.
The record shows that on 17 April , a married couple
named Jordan ' filed applications with Pemberton as' a
driving team . They were not, however , hired on that
date . Pemberton testified that he often received applica-
tions for positions and that he kept these applications on
file; the evidence suggests that Respondent experiences a
good deal of turnover, in that three drivers who worked
for _ Greenwood no longer were employed at the ' time
they testified . The record also shows that in his direct
testimony, Pemberton stated that on the morning of 21
April, he received a call from one Chuck Davis of
NTDS, who said that "the drivers had been calling and
saying that our checks were bouncing and wanted to
know what the problem was"; he could not recall for
sure that Davis had named any particular driver; rather,
"he said all of them had been calling ." On cross-examina-
tion, however, Pemberton conceded that he "knew that
George Hartsell had called NTDS regarding back [sic]
checks," and, expanding on his testimony on direct,5 he
agreed that , on 28 April, he had referred to the fact that
Hartsell had "called NTDS about loads for Chris and
about the insufficient funds checks ." As one of the two
affidavits in evidence given by Pemberton show, he had
learned' of this call from speaking to Lamar Jones, not
Chuck Davis.
The basic thrust of the affidavits is that Pemberton had
just assumed, after the 70=30 split came about,- that Hart-
sell would ' not be working for him because "George did
5 There, Pemberton had simply said that when Hartsell stated that he
would like to work for Pemberton , the reply was that Pemberton had
"thought you wasn't going to work for me, you 've indicated to the other
drivers and me and everybody that you absolutely didn't want to work
for me," and that he had, consequently , hired replacements for the Hart-
sells He had not referred on direct, as he did on cross, to any- conversa-
tion with Hartsell on 28 April about his talk with Lamar Jones.
GREENWOOD TRUCKING
not like me and did not want to drive for me." Despite
Hartsell's testimony at the hearing that he had thought of
Pemberton as a "friend," one senses that this was not so,
and that Hartsell, like "most of the other drivers, would
have preferred employment with Wagner .6 Nonetheless,
Pemberton 's affidavit of 9 June states , "the call to Lamar
on the checks made no difference , it just put the icing on
the cake (and subsequently again states that "the call on
the checks just put the icing on the cake").
Other witnesses for the General Counsel indicated that
Pemberton considered the call to weigh even more heav-
ily. Former co-owner Wagner quoted Pemberton as
having said , on 25 April, that "NTDS had called and said
that George called them and said they had been getting
some bad payroll checks And as far as he was concerned he
didn 't need George any more . Asked me if I wanted to get
rid of him . I told Dave that I no longer had, any decision
over what his trucks done."7
Wagner also testified to another conversation, of un-
certain date but after the corporate breakup , in which
Pemberton had said , "[I]f George had kept his mouth
shut, he'd probably still have his, job." Hartsell denied
only by implication, but not directly, that these two con-
versations had occurred. `
Daniel Paddock, who left Respondent's employment
prior to the hearing , testified in like vein . He said that
soon after the Hartsells were let go, Pemberton told him
that "he just could _ not see keeping [Hartsell] after what
they had done, calling Atlanta and telling them about the
loads and bad checks,"" About 2 weeks later, Pemberton
raised the issue with Paddock again, saying that "he
couldn 't keep [Hartsell], just couldn 't see keeping him
after what they had done ... [c]alling to Atlanta and
talking, to Lamar about the hot loads and bad checks."
Paddock further testified that he and others who had re-
ceived worthless checks had also called Lamar Jones or
possibly Chuck Davis at NTD8, a procedure that was
not at all unusual for the drivers.
Robert Alsup had more along this line to contribute.
