Lana Blackwell Trucking, LLC

National Labor Relations Board - Board Decisions

Sep 15, 2004

342 N.L.R.B. 1059 (N.L.R.B. 2004)

LANA BLACKWELL TRUCKING, LLC
342 NLRB No. 110
1059
Lana Blackwell Trucking, LLC and Michael L. How-
ard. Case 25–CA–28702
September 15, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On April 30, 2004, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The Respon-
dent filed exceptions, a supporting brief, and a reply
brief. 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 exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Lana Blackwell Trucking,
LLC, Norman, Indiana, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified below.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s analysis of the allegations under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), we find sufficient evidence of antiunion
animus based on the statement by owner Lana Blackwell that employ-
ees Michael Howard and Maurice Crowe were her two best drivers, but
they “start too much shit,” a reference to their protected activity.
Furthermore, in its exceptions, the Respondent contends that it had
the right not to recall employees Howard and Crowe for any reason,
including that they engaged in Sec. 7 activity, because the Union had
contractually waived their right to recall. We find no merit in this
exception. The contract provision cited by the Respondent states only
that seniority rights apply to a particular job. The interpretation as-
serted by the Respondent implies that the Union, in negotiating that
seniority provision, was empowered to authorize the Respondent to
make recall decisions for discriminatory reasons in contravention of the
Act, effectively waiving all of the employees’ Sec. 7 rights. However,
it is well established that a union cannot negotiate such a waiver. See
NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322 (1974), and Gen-
eral Motors Co., 158 NLRB 1723 (1966) (union cannot waive the Sec.
7 rights of employees to distribute literature).
Finally, in adopting the judge’s finding that the Respondent unlaw-
fully failed to recall employee Howard from layoff, we do not rely on
his description of Lana Blackwell as a wife and mother of young chil-
dren who might have been intimidated by Howard, as these facts are
irrelevant to the issues involved in this proceeding.
1. Substitute the following for paragraph 2(a), and re-
number the subsequent paragraphs.
“(a) Within 14 days from the date of this Order, recall
from layoff and offer Michael L. Howard and Maurice
Crowe full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Michael L. Howard and Maurice Crowe
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail to recall from layoff or discharge any
of you for engaging in protected concerted activities or
union activities in support of Chauffeurs, Teamsters,
Warehousemen, and Helpers, Local Union 135, affiliated
with International Brotherhood of Teamsters, or any
other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Michael L. Howard and Maurice Crowe full
reinstatement to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Michael L. Howard and Maurice
Crowe whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
ful discharges of Michael L. Howard and Maurice
Crowe, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
the discharges will not be used against them in any way.

LANA BLACKWELL TRUCKING, LLC

Raifael Williams, Esq., for the General Counsel.
James H. Hanson, Esq. (Scopelitis, Garvin, Light & Hanson),
of Indianapolis, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried in Bloomington, Indiana, on November 17–18, 2003,
upon a complaint, dated August 27, 2003, alleging that the Re-
spondent, Lana Blackwell Trucking, LLC, violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act) for
failing to recall from layoff and discharging its employees, Mi-
chael L. Howard and Maurice Crowe, because of their union and,
or concerted activities. The charges were filed by Michael L.
Howard on May 1, 2003.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Lana Blackwell Trucking, LLC, the Respondent, is a corpora-
tion, with an office and place of business in Norman, Indiana,
where it is engaged in the construction industry of providing
dump truck hauling of asphalt and aggregate for its customers,
including the Roger’s Group. With services valued in excess of
$50,000 to the Roger’s Group, an enterprise within the State of
Indiana, which purchased and received at its place of business in
Bloomington, Indiana goods valued in excess of $50,000 directly
from points outside the State of Indiana, the Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Labor Relations Division of Indiana Constructors, Inc.,
herein called ICI-LRD, composed of various employers engaged
in the business of highway, railroad, and underground utility
construction, represents its employer-members in negotiating
collective-bargaining agreements with labor organizations, in-
cluding the Indiana Conference of Teamsters (ICT). ICT is ad-
mittedly a labor organization within the meaning of Section 2(5)
of the Act.
Chauffeurs, Teamsters, Warehousemen, and Helpers, Local
Union 135, a/w International Brotherhood of Teamsters (Team-
sters Local Union No. 135), together with ICT (the Union), is
admittedly a labor organization within the meaning of Section
2(5) of the Act.
Lana Blackwell, Respondent’s owner and president, is admit-
tedly a supervisor within the meaning of Section 2(11) of the Act
and an agent within the meaning of Section 2(13) of the Act.
The following employees of the Respondent constitute a unit
appropriate for the purposes of collective bargaining:

All the employees employed to perform any of the work de-
scribed in “Article 2, Scope-Coverage” of the collective-
bargaining agreement between the Union and the ICI-LRD.

