Krist Oil Co.

National Labor Relations Board - Board Decisions

Jun 28, 1999

328 N.L.R.B. 825 (N.L.R.B. 1999)

KRIST OIL CO. 825
Krist Oil Co., Inc. and Yvonne Mains and Jodi
Creten, Richard Johnson, and Donald Maglio.
Cases 30–CA–12137, 30–CA–12370–1, 30–CA–
12476, and 30–CA–12535
June 28, 1999
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On November 16, 1994, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and supporting arguments,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified herein and to adopt the judge’s recommended
Order as modified.
1. In the final paragraph of section II,C,2 of his deci-
sion, the judge found that the Respondent’s retraction of
its unlawful warning to Donald Maglio did not also in-
clude a retraction of its unlawful reprimand of Maglio.
Both the unlawful warning and reprimand were, how-
ever, jointly memorialized by the Respondent in an April
21, 19942 document styled “EMPLOYEE
CONFERENCE RECORD[;] LETTER OF
REPRIMAND.” In an April 26 “EMPLOYEE
CONFERENCE RECORD,” the Respondent stated that
the April 21 warning had been rescinded, and had been
removed from Maglio’s personnel file. In his testimony,
Maglio characterized the April 26 document as “the letter
of apologies . . . [t]hey took it all out of my record and
everything.”
We find that the Respondent’s April 26 statement of
rescission and removal of the April 21 warning can rea-
sonably be construed to include both the April 21 warn-
ing and the reprimand. To ensure, however, that the Re-
spondent has actually taken the actions described in its
April 26 statement, and to fully remedy the violation as
discussed by the judge, we shall retain the aspect of the
judge’s recommended Order pertaining to the removal of
these documents from its files.

1 The only exceptions to the judge’s unfair labor practice findings
are to his findings (1) that the Respondent unlawfully mistreated dis-
criminatee Yvonne Mains in violation of Sec. 8(a)(1) and (4) of the Act
following her May 4, 1994 reinstatement to employment with the Re-
spondent (as described by the judge in the final five paragraphs of sec.
II,A,1 of his decision, and discussed in sec. II,A,2; and (2) that the
Respondent retaliatorily promulgated new workplace rules in May
1994, in violation of Sec. 8(a)(1) of the Act (as described and discussed
by the judge in sec. II,D of his decision). We adopt these unfair labor
practice findings.
The Respondent has also excepted to the judge’s conclusion that its
offers of reinstatement to unlawfully discharged employees Mains, Jodi
Creten, Richard Johnson, and Brian Koski were not made in good faith
and were thus invalid. These matters are discussed infra.
2 All subsequent dates are 1994, unless otherwise stated.
2. The judge found, and we affirm, that the Respon-
dent unlawfully discharged Yvonne Mains and Jodi
Creten in May 1993, and Richard Johnson and Brian
Koski in July 1993, all in violation of Section 8(a)(1) of
the Act, but not in violation of Section 8(a)(4).
The judge further found, and we affirm, that the Re-
spondent violated Section 8(a)(1) and (4) by ultimately
reinstating Mains on May 4 as a trainee, assigning her to
perform onerous and excessive work, subjecting her to
surveillance by permitting her to work only in accor-
dance with her supervisor’s schedule, and refusing to
permit her to work at all on May 6, because of her super-
visor’s absence from work on that day, thus causing her
to lose a day’s pay.
The judge also found that the Respondent’s unlawful
mistreatment of Mains following her reinstatement on
May 4 clearly establishes that its offers of reinstatement
to Mains in April and on May 3 were not made in good
faith, and that they did not toll the Respondent’s rein-
statement obligation and backpay liability stemming
from her May 1993 unlawful discharge. We affirm these
findings. 3
3. The judge also found that the Respondent’s offers of
reinstatement to Creten, Johnson, and Koski in April and
May were not made in good faith and did not toll the
Respondent’s reinstatement obligation and backpay li-
ability to them. For the reasons discussed below, we
disagree with the judge in this regard.
a. Background
Prior to their unlawful discharges in May 1993,
Yvonne Mains and Jodi Creten worked as cashiers at the
Respondent’s combination gasoline station-convenience
store in Escanaba, Michigan. Prior to their unlawful dis-
charges in July 1993, Richard Johnson and Brian Koski
worked as tank truckdriverss out of the Respondent’s
Iron River, Michigan, headquarters, about 70 miles from
Escanaba. The drivers’ principal function was to deliver
fuel to the Respondent’s 39 combination gasoline sta-
tion-convenience stores on Michigan’s Upper Peninsula
and in Wisconsin.
b. Facts
(1) Jodi Creten
On April 15, the Respondent notified Creten in writing
that “[e]ffective immediately, you are hereby uncondi-
tionally reinstated to your former work position,” that the
Respondent preferred that she return to work not later
than April 25, that she could return sooner if she wished,
and that if she did not intend to return, the Respondent
would appreciate immediate notification. Creten did not
respond to this letter.
3 The Respondent has submitted to the Board a copy of a “Settle-
ment, Release, and Hold Harmless Agreement” between it and Charg-
ing Party Yvonne Mains. Although this agreement may raise issues
relevant to the compliance stage of this proceeding, it does not affect
our resolution of any of the unfair labor practice issues.
328 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
On May 3, the Respondent’s Human Resources Direc-
tor, Ric Smetak, sent Creten another offer of reinstate-
ment, noting that the Respondent had not received a re-
ply to its April 15 offer, and advising her that counsel for
the General Counsel, Rocky L. Coe, had subsequently
told the Respondent that Creten was (according to the
Respondent’s May 3 letter) “not able to accept reinstate-
ment without assurances.” The letter continued as fol-
lows:

Krist Oil Company reiterates its offers of uncon-
ditional reinstatement. Let me assure you that this is
an unconditional offer to return to work. You will
not be discriminated against in any way in violation
of state or federal law. There will be no retaliation
against you with regard to your ongoing litigation
with the NLRB. Krist Oil’s supervisory staff recog-
nizes their responsibilities and your rights under the
National Labor Relations Act and intend[s] to com-
pletely abide by those responsibilities and rights.
Any suggestion to the contrary is inappropriate.
[Emphasis in original].

The letter requested that Creten return to work on
Monday, May 9, to work the 11 p.m.—7 a.m. shift, and
told her that she would normally be scheduled to work 3
days per week (i.e., essentially the same schedule that
she had worked prior to her discharge); that she had been
scheduled to work May 9, 10, and 11; and that her condi-
tions of employment and responsibilities were un-
changed. The letter stated that the Respondent needed to
hear back from Creten “as soon as possible . . . in writing
by no later than May 6th at noon regarding your position
on these requests to work.” Creten did not respond to
this letter.
Creten testified that she made “no response whatso-
ever” to either of the above letters. While she testified
that she did not believe the Respondent’s promises, con-
tained in the May 3 letter, that it would not retaliate
against her and that it would observe the law and her
rights, she did not testify that that was the reason why
she did not respond to the reinstatement offers. She of-
fered no explanation for not responding to the offers.
She testified that, except for the two reinstatement letters,
she had not had any contact with any Respondent super-
visory or management officials since her discharge in
May 1993.
(2) Richard Johnson
Johnson testified that around February the Respon-
dent’s president, Krist Atanasoff (Krist) suggested that
Johnson consider coming back to work for the Respon-
dent, and that he and Krist discussed it. Around late Feb-
ruary, Johnson met with Krist, General Manager Donn
Atanasoff (Donn), and Fleet Supervisor Ed Jardanowski.
They offered to reemploy him, but Johnson did not act
on the offer. Johnson had a subsequent telephone con-
versation with Donn, in which they discussed Johnson’s
seniority if he accepted the offer of reemployment.
On March 11, the Respondent sent Johnson a letter, in
which it summarized the above meetings and conversa-
tions. It asserted that the Respondent had offered John-
son reinstatement to his previous position as truckdrivers,
at full pay and benefits, and that Johnson had told the
Respondent that he wanted to be assigned to a newly
purchased truck, he was not willing to drive in the after-
noon or evening (second shift), and he did not want to
work on weekends or on overnight trips. The letter said:

[I]t appears to us that you are using your NLRB claim
or the proposed withdrawal of it as leverage to obtain
special treatment and privileges . . . . Please be advised
that Krist Oil feels that it has made you a very attractive
offer of reinstatement, but based upon our conversation
of yesterday, you are declining this offer.

Johnson did not respond to this letter. On April 15, the
Respondent notified Johnson in writing that it was offer-
ing him “unconditional reinstatement to your former
work position” with the Respondent, that the Respondent
preferred that he return to work not later than April 25,
that he could return sooner if he wished, and that if he
did not intend to return, the Respondent would appreciate
immediate notification.
Johnson spoke to Donn about this letter, clarifying to
him where Johnson thought his position should be if he
went back to work. Johnson did not, however, agree to
return to work, because, according to his testimony, there
were “no guarantees of what I was going to get.” John-
son sought guarantees about seniority and also that there
“would not be—anything against me for all the proceed-
ings that happened before this.” He also told the Re-
spondent that if he accepted the reinstatement offer, he
would have to give his current employer a couple of
weeks notice. Johnson neither accepted nor rejected this
April 15 offer of reinstatement.
On May 3, the Respondent sent Johnson another letter,
asserting that Johnson had been offered unconditional
reinstatement several times (February 13, February 21,
March 8), and that Johnson had imposed additional de-
mands, such as a new truck, to which the Respondent had
agreed, but that Johnson had nevertheless not returned to
work. The letter then referred to the fact that Johnson
had again been offered reinstatement on April 15, and
asserted that he had agreed to return to work on April 25,
but that he had failed to report for work as scheduled on
that date, without notifying the Respondent in advance or
thereafter. The letter continued in pertinent part with the
same language as contained in the May 3 letter to Creten,
excerpted in section 3,b,(1) above. The letter requested
that Johnson return to work on Monday, May 9, at 7:00
a.m., and told him that upon arrival he would receive
daily driving assignments, and that his conditions of em-
ployment and job responsibilities would be unchanged.
KRIST OIL CO. 827
The letter said that the Respondent needed to hear back
from Johnson “as soon as possible . . . in writing by no
later than May 6 at noon regarding your position on these
requests to work.” Johnson did not respond to this letter.
Johnson testified that he did not accept any offer of re-
instatement because:

I didn’t feel that there was any guarantee whatsoever
that I wouldn’t be harassed or anything after I went
back to work, and I felt that I could not trust what they
were telling me.

Johnson also testified that he would have had to give
up his current job in order to accept the Respondent’s
offer of reinstatement.
(3) Brian Koski
Koski did not testify about being offered reinstate-
ment. According to Krist, around October 1993 he had a
casual conversation with Koski, asking Koski to come
back to work because the Respondent needed drivers,
and telling him that if he ever wanted to come back to
work for the company, Krist could “let bygones be by-
gones.” Koski did not respond to this offer.
On April 15, the Respondent notified Koski in writing
that “[e]ffective immediately, you are hereby uncondi-
tionally reinstated to your former work position” with the
Respondent, that the Respondent preferred that he return
to work not later than April 25, that he could return
sooner if he wished, and that if he did not intend to re-
turn, the Respondent would appreciate immediate notifi-
cation. Koski did not respond to this letter.
On May 3, the Respondent sent Koski another letter,
asserting that the Respondent had offered him uncondi-
tional reinstatement on October 16, 1993, which Koski
had assertedly refused, and that he had again been of-
fered reinstatement on April 15. The letter also con-
tained the same language that was in the May 3 letter to
Creten, excerpted in section 3,b,(1) above. The letter
requested that Koski return to work on Monday, May 9,
at 7 a.m., and stated that upon arrival he would receive
daily driving assignments and that his conditions of em-
ployment and job responsibilities would be unchanged,
and that the Respondent needed to hear back from Koski
“as soon as possible . . . in writing by no later than May
6th at noon regarding your position on these requests to
return to work.” Koski did not respond to this letter.
c. Analysis and conclusions
It is wellestablished that an employer that has unlaw-
fully discharged an employee may satisfy its obligation
to reinstate the employee and may toll its backpay liabil-
ity by offering reinstatement, provided that the offer is
firm, clear, specific, and unconditional.4 A facially valid

4 See, e.g., Sunol Valley Golf Club, 310 NLRB 357, 375 (1993),
enfd. sub nom. Ivaldi v. NLRB, 48 F.3d 444 (9th Cir. 1995); Consoli-
dated Freightways, 290 NLRB 771 (1988), enfd. as modified 892 F.2d
offer of reinstatement will be found invalid (and thus will
not satisfy the employer’s reinstatement obligation or toll
its backpay liability) where—as with Mains in this
case—following the employee’s acceptance of the offer,
the employer imposes undue, onerous, or unlawful con-
ditions of employment on the reinstated employee.5 On
the other hand, even where, as here, an employer has
imposed invalidating conditions on some reinstated em-
ployees, if there is no indication that other employees
who were offered reinstatement were aware of the cir-
cumstances that invalidated the reinstatement offers to
their fellow employees, then the employer’s otherwise
facially valid offers of reinstatement to these other em-
ployees will not be invalidated, and the employer’s rein-
statement obligation and backpay liability to these other
employees offered reinstatement will be satisfied and
tolled, respectively.6 Further, an unlawfully discharged
employee is privileged to reject an offer of reinstatement,
and preserve his ongoing entitlement to reinstatement
and backpay, where he has a reasonable fear of further
discrimination against him.7 In addition, when a dis-
criminatee receives a letter that unconditionally offers
reinstatement and that also states a report-back date, the
offer will not be invalidated simply because the specified
reporting date appears unreasonably short, as long as the
offer does not make it clear that reinstatement is depend-
ent on the employee’s return by the specified date, or
suggest that the offer will lapse if a decision on rein-
statement is not made by that date.8 A failure to respond
within a reasonable time to a reinstatement offer that is
valid under the above rules will toll the running of back-
pay.9

1052 (D.C. Cir. 1989), and cases cited therein Flatiron Materials Co.,
250 NLRB 554, 561 (1980).
5 See Eastern Die Co., 142 NLRB 601 (1963) (Arel, Gagnon, For-
tier, and Polley), enfd. 340 F.2d 607 (1st Cir. 1965); Research Design-
ing Service, 141 NLRB 211, 216–217 (1963).
6 Florida Steel Corp., 273 NLRB 889, 917 (1984) (Ashcraft and
Theodore); Eastern Die Co., 142 NLRB 601, 604 (1963) (Cyr); Re-
search Designing Service, Inc., supra (Aszurek and Szawronski).
In Consolidated Freightways, 290 NLRB 771 (1988), enfd. as modi-
fied 892 F.2d 1052 (D.C. Cir. 1989), the Board held generally that a
discriminatee must respond to a facially valid offer of reinstatement,
and that if he does not, then, to avoid having his backpay tolled, he
must show that any refusal to accept such a facially valid offer of rein-
statement is based on invalidating conditions of which he was aware
(“that came to his attention”). 290 NLRB at 773. Similarly, in Man-
hattan Graphic Productions, 282 NLRB 277, 285 (1986), the Board
affirmed the judge’s finding that the employer’s offer of reinstatement
to a discriminatee “would likely have been invalidated by the probable
failure” of the employer to pay him the proper salary. “Nevertheless,”
found the Board, “as this did not occur because [the discriminatee] did
not return to work, this speculative event can not serve to invalidate the
offer of reinstatement” (citing Florida Steel, Eastern Die and Research
Designing, supra).
7 Domsey Trading Corp., 310 NLRB 777, 777–778 fn.3, 800 (1993),
enfd. 16 F.3d 317 (2d Cir. 1994); see Woodline Motor Freight, 278
NLRB 1141 (1986), enfd. in pertinent part 843 F.2d 285 (8th Cir.
1988).
8 Esterline Electronics Corp., 290 NLRB 834, 835 (1988).
9 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
(1) Jodi Creten
The judge did not find that the Respondent’s rein-
statement offers to Creten were not firm, clear, specific,
and unconditional, or that they were not otherwise fa-
cially valid. Nevertheless, in section II,A,2 of his deci-
sion, he found that the Respondent’s reinstatement offers
to Creten were not made in good faith.
Applying the legal principles set out above to the par-
ticular circumstances surrounding the Respondent’s
April 15 offer of reinstatement to Creten, we find, con-
trary to our dissenting colleague, that the Respondent’s
offer of reinstatement was not invalidated by the Re-
spondent’s subsequent unlawful activity.
The judge relied on two essential factors in finding that
the Respondent’s offer of reinstatement to Creten was
invalid. First, the judge found it “likely” that if Creten
had accepted the reinstatement offer, the Respondent
would have inflicted the same treatment on her that it did
on Mains. The judge further found, in this same vein,
that the Respondent’s mistreatment of Mains upon rein-
statement “suggested” that it would similarly mistreat
Creten if she too accepted reinstatement. The judge
based these findings on the fact that Mains and Creten
had been discharged at the same time for their mutual
protected activities a year earlier, in May 1993, and also
that they were both charging parties in June 1993 in one
of the cases that has been consolidated in this proceed-
ing.
But, as seen, there is no showing that the outcome that
the judge found likely to occur was suggested to Creten
herself. Although she expressed her disbelief of the Re-
spondent’s promises not to retaliate against her or treat
her unlawfully, such subjective disbelief of assurances on
Creten’s part, without more, will not invalidate the Re-
spondent’s otherwise valid offer of reinstatement. Here,
Creten simply gave no reason for not responding to ei-
ther of the Respondent’s offers of reinstatement. Indeed,
as in the cases cited above, there is no indication that
Creten was aware of the Respondent’s unlawful treat-
ment of Mains during the early-May time of this dual
series of events—i.e., Mains’ first few days back at work
following her May 4 return, and Creten’s simultaneous
receipt of the Respondent’s May 3 second offer of rein-
statement. Thus, there is no basis in the record for a
finding that Creten found it likely that she would be sub-
ject to the same mistreatment as Mains if she accepted
the offer of reinstatement, and no basis for a finding that
she failed to accept the reinstatement offer for that reason
in particular, or for such a reason in general, or for any
reason at all.10