A driver who had quit employment with Pemberton 2
months prior to the hearing because he did not like Pem-
berton "as an employer," Alsup said that he was present
in the shop on Hartsell's last day when Pemberton told
Hartsell "that he just didn't want George there anymore,
couldn't use him, he was , untrustworthy and he shouldn't
have called Atlanta about the checks and gave him his
last paycheck." Thereafter, in a conversation with Alsup
(and in the presence of Alsup's wife), Pemberton stated
6 Orlando Stroud, a witness for the General Counsel , testified on cross-
examination that Hartsell "wasn 't fond of working for 'Mr. Pemberton
.. because he started getting the bad checks, none of us were," but I
suspect that the dislike arose earlier.
r Pemberton testified that sometime around 24-26 April , he asked
Wagner "if it was alright to go ahead and put the [Jordansl in the truck
whenever they got back in" (the Jordans were, evidently , temporarily
not in town) and that Wagner said it made no difference to him. On
recall , Wagner denied that Pemberton had ever talked to him about the
Jordans. I doubt that Pemberton spoke to Wagner about the Jordans be-
cause the division of the corporation, ' if not already consummated by
then, was on the brink of happening.
s The "loads" referred to by Paddock , also later characterized by him
as "hot loads," is basically an "unauthorized load by `NTDS," although
Paddock "couldn 't tell you what those loads were , because I never
hauled any of them."
791
that Hartsell "didn't do the right thing in calling Atlanta
about the bad checks and he couldn 't use George be-
cause of that reason, he was untrustworthy."
Finally, a fourth witness no longer in Greenwood's
employ testified as to two conversations with Pemberton
about a day apart , and while the Hartsells were still
working there. In the first, according to Orlando Stroud,
while he, Pemberton, and an auto mechanic were work-
ing in the shop, Pemberton said that "'he was going to
have to let George go because he felt like George had
stabbed him in the back by calling Atlanta and telling
Atlanta what he did, about the bad checks and all." A
day or so later, he overheard Pemberton ` tell Wagner
that "he was going to let George uand Dorothy-let
George go because of what he had done by calling At-
lanta, talking to Atlanta , about the checks."
With regard to the issue of the role played in Pember-
ton's dismissal of the Hartsells by the complaint to Atlan-
ta about bad checks, the foregoing evidence is pretty
potent stuff. The theme of Pemberton's defense is that he
did not retain the Hartsells , because he was , sure that
George Hartsell did not want to work for him.
His awareness of this attitude first arose after the an-
nouncement of the 50-50 split in Marc h, when Hartsell
gave up the opportunity to continue driving Respond-
ent's "newest and finest piece of equipment" (Hartsell's
words) in opting to work for Wagner . Further evidence
of this dislike of Pemberton was, the latter asserts, dis-
closed in March when , disregarding Pemberton's stand-
ing orders, Hartsell had his truck washed on the road at
a cost of $25 .9 The compensation of Hartsell for his $25
expense at least implies that Pemberton was not enraged
by this expenditure, and for him to classify it as another
expression by Hartsell of the latter's disdain for Pember-
ton seems to be stretching things quite a bit.
Pemberton also testified that after Hartsell had, in
March, signified his preference for working for Wagner,
he heard from drivers "that he wasn 't going to work for
me." Pemberton, after ' giving this testimony, specified
only one such instance, in a less positive exposition of
Hartsell 's sentiments: "[L]ike Charla and Pat, they come
and told me what he said out there , you know, that he
didn't want to work for me, that he wasn 't taking no off
me [sic], and that he wanted ' to work with Herb." Charla
Farmer, who with her husband drove one of the trucks,
9 This is a rather complicated matter. Hartsell testified that he and
Pemberton had agreed that if he drove "illegal " through Wyoming-that
is, purchased only a one-way license-he could use the saving of $23.59
to have the truck washed , and that he did so, Respondent , however, put
in evidence documents that appear to show that the Hartseils paid for
Wyoming permits both ways on a 3/19-24/86 (R. Exh . R-IA) trip to
Reno, and that they also had the truck washed on that trip.
There is, however, room for contention that the documents are
patched together, the Wyommg-to-Utah permit being dated perhaps
"3/10/86" instead of 3/20 (as Respondent claims) coupled with a return
voucher dated 3/22 from the trip on which the truck was washed. It is
true that a "Travel Expense Report" for this trip shows that the Hartsells
paid for Wyoming licenses both ways, but that was probably such a
standard entry that it would have seemed strange to deviate from it, espe-
cially if this report was submitted to NTDS. Moreover , Respondent in
fact reimbursed Hartsell for the $25 for the wash job -despite the claim
that he violated instructions by having it done . It would seem surprising
that he would be reimbursed had he to defiantly violated Pemberton's in-
structions.