The Union and the ICI-LRD reached a collective-bargaining
agreement effective from April 1, 1999 to March 31, 2004, and
the Respondent agreed to be bound by the terms and conditions
of the collective-bargaining agreement. The Respondent also
entered into a miscellaneous addendum to the collective-
bargaining agreement.
II. FACTS
The Respondent, a small trucking firm headed by Lana
Blackwell, was established in May 2002, as a female-owned
company to qualify under State law, providing for disadvantaged
business enterprises. As a unionized employer, the Respondent
works primarily for the Roger’s Group. Justin Blackwell Truck-
ing is a nonunion company also engaged in the trucking industry,
and is owned and operated by Justin Blackwell, husband of Lana
Blackwell. Both companies operate at the same location and
share the same facility, which is owned by both husband and
wife.
The two alleged discriminatees, Maurice Crowe and Michael
L. Howard, were among eight dump truckdrivers, employed by
Lana Blackwell Trucking. Howard had worked for the Respon-
dent since May 4, 2002, and Crowe had been employed since
July 2002. Both men were mature and experienced drivers who,
in the fall of 2002, started to voice their opinions to management
about their own conditions of employment, as well as the work-
ing conditions of their fellow drivers. Their conduct in this re-
gard resulted in the Respondent’s decision in March 2003 not to
recall them from layoff on December 27, 2002. By memoran-
dum, dated December 27, 2002, the Respondent notified all em-
ployees that they were laid off and were free to sign up for un-
employment insurance benefits. (GC Exh. 4.)
By memoranda, dated March 12, 2003, the Respondent noti-
fied each, Crowe and Howard, as follows (GC Exhs. 5, 6):

You will not be recalled back to work with Lana Blackwell
Trucking, LLC for the new year of 2003. Reference to the
decision can be found in the provisions of the Heavy High-
way agreement.