10 Cf. Domsey Trading Corp., supra, 310 NLRB at 778 fn. 3 (former
strikers had legitimate reasons for declining facially valid offers of
reinstatement where record clearly disclosed that they knew from con-
versations with previously recalled strikers that employer was physi-
cally and verbally abusing returning strikers).
Second, the judge found that the Respondent’s offers
of reinstatement to Creten were invalid and in bad faith
because they must also be viewed in the light of the Re-
spondent’s persistence in violating the Act in April and
May, i.e., (1) by issuing a written reprimand and warning
to Iron City driver Donald Maglio, and withholding an
hour’s pay from him, on April 21, in violation of Section
8(a)(1) and (4); (2) by retaliatorily promulgating new
rules on May 9 against solicitation, distribution, and
false, defamatory, or derogatory statements about the
company, its managers, employees, or customers, in vio-
lation of Section 8(a)(1); and (3) by retaliatorily promul-
gating on May 14 new rules restricting the Iron City
truckdriverss’ use of CB radios, also in violation of Sec-
tion 8(a)(1).
Although the judge found that the above additional
violations added to what he considered to be the already
considerable risk confronting Creten, there is no indica-
tion that she was aware of them in failing to accept the
Respondent’s reinstatement offers. See cases cited in fn.
6, supra. Thus, the judge’s general reliance on Woodline
Motor Freight, supra, is unavailing in this context. In
that case the employees in question who did not accept
offers of reinstatement were found to have had a reason-
able fear that they would be subject to further discrimina-
tion upon reinstatement, based on the facts that (1) the
employer continued to engage in discrimination against
union adherents both before and after offering reinstate-
ment to one of the three employees in question; (2) other
reinstated employees were subsequently subject to fur-
ther discrimination; and (3) the other two employees in
question were offered reinstatement on the same day or 6
days after (respectively) the employer discriminatorily
discharged the most senior employee, who was a leading
union supporter and charter member of the union’s in-
plant organizing committee, and was also a witness for
the General Counsel in a contemporaneous unfair labor
practice proceeding against the employer during what
turned out to be the last few weeks of his employment,
and thus just a few weeks before the two employees in
question were offered reinstatement. The Board in that
case found that the three discriminatees in question had a
reasonable fear that they would not be fully reinstated,
but would instead be subject to further discrimination.
The judge found, and the Board agreed, that in view of
the entire record and, particularly the recent continuation
of the discriminatory discharge action against employee
Hogan, the employees could reasonably evaluate the of-
fers of reinstatement as not valid. We conclude that the
judge in Woodline found that the employees were aware
of Hogan’s discharge. Thus, the judge states “weighing
the effect of the recent continuation of discriminatory
conduct against Hogan . . . the possibility of reoccurrence
of such discriminatory conduct could well be viewed by
KRIST OIL CO. 829
the affected employees as real.”11 The discriminatees
could not have been in position to evaluate Hogan’s dis-
charge if they did not know that the discharge had taken
place. Since the evaluation in Woodline was based on
the affected employees’ knowledge of the nature of the
employer’s conduct, there is little similarity between the
facts in that case and in this one.
Thus, we find that the Respondent’s offer of reinstate-
ment was not invalidated by the Respondent’s subse-
quent unlawful activity, which has not been shown to
have been known to Creten at the time in question.
In finding the offer of reinstatement to Creten to be in-
valid, in section II,A,2 of his decision, the judge cites
Brenal Electric, 271 NLRB 1557 (1984), for the proposi-
tion that, in order to be valid, an offer of reinstatement to
a discharged employee must be firm, clear, uncondi-
tional, and “made in good faith.” While the Board in that
case preliminarily said that it found merit in the General
Counsel’s claim that the employer had failed to carry its
burden of demonstrating a “good-faith effort to commu-
nicate an offer of reinstatement to the employees [em-
phasis added],” the Board did not in the final analysis
elaborate on, explain, or apparently even rely on this
statement in finding the offer of reinstatement to be inva-
lid. Rather, the Board ultimately and dispositively found
that the offer of reinstatement was invalid because it was
not specific, unequivocal, and unconditional; it did not
provide sufficient time for the employees to respond;
and, under the circumstances, it finally amounted to
nothing more, in effect, than an offer for a temporary job
apparently conditioned on the employees renouncing the
union. The judge in the case at bar, however, has made
no such findings about the Respondent’s various offers
of reinstatement.
We similarly find the dissent’s reliance on Ertel Mfg.
Corp., 147 NLRB 312 (1964), enfd. 352 F.2d 916 (7th
Cir. 1965), and Exeter Coal Co., 154 NLRB 1678
(1965), to be unpersuasive. In Ertel, the employer of-
fered reinstatement to 20 discriminatees when in fact
only four jobs were available, and thereafter unsuccess-
fully attempted to persuade the Board to toll backpay and
relieve the employer of the obligation to reinstate the
discriminatees who failed to respond to the offers of re-
instatement to nonexistent positions. In Exeter, the em-
ployer discriminatorily delayed the recall from layoff of
two of the employees in question, and discriminatorily
failed even to offer recall to the third one. Thus, the facts
in the case at bar are clearly distinguishable from those in
Ertel and Exeter.12

11 278 NLRB at 1253 (emphasis in original).
12 We find our dissenting colleague’s reliance on Red Rock, 84
NLRB 521, 529 (1949), enfd. as modified 187 F.2d 76 (5th Cir. 1951),
cert. denied 341 U.S. 950 (1951), to be equally unavailing. In Red
Rock, the employer’s arguable offers of reinstatement to the discrimina-
torily discharged employees (telling them to come back within 20–30
days if they had not gotten jobs elsewhere) were made concurrently
(2) Richard Johnson and Brian Koski
As he found in regard to Creten, the judge likewise
found that the Respondent’s offers of reinstatement to
Johnson and Koski were also not made in good faith, and
were thus invalid. Again applying the principles set out
above, we disagree with the judge and our dissenting
colleague.
As with Creten, the judge did not find that the Respon-
dent’s reinstatement offers to Johnson and Koski were
not firm, clear, specific, and unconditional, or that they
were not otherwise facially valid. In finding, rather, that
the offers, including the last ones, on May 3, were not
made in good faith, the judge considered (1) the Respon-
dent’s unlawful treatment of Mains in early May, in Es-
canaba; (2) the unlawful written reprimand, warning, and
withholding of an hour’s pay from Iron City driver Don-
ald Maglio on April 21; and (3) the unlawful retaliatory
promulgation of new rules (a) on May 9, against solicita-
tion, distribution, and false, defamatory or derogatory
statements about the Company, its managers, employees,
or customers, and (b) on May 14, restricting the truck-
drivers’ use of CB radios. In sum, the judge found that
in light of the Respondent’s continuing disregard of the
Act and its harsh treatment of Mains, it was “likely” that
Johnson and Koski would have encountered equally
harsh treatment had they accepted the Respondent’s of-
fers of reinstatement, and that it was thus unnecessary for
them to respond to the offers.
But as with Creten, so too with Johnson and Koski,
there is no indication that, in failing to accept the Re-
spondent’s reinstatement offers, either of them was
aware of the April 22 violations against fellow truckdriv-
ers Maglio when the Respondent made its offers of rein-
statement to them, or that either of them became aware of
the subsequent violations against Mains following her
May 4 reinstatement at Escanaba or the unlawful prom-
ulgation of new rules. Johnson testified that while he has
never personally met Mains, he has spoken with her by
telephone about “things that had happened to each of
us . . . [a]s far as termination” [emphasis added]. John-
son did not say when he spoke with Mains, or whether he
had more than one such conversation with her. Mains
did not testify about any such conversations. Based on
the subject matter as described by Johnson, his conversa-
tion with Mains could have taken place prior to Mains’
May 4 reinstatement, and thus prior to the Respondent’s
postreinstatement mistreatment of Mains. In any event,
regardless of when the conversation took place, John-
son’s uncontroverted account of it contains no reference
to the Respondent’s postreinstatement mistreatment of
Mains.

with the unlawful discharges. The facts in the instant case pertaining to
the offers of reinstatement to Creten, Johnson, and Koski contain no
such manifestations of bad faith.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
Thus, we find that the Respondent’s offers were not
invalidated by the Respondent’s subsequent unlawful
activity, none of which has been shown to have been
known to Johnson and Koski, and, therefore, none of
which has been shown to have had an effect on their fail-
ure to respond to the Respondent’s offers of reinstate-
ment. See cases cited in footnote 6, supra. Here again,
general reliance on Woodline Motor Freight, supra, is
unavailing in this context, for the reasons discussed
above. In sum, we do not see how the three employees
could have a reasonable fear that reinstatement would be
followed by unlawful conduct directed to them, in cir-
cumstances where the asserted basis for that fear, i.e.,
unlawful conduct directed to others, was not even known
by the three employees.
d. Summary
We find that the failure of Creten, Johnson, and Koski
to respond to the Respondent’s offers of reinstatement
served to toll Respondent’s remedial make-whole obliga-
tions to them as of a reasonable time after the offers.13
In determining what constitutes such a “reasonable
time” under the circumstances of this case, we note that
the April 15 offers asked the employees to return by
April 25, i.e., within 10 days. We conclude that 10 days
was a reasonable amount of time in which the discrimi-
natees could return to work following the Respondent’s
offer of reinstatement. Consequently, we find that the
Respondent’s backpay liability to Creten, Johnson, and
Koski is tolled effective April 25, i.e., 10 days after the
April 15 valid offers of reinstatement.14
Our dissenting colleague takes the position that the
Respondent’s offers were not in good faith and could
therefore be ignored. And, in finding a lack of good
faith, our colleague relies on the Respondent’s unlawful
conduct subsequent to the offers of reinstatement. Under
our colleague’s view, it makes no difference whether the
employees knew of the unlawful conduct, whether the
employees reasonably feared that similar conduct would
befall them, or whether the employees expressed any
such fear as the basis for not accepting the offers. Our
colleague is forced to this position because each of these
matters cuts in favor of the Respondent. That is, (1)
there is no showing that the employees were aware of the
Respondent’s unlawful conduct; (2) the employees could
not reasonably fear that similar misconduct would befall
them; and (3) none of these employees told the Respon-
dent that any such fear was the basis for not accepting
the offers.
Thus, our colleague is virtually forced to take the posi-
tion that an offer is in bad faith (and thus can be ignored)

13 Esterline Electronics Corp., supra, 290 NLRB at 835. See gener-
ally C-F Air Freight, 276 NLRB 481, 482 (1985) (where a discrimina-
tee does not respond to a valid offer of reinstatement, the backpay
period is tolled on the date of the last opportunity to accept the offer).
14 See C-F Air Freight, supra.
simply because it is followed by unlawful conduct.
Thus, our dissenting colleague would use subsequent
unlawful conduct to taint a prior offer of reinstatement.
This is clearly different from using prior unlawful con-
duct to taint a subsequent withdrawal of recognition. It
is also different from using away-from-the-table miscon-
duct to taint contemporaneous bargaining. Our colleague
sets no definitive time limit on this principle. Thus,
unlawful conduct, even months and years later, can taint
the offer and lead to mounting backpay for an employee
who has ignored the offer.15 More importantly, our col-
league’s position ignores the principle of “work now,
grieve later.” That is, the accepted industrial norm is that
if an employee is working, and there is a claim of em-
ployer misconduct directed at her, the employee should
continue to work, make the claim, and subsequently re-
ceive a remedy for any proven misconduct. A fortiori, if
an employee is offered work, and simply suspects that
misconduct to her may occur, it is clear that the em-
ployee should accept the offer, make the claim if mis-
conduct allegedly occurs, and receive a remedy for any
proven misconduct. In sum, the employee should accept
the offer of reinstatement, and leave to Board processes
the remedying of any subsequent unfair labor practices.16
In addition, our colleague’s position would require the
employer to suffer ever-mounting backpay for one viola-
tion simply because the employer has committed another
violation. We believe that each violation is to be reme-
died on its own basis, and that the power of injunctive
relief and contempt can be used for repeat violations.
Finally, we agree that some reinstatement offers can be
shown to be in bad faith. For example, if it can be shown
that the employer, at the time of the offer of reinstate-
ment, harbored an intention to discriminate against the
employee after reinstatement, we might well find the
offer to be in bad faith.17 However, we do not believe
that such a finding can be based solely on the fact that,
subsequent to the offer of reinstatement, unlawful con-
duct was directed to others.18
15 Our dissenting colleague notes that the discriminatees herein, like
any other discriminatees, have a duty to mitigate damage by seeking
other work. We agree. However, our point is that, under our col-
league’s view, the discriminatees can decline the Respondent’s offer
and still receive mounting backpay.
16 Our dissenting colleague would distinguish between employees
who are working and those who are offered work. She would not apply
the “work now, grieve later” principle to the latter. We see no basis for
the distinction. In both, the employee can work and earn wages while
protesting the allegedly unlawful conduct.
17 See Red Rock, supra, where the employer, concurrently with the
offer of reinstatement to two employees, was discharging those employ-
ees. See also Ertel Mfg. Corp., supra, where an offer ostensibly made
to 20 employees, was in bad faith as to 16 employees because there
were only 4 jobs available.
18 We disagree with our colleague as to certain dates. The initial of-
fer to Creten was made on April 15, 1994. The unlawful conduct di-
rected to Mains occurred on May 4, 1994.
KRIST OIL CO. 831
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified19 and set forth in full below and orders that the
Respondent, Krist Oil Co., Iron River, Michigan, its offi-
cers, agents, successors, and assigns shall
1. Cease and desist from
(a) Discharging, disciplining, attempting to blackball,
assigning onerous work to, surveilling, denying wages or
work to, retraining, or otherwise discriminating against,
any employee for engaging in concerted activity pro-
tected by Section 7 of the Act.
(b) Threatening to blackball or otherwise punish em-
ployees because they engage in concerted activity pro-
tected by Section 7 of the Act.
(c) Reinstating employees as trainees, assigning oner-
ous work to employees, requiring employees to work
under the surveillance of a supervisor, depriving employ-
ees of work or wages, disciplining employees, or other-
wise discriminating against employees because they have
filed charges or given testimony under the Act.
(d) Promulgating no-solicitation or no-distribution
rules, or any other rules regarding employee speech or
use of the Respondent’s CB radios, for the purpose of
discouraging concerted activity protected by Section 7 of
the Act.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Yvonne Mains full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Yvonne Mains whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, in the manner set forth in the
remedy section of the judge’s decision.
(c) Make Jodi Creten, Richard Johnson, and Brian
Koski whole for any loss of earnings and other benefits
suffered through April 25, 1994, as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Yvonne Mains, Jodi Creten, Richard Johnson, and Brian
Koski, as well as any reference to the unlawful written
employee conference record and letter of reprimand is-
sued to employee Donald Maglio on April 21, 1994, and
within 3 days thereafter notify them in writing that this

19 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, Inc., 325 NLRB 17 (1997).
has been done and that the discharges, conference record,
and letter of reprimand will not be used against them in
any way.
(e) Make Donald Maglio whole for the 1 hour’s wages
he lost as a result of the discrimination against him, in
the manner set forth in the remedy section of the judge’s
decision.
(f) Make Yvonne Mains whole for the 1 day’s wages
she lost as a result of the discrimination against her, in
the manner set forth in the remedy section of the judge’s
decision.
(g) Notify U.P. Special Delivery, Inc., in writing, that
the Respondent is disavowing and withdrawing its false,
derogatory job reference of January 13, 1994, regarding
Richard Johnson, and notify Johnson that this has been
done.
(h) Rescind and abrogate its discriminatorily promul-
gated rules regarding solicitation of employees by other
employees, distribution of literature between employees,
creating or repeating any false, defamatory, or derogatory
statements and the use of the Respondent’s CB radios by
its employees.
(i) Preserve, and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(j) Within 14 days after service by the Region, post at
its Iron River and Escanaba, Michigan, facilities copies
of the attached notice marked “Appendix.”20 Copies of
the notice, on forms provided by the Regional Director
for Region 30, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed either or both of the facilities involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at the closed facility at any time since May 18,
1993.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
20 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
MEMBER FOX, dissenting in part.
Unlike my colleagues, I would find that the Respon-
dent’s offers of reinstatement to Jodi Creten, Richard
Johnson, and Brian Koski were invalid and did not sat-
isfy the Respondent’s reinstatement obligation or toll its
backpay liability to these discriminatees. For the reasons
set forth below, I would find that the Respondent’s offer
of reinstatement to these employees was not in good faith
and that the employees were therefore not obligated to
accept it.
The essential facts are set out by my colleagues. We
all agree with the judge’s findings that, immediately fol-
lowing its reinstatement of Yvonne Mains on May 4,
1994,1 the Respondent violated Section 8(a)(1) and (4) of
the Act by failing to reinstate her to her original position
and by otherwise mistreating her because of her role as a
charging party in the unfair labor practice proceeding and
her participation in protected activities. My colleagues
and I agree that her reinstatement was accordingly inva-
lid, but we do not agree on whether the Respondent’s
reinstatement offers to the other three discriminatees
should also be found invalid and therefore ineffective to
satisfy the reinstatement obligation and toll their back-
pay.
In finding the reinstatement offers to Creten, Johnson,
and Koski to be valid, my colleagues rely on a line of
Board cases which hold, in effect, that an employee who
has been the victim of an unlawful discharge forfeits her
right to reinstatement and cuts off her entitlement to
backpay if she refuses an offer of reinstatement that is
valid on its face, even if it is later shown that had she
accepted the offer, she would have been subjected by the
employer to further unlawful treatment. Thus, for exam-
ple, in Florida Steel Corp., 273 NLRB 889 (1984), one
of the cases relied upon by the majority, the Board found
that an employer’s facially valid offers of reinstatement
to two unlawfully discharged employees were sufficient
to cut off the employees’ reinstatement and backpay
rights, even though the record was “clear” that had they
accepted the offers, the employer would have placed
them in entry level positions, “in violation of the terms of
the Board’s order.” 273 NLRB at 917. And in Eastern
Die Co., 142 NLRB 601, 603 (1963), the Board refused
to order reinstatement and tolled the backpay award of an
unlawfully discharged worker who failed to accept an
offer of reinstatement, despite finding that four other
discriminatees who accepted the same offer and returned
to work were subjected to further mistreatment, including
being told “that they must use the side entrance of the
plant to enter and leave their work, that if they went
downstairs into the die department they would be sum-
marily dismissed . . . that they had to work in isolated
booths, that they could not talk to or mingle with their
fellow workers during coffee breaks . . . and that they