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testified that she, and her husband had a discussion with
Hartsell soon after the announcement of the original split
in which he said that he "didn't like working with
Dave" and "they were going to go with Herb." The
Farmers thereafter talked to Pemberton about the split,
but, with respect to Hartsell, she merely testified that
Pemberton had "told us that George had also told him
that he was going with Herb." Thus, Farmer failed to
support any claim that drivers told Pemberton bluntly
that the Hartsells were not "going to work for me."
The Jordans, who applied for work on 17 April, had
been referred by the Farmers. Pemberton testified that
he told them that he "could not let them know anything
until I knew for sure what was going to go on in the
split." This explanation seems vulnerable . At the time, if
Pemberton believed that the Hartsells would not work
for him under any circumstances, then no matter how
the breakup went (except in, the most improbable case
that Wagner, whose financial condition had led to the
split, wound up with a larger share of the firm than Pem-
berton), he would need someone to take the Hartsells'
place if he truly believed that they would not work for
him. And indeed, when the final change in the split was
agreed to on 20 April and the final papers were signed,
according to Wagner on 23 or 24 April,10 there is no
evidence that Pemberton had made any effort to contact
the Jordans to prepare to commence work on 28 April.
This suggests not only that it was not until sometime in
the last week in April that Pemberton beard from Lamar
Jones about Hartsell 's call to Jones (as earlier noted, it
was on Friday, 25 April, that Pemberton told Wagner
about the NTDS having called, and "as far as he was
concerned he didn't need George any more"), but also
that this call was a key ingredient in the last-moment de-
cision to hire the Jordans.l l
Respondent argues that if Pemberton was really upset
about Hartsell's call to Atlanta, he could have let him go
when (as I have, dubitante, found above), Hartsell report-
ed to work prior to departing for his 22 April run. That
argument - ignores, however, that it does not appear that
Pemberton heard about the telephone call until later in
the week.
Perhaps .the most difficult aspect of the case, from the
General Counsel's point of view, arises from the question
of why Pemberton should be so determinedly angry with
the Hartsells about their inquiry to Atlanta when, ac-
cording,to the testimony, other drivers had also contact-
ed Atlanta about the bad checks. Paddock said that he
spoke to Lamar Jones about the rubber checks and, in a
piece of hearsay testimony unobjected to, stated, "[W]e
all did." -Pemberton testified that on 21 April he received
a call from Davis of NTDS in Atlanta that "all of [the
drivers] had been calling" about the bad checks.
10 Pemberton agreed with the 20 April date , but said that the signing
took place on 30 April. The papers were not offered, and I have no way
to choose between their recollections on this point
11 I do not accept Pemberton's testimony that, after 20 April, he was
"under the - unpression" that the Hartsells were going to work for
Wagner. He knew that Wagner was getting only three trucks out of the
deal,,that one of them was inoperative, and that the remaining two were
being currently driven by drivers who had been qualified by the Bones
Company as dump truck drivers.
It could be, however, that Davis did not say to Pem-
berton, and Paddock did not know, that literally "all"
the drivers- had called (Pemberton could not remember
whether Davis had identified "any particular driver");
or, possibly, a call to Davis was not as significant to
Pemberton as a call to Lamar Jones. However, this dis-
tinction in treatment might be explained, what cannot be
explained away is that ' Pemberton himself conceded at
the hearing that the call to Jones "was just one of the
many things that [Hartsell] had done that showed me
that he didn't want to work for me," and his pretrial affi-
davit indicates that he spoke of the telephone call, and
only the call, in his termination discussion with Hartsell
on 28 April (". . . I do not think you done me right .. .
you in [sic] and you asked about the loads for Chris,
about the insufficient checks, trying to get NTDS con-
tract with Herb."). It is thus apparent that the telephone
call played a major role in the decision not to retain the
Hartsells, and the credible testimony of Wagner, Pad-
dock, Alsup, and Stroud all confirm this conclusion. 12
The question of whether the refusal to continue the
employment of the Hartselle constituted a violation of
the Act depends on the application of two doctrines. The
first concerns whether Hartsell's call to Lamar Jones
constituted concerted protected activity within the mean-
ing of Section 7 of the Act, according to the broad out-
lines articulated by the Board in Meyers industries, 281
NLRB 882 (1986) (Meyers II), and Meyers Industries, 268
NLRB 493 (1984) (Meyers I), remanded by the Court of
Appeals for the District of Columbia Circuit in Prill v.