The Respondent also informed the Union, Teamsters Local
135, by memorandum of March 12, 2003, that four drivers, in-
cluding Crowe and Howard, would not be recalled, stating inter
alia, “The return of these employees will not be beneficial to the
success of the company.” (GC Exh. 7.) In March and April
2003, the Respondent has recalled four employees from layoff
and has hired a total of 13 dump truck drivers, but the alleged
discriminates were not among them.
The General Counsel submits that the Respondent’s failure to
recall Howard and Crowe was unlawful, because the decision
was prompted by the employees’ union activities, and because of
their concerted conduct. The Respondent argues that it was not
obligated to recall the employees under the terms of the collec-
tive-bargaining agreement, that their improper behavior towards
LANA BLACKWELL TRUCKING, LLC 1061
management justified Respondent’s action and that the failure to
recall was not discriminatory.
III. ANALYSIS
Initially, the record shows that the Union considered the Re-
spondent’s failure to recall the employees, but the Union declined
to pursue the matter based on its interpretation of the collective-
bargaining agreement. The Respondent similarly argues that
according to the employment security provisions of the agree-
ment it was not obligated to recall Howard and Crowe. Article
14, section 8, of the agreement provides for project seniority
based upon the jobsite for employees hired after April 1, 1999.
Because Crowe and Howard were hired after that date, their sen-
iority expired on December 31, 2002. Accordingly, so argues the
Respondent, the Company was not obligated to recall the em-
ployees and “to the extent the General Counsel now claims that a
right to recall exists under the highway agreement, this case
should be deferred, pursuant to Collyer.” (R. Br. p. 19.) How-
ever, the General Counsel does not rely on any contractual obli-
gations of the Employer, but argues that the contract language
does not shield the Respondent from its unlawful behavior, even
if the Respondent possessed unfettered discretion as to which
employees to recall from layoff.
Inasmuch as none of the parties relied on any contractual
rights of the employees, it is clear that deferral of the matter to
the grievance procedure in the collective-bargaining agreement is
not at issue. Accordingly, the General Counsel’s motion to re-
open the record and to admit certain evidence relevant to the
deferral issue is denied.
Although the employees may not have had any contractual
rights to be recalled, the question remains whether the Respon-
dent’s decision not to recall Howard and Crowe was discrimina-
tory and motivated by an antiunion purpose or because the em-
ployees had engaged in protected concerted activities. An em-
ployer’s failure to recall employees from layoff motivated by
union considerations is clearly violative of Section 8(a)(1) and
(3). Rushton & Mercier Woodworking Co., 203 NLRB 123
(1973), enfd. 502 F.2d 1160 (1st Cir. 1974). Moreover, actions
by an employee to enforce the provisions of an existing collec-
tive-bargaining agreement are considered concerted activity pro-
tected by Section 7 of the Act. NLRB v. City Disposal Systems,
465 U.S. 822 (1984). The conduct of a single employee may rise
to protected concerted activity where such an employee acts on
behalf of a fellow employee in regard to conditions of employ-
ment. Guardian Industries Corp., 319 NLRB 542, 549 (1995).
Accordingly, the issue presented in the case is whether the con-
duct in this regard by Howard and Crowe was the motivating
factor in the Respondent’s decision not to recall them. As sum-
marized, the record clearly shows that both employees, who were
highly experienced truckdrivers and well regarded by manage-
ment and who were never disciplined, had engaged in union and
concerted activities. The employer clearly knew of their pro-
tected activities, but resented it to such an extent that a decision
was made not to recall them and to hire other drivers instead.
Michael Howard
The General Counsel has cited several incidents as illustrative
of Howard’s union and concerted activities. These incidents are
also relied upon by the Respondent to demonstrate Howard’s
rude and disrespectful attitude toward Lana Blackwell as a justi-
fication for her decision not to recall him.
The first incident described by both parties occurred on Sep-
tember 6, 2002, in connection with employee, Greg Wright.
Blackwell had ordered Wright, a dump truckdriver, to work on
the following Saturday even though he had complained of an
earache and wanted to see his doctor. Threatened with discharge
if he did not follow Blackwell’s order to report for work, Wright
confided in Howard and fellow employee Tom Mitchell. On the
same day, Howard met with Blackwell in the breakroom. Also
present were Blackwell’s husband, Justin Blackwell, Roger
Smale, Respondent’s dispatcher, and Mitchell. In no uncertain
terms, Howard told Blackwell that she could not fire Wright for
refusing to report for work if he had a doctor’s excuse. Howard
testified as follows about the conversation (Tr. 133):

And I told her, “You are not going to fire Greg Wright if he
goes to the doctor and gets a doctor’s excuse and brings it
back. You are not going to fire him. Now, if he don’t come
in after his doctor’s appointment, or he don’t bring in an ex-
cuse, then yes, you would have grounds to discipline him.”

Blackwell similarly testified as to the substance of the conversa-
tion, and recalled that Howard further stated that they would file
grievances with the Union. She recalled the conversation as
follows (Tr. 76):

And he told me that I—that he knows more about the Union
than I do, and that they would definitely get his job back.
He was yelling. He was screaming. He was red in the face.
He embarrassed me in front of all my employees.

The exchange of opinions that day between Blackwell and
Howard also involved the position of the Company’s dispatcher,
Roger Smale, as union steward. Howard told Blackwell (Tr.
133):

Well, I told Lana Roger Smale . . . could not continue being
our shop steward, lead man and a supervisor—in our eyes, a
supervisor. It was a big conflict of interest . . . . The shop
steward is supposed to represent its Union drivers. That is a
shop steward’s responsibilities . . . . And I said, “Roger
Smale cannot be, no longer, our shop steward and supervi-
sor at the same time.” I said, “You can put him in that of-
fice and make him a supervisor. And that’s fine. He can
step down as shop steward and we will vote in another one.
That’s fine.”