1 All dates are in 1994 unless otherwise stated.
were not allowed to wear gloves to protect their hands
while working on the polishing wheels.” Under this line
of cases, it is immaterial whether the employer had any
intention of acting lawfully when it made its offer or
whether it in fact engaged in concurrent or subsequent
misconduct. All that matters is whether the employee
was aware, at the time the offer was refused, of circum-
stances that would render the offer invalid. Research
Designing Service, Inc., 141 NLRB 211, 216–217
(1963).
In my view, this line of cases undermines the remedial
purposes of the Act because it allows wrongdoing em-
ployers to escape responsibility for remedying their
unlawful conduct and prevents the victims of their
wrongdoing from obtaining the relief to which they
would otherwise be entitled for no other reason than that
they did not subject themselves to further unlawful
treatment. These cases are also at odds with another,
conflicting line of Board decisions which hold that offers
of reinstatement must be made in good faith, and that
continuing misconduct by the employer can render an
offer invalid without regard to whether the employees to
whom the offer was made were aware of the misconduct.
Thus, in Red Rock Co. 84 NLRB 521 (1949), the Board
found that the failure of two unlawfully discharged em-
ployees to respond to a facially valid offer of reinstate-
ment did not preclude a Board order requiring their rein-
statement with “unabated backpay” because the offer was
not made in good faith. “The Respondents, concurrently
with their offer . . . were discriminatorily discharging
these two employees and engaging in other conduct vio-
lative of the Act, thereby demonstrating the complete
lack of good faith with which their offer of reinstatement
was made,” the Board explained. “Under these circum-
stances, we find that the Respondents had no intention of
rehiring [the discriminatees] and that the discharged em-
ployees were, therefore, not obligated to apply for rein-
statement.” Id. at 529. Similarly, in Ertel Mfg. Corp.,
147 NLRB 312 (1964), enfd. 352 F.2d 916 (7th Cir.
1965), discriminatorily discharged employees who did
not respond to an employer’s offer of reinstatement were
nevertheless held to be entitled to reinstatement and full
backpay because the employer’s offer was extended to
20 discriminatees when in fact the employer had only
four jobs available. The trial examiner found, with
Board approval, that the employer’s offer was “bona
fide” only as to the four employees who were actually
rehired. 147 NLRB at 333. In neither Red Rock nor
Ertel was it deemed relevant whether the discriminatees
knew of the circumstances found to have rendered the
offers invalid at the time they elected not to respond to
the offers; rather, the emphasis was on the employer’s
good faith or lack of good faith in extending the offers.
See also Selig Mfg. Co., Inc., 79 NLRB 1144, 1145
(1948) (employer’s offer of reinstatement “not made in
good faith or with the intention of fulfilling its obliga-
KRIST OIL CO. 833
tions under the Act” does not constitute reinstatement
within the meaning of the Act); Exeter Coal Co., 154
NLRB 1678, 1693 fn. 31 (1965) (considering whether
“an offer, apparently good on its face, is token or other-
wise not one in good faith”); Esterline Electronics
Corp., 290 NLRB 834, 835 (1988) (referring to “‘re-
quirement of good faith dealings’ properly imposed on
both employer and employee” with regard to reinstate-
ment offers).
The cases relied on by my colleagues to deny full re-
lief to the three employees who did not respond to the
Respondent’s offer have essentially read the employer
“good faith” requirement out of this area of the law in
favor of an objective standard that focuses solely on what
the employee knew or believed. They have done so,
however, without overruling or attempting to reconcile
this opposing line of decisions. In my view, the better
approach would be to clarify the standard for determin-
ing the validity of an offer of reinstatement by adopting
an approach which retains the focus on the employer’s
“good faith” but measures that good faith by objective
evidence of the employer’s conduct.
Under this standard, an employer who has made a fa-
cially valid, unconditional offer of reinstatement would
be able to rely on that offer as tolling its backpay obliga-
tions provided that the employer engages in no conduct
that would belie the good faith of that offer. Thus, as
long as the employer engages in no further conduct dem-
onstrating an intent not to comply with its obligations
under the Act, backpay would be tolled regardless of
what the employee to whom the offer is made may have
believed might happen to him if he accepted the offer.
Conversely, if the employer is subsequently found to
have engaged in further misconduct demonstrating that
the offer was not in good faith—for example, continuing
discrimination against employees engaged in the type of
protected activity for which the discriminatee being of-
fered reinstatement was discharged or, as here, mistreat-
ment of other discriminatees who have accepted offers of
reinstatement and returned to work—the reinstatement
offer would be ineffective to toll backpay or satisfy the
employer’s reinstatement obligation, regardless of
whether the employee actually knew of the employer’s
continued misconduct.2

2 My colleagues attack my standard for having no “definitive time
limitations,” with the result that even unlawful conduct “months and
years later” can taint an offer. They are correct only if, by “definitive,”
they mean a specific amount of time to be applied in any case. I recog-
nize that subsequent unfair labor practices might be too minor or too
distant in time to warrant an inference that the original reinstatement
offers were made in bad faith. Such an inquiry is no more difficult than
determining whether prior unlawful conduct has tainted a withdrawal of
recognition or whether away-from-the-bargaining table misconduct is
evidence that bargaining is in bad faith. It is a matter of reasonable
inferences. Certainly, here it is not difficult to conclude that miscon-
duct following the Respondent’s offers of reinstatement showed that
the offers were made in bad faith. As explained below, unlawful re-
taliation against driver Maglio began within a week after the reinstate-
I do not suggest that a discriminatee should be al-
lowed, with impunity, to simply ignore an offer of rein-
statement or reject it out of hand. Under the test I would
apply, an employee who rejected a facially valid uncon-
ditional offer of reinstatement, without objective knowl-
edge of circumstances that would invalidate the offer,
would do so at her own risk. Absent evidence to the con-
trary, the offer would be presumed to have been made in
good faith and would therefore be deemed to have tolled
the employer’s obligation to provide backpay and satis-
fied its obligation to offer reinstatement, regardless of
any personal doubts the employee might have harbored
about the treatment she would be afforded if she accepted
the offer. Only if it were subsequently shown by objec-
tive evidence that the employer had engaged in conduct
belying the good faith of the offer would the failure to
accept the offer be excused.
In setting forth these principles, I am attempting to ac-
commodate legitimate interests of both discriminatees
and employers. In my view, an employee who has al-
ready suffered the consequences of an unlawful dis-
charge should not have to give up whatever other em-
ployment he may have obtained, and subject himself to
possible further mistreatment by an employer that is con-
tinuing to violate the requirements of the law, in order to
avoid forfeiting rights to reinstatement and backpay.3 On
the other hand, an employer that has ceased its unlawful
conduct and is making a good-faith effort to remedy that
conduct should be able to limit its liability.
Here, the Respondent’s offer of reinstatement to Mains
was—we all agree—demonstrably in bad faith and inva-
lid. And, considering the Respondent’s contemporane-
ous unfair labor practices, the conclusion is simply ines-
capable that the Respondent’s offers of reinstatement to

ment offers to fellow drivers Johnson and Koski, and the unlawful
treatment of discriminatee Mains commenced on the first day of her
return to work and within 24 hours of the May 3 reinstatement offer to
discriminatee Creten, which included assurances that there would be no
discrimination against her. Hence, contrary to my colleagues, this case
is not greatly different from Red Rock Co., supra, and Ertel Mfg. Co.,
supra.
Regarding my colleagues’ concern about an employer’s having to
face “ever mounting backpay” as the result of misconduct subsequent
to the reinstatement offer, I note that under my standard employees
would still have to satisfy the normal obligation to mitigate liability by
seeking comparable employment and not unreasonably refusing to
accept or abandoning another job.
3 An unlawfully discharged employee who may have obtained, or
have the prospect of obtaining, other employment to support himself in
the meantime is not in the same position as a current employee whose
employer has committed an unfair labor practice short of discharge
against him. It is one thing to expect an employee to continue working
while seeking a remedy from the Board or contractual procedures (at
least if the circumstances are not so egregious as to constitute a con-
structive discharge), and another to expect an employee to abandon
other employment he has obtained or has the prospect of obtaining,
even if the reinstatement offer turns out to have been made in bad faith.
Thus, I do not agree with my colleagues that my proposed standard for
treating reinstatement offers is inconsistent with the “obey and grieve”
principle.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
Creten, Johnson, and Koski were equally in bad faith,
and equally invalid
Thus, at the same time that the Respondent was mak-
ing its offers of reinstatement to the three discriminatees
in question, and in the midst of the unfair labor practice
hearing in this proceeding, the Respondent was aggres-
sively pursuing its ongoing campaign of discriminatory
mistreatment of its employees, in retaliation for their
participation in this very proceeding, and also in order to
block their attempts to exercise their rights under Section
7 of the Act. Specifically, the Respondent discriminato-
rily warned and reprimanded Donald Maglio in violation
of Section 8(a)(1) and (4) for testifying against the Re-
spondent in this case, just 2 days after he testified, and
less than a week after the Respondent’s April 15 offers of
reinstatement to Maglio’s fellow discriminatee drivers
Johnson and Koski at Iron River (along with cashier
Creten at Escanaba).
Apparently not content with polluting the April 15
rounds of reinstatement offers, the Respondent followed
suit a couple of weeks later by contaminating its May 3
round of reinstatement offers. It victimized Mains in
violation of Section 8(a)(1) and (4) on her first day back
at work on May 4 (thus invalidating her reinstatement)
and it did so within 24 hours of the May 3 offers of rein-
statement to Mains’ fellow discriminatee, cashier Creten
at Escanaba (along with drivers Johnson and Koski at
Iron River).
Finally, the Respondent capped off its unlawful con-
duct by retaliatorily promulgating restrictions on com-
munications among employees just days after the May 3
offers of reinstatement, and just days before the recessed
hearing in this case was set to resume.
To the extent that the cases my colleagues rely on hold
that in order for a discriminatee not to have her backpay
tolled by a facially valid offer of reinstatement, she must
be shown to have had actual knowledge of a respon-
dent’s contemporaneous unfair labor practices that would
invalidate the reinstatement offer, I would find any such
requirement to be unjustified as contrary to the general
statutory policy that requires a transgressor to bear the
burden of the consequences stemming from its illegal
acts.4 Applying that policy here, a determination of
whether Creten, Johnson, or Koski had actual knowledge
of the Respondent’s contemporaneous unfair labor prac-
tices is not, in my view, dispositive of whether, under the
circumstances, the Respondent’s offers of reinstatement
tolled the entitlement of these discriminatees. Any
doubts about the reasons for the discriminatees’ failure to

4 See Hendrickson Bros., 299 NLRB 442 (1990); Consolidated
Freightways, 290 NLRB 771 (1988), enfd. as modified 892 F.2d 1052
(D.C. Cir. 1989), citing Sheet Metal Workers Local 355 (Zinsco Elec-
trical Products), 254 NLRB 773 (1981), enfd. in part, remanded in part
716 F.2d 1249 (9th Cir. 1983); Solboro Knitting Mills, 227 NLRB 738
(1977) (“It rest[s] upon the tortfeasor to disentangle the consequences
for which it [is] chargeable from those from which it [is] immune.”).
accept the Respondent’s offers of reinstatement must be
resolved not against the discriminatees, the victims of the
Respondent’s first round of unfair labor practices, but
against the Respondent itself, which, after all, set the
stage for any such uncertainty by engaging in a second
round of unfair labor practices during the same time that
it was offering reinstatement to the discriminatees.5
My colleagues make much out of what is not in the re-
cord—express, affirmative evidence that Creten, John-
son, and Koski had actual knowledge of the Respon-
dent’s unfair labor practices against Maglio and Mains at
the time of the May 3 offers of reinstatement. But I am
focusing on what is in the record, and what, indeed, per-
meates it—the Respondent’s disregard for the rights of
its employees, including the one who did take the Re-
spondent’s reinstatement bait, at the same time that the
Respondent was trolling with the same lure for the other
discriminatees. Consequently, I would find that actual
knowledge by the employees of the Respondent’s unfair
labor practices is not necessary to the result that I reach.
Rather, in consideration of the unfair labor practices
against Maglio and Mains individually, and against the
work force in general, and the simultaneity of these un-
fair labor practices with the offers of reinstatement, I find
that the Respondent’s offers of reinstatement to Creten,
Johnson, and Koski were not made in good faith, were
not valid, and thus did not relieve the Respondent of its
reinstatement and backpay obligations to them.

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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge, discipline, attempt to
blackball, assign onerous work to, surveil, deny wages or
work to, retrain, or otherwise discriminate against, any
employee for exercising any right protected by Section 7
of the Act.
5 See generally Amsterdam Wrecking & Salvage Co. v. Teamstesr
Local 294, 472 F.2d 153 (2d Cir. 1973).
KRIST OIL CO. 835
WE WILL NOT threaten to blackball or otherwise
punish employees because they engage in concerted ac-
tivity protected by Section 7 of the Act.
WE WILL NOT reinstate employees as trainees, as-
sign onerous work to employees, require employees to
work under the surveillance of a supervisor, deprive em-
ployees of work or wages, discipline employees, black-
ball employees, or otherwise discriminate against em-
ployees because they have filed charges or given testi-
mony under the Act.
WE WILL NOT put into effect any no-solicitation or
no-distribution rules, or any other rules regarding em-
ployee speech or use of our CB radios by employees, for
the purpose of discouraging you from engaging in any
concerted activity protected by Section 7 of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights guar-
anteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Yvonne Mains full reinstatement to
her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights and privileges previously
enjoyed.
WE WILL make Yvonne Mains whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL make Jodi Creten, Richard Johnson, and
Brian Koski whole for any loss of earnings and other
benefits suffered through April 25, 1994, resulting from
their discharges, less any net interim earnings, plus inter-
est.
WE WILL make Donald Maglio whole for the 1
hour’s wages we refused to pay him for delivering a split
load on April 17, 1994, plus interest.
WE WILL make Yvonne Mains whole for the 1 day’s
wages she lost because we refused to permit her to work
on May 6, 1994, plus interest.
WE WILL rescind and abrogate our rules regarding
solicitation of employees by other employees, distribu-
tion of literature between employees, creation or repeti-
tion of any false, defamatory, or derogatory statements,
and the use of our CB radios by our employees.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any references to
the unlawful discharges of Yvonne Mains, Jodi Creten,
Richard Johnson, and Brian Koski, as well as any refer-
ence to the unlawful written employee conference record
and letter of reprimand issued to Donald Maglio on April
21, 1994, and WE WILL, within 3 days thereafter, notify
these employees in writing that this has been done and
that we will not use these adverse personnel actions
against them in any way.
WE WILL notify U.P. Special Delivery, Inc., in writ-
ing, that we are disavowing and withdrawing our false
derogatory job reference of January 13, 1994, regarding
Richard Johnson, and WE WILL notify Richard Johnson
in writing that this has been done.
KRIST OIL COMPANY

Rocky L. Coe, Esq., for the General Counsel.
Steve J. Polich, Esq. (Polich & Hinshaw) and Donn Atanasoff,
Esq., of Iron River, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Iron City, Michigan, on April 19 and 20 and
May 17, 1994, and in Escanaba, Michigan, on May 18 and 19,
1994. The charge in Case 30–CA–12137 was filed on June 1,
1993,1 the complaint was issued on July 30 alleging that the
Respondent, Krist Oil Co., Inc. (the Company), discharged
employees Yvonne Mains and Jodi Creten because they en-
gaged in concerted activities protected by Section 7 of the Act,
and thereby violated Section 8(a)(1) of the National Labor Re-
lations Act. Thereafter, further charges were filed in Case 30–
CA–12370–1 on December 14, in Case 30–CA–12476 on
March 22, 1994, and in Case 30–CA–12535 on May 10, 1994.
On March 30, 1994, an order consolidating cases and
amended consolidated complaint issued, including the original
allegations regarding employee Mains and Creten and further
allegations that the Company had violated Section 8(a)(1) of
the Act by discharging employee Richard Johnson, attempting
to “blackball’’ Johnson’s prospective employment, threatening
employees with blackballing, and discharging employee Brian
Koski because they engaged in concerted activity protected by
Section 7 of the Act. Further, on May 17, 1994, on motion of
the General Counsel of the National Labor Relations Board (the
Board), I consolidated Case 30–CA–12535 with the other cases
captioned above, and amended the consolidated complaint to
allege that the Company violated Section 8(a)(1) and (4) of the
Act by reinstating Mains as a trainee, assigning her to an oner-
ous and excessive task, and keeping her under surveillance by
requiring her to work on the same schedule as her supervisor,
depriving her of 1 day’s work, withholding 1 hour’s pay from
Donald Maglio, and threatening him with discipline up to and
including discharge, all because they filed unfair labor practice
charges or testified in these proceedings, and because they en-
gaged in protected concerted activity, and, further, that the
Company violated Section 8(a)(1) of the Act by imposing
overly broad no-solicitation and no-distribution rules on the
employees at its Escanaba and Iron River facilities. The Com-
pany has denied all of these allegations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, has maintained an office and
place of business in Iron River, Michigan, where it has been
engaged in the distribution of oil and the operation of a retail
convenience store located in Escanaba, Michigan. During the
12-month period ending March 30, 1994, the Company, in
conducting its business operations described above, derived