NLRB, 755 F.2d 941 (1985). In Meyers I, at' 497, the
Board held that an employee will be found to have acted
concertedly" when he or she "acts with or on the author-
ity of other employees," ' and, embracing Mushroom
Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir.
1964), in Meyers II, the Board held that a conversation is
statutorily concerted if it has "some relation to `group
action in the interest of employees." In the present case,
we need go no further than the fact that in calling Jones
to complain about the worthless checks, Hartsell was
doing so both on his own behalf and, as Pemberton
knew, on behalf of and "with" his wife, a fellow employ-
ee. Consumers Power Co., 282 NLRB 130 (1986).13"
Moreover, the record makes it clear that the drivers,
as would be expected, shared a 'common concern, the
commonality of which each was undoubtedly 'aware,
about the worthless checks. See Every Woman's Place,
282 NLRB 413 (1986), in which the Board found a
matrix of "concerted activity" despite the fact, as Chair-
12 Although I had varying reactions to the trustworthiness of these
four witnesses, I did not feel that any of them was lying; two of them,
Wagner and Paddock, made particularly good impressions ; and, Pember-
ton did not directly deny any of their allegations about the inculpatory
conversations to which they testified.
13 Paddock testified that Pemberton told him "that he couldn't keep
him, just couldn't be keeping him after what they had done " Stroud
overheard Pemberton say to Wagner that he "was going to let George
and Dorothy-let George go because of what he had done by talking to
Atlanta about the checks." As the Board put it in Consumers Power Co,
supra, I find "the conclusion inescapable" that when an employee -com-
plains about receipt of bad checks, a problem similarly experienced by his
co-employee spouse, the employer knows that the two are acting in con-
cert.
GREENWOOD TRUCKING
man Dotson pointed out in dissent, that the record was
silent as to whether employee inquiries about overtime
compensation had been made individually by employees
to the supervisors or made jointly by them. Paddock
demonstrated that mutual awareness when he testified
that lie knew that Hartsell had called about the pay-
checks and, that "we all did. We was trying to find out
what was going on." And, as noted above, Pemberton
testified that Davis of NTDS had told him that the
"drivers had been calling ... and wanted to know what
the problem is." It seems - reasonable to infer, against such
a background, that Pemberton understood that Hartsell's
call was action taken to resolve a problem of joint and
mutual concern to all the drivers, about which they un-
doubtedly had conferred on the receipt of the worthless
wage payments.
Accordingly, I conclude that Hartsell's telephone call
to Jones constituted concerted activity for the purpose of
mutual aid , as delineated in Section 7 of the Act, both
because it represented, as Pemberton knew, a complaint
on behalf of George and Dorothy Hartsell and, in addi-
tion, a manifestation of the unhappiness unquestionably
and vocally shared by other drivers in being deprived of
their most valuable benefit.14
The second question is whether, having found that the
call was a "motivating factor" in Pemberton's decision
not to retain the Hartsells, the Respondent has satisfied
the opportunity provided by Wright Line, 251 NLRB
1083, 1089 (1980), to "demonstrate that the same action
would have taken place even in the absence of the pro-
tected conduct."15 As explained in Centre Property Man-
agement, 277 NLRB 1376, 1377 (1985), the burden entails
"persuasion" by the employer of this hypothetical
premise . "by a 'preponderance of the evidence." I find
nothing in this record, including the matter discussed in
the preceding footnote, that persuades me that even
absent Hartseli's complaint to NTDS about the bad
checks, he and his wife would nonetheless have been
denied employment by Pemberton. As Pemberton put it
to Wagner, "[I]f George had kept his mouth shut, he'd
probably still have his job."