1 All dates are in 1993 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
gross revenues in excess of $500,000, and purchased and re-
ceived goods valued in excess of $5000 directly from points
located outside the State of Michigan. The Company admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. No labor
organization is involved in these cases.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Yvonne Mains and Jodi Creten
1. The facts
At the beginning of 1993, the Company employed Yvonne
Mains and Jodi Creten as cashiers at its Escanaba store, under
the immediate supervision of Store Manager Denise O’Donnell.
The Company hired Mains in July 1992 and Creten in Decem-
ber of that year. The Escanaba store is 1 of 39 gas station and
convenience store facilities owned and operated by the Com-
pany in the Upper Peninsular of Michigan and in Wisconsin.
David Chartier, who hired Mains and Creten, supervised the
Escanaba store and at least 9 other company stores. Chartier’s
immediate superior was Director of Marketing Richard Smetak,
who reported to the Company’s general manager and general
counsel, Donn Atanasoff.
At the time of her hire, Chartier told Mains that her primary
duty was to wait on customers. If she had time remaining
Mains was to help stock and clean the store. In February, how-
ever, Store Manager O’Donnell held a meeting with Escanaba
cashiers Mains, Creten, Michelle Quaburgh, Melinda Vaness,
and Alissa Zulonowski and issued a written list of chores.
There were 15 daily requirements for each of the three shifts,
including sweeping and mopping floors, emptying garbage,
cleaning and stocking restrooms, stocking and facing shelves,
coolers, and the freezer, cleaning the driveway and the back-
room, cleaning and stocking fast food, stocking cigarettes, put-
ting out overstock, keeping windshield buckets clean and full,
and keeping cash low by making safe drops. The fast food ac-
tivity required some baking, attention to condiment dispensers,
and preparation of hot dogs, popcorn, hot chocolate, and coffee.
In addition to the listed duties, O’Donnell required Creten, who
worked the third shift, from 11 p.m. to 7 a.m., to check the fuel
supply by inserting a measuring stick into the tanks serving the
gas station.2
Mains balked at O’Donnell’s list of chores. She remarked
that a cashier on the 3 to 11 p.m. shift would find it impossible
to accomplish them and wait on customers. One or two of the
other cashiers at the meeting said it would be difficult to watch
the gas pumps to make sure customers did not drive off without
paying for the fuel they had taken and clean a shelf in the back.
Denise O’Donnell replied that as the employees at the Com-
pany’s Wells, Michigan store had managed to get those chores
done, the Escanaba store employees could do as well.
O’Donnell said that the Escanaba employees would get the
chores done. She also directed the cashiers to report for work
15 minutes before the beginning of their respective shifts to
permit the cashier who was working to complete some of her
chores.

2 My findings of fact regarding the Company’s store operations and
management are based on Donn Atanasoff’s testimony. My findings of
fact regarding the employees’ duties, their meeting with Store Manager
O’Donnell, and her response to their complaints about the checklist are
based on Mains’ and Creten’s testimony.
Following O’Donnell’s meeting, in February or March,
Mains, Creten, Quaburgh, and Victoria Corwin agreed to and
did help each other perform the chores. On one occasion, Mains
came to the Escanaba store to permit Creten to go to the bath-
room. Mains emptied garbage cans at the store for Corwin and
Quaburgh. The four also came in to work early and used the
additional time to help each other.3
On or about February 13, Creten and employee Quaburgh
had agreed to split the 3 to 11 p.m. shift so that Creten would
work from 3 to 7 p.m. and Quaburgh would work the remaining
4 hours. While Creten was working her 4 hours, O’Donnell
called to tell her that Quaburgh was unable to come to work,
and that Creten would work an extra hour. When Creten replied
that she could not work the extra hour because her babysitter
would not be available for the extra time, O’Donnell insisted
that she had no choice but to work. Creten said she could not.
Abruptly, O’Donnell hung up. Creten quickly called her back
for an explanation, O’Donnell said she had hung up to avoid
saying something in an angry way. The conversation ended
without any further discussion of Creten’s plight.
About 7:15 p.m., O’Donnell arrived at the Escanaba store
and told Creten to leave. Creten said O’Donnell owed her an
apology. O’Donnell rejected Creten’s suggestion and added
that she could have required Creten to work until 11 p.m. with-
out any recourse on Creten’s part. The heated discussion ended
when O’Donnell again told her to leave.
On arriving home, Creten telephoned David Chartier but he
was not available. Creten told Chartier’s wife about her en-
counter with O’Donnell and that she needed to talk to him
“immediately.’’ At this, Chartier’s wife got off the phone and
quickly returned to say that David had told her to tell Creten to
call him back. Creten made one more attempt to call David on
the following Monday but did not reach him. He never returned
her call.
During the same month, Creten, a single parent, found she
could not continue to work on Saturdays because her mother
would no longer babysit Creten’s son. On learning of Creten’s
problem, O’Donnell assured her that it would be taken care of.
Thereafter, to her chagrin, Creten found that she continued to
receive Saturday assignments. Creten continued to send notes
to O’Donnell, protesting her Saturday assignments. In late
March or early April, Creten was scheduled for a Saturday and
tried to find a babysitter. She sent a protest note to O’Donnell,
who finally notified Creten on the preceding Friday that she
need not report for work on the next day.
On the morning of February 27, Yvonne Mains noted that
Melinda Vaness, the cashier, who had worked the previous
afternoon had counted a gas coupon’s face value of $25 as part
of her receipts and thus showed a $20 overage. Mains knew
that prior to February 26, $20 of the coupon’s face value had
been counted as receipts as the customer was using it up $5 at a
time. In her view, Vaness was actually $1.98 short. Mains did
not want to give the impression that she was accusing Vaness
of theft. Fearing that Mains, however, might be held responsi-
ble for the shortage, Mains sought an explanation of Vaness’s
procedure from O’Donnell on Monday, March 1, but could not
reach her until March 3. After Mains asked her question,
O’Donnell said that Mains did not know what she was talking
about. That ended Mains’ inquiry.
3 I based my findings regarding the employees’ reaction to
O’Donnell’s checklist requirements on Creten’s and Mains’ testimony.
KRIST OIL CO. 837
Approximately 2 weeks later, in mid-March, O’Donnell re-
duced Mains’ worktime from 2 days per week to 1 day per
week. This reduction came after Mains had told O’Donnell that
she could not financially stand to work less than 2 days per
week. At the beginning of April, Mains asked O’Donnell for
extra hours during that month. Instead of granting Mains’ re-
quest, the Company assigned the cashier from the 11 p.m. to 7
a.m. shift at Wells to the Escanaba store and closed the Wells
store down for those 8 hours.
On April 3, Mains came to work at 3 p.m. and relieved cash-
ier Melinda Vaness. Mains noticed some money in a bank bag
in the top drawer directly beneath the cash register. Mains
asked what that money was. Vaness answered that she had
dropped it from the drawer. When Mains asked for a receipt,
Vaness said she had thrown it away. Mains became upset at the
absence of a document showing how much money had been
dropped from her drawer. Mains counted the money in the bag
and came up with $160. She then studied a tape showing that
Vaness had dropped $185. Mains saw that $25 was missing and
became alarmed. She quickly called Richard Smetak, who was
the supervisor on duty. She said she wanted to call the police.
He told her to calm down. Business in the store picked up.
Mains had to hang up and call him back.
Mains told Smetak about the shortage. She said she would
retain the tape as the only proof she had if the drawer came up
short. Smetak agreed.
The conversation continued. Mains recounted how in Sep-
tember 1992 Supervisor Chartier, in furtherance of his sting
operation against a cashier, had instructed Mains to short the
employee’s drawer $20, to see if the employee was making up
shortages by removing money from the store’s coin safe. Mains
told Smetak of her initial refusal to remove the money and of
how she finally had carried out Chartier’s instruction. Mains
also told Smetak that the sting operation had made her fearful
of being the subject of a similar investigation. Smetak said he
had heard rumors about Chartier and his treatment of employ-
ees and cash shortages, in particular. Smetak said he wanted to
talk to Mains in detail about this topic. He also said he would
look into the matters she raised and get back to her.
Following her conversation with Smetak, Mains told em-
ployees Creten, Corwin, and Quaburgh about the coupon inci-
dent and her conversation with Smetak. The four employees
discussed their grievances and concerns regarding wages,
hours, and working conditions at the Company’s Escanaba
store. They agreed to form a united front “to cover [their] butts
collectively.’’ Following this discussion, Mains received phone
calls from employees Quaburgh and Creten about cash short-
ages and situations in which self-service gas customers had
driven off without paying.
On April 20, O’Donnell issued two written warnings to Jodi
Creten. On the same day, Creten signed both warnings, ac-
knowledging the asserted infractions. These were the first
warnings issued by the Company to Creten since hiring her on
December 16, 1992.
I find from Creten’s credible testimony, that O’Donnell ex-
plained the reasons for the warnings as she issued them. Thus,
O’Donnell told Creten that the first warning was for not stick-
ing the fuel tanks properly and the second for a piece of toilet
paper on the bathroom floor, fingerprints on the store’s front
door, mud on the floor, and not putting another 12-pack of beer
in the cooler.
At the hearing, counsel for the General Counsel asked Creten
to identify the two warnings and their attachments, all of which
the Company had taken from its files in response to the General
Counsel’ subpoena. Creten, testifying in a frank manner, as-
serted that she had received the two warnings with attachments,
but not those offered to her at the hearing. She flatly denied
ever seeing the latter prior to the hearing. On the General
Counsel’s motion, and without objection by the Company, I
received both warnings and their current attachments in evi-
dence.
Each of the identified exhibits bears what appears to be De-
nise O’Donnell’s signature. Also, the contents of two of the
attachments strongly suggest that O’Donnell was their author.
Yet, the Company did not offer her as a witness to shed light on
the origin of the attachments received in evidence in these pro-
ceedings. Nor did the Company present Dave Chartier to ex-
plain an attachment, dated April 20, bearing what appears to be
his signature. I find that the current attachments to the warnings
issued to, and signed by Creten on April 20, were substituted
for the original attachments, after she signed the warnings.4
The first warning’s single attachment, offered by the General
Counsel, stated that on April 12, while assigned to the 11 p.m.
to 7 a.m. shift, Creten had failed to complete the cleaning
checklist. The warning complained about the restroom, report-
ing paper on the restroom floor, mud on the sink, a dirty toilet,
and a muddy floor. The warning also complained that the “pop
machine hadn’t been filled with ice, the oil shelves were not
filled (we had plenty of oil in the backroom to be put out front),
shelves were not faced, cooler was not faced.’’
The second written warning, offered by the General Counsel,
had two attachments. The first attachment complained that
Creten was improperly using a measuring stick to check on the
amounts of fuel in the store’s tanks, reading the stick wrong,
not sticking the tanks at all, or “just guessing.’’ The first at-
tachment ended with the assertion that “this has been going on
since she began working for us last December.’’
The second attachment was a note apparently from Store Su-
pervisor Chartier stating, in substance, that on the morning of
April 20, after receiving word of incorrect stick readings at the
Escanaba store, he investigated and found that she had not done
any sticking.
In December 1992, when she was hired, the Company gave
Creten 3-day training in her job. She began sticking gas tanks
on the fourth day of her employment. Until April 20 she had
regularly performed that task without criticism from her superi-
ors. When O’Donnell issued the first warning on April 20,
Creten challenged it, insisting that she had been correctly stick-
ing the tanks whenever she worked on the night shift.5

4 Richard Smetak testified that the statements now attached to
O’Donnell’s warnings of April 20 were attached to them when he saw
them in April. Smetak’s attempt on cross-examination, however, to
repudiate his admission in an affidavit he gave to the Board by attribut-
ing it to the Board agent who took the affidavit, his often evasive re-
sponses, his self-contradiction, and my impression that he was treating
the hearing as a game, cast serious doubt on his credibility. In contrast,
Creten showed appropriate respect for the hearing, and impressed me as
being a frank witness on direct examination, and on cross-examination.
Accordingly, I have rejected Smetak’s testimony, and credited Mains,
when their testimony conflicted.
5 I have credited Creten’s testimony regarding her confrontation with
O’Donnell regarding sticking fuel tanks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
On or about April 24, Smetak and Mains set up a meeting at
her home, near Escanaba, on May 6, at 4 p.m., to discuss her
concerns about the $25 cash shortage, where the money might
have gone, and her responsibility. Smetak agreed that she could
have whoever else she wanted at this meeting. He suggested
that they bring whatever documentation they needed to support
their complaints.6
The meeting took place on May 6 at Mains’ home. Smetak
arrived 3 hours late. In addition to Mains and Smetak, the meet-
ing was attended by employees Creten, Quaburgh, Corwin,
former Escanaba Store Manager Donna Grove, and some ex-
employees, including Dan Williams and Cheryl Rose, and the
father of a current employee.
At the beginning of the meeting, Mains told Ric Smetak that
she and her colleagues were “an official employees union’’ and
that they were “organized as basically a sorority’’ as they were
all females. Smetak did not respond to Mains’ opening remarks
Mains began discussing a list of employee concerns she had
prepared. Smetak took extensive notes and responded to her
remarks. She raised a complaint about the Company’s 3-day
training period without pay. Smetak said he would look into it.
Employee complaints about the Company’s hourly starting
wages drew the same response from Smetak. Other topics in-
cluded O’Donnell’s requirement that employees report to work
15 minutes before their shifts began without additional com-
pensation, the Company’s failure to make good on a promise of
periodic written performance evaluations of employees, the
Company’s failure to pay the employees for their overtime, and
David Chartier’s refusal to intercede with O’Donnell on behalf
of the employees, when they had complaints. Mains spoke of
the low morale among the four employees who had banded
together to help each other. She also spoke of the intentional
shorting of an employee’s drawer. The employees joined in the
discussions regarding wages and hours, work schedules, drawer
shortages, and the complaints about the requirement that they
reimburse the Company for drive-offs at the gas station.
In preparation for this meeting, Victoria Corwin had copied
some figures showing overages and shortages at the Escanaba
gas station and drive-offs. Smetak looked at Corwin’s copied
material and noted that Melinda Vaness had a drive-off almost
every other time she worked as a cashier. He accused Vaness of
“stealing us blind.’’
Corwin told Smetak that a man recently released from
prison, who she referred to as “a lunatic,’’ was harassing her on
the 11 p.m. shift. Cowin asked Smetak to provide someone to
work with her as security against these visits.
The assembled employees complained that O’Donnell did
not give them adequate breaks and that at times they did not
even have time to go to the bathroom and tend to their needs.
He suggested that when necessary, and when no one was pump-
ing gas, they could close the store, tend to their needs, and then
open up again.
The employees complained about O’Donnell’s cleaning list
and how difficult it was to complete during a shift. The em-
ployees told Smetak that Jodi Creten’s writeups for cleaning list
infractions had been in reprisal for her complaints about week-
end hours. They expressed fear that O’Donnell might treat them

6 I based my findings of fact regarding the agreement to have a meet-
ing on May 6, on Smetak’s and Mains’ testimony. When their testi-
mony conflicted, however, I have credited Mains for the reasons stated
above in fn. 4.
all similarly and said that this concern was the reason for their
united front.
Smetak explained that the list was to be a guidline, that em-
ployees were to do the best they could, and that it was not in-
tended as a disciplinary tool. Jodi Creten told of how
O’Donnell had written her up for fingerprints on a door, a piece
of toilet paper on a bathroom floor, and one 12-pack of beer
missing in the cooler. Creten complained that these were trivial
infractions of the cleaning list and caused the employees to be
concerned. Smetak said he would talk to O’Donnell about this
matter. He called the writeups “ridiculous.’’
Creten talked about the warnings that O’Donnell had re-
cently issued to her about failing to complete the cleaning
checklist and not sticking the gas tanks properly. Creten
pointed out that the writeup for improperly sticking the gas
tanks had come after Creten had been using a measuring stick
on the Escanaba gas tanks for 4 months without either a com-
plaint or retraining from the Company. Creten insisted to
Smetak that she had performed this duty regularly, watched by
a friend at an Amoco station, across the street from the Com-
pany’s Escanaba store.
Smetak also assured Creten that he would intercede on her
behalf with O’Donnell. As he gave this assurance, Smetak re-
vealed that O’Donnell had already decided to discharge Creten.
Creten went to work the next evening and never heard anything
from O’Donnell about termination.
Creten complained about O’Donnell’s slow response to her
request to be relieved of Saturday hours. Also, Creten com-
plained that O’Donnell had insisted that she choose between
her son and her job.
Mains complained that in April, when she was available to
work additional hours and had so notified O’Donnell, the Com-
pany had ignored her. Mains told Smetak that instead of giving
her the extra hours, the Company had closed its Wells, Michi-
gan store for one shift, and assigned its cashier to the Escanaba
store. Smetak seemed sympathetic toward Mains.
Mains and the other employees express concern about write-
ups and firing. Smetak assured the employees that firing was
“absolutely the last resort’’ for him and that he “always be-
lieved in retraining.’’ Smetak said that firing was the “last
thing’’ the listening employees had to worry about.
Mains told Smetak that she had seen employee Melinda
Vaness leaving the Escanaba store with a case of pizza, which,
to Mains’ knowledge, the store had not written off as spoiled.
Smetak said he would investigate the matter. He also wondered
if the pizza was connected with a $4000 inventory shortage,
which had surfaced at the Escanaba store 2 months after Denise
O’Donnell took over as its manager.
Toward the meeting’s end, Smetak asked all remaining par-
ticipants to sign the last page of his notebook. He also asked
them if they had been sexually harassed and received a negative
response that he recorded in his notebook.7
7 Smetak testified before me that during the meeting of May 6 he did
not get the impression that there was a concern about working condi-
tions. Instead, according to Smetak, the bulk of the meeting of May 6
consisted of references to Store Manager O’Donnell as a “fucking
bitch,’’ accusations of sexual misconduct against company officials,
and insults against Smetak. The seven pages of notes he took at the
same meeting, however, and the affidavit he gave to a Board agent on
June 25 do not contain any hint that the meeting described in Smetak’s
testimony occurred. Nor did his testimony show that he took exception,
became irate, or walked out when he discovered that the meeting had
KRIST OIL CO. 839
In his afffidavit given to a Board agent on June 25, Smetak,
in his account of the meeting of May 6, asserted that “Yvonne
and Jodi did most of the talking regarding the complaints that
were presented.’’8
Just before he left for home, Mains told Smetak that he had 2
weeks to deal with the matters raised at the meeting. On the
expiration of the 2 weeks she and her colleagues would “con-
tact the Teamsters Union.’’ As he departed, Smetak looked at
Mains and said, “Please don’t do anything drastic. I promise I
will take care of this.’’
On May 17 Mains telephoned Smetak at his home. Mains
expressed concern at his failure to get back to her and fear that
she and her colleagues would be fired. Smetak told her to get a
good night’s sleep and not to worry. He also said people were
lying to him and that he was investigating.
On the following day, May 18, Dave Chartier contacted
Mains by phone and announced her termination. She asked to
speak to Smetak and asked him why she was being fired.
Smetak said he did not want to discuss it, but said that she
would receive a letter “in the next couple of days.’’ He also
said that the basic factor was that she had been insubordinate
and that the meeting of May 6 “had a lot to do with it.’’
Prior to May 18, the Company had never disciplined Mains.
Neither Denise O’Donnell nor Dave Chartier had ever warned
her. Nor had anyone from the Company’s management threat-
ened her with discharge.
Soon after her conversation with Smetak, Mains received a
dismissal letter from the Company, dated May 19, and bearing
Chartier’s and Smetak’s signatures. The letter’s contents were
as follows:

1. Falsely accusing other employee’s for cash short-
ages.
2. Creating a mutinous situation with fellow em-
ployee’s.
3. Creating a mutinous situation between Ric Smetak
and a Krist Oil store supervisor.

taken on the claimed nasty tone. The testimony of employees Mains,
Creten, and Corwin did not lend any support to Smetak’s testimony in
this regard. Smetak’s effort to explain the contrast between his testi-
mony and his notes and affidavit was that he did not want to put such
bad language in writing. He did not explain why this sensitivity, how-
ever, did not cause him to protest or walk out. In sum, Smetak’s notes
and affidavit, his inadequate explanation, and my impression that he
was a reluctant witness persuaded me to reject his account of the meet-
ing of May 6. Instead, I have credited Mains, Corwin, and Creten in
this regard.
8 On cross-examination, Smetak denied that Creten and Mains did
most of the talking at the meeting of May 6. Later, when confronted
with the affidavit he gave to a Board agent, which contained the quoted
language, Smetak testified that they were not his words and attributed
them to the Board agent. After he was shown his signature at the bot-
tom of the last page, however, and his initials next to changes, Smetak
conceded that he had made that assertion. Under further cross-
examination, he attempted to narrow his assertion to mean that they
were most vocal employees at the meeting. In light of his attempt to
repudiate his affidavit, however, and attribute his clear admission to the
Board agent, I find that Smetak was more interested in assisting the
Company’s cause than in providing his best recollection of the circum-
stances leading up to his decision to discharge Creten and Mains. This
serious infirmity in Smetak’s credibility persuaded me that his attempt
to alter the meaning of his testimony was nothing more than a recent
contrivance designed to weaken the effect of his earlier admission
under oath.
4. Causing dissension among fellow employee’s to-
wards each other and Krist Oil Company.
5. Making detrimental and false statements about her
employer—Krist Oil Company.
6. Uncooperative with store manager.

This in itself is satisfactory cause for dismissal.

In his affidavit of June 25 Ric Smetak asserted that the deci-
sion to discharge Mains was solely his. Smetak also declared
that he based his decision “on her poor work performance, but
most particularly, her false accusations of theft against Melinda
and Denise and Cindy, a new employee, who soon quit.’’ His
affidavit did not mention any of the complaints listed in the
quoted letter.
On May 18, Dave Chartier called Creten and told her that
she was terminated. Creten asked what she was being termi-
nated for. Chartier said it was because she did not get along
with management and other crew members. Creten asked to
speak to Smetak. When Smetak got on the phone, she repeated
her question, and received the same answer Chartier had given.
Creten told Smetak she did not understand what was going on.
Smetak said he had to go, said goodbye, and hung up.
Shortly thereafter, Creten received a letter from the Com-
pany, dated May 19, and signed by Chartier and Smetak. The
letter said nothing about not getting along with management
and other crew members. Instead, the text of the letter was as
follows:

1. Failure to perform assigned duties.
2. Improperly sticking tanks.
3. Not sticking tanks and reporting false readings.
4. Failure to report for assigned scheduled shifts.
5. Refusal to work assigned scheduled shifts.

Upon reviewing the entire situation as listed above,
just cause was reached in the termination of employment
with Krist Oil Company.

In his affidavit of June 25 Smetak said nothing about getting
along with management and other crew members. Instead, he
asserted, “As far as I was concerned, Jodi’s attendance and
work schedule problems were not the focus of her termination.
What really swayed me was her failure to stick the tanks; an
extremely important requirement for us.’’
On June 1, Mains, Creten, and employee Greg DeVere filed
an unfair labor practice charge in Case 30–CA–12137 cap-
tioned above. The charge alleged, among other matters, that
Mains’ and Creten’s terminations violated Section 8(a)(1) of
the Act. Mains, Creten, DeVere, and employee Vikki Corwin
filed an amended charge in the same case 6 days later, which
also included the same two terminations among its allegations.
By letter dated April 15, 1994, the Company offered to Jodi
Creten unconditional reinstatement to her former position and
said she could return to work on April 25 or sooner. The letter
requested that Creten contact Smetak and work out her sched-
ule and any questions she might have. The letter also asked
Creten to let the Company know if she did not intend to return.
Creten received the letter but did not respond.
The Company, by letter of May 3, 1994, again offered un-
conditional reinstatement to Creten. The letter also assured her
that the Company would not discriminate against her or retali-
ate against her because of the litigation pending before the
Board. Again, Creten received the letter and has not responded.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
In April 1994, the Company in a letter signed by Donn
Atanasoff offered unconditional reinstatement to Yvonne
Mains and instructed her to contact Rick Smetak. Mains con-
ferred with Smetak, who said he would get back to her on April
25, 1994, Smetak called and told her she could start on the
following day on an 8 a.m. to 4 p.m. shift. He told her there
would be a letter telling her what shift she would be on, and
that she could pick it up after 5 p.m. at the Escanaba store.
Mains picked up the letter that changed her to an 8 a.m. to 3
p.m. shift, Monday through Friday. In addition to this change in
hours, Mains found the letter’s contents substantially different
from her expectations after conferring with Smetak. Mains
concluded that the Company’s reinstatement offer was “insin-
cere.’’ She did not report for work at the Escanaba store until
the Company had sent a further offer of reinstatement.
On May 3, 1994, the Company delivered another letter to
Mains, offering unconditional reinstatement to an 8 a.m. to 3
p.m. shift, and assuring her that she would not be “harassed in
any way in violation of any state or [F]ederal law.’’ Mains
reported to the Company’s Escanaba store on May 4, 1994, at 8
a.m. She reacquainted herself with the store’s cash register and
the cash-drop procedures.
Five minutes after Mains’ arrival at work, on the morning of
May 5, 1994, Manager Denise O’Donnell assigned her to clean-
ing the store’s shelves. Thereafter, for a few minutes short of 7
hours Mains cleaned shelves. Mains recognized that this was an
unusual and onerous assignment for one employee. Mains had
not spent more than 2 percent of her working time cleaning
shelves since the inception of her employment by the Company
in July 1992. Usually, O’Donnell divided the cleaning of
shelves over three shifts, for 3 days, on a weekend. Each cash-
ier would clean a section or part of a section of shelves along
with her other duties. On May 5, 1994, Mains assumed that she
would clean only one section of shelves and either be relieved
by another employee, or directed to wait on customers when the
store became busy. Neither of these events occurred, however.
O’Donnell remained at the store until about 10 or 11 a.m. An-
other employee came on and worked the cash register. Mains
considered this to be a an unpleasant assignment and felt har-
assed.9
On the afternoon of May 5, 1994, Richard Smetak came to
the Escanaba store and greeted Mains as she was working. She
asked him if she was expected to work on the following day as
she had noticed that her name was not on the schedule. Smetak
answered that by all means he expected her to work on that day.
She asked him if she would be cleaning shelves for 7 hours or
something else as she was not happy cleaning shelves. Smetak
replied, in substance, that Mains’ work assignment was up to
O’Donnell.10
On the evening of Thursday, May 5, 1994, Mains worked the
11 p.m. shift at her other job. During her shift she got in touch
with O’Donnell, who told Mains that she need not report for
her scheduled shift on May 6, 1994, because O’Donnell would
be out of town. O’Donnell also explained that Mains’ training
would resume on the following Monday, 8 a.m. to 3 p.m. In his
testimony, Smetak admitted that O’Donnell had scheduled

9 I have based my findings regarding Mains’ work assignment on
May 5, 1994, on her undisputed and credible testimony.
10 I based my findings regarding Mains’ conversation with Smetak
on May 5, 1994, on her undisputed and credible testimony.
Mains to work with the store manager for the purpose of train-
ing.11
Mains reported for work on Friday morning as scheduled.
Another employee was working the cash register. The em-
ployee gave a note to Mains, which reported that O’Donnell
was out of town and that Mains’ training would resume on
Monday. Mains did not work on May 6, 1994, and lost 1 day’s
pay.
I find from Mains’ testimony that during her training, which
began on May 4, 1994, O’Donnell told her that there was not
much new for her to learn. According to Mains’ credited testi-
mony, only the ringing up of diesel discounts was “a little bit
different.’’ The remainder of her duties as a cashier had not
changed since her termination. I also find from Mains’ undis-
puted testimony that as of May 18, 1994, Smetak had told
Mains that her training period would end 2 days later.
2. Analysis and conclusions
Section 7 of the Act provides that employees have the right
to engage in “concerted activities’’ for self-organization and
“for the purpose of . . . mutual aid or protection.’’ Thus the
provisions of Section 7 of the Act extend protection to employ-
ees, who, because they have no union representing them, have
“to speak for themselves as best they [can].’’ NLRB v. Wash-
ington Aluminum Co., 370 U.S. 9, 14 (1962). Accord: Dayton
Typographic Service v. NLRB, 778 F.2d 1188, 1190–1192 (6th
Cir. 1985).
Section 8(a)(1) of the Act makes it an “an unfair labor prac-
tice for an employer to interfere with, restrain, or coerce em-
ployees in the exercise’’ of section 7 rights. Id. Dayton Typo-
graphic Service v. NLRB. It follows that if, as the General
Counsel contends, the Company discharged employees Creten
and Mains for engaging in concerted activities protected by the
Act, it thereby violated Section 8(a)(1) of the Act. Washington
Aluminum Co., supra; Lloyd A. Fry Roofing Co., 651 F.2d 442,
446 (6th Cir. 1981).
Whether Mains’ and Creten’s discharges violated Section
8(a)(1) of the Act depends on the Company’s motive. In NLRB
v. Transportation Management Corp., 462 U.S. 393, 400–403
(1983), the Supreme Court approved the Board’s test for de-
termining motivation in unlawful discrimination cases, as ex-
pressed in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on
other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Under that test, a violation of Section 8(a)(1)
of the Act will be found when the General Counsel has shown
that the Company’s opposition to protected concerted activity
was a motivating factor in a company decision to discharge
Mains and Creten and when the record shows that the Company
would not have discharged them in the absence of their pro-
tected activity. Gatliff Coal Co., 301 NLRB 793, 798 (1991).
I find that by their participation at the meeting of May 6 with
Richard Smetak, a senior member of the Company’s manage-
ment, Mains and Creten along with employees Quaburgh and
Corwin were attempting to improve the wages, hours, and con-
ditions of employment at the Escanaba store. Mains’ list of
11 Smetak testified on direct examination that “Ms. Mains is not a
trainee.’’ He retreated somewhat from that assertion, when he testified
that she was working with O’Donnell “for readjustment or what have
you. Refamiliarization of the store.’’ Later, however, on cross-
examination, he conceded that O’Donnell told him that she was training
or retraining Mains or helping Mains to learn new things. O’Donnell
did not testify.
KRIST OIL CO. 841
concerns found echo in the voices of Quaburgh, Creten, and
Corwin, as they all informed Smetak of a wide range of con-
cerns including wages, work schedules, O’Donnell’s checklist,
drawer shortages, performance evaluations, overtime wages,
drawer shortages, breaks, disciplinary writeups, store security,
and drive-offs. When Mains, Corwin, Quaburgh, and Creten
spoke to Smetak at the meeting about these matters they did so
on behalf of themselves and the other employees present. It is
well settled that “individual employees bringing truly group
complaints to the attention of management’’ are engaged in
concerted activity. Meyers Industries, 281 NLRB 882, 887
(1986). When, as here, such concerted activity involved em-
ployee complaints regarding wages, hours, and conditions of
employment, it was also protected by Section 7 of the Act.
NLRB v. Lloyd A. Fry Roofing Co., supra, 651 F.2d at 445;
Edward’s Restaurant & Lounge, 305 NLRB 1097, 1098 (1992).
There is ample evidence to show that on and after May 6, the
Company knew that Mains and Creten were engaged in pro-
tected concerted activity. At the meeting’s outset, Mains told
Smetak, the Company’s director of marketing, that she and the
employees present were “an official employees union’’ and
“organized as basically a sorority.’’ Smetak’s seven pages of
notes, headed, “Areas of Concern,’’ reflect all the topics that
Main had also listed on her agenda notes in preparation for the
meeting. His notes also show that Mains and Creten frequently
voiced matters that concerned them and the other employees
attending the meeting. The last page of Smetak’s notes begins
with, “5/6/93 Meeting with current & previous Esky employ-
ees!’’ At the meeting, Smetak treated the employees as a group
when he explained O’Donnell’s cleaning list, responded to the
employees’ complaints about breaks, and told of his policy
toward writeups and firings. Thus, he showed recognition of
problems mutually shared by the assembled Escanaba employ-
ees. In short, on May 6, Smetak was made aware of the con-
certed nature of Mains’ and Creten’s participation in the
presentation of group complaints. He was also aware, as he left
Mains’ house, that she was speaking for the group when she
warned that unless they heard from him by the end of 2 weeks
they would contact the Teamsters.
The circumstances immediately leading up to the two dis-
charges suggest that Smetak, who authored them, did so in
reprisal for Creten’s and Mains’ roles in the meeting of May 6.
Less than 2 weeks after his meeting with the Escanaba store
employees Smetak fired Creten and Mains without warning. He
picked on the two at the meeting who had done “most of the
talking regarding the complaints that were presented.’’ Further,
on the day he discharged her, Smetak admitted to Mains that
the meeting on May 6 “had a lot to do with it.’’ In sum, I find
that the General Counsel has made a prima facie showing that
Creten’s and Mains’ protected concerted activity was a moti-
vating factor in the Company’s decision to discharge them.
The Company contends that the record shows that a business
purpose motivated its discharges of Creten and Mains and that
those discharges would have occurred even if they had not
engaged in concerted activities. Smetak, the company official
who discharged them, testified that the meeting of May 6 had
nothing to do with their discharges. Smetak impaired his credi-
bility in this regard on May 18, however, when he admitted to
Mains that the meeting “had a lot to do with it.’’ Analysis of
the proffered defense reveals infirmities that refute Smetak’s
disclaimer and the Company’s contention.
Initially, the Company provided shifting and inconsistent
reasons beginning on May 18, and ending in its posthearing
brief. On May 18, Smetak told Mains that the basic factor in
her discharge was that she had been insubordinate. In the dis-
charge letter that followed on May 19 there was no allegation
of insubordination. Instead, Smetak and Chartier accused Mains
of falsely accusing other employees for cash shortages, creating
mutinous situations, causing dissension, making detrimental
and false statements about the Company, and being uncoopera-
tive with her store manager. In his affidavit of June 25, Smetak
forgot about the insubordination, the mutinous situations, the
dissension, and improper remarks about the Company. Smetak,
under oath, declared that he discharged Mains because of poor
work performance “but most particularly’’ because of “her
false accusations of theft against Melinda and Denise and
Cindy, a new employee who soon quit.’’
In his testimony before me, Smetak abandoned Mains’ poor
work performance and asserted that “the number one reason’’
for her termination was that she “had continuosly accused other
people of stealing from her and falsely accused other people of
cash shortages.’’ When confronted with the list in his letter of
May 19, Smetak testified as follows:

Reasons two through six are an embodiment of the number
one reason. Creating a mutinous situation with fellow em-
ployees. Number three, creating a mutinous situation between
Rick Smetak and a Krist Oil store supervisor. Number four,
causing dissension among fellow employees towards each
other and Krist Oil Company. And number six, being unco-
operative with her store manager. Which I guess could be
construed as insubordination.