CONCLUSIONS OF LAW
1. Respondent Greenwood Trucking, Inc. is an em-
ployer engaged in commerce or an industry affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. By terminating the employment of George and
Dorothy Hartsell on 28 April 1986 for engaging in con-
certed activity protected under Section 7 of the Act, Re-
spondent violated Section 8(a)(1) of the Act.
14 There is no way to be certain about the extent to which the "loads
for Chris" and Hartsell's reference to Wagner taking over the NTDS
contract played a part in Pemberton 's decision. In describing the call in
his second affidavit , Pemberton appeared to place sole reliance on the
"bad checks" aspect of the call; he wrote, "The call to Lamar on the
checks made no difference, it just put the icing on the cake"; and again,
"[T]he call on the checks just put the icing on the cake:"
I s The Board stated m Wright Line that the causation analysis there set
out must be applied in all cases alleging violation of Sec. 8 (a)(3) or Sec.
8(a)(1) turning on employer motivation. Ibid.
793
3. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2 (6) and (7) of the
Act.
THE REMEDY
The customary cease-and-desist order should be en••
tered and the traditional notices should be posted. The
General Counsel seeks the inclusion , as she has done in
every case tried before an administrative law judge for
many months now, of a visitatogial clause in the remedial
order. Although the Board has never flatly rejected the
possibility of adopting such,a clause, it also has never
adopted one. Its invariable response has been that such a
clause is not appropriate "in the circumstances" of the
case before it. E.g., E. B. Manning & Son, 281 NLRB
1124 at fn. 1 (1986); Princeton Holiday Inn, 282 NLRB 30
at fn. 2 (1986) (finding clause "unnecessary", even in ab-
sence of exceptions to it). Although the clause strikes me
as benign and useful, clearly the Board does not favor it
except, perhaps, in- some highly unusual circumstance.
This is not that sort of case.
Having found that Respondent unlawfully discharged
George and Dorothy Hartsell on 28 April -1986, I shall
recommend that it be ordered to offer them immediate
and, full reinstatement to their former jobs, without prej-
udice to their ' seniority and other rights and privileges,
and to make them whole for any net loss of earnings
they may have suffered from 28 April 1986 to the date of
Respondent's offers of reinstatement; with interest, in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NL]R.B 615 (1977).16
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Greenwood Trucking, Inc., Green-
wood, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees in circumstances that restrain or interfere with
their right to engage in concerted activity for the pur-
pose of mutual aid under Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to George and Dorothy Hartsell immediate
and full reinstatement to their former jobs, without prej-
udice to their seniority or other rights and privileges,
and make them whole in the manner set forth in the
remedy section of this decision.
16 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
17 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
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 pur-
poses.
794 DECISIONS OF THE -NATIONAL -LABOR RELATIONS BOARD
(b) Remove -from its files any references to the dis-
charges of George, and Dorothy Hartsell on 28 April
1986, and notify them in writing that this removal has
been made and that evidence of these unlawful dis-
charges will not be used ' as a basis for future personnel
actions against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to, analyze the amount of backpay due under the
terms-of this Order.
(d) Post- at its place of business in Greenwood, Missou-
ri, copies of the attached notice marked "Appendix."18
Copies of the notice, on forms provided by the Regional
Director for Region 18, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where ' notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond,
ent 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 Re-
spondent has taken to comply.
18 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 Nation-
al 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."
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.
Section 7 of the Act gives employees these rights.
To organize
To form, ' join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge - or otherwise discriminate
against any employees in circumstances that restrain or
interfere with their right to engage in concerted activity
for the purpose of mutual aid under Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in-the exercise of
their rights under the Act.
WE WILL offer George and Dorothy Hartsell immedi-
ate and full'reinstatement to their' former jobs; WE WILL
compensate them with interest for any net loss of pay
they may have suffered because we terminated them; and
WE WILL remove from 'our personnel files any'reference
to their 28 April 1986 discharges, and notify them of this
action and of our intention not to' rely on such dis-'
charges in future personnel actions.
GREENWOOD TRUCKING, INC.