In the next portion of his testimony, Smetak takes responsi-
bility for the decision to terminate Mains. He focuses on one
reason for this decision, “she was picking on other employees
within the store, that she was accusing anybody and everybody
that ever worked with her.’’
When Company counsel asked if the meeting of May 6
played any significant part in Mains’ termination, however,
Smetak took the opportunity to add another reason. He an-
swered:

The only portion of that meeting that I felt had significant part
was her continued accusations against myself, Dave Chartier,
Donn Atanasoff and her accusations of cash shortages of
other employees within that store, and that’s the truth.

At page 19 of its posthearing brief, the Company suggests
two reasons that Smetak failed to include in his array. The brief
states in pertinent part:

Mains[‘] conduct by her direct involvement in the cash short-
age transactions and her actions to shift the focus by pitting
other store workers against each other are good reasons for
her discharge.

Smetak also provided a kaleidoscope of reasons for discharg-
ing Creten. On May 18, he told Jodi Creten that he was termi-
nating her because she did not get along with management and
other crew members. In his letter to Creten, however, on the
following day, Smetak abandoned those two reasons and al-
leged five work-related shortcomings as his grounds for firing
her. He included complaints about failing to report for assigned
shifts and refusal to work scheduled shifts. Yet in the affidavit
he gave to a Board agent, Smetak zeroed in on only one con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
cern, “failure to stick the tanks.’’ At the hearing, Smetak added
insubordination, which consisted of “[r]efusal to stick the tanks
according to the manager’s instructions.’’
Smetak’s resort to shifting and inconsistent reasons for ter-
minating the two most outspoken employees, who participated
in the concerted protected activity on May 6 seriously impaired
the credibility of the Company’s assertion that business reasons
motivated his decision. Indeed, it seemed to me that Smetak
and the Company were coming up with new reasons as they
went along. By offering shifting and inconsistent reasons to
explain Mains’ and Creten’s discharges, Smetak also added to
the indicia of his unlawful intent. C.D.S. Lines, Inc., 313 NLRB
296, 300 (1993). Accord: NLRB v. Rain-Ware, Inc., 732 F.2d
1349, 1354 (7th Cir. 1984).
Smetak’s efforts to explain his decision also suffer from the
absence of substance. Thus, he has not shown that Mains
falsely accused anyone of cash shortages. He testified about the
results of an investigation involving records and cash reports
but did not share their contents with me. Smetak did not di-
vulge the names of the individuals who Mains accused. He
testified that she was accusing “anybody and everybody that
ever worked with her.’’ Later, on cross-examination, he testi-
fied in substance that she had accused everyone she had worked
with “[a]t some time and point in her employment.’’ But he
cast serious doubt on the reliability of that broad claim when he
admitted that she had not accused fellow employees Jodi
Creten, Michelle Quaburgh, or Victoria Corwin of stealing.
Subtracting these three from the Escanaba store’s employee
complement created a sizeable gap in the number of employees
whom Mains could have accused falsely. Smetak has not pro-
vided any details, however, to shore up his own accusation
against Mains.
Smetak did serious harm to his credibility when he testified
that Mains’ accusations against him, Chartier, and Donn Atana-
soff, at the meeting of May 6, played a significant part in his
decision to get rid of her. As I have noted above, in footnote 7,
neither Smetak’s notes nor his pretrial affidavit make any refer-
ence to the use of vulgar language, insults, or accusations of
sexual misconduct by the employees during the meeting of May
6. Nor did Smetak’s notes, affidavit, or testimony show that he
protested the use of such language or walked out of the meeting
rather than tolerate it. These flaws in his account of the meet-
ing, his evasiveness, and his efforts to repudiate his admission
that Mains and Creten did most of the talking about the em-
ployees’ complaints, persuaded me that he was reaching for
expedient answers to camouflage the real reason for Mains’ and
Creten’s discharges.
Nor did Smetak fare much better in his effort to show that
Creten’s failure to properly stick and record the contents of the
Escanaba store’s fuel tanks was the main reason for her termi-
nation. On the afternoon of May 18, 1994, he testified in these
proceedings, as follows:

After my full investigation of her work performance I felt it
was absolutely necessary that she quit falsifying tank chart re-
cords that I have a record of and that it was necessary to ter-
minate Ms. Creten. I felt that she was not sticking gasoline
tanks properly. She was not reading them properly. I felt that I
had enough evidence based upon the the supervisor telling me
so in April, the store manager telling me so in April, and mo-
tor fuel inventory records that I had received from Denise
O’Donnell that showed fluctuations of 1,400 gallons, a thou-
sand gallons, 2000 gallons, et cetera. It is of utmost impor-
tance to stick these tanks and I felt it necessary the termination
was in order.

At this point, Counsel for the General Counsel Coe said he
had not heard this last answer and that Smetak had run “a
bunch of numbers across.’’ I asked the witness, “It was a thou-
sand, wasn’t it?’’ Smetak answered, “1,000, 2,000, 3,000.’’
Smetak presented no records showing where these number
originated. He gave no dates for these fluctuations. He seemed
to be dealing in abstract numbers. He testified that of the vari-
ous numbers in the inventory records, “1,473 is one that comes
to mind.’’
On cross-examination, on the following morning, Smetak
denied that he had testified the previous afternoon that the in-
ventory fluctuations attributed to Creten’s tank sticking were in
the thousands of gallons. Smetak now testified that he had men-
tioned “60, 100, 1,000, 1,400, 1,700, for example.’’ On Coe’s
further cross-examination, Smetak denied that the figures he
had presented on the previous day were examples of Creten’s
errors. Smetak next testified that the level of mistakes she had
made were “in the amounts of 69 gallons, 1,700 gallons, 1,400
gallons, 190 gallons—and these are all inaccurate, as I do not
have those figures memorized.’’ Here, again, Smetak was im-
provising.
In his testimony regarding his decision to fire Creten,
Smetak stressed the “utmost importance’’ of properly sticking
the Escanaba store’s fuel tanks. He also testified that in April
his investigation revealed enough evidence to justify discharg-
ing Creten. Later, under cross-examination, he first testified
that he had allowed Creten’s sticking problem to continue for
30 days. Then, under further prodding, he testified that in Feb-
ruary, he first found out about Creten’s problem with sticking
tanks, and that he had known about it for 4 months before he
discharged her on May 18. Assuming that Creten had a chronic
problem with sticking gasoline tanks, and that Smetak knew
about it as early as February, urgency did not overtake him
until 4 months later. In the meantime, he claimed his investiga-
tion and records convinced him in April that he must terminate
her. Yet he did nothing about firing her until 12 days after the
meeting of May 6, when she took a leading role in presenting
employee complaints regarding conditions of employment.
Here, Smetak’s explanation of his decision to fire Creten is
unsupported by records and rebuted by his testimony on cross-
examination.
In sum, I find that the Company has failed to rebut the Gen-
eral Counsel’s prima facie case, showing that Smetak termi-
nated Mains and Creten in reprisal for their leading role in con-
certed activity protected by Section 7 of the Act. Accordingly, I
further find that by these terminations, the Company violated
Section 8(a)(1) of the Act.
The General Counsel also alleged that by discharging Mains
and Creten, the Company violated Section 8(a)(4) of the Act.
That provision of the Act makes it an unfair labor practice “to
discharge or otherwise discriminate against an employee be-
cause he [or she] has filed charges or given testimony under
[the] Act.’’ The Company denied this allegation. As the evi-
dence showed that these discharges occurred well before Creten
and Mains filed their charge and amended charge against the
Company, I find no merit in this allegation and shall recom-
mend its dismissal.
The Company contends that it made valid unconditional of-
fers of reinstatement to Mains and Creten in April and May
1994. The General Counsel disputes the validity of these offers
KRIST OIL CO. 843
of reinstatement and urges me to find that the Company vio-
lated Section 8(a)(1) and (4) of the Act by reinstating Mains as
a trainee, assigning her to onerous and excessive work, subject-
ing her to surveillance by permitting her to work only in accor-
dance with her immediate supervisor’s work schedule, and by
refusing to permit her to work on a day when her supervisor
was not at work, thereby depriving Mains of 1 day’s pay. I find
merit in the General Counsel’s challenges to the offers of rein-
statement and his allegations regarding the Company’s treat-
ment of Mains on and after May 4, 1994.
To be valid, an offer of reinstatement to a discharged em-
ployee must be firm, clear, unconditional, and made in good
faith. Brenal Electric, 271 NLRB 1557 (1984). Here, I find
much to negate the Company’s claim of good faith. In April
1994, and again on May 3, 1994, the Company offered uncon-
ditional reinstatement to Yvonne Mains. The offer of May 3,
1994, also assured Mains that the Company would not unlaw-
fully harass her. Five minutes after she reported for work on
May 5, however, the Company made Mains unhappy. Her im-
mediate supervisor, Denise O’Donnell, assigned almost 7 hours
of shelf cleaning to Mains. This was an unusual and onerous
assignment for one employee. Mains had not spent more than 2
percent of her working time cleaning shelves since the incep-
tion of her employment by the Company in July 1992. Usually,
O’Donnell divided this task over three shifts for 3 days over a
weekend. Each cashier would clean a section of shelves along
with her other duties.
Further, on May 4, 1994, the Company did not reinstate
Mains to her former position as a fully trained cashier. Instead,
the Company brought her back to work as a trainee, with work-
ing hours the same as those enjoyed by her supposed mentor,
Store Manager O’Donnell. The Company has not shown the
necessity for such training. Nor has the Company offered to
explain why it limited Mains’ working hours to those assigned
to the store manager. In any event, on May 4, 1994, Mains
quickly reacquainted herself with the working of her till, and
received instructions from O’Donnell on a procedure for ring-
ing up diesel discounts. O’Donnell explained that the Escanaba
store’s procedures were pretty much the same as they had been
when Mains had left in 1993. On May 6, 1994, only 2 days
after her reinstatement, the Company deprived Mains of em-
ployment and pay for 1 day on the excuse that O’Donnell was
not working on that day. As of May 18, 1994, the Company
continued to classify Mains as a trainee. I find from its treat-
ment of Yvonne Mains on and after May 4, 1994, that the
Company’s offers of reinstatement to her in April and May
1994 were not made in good faith.
I find that Mains’ participation in the meeting of May 6, and
her role as a Charging Party in Case 30–CA–12137, were moti-
vating factors in the Company’s decision to reinstate her as a
trainee, schedule her work so that O’Donnell could keep an eye
on her, and require her to clean shelves for almost seven hours.
I have arrived at this inference after considering the Company’s
unlawful conduct prior to May 4, 1994.
The Company showed hostility toward Mains’ and Creten’s
leading roles in the meeting of May 6, when it discharged them
on May 18 in violation of Section 8(a)(1) of the Act. As found
below, the Company resorted to similar unfair labor practices
on July 26, when it terminated employees Johnson and Koski at
its Iron River base facility, because they engaged in similar
conduct protected by Section 7 of the Act. The commencement
of the hearing in the cases involving those unlawful discharges
began on April 19 and 20, 1994. This event may well have
added fire to the Company’s demonstrated hostility toward
Mains. Thus, in early May 1994, when Mains accepted its offer
of reinstatement, I find it likely that the Company’s manage-
ment, including Smetak and O’Donnell, were not happy to see
her back.
The harshness of the treatment that O’Donnell inflicted on
Mains after she returned to work on May 4, 1994, provided
strong evidence of the Company’s displeasure at having her
back in the Escanaba store. By tying Mains’ hours of employ-
ment to her own, and treating her as a trainee, O’Donnell could
keep watch on Mains and discourage the employee from engag-
ing in discussions of working conditions and other mutual con-
cerns with other company employees. O’Donnell, with
Smetak’s blessing, harassed Mains by inflicting almost 7 hours
of disagreeable work on her. Finally, O’Donnell inflicted finan-
cial loss on Mains by depriving her of a shift and wages on
May 6, 1994.
The Company did not offer any explanation sufficient to re-
but the General Counsel’s prima facie showing that Mains par-
ticipation in the meeting of May 6 and her role as a charging
party in the instant proceedings, were motivating factors in the
Company’s decision to inflict on her the punishment detailed
above, when she attempt to return to her former employment on
and after May 4, 1994.12 Accordingly, I find that the Company,
by this conduct toward Mains, violated Section 8(a)(1) and (4)
of the Act.
The treatment that the Company accorded Mains when she
accepted its offer of reinstatement suggested that a similar re-
ception awaited Creten. After all, the Company had terminated
both of them for their leadership of the employees at the meet-
ing of May 6 with Smetak. Further, Creten was a charging party
in Case 30–CA–12137, as was Mains. Thus, it was likely that if
Creten accepted the offers of reinstatement dated April 15,
1994, and May 3, 1994, respectively, the Company would have
inflicted harsh treatment on her similar to that which it devised
for Mains.
The Company’s offers of reinstatement to Creten must also
be viewed in light of the Company’s persistence in violating the
Act in April and May 1994, as found below, when it discrimi-
nated against employee Donald Maglio because he testified in
these proceedings, and again when it imposed unlawful restric-
tions on its employees’ exercise of rights protected by Section 7
of the Act. These additional violations added to the already
considerable risk confronting Creten. I find, therefore, that the
Company’s offers of reinstatement, made to Creten on April 15
and May 3, 1994, were not made in good faith. See Woodline
Motor Freight, 278 NLRB 1141, 1143 (1986), enfd. in perti-
nent part 843 F.2d 285, 291 (8th Cir. 1988).
B. Richard Johnson and Brian Koski
1. The facts
The Company hired Richard Johnson and Brian Koski in
1991, and employed them as part of a group of 12 to 15 tank
truckdrivers, based at its Iron River, Michigan headquarters,
under the immediate supervision of Fleet Supervisor Edward
Jardanowski. The tank truckdrivers’ principal function was to

12 In a letter to Mains, dated May 3, 1994, Smetak explained why the
Company had assigned her to the day shift. The Company has never
provided an adequate explanation of why it would not permit Mains to
work on the day shift on May 6, 1994.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
deliver fuel to the Company’s 39 Citgo/Quick Mart conven-
ience stores in the Upper Peninsula of Michigan and in Wis-
consin.
On July 14, the Company issued the following notice to its
tank truckdrivers:

EFFECTIVE JULY 1, 1993 KRIST OIL WILL NO
LONGER ALLOW ANY HOURS FOR WAREHOUSE
ORDER DELIVERY, CHANGING LIGHTBULBS ON
CANOPIES, GAS PUMP HOSE OR NOZZLE
REPLACEMENTS, OR GARBAGE PICK-UP. ALL
TRUCK DRIVERS ARE REQUIRED TO TAKE
WAREHOUSE ORDERS, CHANGE HOSES, NOZZLES
OR CANOPY BULBS WHEN REQUESTED, PICK UP
GARBAGE, AND ALSO PICK UP MAIL.

IN OTHER WORDS, NONE OF YOUR DUTIES ARE
CHANGING, AND ALTERNATIVELY WE WILL
ADJUST YOUR MILEAGE RATE UPWARD BY 1/2
[CENT]. ALL PAY WILL BE BASED UPON MILES
ONLY. THE LOW MILEAGE TRIPS WILL BE
ASSIGNED AS EQUALLY AS POSSIBLE.

WE HAVE ALSO DECIDED TO PUT A CAP ON THE
AMOUNT WE WILL PAY FOR HEALTH INSURANCE.
PATTI LEONOFF WILL BE ISSUING A NOTE OF EX-
PLANATION IN THE NEAR FUTURE.

Thereafter, in July, the Company issued a second notice an-
nouncing, in pertinent part:

Effective immediately the Krist Oil Co mileage rate will be
increased by 1/2 cent per mile. This is to compensate you for
the grocery repair and garbage work you are asked to do.

This increase is in addition to the 1/2 cent you received on
July 1, 1993. Your next pay check will be adjusted to make
the increase retroactive to July 1st.

On reading the quoted notice, Johnson, Koski, and the Com-
pany’s other Iron River-based tank truck drivers became upset
about the changes in wages. The drivers decided to have a
meeting to consider what to do about the loss of hourly wages
that the Company had heretofore granted for the chores listed in
the notice. The meeting was scheduled for July 20, after work,
at a park in Iron River.
On July 17, at a Company Citgo gas station in Iron River,
John Baldwin approached employee Richard Johnson and
stated that he had just quit his job with the Company because of
the above-quoted notice. General Manager Donn Atanasoff
joined them and criticized Baldwin for quitting. Donn said that
the two 1/2-cent increases would adequately compensate the
drivers for loss occasioned by the policy changes.
Employee Johnson took exception to Donn’s remarks, argu-
ing that the 1/2-cent increases were not enough. Johnson men-
tioned that the drivers were planning a meeting among them-
selves, at which they planned to draft a letter setting forth their
wishes, which they would present to Donn. Donn replied that
he wanted to hear from the employees.13

13 Donn Atanasoff testified that at the time he terminated Johnson
and Koski, he knew nothing about their efforts to organize the Com-
pany’s drivers and nothing about a meeting. He also denied that John-
son told him about a scheduled drivers’ meeting. After much question-
ing and evasion, Atanasoff conceded that prior to his decision to fire
the two drivers, he assumed the drivers had a meeting. As Johnson
impressed me as a more candid witness, however, who seemed consci-
A few days before the drivers’ meeting, Company President
Krist Atanasoff met employee Brian Koski in the Company’s
Iron River parking lot. Krist motioned, trying to get Koski to
approach Atanasoff’s truck. Koski ignored Krist’s gesture.
Krist moved his truck toward Koski and again motioned to get
Koski into the truck. When Koski opened the truck door, Krist
asked why Koski and the other drivers were “so pissed off.’’
Koski answered in substance that the men were “mad’’ because
they were losing money.
Using a chart, Krist tried vainly to convince Koski that the
drivers would be making money rather than losing it under the
Company’s new wage policy. Krist threw the chart into the
back seat of his truck and in substance said that the Company
and its drivers had to work the problem out. Finally, Krist
warned that if the employees started organizing, he would
blackball Koski from Iron River and any job Koski held in the
county.14
On July 20, Richard Johnson, Brian Koski, Donald Maglio,
and six other company drivers met in a small park in Iron
River. Koski told his colleagues of Krist Atanasoff’s threat to
use blackballing if the employees began organizing. The as-
semblage began discussing holiday pay, vacations, and loading
and unloading pay. They drew up a list of demands including
improved wages, holiday pay, no overnight runs, and a change
in vacation policy. I find from Maglio’s uncontradicted testi-
mony that he incorporated the list in a letter, which he prepared
for presentation to the Company. The employees selected Rich-
ard Johnson to present the letter on behalf of the drivers, re-
ferred to in the letter as “the Krist Oil Transport Drivers.’’
Johnson presented the letter to Krist Atanasoff on July 23 or
24. Krist read the letter and said he would show it to his father,
Stan, and to brother Donn. Johnson remarked that some of the
demands on the letter were negotiable and warned that if the
Company did not deal with them it would lose drivers.
On Monday, July 26, Fleet Supervisor Jardanowski issued
discharge notices to Johnson and Koski. At the top of each
notice was the inscription: “RULES OF CONDUCT
VIOLATIONS WARRANTING IMMEDIATE
TERMINATION OF EMPLOYMENT.’’ The first paragraph of
each notice read:

s regard.
enteous about giving his full recollection, I have credited his account of
their meeting, rather than Don Atanasoff’s.
14 Krist Atanasoff testified about a conversation with Koski in the
latter part of July, after the Company issued its memo of July 14. Ac-
cording to Krist, he asked Koski why there was hostility and dissension
among the tanker drivers. Krist also testified that he broke off the dis-
cussion when Koski became emotional. In response to a leading ques-
tion about whether he had threatened Koski in any fashion, Krist testi-
fied, “No.’’ On cross-examination, Krist’s recollection of details of the
conversation suffered from lapses of memory. He also testified that
until this proceeding, he had no knowledge of the term “blackballing.’’
Krist did not deny using language, however, that Koski might have
interpreted to mean “blackballing.’’ In any event, his convenient lapses
of memory cast doubt on the reliability of his account of his remarks to
Koski. His quick resort to pleas of “can’t remember’’ and “I don’t
know’’ suggested that Krist was not conscientious about searching his
memory. Given this infirmity in his testimony, his claim that he had
never heard the widely used term “blackballing’’ prior to these
proceedings is difficult to credit, as Krist is 37 years old and has been
in the business world for 20 years. In contrast, Brian Koski testified
about this conversation, apparently presenting his best recollection, in a
full and forthright manner. Accordingly, I have credited Koski’s
testimony in thi
KRIST OIL CO. 845
You have engaged in misconduct jeopardizing the operations
of Krist Oil Company. You have attempted to confuse or frus-
trate the transportation and distribution operations of Krist Oil
Company, hence have engaged in conduct which shows com-
plete and total disregard for your employer’s interests. In ad-
dition, you have created a document which contains de-

mands for wage increases, increased holiday or vacation pay
and terms, additional compensation over and above mileage
rate currently in effect, along with a demand that overnight
runs be elminated.

The second paragraph of each letter gave the following addi-
tional specification of misconduct:

A review of your logbook records shows that you have delib-
erately and falsely logged excessive “in-service’’ hours during
week days in order to get weekends off. As you know, week-
end gasoline deliveries are critically important in Krist Oil’s
operation, and you have made false entries in your logbook in
order to make yourself unavailable for work on weekends,
contrary to the terms of the at will relationship.

A third paragraph in Ed Jardanowski’s letter to Brian Koski
was as follows:

You have made regular statements to your co-workers and
superiors that you will be quitting your job in the near future,
including telling company President Krist Atanasoff on May
15, 1993 that you were seeking alternative employment. It is
Krist Oil’s position that you are deliberately making the false
logbook entries to place the Company in violation of DOT
regulations. It appears that you are willing to jeopardize the
operation of Krist Oil Company and breach policy to further
your own ends.

The letters end with the following paragraph:

Based on the above, your conduct, performance, attitude to-
wards your job and misconduct has resulted in a review of
your employment with Krist Oil, and it has been decided that
your employment with Krist Oil is terminated immediately.
You are hereby discharged.

During their employment at the Company, neither Ed Jarda-
nowski nor Donn Atanasoff nor any other member of its man-
agement had disciplined Johnson or Koski. Nor had the Com-
pany ever warned either of them about any aspect of their per-
formance or conduct, including logbook and timecard entries.
On November 18, at a hearing before the Michigan Em-
ployment Security Commission, Ed Jardanowski, testifying
under oath, admitted that Donn Atanasoff made the decision to
fire Johnson and Koski, and that Donn told Ed that he was fir-
ing them because they arranged the meeting with the other
drivers and presented the letter with the drivers demands to the
Company. At the same hearing, Ed Jardanowski also admitted
that the drivers’ letter caused the Company to fear that the driv-
ers would quit or go on strike. He further testified that the
Company felt that the list of employee demands, which John-
son had presented to Krist Atanasoff, was a threat to its opera-
tion. Absent from Jardanowski’s testimony before the State’s
commission was any claim that false logs played any part in
Donn’s decision to fire Johnson and Koski.15

15 At the hearing before me, Ed Jardanowski, after listening to a tape,
which the State of Michigan subsequently certified to be a true copy of
In October, President Krist Atanasoff met Koski in a com-
pany warehouse and, in the course of conversation, said, “If
you ever want to come back to work for this outfit, you know,
we can let bygones be bygones. You know, come on back. We
need good—we need some—we need drivers.’’ Koski left the
warehouse without responding to Krist’s offer. Thereafter, by
letters dated April 15, 1994, and May 3, 1994, respectively, the
Company made unconditional offers of reinstatement to Koski,
who has not responded to these offers.
In January 1994, Johnson was seeking employment as a
transport driver at U.P. Special Delivery, Inc. When Johnson’s
prospective employer inquired about Johnson at the Company,
Jardanowski said he would not rehire Johnson because he had
engaged in timecard fraud. Jardanowski later confirmed his
response on a reference tracer that U.P. Special Delivery sent to
him for signature. The discharge letter that Jardanowski issued
to Johnson on July 26 did not mention timecard fraud.
Following discussions between some of its officials and
Johnson in February 1994 the Company made three written
offers of reinstatement to him this year. The first, dated March
11, 1994, recited that the Company was offering him reinstate-
ment to his former driving position at full pay and benefits, and
with credit for previous employment toward 2 weeks of vaca-
tion. The Company did not make it an unconditional offer,
however. By letters of April 15, 1994, and May 3, 1994, the
Company made unconditional offers of reinstatement to Rich-
ard Johnson. Johnson has not responded to these offers.
2. Analysis and conclusions
The General Counsel urges me to find that the Company dis-
charged Koski and Johnson because of their apparent leader-
ship in the organizing of the Iron River drivers, which resulted
in a list of demands by those employee for improved wages and
conditions of employment. Koski had argued with Krist about
the Company’s new wage policy. Johnson had told Donn that
the drivers were unhappy with those policies and intended to
meet about them. It was Johnson who presented the employees’
demands to Krist. According to the General Counsel, here, as at
the Escanaba store, the Company discharged two employees
because they had engaged in concerted activity protected by
Section 7 of the Act, and thereby violated Section 8(a)(1) of the
Act. In its brief, the Company contends that it fired Koski and
Johnson because they were the worst offenders among the driv-
ers who were falsifying mileage logs and timecards. Applying

the proceedings before the Michigan Employment Security Commis-
sion, denied that the voice, which the tape identified as his, was his.
Jardanowski admitted before me that he had testified at an unemploy-
ment compensation hearing involving Johnson and Koski, however, in
which the Company was disputing their claims for unemployment
benefits. Jardanowski also admitted that at the State’s proceedings he
had testified that the Company felt that Johnson and Koski were a
threat; that Koski, Johnson, and the drivers composed a letter that they
gave to the Company through Krist Atanasoff; that the drivers were
looking for more money; and that it was Donn Atanasoff’s decision to
terminate Johnson and Koski. These same admissions were contained
in the State’s certified tape. Jardanowski’s attempt to repudiate his
taped admissions together with his subsequent denial that he had given
an affidavit to a Board agent, followed by an admisson on cross-
examination that he had given such an affidavit, and his attempt to
repudiate the same affidavit in answer to a leading question by counsel
for the Company, cast considerable doubt on Jardanowski’s credibility
when he testified in support of the Company’s explanation for John-
son’s and Koski’s discharges.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
the principles recited in my discussion of the Escanaba dis-
charges, I find merit in the General Counsel’s position.
I find that Johnson and Koski by their participation in the or-
ganizing of and the conduct of the meeting of July 20, and their
roles in the preparation of the list of demands as a result of that
meeting, engaged in concerted activity protected by Section 7
of the Act. I also find that as early as July 17 Krist Atanasoff
and his brother Donn were aware of the pending meeting and
its purpose.
That the Company was hostile to employees who sought to
exercise Section 7 rights was suggested by its resort to unlawful
discharges to punish employees Mains and Creten 2 months
earlier. Such hostility surfaced shortly before the Iron River
drivers meeting. At that juncture, Company President Krist
Atanasoff violated Section 8(a)(1) of the Act when he threat-
ened to impair Koski’s employment opportunities in Iron River,
and the surrounding county, by blackballing him if he organ-
ized the Company’s drivers. Certainly, the timing of Johnson’s
and Koski’s unheralded discharges, only 2 or 3 days after John-
son had submitted the drivers’ demands to President Krist,
provides further evidence that the drivers’ meeting and the
demands arising from the meeting had provoked Krist and his
brother Donn.
The Company’s discharge letters, referring to the drivers’
demands, and Fleet Supervisor Ed Jardanowski’s testimony on
the Company’s behalf before the Michigan Employment Secu-
rity Commission provide strong evidence that the motivating
factors in Donn Atanasoff’s decision to discharge Johnson and
Koski were their roles in the meeting of July 20 and the draft-
ing of the drivers’ demands. Indeed, Jardanowski’s admissions
before the State’s agency show that Donn’s only motive was to
punish Johnson and Koski for their Section 7 activity.
The Company’s brief, ignoring the General Counsel’s prima
facie case, asserts that Donn Atanasoff decided to terminate
Johnson and Koski because they were “the worst offenders’’
among unnumbered and unidentified drivers, when it came to
“manipulating mileage logs and over-marking claimed hours
worked.’’ The quoted language reflects Donn’s testimony in
these cases. This was only the last of a variety of reasons, how-
ever, Donn had presented to explain his decision to fire the two
drivers.
Donn’s testimony before me is not reflected either in the dis-
charge letters of July 26, or in his letters of August 11, Septem-
ber 8, and 21 to the Michigan Employment Security Commis-
sion, which purported to reflect his reasons for discharging
Johnson and Koski. The letters to Johnson and Koski gave, as
one reason for their discharges, that they “deliberately and
falsely logged excessive ‘in-service hours’ during week days in
order to get weekends off.’’
Nor was Donn’s testimony consistent with the Company’s
letters to the commission, dated August 11, September 8, and
21. In the letter dated August 11, Donn, signing for the Com-
pany as “General Manager Attorney at Law,’’ adopted the rea-
sons given in the discharge letters of July 26. In the letter of
September 8, Donn, signing as “Attorney for Krist Oil,’’
changed the reasons, asserting that the Company terminated
Johnson “for falsifying wage and/or logbook information, both
in violation of Federal and Michigan Department of Transpor-
tation regulations.’’ In his letter of September 21, Donn signing
as “General Manager Attorney at Law,’’ reduced their offense
to “falsifying wage reports.’’
On November 18, Jardanowski, the Company’s witness be-
fore the Commission, abandoned the false logging reason,
given in the discharge letters bearing his signature, and admit-
ted that Donn saw the two employees as a threat because of the
demand letter and because the drivers might quit or strike.
Donn Atanasoff’s resort to shifting and inconsistent reasons
for terminating Johnson and Koski cast doubt on the credibility
of the explanation that the Company urges in its posthearing
brief. Here, as in its attempt to explain Mains’ and Creten’s
terminations, the Company came up with a new reason each
time it was called on to excuse Johnson’s and Koski’s dis-
charges. This circumstance added to the evidence of unlawful
motivation.16
The Company’s attempt to show when Donn Atanasoff made
his decision to fire Johnson and Koski fatally injured the credi-
bility of its defense. Review of the testimony of the Company’s
witnesses shows that its proffered business reason was a hasty
expedient, designed to conceal Donn’s unlawful motive. Jarda-
nowski testified that in April, he recommended to Donn that he
discharge Johnson and Koski for falsifying timecard and driv-
ing log entries and that he relied on such entries that were made
in June and July. Clearly, Jardanowski was asserting, under
oath, that he relied on information that did not exist at the time
of his recommendation. In light of my earlier assessments of his
reliability as a witness, Jardanowski’s testimony that he com-
piled all of the false entries in April 1994, for use in these pro-
ceedings, did not add to my confidence in his testimony regard-
ing his recommendations to Donn.
Donn Atanasoff, whose credibility I have discussed above in
footnote 16, contributed to my disquiet on the following day of
these proceedings, when he repudiated Jardanowski’s testimony
regarding the false entries and the date of the discharge recom-
mendation. According to Atanasoff, Jardanowski “was con-
fused as to his dates.’’ Donn’s testimony was that he instructed
Jardanowski to review logbooks and timecards in a process that
extended from April to June 1993, and in June Jardanowski was
to tell him “who was doing what and what was taking place.’’
Assuring me that he remembered, Atanasoff testifed that he
made the decision to terminate Johnson and Koski in mid-June.
Atanasoff’s testimony did not include any assertions about
what Jardanowski reported in June, however, or what records

16 Before me, Donn Atanasoff denied that the list of demands that
employee Johnson handed to Krist Atanasoff formed the the basis of
Johnson’s and Koski’s termination. Donn then testified, in substance,
that in his view, the employees’ demands were nothing more than an
effort to roll back the Company’s new wage policy announced on July
14. Donn’s denial contradicted Fleet Supervisor Jardanowski’s admis-
sions before the Michigan Employment Security Commission. In re-
solving this conflict, I have examined Donn’s testimony and found it
wanting in reliability. I have noted his use of different reasons at differ-
ent times to explain the two discharges, his evasiveness on cross-
examination and his denial that he had anything to do with Johnson’s
and Koski’s unemployment benefits claims before the Michigan agency
prior to November, when in fact he sent letters to the agency in August
and September seeking to block their benefits. At another juncture in
his testimony, Donn asserted that Jardanowski had participated in the
decision to discharge Johnson and Koski. When pressed again, Donn
admitted that he made the decision himself. In these two episodes, as in
other instances during his testimony, Donn seemed to be improvising as
he fenced with counsel for the General Counsel, instead of giving his
best recollection. These flaws in Donn’s testimony and demeanor
caused me to reject his testimony when it conflicted with Jardanowski’s
admissions before the Michigan Employment Security Commission.
KRIST OIL CO. 847
Donn relied on when he made his decision to terminate “the
two worst offenders.’’
Donn’s characterization of Johnson and Koski as “the two
worst offenders’’ was a new twist in the Company’s explana-
tion. In the letters announcing the reasons for Donn’s decision
to discharge Johnson and Koski, their misconduct was that they
“deliberately and falsely logged excessive ‘in-service’ hours
during week days in order to get weekends off.’’ Review of
Donn’s letters to the Michigan Employment Security Commis-
sion dated August 11, and September 8 and 21, respectively,
did not say anything about Johnson being one of “the two worst
offenders’’ in the falsifying of wage or logbook entries. His
own testimony on April 20, 1994, confirmed that fact. Thus, it
appeared that on May 17, 1994, Donn was inventing a new
excuse for his decision to fire the two employees, who had
complained about the Company’s new wage policy, partici-
pated in the drivers’ meeting, and in the drafting of the de-
mands for improved wages and conditions of employment,
which Johnson presented to Krist Atanasoff. This aspect of
Donn’s testimony cast serious doubt on the reliability of his
claim that he made this decision on June 15 after receiving
reports from Jardanowski.
Indeed, neither Donn nor Jardanowski pointed out what it
was in the Company’s records that showed that Johnson and
Koski were the “worst offenders.’’ What facts convinced Donn
that he was firing the worst offenders? Who were the other
offenders and how extensive was their falsification? Donn, who
made the decision to fire Johnson and Koski did not provide
any light in this regard. Donn’s failure to disclose the basis for
his view that Johnson and Koski were “the worst offenders’’
provided the final blow to his credibility in this regard.
I find that the Company has not shown by credible evidence
that Donn Atanasoff made his decision on June 15 on informa-
tion provided to him by Fleet Supervisor Jardanowski. In sum,
the Company has not substantiated its defense that business
reasons motivated Donn’s decision to discharge Johnson and
Koski. Instead, I find that the Company’s proffered explanation
was pretextual.
Further, I find the Company has failed to rebut the General
Counsel’s prima facie showing that it discharged employees
Johnson and Koski because they engaged in concerted activity
protected by Section 7 of the Act. By discharging these em-
ployees, I find that the Company violated Section 8(a)(1) of the
Act.
The General Counsel also alleged, and the Company denied,
that it discharged Johnson and Koski in violation of Section
8(a)(4) of the Act. The General Counsel has not made the nec-
essary prima facie showing required by that section of the Act.
Johnson filed his charges after his and Koski’s discharges.
There is no showing that Koski filed a charge against the Com-
pany. I shall recommend dismissal of this allegation.
I further find that Jardanowski, acting on the Company’s be-
half, used the pretext of timecard fraud to impair Johnson’s
opportunity for employment at U.P. Special Delivery, Inc. in
January 1994. Jardanowski thus blackballed Johnson because
he attended the drivers’ meeting on July 20, and because John-
son helped in drawing up the drivers’ demands for improved
wages and conditions of employment and presented them to the
Company. By Jardanowski’s action in this regard, the Company
violated Section 8(a)(1) of the Act.
I also find that the Company’s offers of reinstatement to
Johnson and Koski were not made in good faith. In making this
finding, I have considered the Company’s unlawful conduct
toward Mains, after she accepted a similar offer. I have also
borne in mind the Company’s persistence in violating the Act
in the spring of 1994, as found below, when it discriminated
against employee Donald Maglio because he testified in these
proceedings, and again when it imposed unlawful restrictions
on its employees’ exercise of rights protected by Section 7 of
the Act.
Here, as in the case of Mains and Creten, the Company dis-
charged the two Iron River drivers because they had partici-
pated in a meeting with other employees and had joined with
them in pressing the Company for improved wages and condi-
tions of employment. Further, Johnson emulated Mains by
filing unfair labor practice charges against the Company. The
first was in December, alleging that the Company terminated
him in violation of Section 8(a)(1) of the Act. On March 24,
1994, Johnson filed a second charge in Case 30–CA–12476,
alleging that the Company had blackballed him in violation of
Section 8(a)(1) of the Act. In light of the Company’s continuing
disregard of the Act and its harsh treatment of Mains, I find it
likely that Johnson and Koski would have encountered equally
harsh treatment had they accepted the Company’s offers of
reinstatement. Thus, it was not necessary for them to respond to
the Company’s offers. See Woodline Motor Freight, 278 NLRB
1141, 1143 (1986), enfd. in pertinent part 843 F.2d 285, 291
(8th Cir. 1988).
C. Donald Maglio
1. The facts
On April 19, 1994, Company Transport Driver Donald
Maglio testified before me in these proceedings. An 8-year
employee, Maglio testified on behalf of the General Counsel,
recounting how the Company’s announcement of its new wage
policy, effective July 1 of the previous year, had impacted on
him and the other drivers. He testified that he believed that the
new policy would deprive the drivers of “quite a bit of our
pay.’’ Maglio went on to testify about the drivers’ meeting;
where it was, who was there, and the demands that he and the
other participants drew up. He testified that Koski had reported
Krist’s blackballing threat to the drivers at the meeting. Maglio
also identified the written list of demands that Richard Johnson
presented to Krist Atanasoff. I find from Maglio’s testimony
that he prepared the list of demands from the notes someone
took at the meeting.
Maglio testified about another meeting of the Company’s
drivers. This occurred after the Company fired Johnson and
Koski. Maglio testified that the purpose of the meeting was to
determine what if anything the drivers should do about the
firings. The drivers decided to do nothing.
According to Maglio’s testimony, shortly after the Company
discharged Johnson and Koski, Fleet Supervisor Jardanowski
instructed Maglio to keep his logged hours down a little. Ma-
glio testified that he told Jardanowski that he would not do it as
it would be illegal.
Almost 4 months before he testified in these proceedings, the
Company had disallowed Maglio’s claim for extra pay for
changing a diesel pump nozzle, without disciplining him. Yet
the new company policy specifically barred such work from
extra pay. Smetak admitted that he did not discipline Maglio for
that claim.
On April 21, 1994, Jardanowski directed Maglio to appear in
Jardanowski’s office. Jardanowski showed the Company’s new
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
wage policy announcement dated July 14 to Maglio and asked
him if he understood it. Maglio said he did.
On the following day, when Maglio arrived at the Com-
pany’s Iron River terminal, he received a note from Jarda-
nowski directing him to see Richard Smetak. Smetak delivered
a written reprimand to Maglio for claiming 1 hour for deliver-
ing a split load. The reprimand also warned that Maglio could
be discharged if he failed to comply with company rules and
regulations.
On Monday, April 25, 1994, the Company notified Maglio
that it intended to remove the reprimand from his record. On
the following day, Maglio went to the Company’s office and
learned from Smetak that the Company was rescinding his rep-
rimand. On the same day, Smetak and Maglio signed a com-
pany form on which Smetak declared that the hour had not been
paid and “therefore is not a matter of concern.’’ The same form
announced that the warning of April 21, 1994, had been re-
moved from Maglio’s personnel record.
Smetak’s testimony suggests that he issued the reprimand
first and then investigated Maglio’s claim for 1 hour’s pay for
delivering one load to two destinations. On direct examination,
Smetak admitted that he inferred that the Company had paid
Maglio for the 1 hour, from a timecard entry and hearsay.
Prior to April 21, 1994, Smetak did not talk to Maglio about
his claim for 1 hour’s pay for a split load.17 The timecard entry
did not include any indication of payment. At the time he
signed the reprimand, in Smetak’s presence, Maglio asserted
that he was not sure that he had been paid for the hour. Maglio
also said that if he had been paid for the hour, he would return
the money.
Smetak admitted that prior to Maglio’s warning, he had not
warned any company driver. When asked why he had singled
Maglio out, he answered, “Because of my investigation in the
time card.’’ Yet Smetak went on to admit that he had investi-
gated the timecards of numerous other drivers, had found er-
rors, and had warned none of them.
2. Analysis and conclusions
The General Counsel contends that the Company violated
Section 8(a)(4) and (1) of the Act by harassing Maglio. The
Company points to its retraction of the warning issued to
Maglio and his testimony showing that this corrective action
has calmed his animosity and contends that it did not harass
him. Guided by Wright Line, 251 NLRB 1083 (1980), enfd. on
other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), I find that the General Counsel has shown that
the warning that the Company issued to Maglio on April 21,
1994, was a reprisal for his his testimony before me.
Section 8(a)(4) of the Act makes it an unfair labor practice
for an employer to take adverse action against an employee for
giving testimony before the Board. See NLRB v. Scrivner, 405
U.S. 117, 124–125 (1972). Here, I find much to suggest that the
Company issued a reprimand to Maglio because of his testi-
mony before me on behalf of the General Counsel. The repri-
mand came but 2 days after Maglio had testified in support of
the General Counsel’s contention that the Company had unlaw-

17 On cross-examination, Smetak insisted that he had questioned
Maglio before issuing the warning. In his effort to show that he had
investigated before disciplining Maglio, Smetak first testified that the
document issued to Maglio on April 21, 1994, was “a conference.’’
When pressed by counsel for the General Counsel he finally conceded
that it was a disciplinary action.
fully discharged Johnson and Koski. In that same testimony,
Maglio disclosed his participation in the employees meeting
and in the preparation of their demand letter. He also revealed
that he put the letter in its final form. Thus Maglio showed that
he had been a leading figure in the Section 7 activity that had
provoked the Company to discharge employees Johnson and
Koski.
Smetak’s haste in issuing the reprimand suggests that the
Company was anxious to show its hostility toward Maglio.
Smetak, the author of the reprimand, composed it so swiftly
that he issued it without investigating Maglio’s thinking about
why he was entitled to the hour’s pay. Nor did Smetak make
any effort prior to issuing the letter of reprimand and the warn-
ing to find out if Maglio had been paid for the 1 hour. Further,
Smetak admittedly singled Maglio out for discipline, notwith-
standing that other drivers made errors on their timecards. The
Company’s willingness to use its economic power to punish
employee for exercising their Section 7 rights, suggests the
likelihood that it would do likewise to those assisting the vindi-
cation of those rights. In sum, I find that the General Counsel
has made a prima facie showing that Maglio’s statutorily pro-
tected activity in 1993 and his participation in these proceed-
ings as a witness for the General Counsel were motivating fac-
tors in Smetak’s decision to discipline Maglio on April 21,
1994.18
If Smetak had investigated Maglio’’s claim for 1-hour pay
for a split load he might have withheld the reprimand. For, as
Smetak found out, after disciplining Maglio, “the hour was not
paid, and therefore is not a matter of concern.’’ Also, if he had
looked into the matter, Smetak might have reexamined the
Company’s announcement of a new wage policy, dated July 14,
and seen that it did not say anything about not allowing an hour
for a split load. Perhaps Maglio would have shown Smetak a
memo from President Krist Atanasoff to the Company’s driv-
ers, dated May 23, 1990, which announced that from that date
on, “You will be paid for a split load.’’ Instead, Smetak hastily
reached out for the chance to punish Maglio. This haste and the
failure to investigate cast doubt on Smetak’s testimony in
which he tried to show an economic reason for punishing
Maglio. Indeed, these two factors add to the evidence of unlaw-
ful motives.
The record shows that almost 4 months before he testified in
these proceedings the Company had disallowed Maglio’s claim
for extra pay for changing a diesel pump nozzle without disci-
plining him. Yet the new company policy specifically barred
such work from extra pay. Smetak admitted that he did not
discipline Maglio for that claim. The Company offered no ex-
planation for the disparity between the two incidents. The Gen-
eral Counsel’s prima facie case provided an explanation show-
ing unlawful motives.
I find that the Company has failed to rebut the General
Counsel’s strong showing that Smetak seized on a pretext to
punish Maglio because he had participated in the drivers’ meet-
18 The General Counsel did not contend that Maglio’s participation
in the drivers’ meeting and in the preparation of their demands was a
second motive for disciplining Maglio on April 21, 1994. The contents
of Maglio’s testimony have been fully litigated, however, and the
Company has been put on notice by the consolidated complaint that the
legality of its disciplinary action against Maglio was under scrutiny.
Accordingly, I have considered whether the Company had two motives
when it disciplined Maglio on April 21, 1994. Sawyer of Napa, Inc.,
300 NLRB 131, 137 fn. 16 (1990).
KRIST OIL CO. 849
ing, had prepared their demand letter, and had testified at the
Board hearing in these cases. Accordingly, I further find that by
Smetak’s issuance of a reprimand and a warning to Maglio on
April 21, 1994, the Company violated Section 8(a)(1) and (4)
of the Act.
I also find that the Company’s new wage policy did not
countermand Krist Atanasoff’s memorandum of May, 23, 1990,
which declared that from that date on the Company would pay
drivers for split loads. By withholding 1 hour’s pay from
Maglio for delivering a split load on April 7, 1994, I find the
Company further violated Section 8(a)(1) and (4) of the Act.
The Company’s retraction of the warning on April 26, 1994,
did not remedy these unfair labor practices. The retraction did
not include the unlawful reprimand. Nor did the Company no-
tify its drivers that it had retracted the warning issued to
Maglio, In short, these unfair labor practices remain unreme-
died.
D. The New Rules
On May 12, 1994, Escanaba Store Manager Denise
O’Donnell asked Yvonne Mains to read over a new three-page
checklist entitled, “Krist Oil Company Employee Conduct
Check List,’’ initial each item on the list, and then sign the last
page, witnessd by O’Donnell. The checklist included the fol-
lowing rules:

34. Solicitation of employees by other employees,
and/or the distribution of of literature between employees
is prohibited during all work time. Work time means any
time when the person soliciting or being solicited is or
should be working.
35. Distribution of literature, pamphlets and other ma-
terials between employees is prohibited in work areas at
all times. Work area includes any and all places where
employees regularly work, confer or conduct business.
40. Creating or repeating any false, defamatory or de-
rogatory statements concerning a co-employee, superior,
vendor or any person. This policy is not limited to the
Krist Oil premises, property or persons.

On or about May 9, 1994, the Company promulgated a
handbill entitled “Krist Oil Company No Solicitation Policy’’
to its Escanaba store employees. The handbill incorporated the
contents of rules 34 and 35, above. In addition, the handbill
restricted solicitation and distribution by nonemployees on the
Company’s premises and unauthorized sales and solicitations of
orders for any type of product or service to anyone on the
Company’s premises.
On May 14, 1994, at Iron River, the Company held a meet-
ing of its drivers, at which it announced a new set of rules and
regulations for them. Included in this new dispensation, were
rules similar to those quoted above and to the rules included in
the handbill that the Company promulgated at the Escanaba
store earlier in the month. In addition, the new rules and regula-
tions for the Company’s drivers included the following:

7. Drivers are strictly prohibited from using their C.B. Radio
except to discuss specific driving responsibilities, which re-
quire communication with other drivers. All other use is
strictly prohibited.

One of the drivers asked President Krist Atanasoff for clari-
fication of rule 7, Krist explained that the drivers could talk
about fishing, hunting, or say hello to their colleagues, but
could not discuss anything pertaining to the Company, how it
treated the drivers, what goes on in the Company, or anything
else about the Company. Krist also said that if the drivers had
any gripes or complaints, they were to take them up with the
Company and the Company would take care of them.
The Board has recognized that otherwise valid no-
solicitation and no-distribution rules violate the Act when they
are promulgated to interfere with employee rights protected by
Section 7 of the Act, rather than to maintain production and
discipline. Harry M. Stevens Services, 277 NLRB 276 (1985).
Here, the General Counsel alleged that in May 1994 the Com-
pany unlawfully promulgated the rules quoted above. The
promulgation of these new rules followed in the wake of the
Company’s unlawful efforts to punish five employees for exer-
cising rights protected by Section 7 of the Act. Also, they came
soon after Maglio had testified before me criticizing the Com-
pany’s wage policy. Had they been in effect in the the spring
and summer of 1993, these rules would have squelched any
thought by Mains, Creten, Johnson, Koski, and Maglio of en-
listing other employees in the work of drafting, discussing, and
finally preparing lists of demands for improved wages and
working conditions. Also, rule 40 might have discouraged
Maglio from testifying about his supervisor, company man-
agement, and the company wage policy on behalf of the Gen-
eral Counsel in these proceedings. Further, the Company has
not shown that it promulgated these rules to maintain its busi-
ness operations properly and its employees’ discipline. Accord-
ingly, I find that Company’s no-solicitation and no-distribution
rules, its rule against false, defamatory, or derogatory state-
ments, and its restrictions on the use of CB radios, all of which
it promulgated in May 1994, were designed to restrain, coerce,
and interfere with its employees’ enjoyment of their rights un-
der Section 7 of the Act and therefore violated Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. By discharging Yvonne Mains, Jodi Cretan, Richard John-
son, and Brian Koski, threatening to blackball Richard Johnson,
attempting to blackball Richard Johnson, by promulgating no-
solicitation and no-distribution rules, by restricting employees’
speech on and off its premises regarding wages, hours, and
conditions of employment, and by restricting it employees’ use
of CB radios in its trucks, to prevent them from engaging in
concerted activity protected by Section 7 of the Act, the Com-
pany has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
2. The Company violated Section 8(a)(1) and (4) of the Act
by:

(a) Reinstating Yvonne Mains as a trainee, under De-
nise O’Donnell’s surveillance, imposing onerous tasks on
Mains, and denying her employment and 1 day’s pay.
(b) Harassing Donald Maglio by disciplining him.
(c) Refusing to pay Donald Maglio 1 hour’s pay for
delivering a split load on April 7, 1994.
(d) Attempting to blackball Richard Johnson.

3. The Company did not violate Section 8(a)4 of the Act by
discharging employees Mains, Creten, Johnson, and Koski.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Company having unlawfully discharged employees, it
must offer them reinstatement and make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from the date of discharge to the date of a proper offer of
reinstatement, less any net iterim earnings as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Company, having unlawfully deprived Yvonne Mains of
1 day’s pay and Donald Maglio, of 1 hour’s pay, must make
them whole for their losses of pay, plus interest as computed in
New Horizons for the Retarded, above.
The Company having given U. P. Special Delivery, a false
derogatory job reference regarding Richard Johnson, I shall
recommend that the Company be required to disavow and
withdraw that reference in a letter to that employer in writing,
and to notify Johnson that it has done so.
I shall also recommend that the Company be required to re-
move from its files any references to the unlawful disciplinary
action against Maglio and the unlawful discharges of employ-
ees Mains, Creten, Johnson, and Koski and notify these em-
ployees that it has done so and that it will not use these adverse
actions against them in any way.
Because the Company has a proclivity for violating the Act
and has, by its egregious unfair labor practices, demonstrated a
general disregard for the employees’ fundamental rights, I find
it necessary to issue a broad Order requiring the Company to
cease and desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act. Hickmott Foods,
242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]