Blackwell’s testimony corroborated the substance of the con-
versation: “He just said that it was a conflict for [Smale] . . . he
cannot hold those two positions, that he can’t fairly hold those
two positions.” (Tr. 77.) According to Blackwell, Howard “was
just irate about it.”
As a result of these discussions between Howard and Black-
well, Wright was ultimately excused from reporting to work on
that Saturday, and Smale was no longer the union steward.
Another incident, where Howard confronted management on
behalf of another employee happened on October 22, 2002, when
Blackwell issued a verbal warning to Andrew Brown, a dump
truckdriver. Brown had received the verbal warning on the prior
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
day, October 21, 2002, because of his attitude towards Respon-
dent’s customers. As Howard was turning in his paperwork on
that day, Justin Blackwell motioned for Howard to meet him in
the parts room. Justin Blackwell accused him of contacting the
Labor Board and said, “what business is it of yours, how I run my
company?” Howard denied the accusation and said that he had
not contacted anyone. Toward the middle of the conversation
about Andrew Brown, Lana Blackwell entered the room. How-
ard said to her that he didn’t “think that is proper grounds to write
someone up, just for an attitude.” He also told her that if she
writes up Andy Brown, he would file a grievance, and would get
it thrown out. She would become a laughing stock, according to
Howard, and make the Company look stupid. She replied that he
and Crowe were her two best drivers, but “We start too much
shit.” The Respondent has not denied this incident.
Finally, Howard was also involved in a dispute with manage-
ment about Jan Mills, a driver employed by Justin Blackwell’s
Company. In October 2002, Howard looked at the Respondent’s
dispatch sheets to find his next driving assignments. He also
noticed the dispatch sheets for Justin Blackwell Trucking lying
alongside the others and noticed that Mills had been assigned to
perform prevailing wage work on a Federal Government project.
Howard informed fellow employee Crowe about the assignment,
because Howard felt that Crowe should have performed the pre-
vailing wage work.
Howard and Crowe confronted Justin Blackwell in the Re-
spondent’s lunchroom in the presence of dispatcher Smale, and
informed Blackwell that union employees should have been as-
signed to union work or that Mills should have been paid the
prevailing wage work. Blackwell agreed to pay the higher wages
to Mills. Howard and Crowe also spoke with Lana Blackwell
about this issue in October 2002, reminding her that the prevail-
ing wage work should have been assigned to a union driver and
that Mills should have been paid the appropriate wages. Accord-
ing to her testimony: “They were loud, obnoxious. When they
made comments to me that’s how they made their comments.”
(Tr. 67.) She also confirmed that Mills had approached her and
her husband and informed them that Howard was trying to con-
vince him (Mills) to file a charge against the Company for its
failure to pay the prevailing wage.
The incidents summarized above convincingly show that
Howard had engaged in concerted activities and union activities.
His purpose was to promote the working conditions of fellow
employees. He challenged management about its intentions to
discipline employees, Wright and Brown, and he warned that he
would file grievances with the Union. In both incidents, Black-
well relented. Wright was not discharged for his refusal to work
and Brown’s discipline was retracted. Moreover, Howard chal-
lenged the role of Roger Smale as a union steward while also
operating as the Respondent’s dispatcher. And Howard, with the
assistance of Crowe, was instrumental to assure that Justin
Blackwell would pay union wages to an employee who, without
their involvement, would have been paid his regular pay. It
clearly cannot be gainsaid that Howard’s conduct was concerted
and union related. Caval Tool, 331 NLRB 858 (2000); Guardian
Industries, 319 NLRB 542 (1995). Lana Blackwell was not only
aware of Howard’s activities, but she responded positively to his
initiatives.
According to Blackwell, Howard was considered a good em-
ployee; he had never been disciplined by the Respondent. How-
ever, the Respondent argues that in several incidents, “Howard
was rude and disrespectful towards Lana, embarrassed her in
front of other employees, intimidated her and humiliated her.”
(R. Br. p. 18.) His “disrespectful, angry and shocking outbursts
that embarrassed and humiliated Lana,” so characterized by the
Respondent, occurred in the context of Howard’s concerted ac-
tivities. The record shows that Howard acted purposefully and
emphatically towards management, and that he had occasionally
raised his voice. But he was not insubordinate or disloyal to his
Employer, nor did he engage in any misconduct. Their apparent
differences in age and personality may account for Lana Black-
well’s perception that Howard was rude and disrespectful. Lana
Blackwell is relatively new as the manager and president of this
operation, and she is also a wife and mother of young children,
requiring her husband to step in during her occasional absence.
She may easily have perceived as intimidating Howard’s appar-
ent expertise in union matters, as well as his long experience as a
truckdriver and the ordinary demeanor of such employees. In
any case, the record does not support a finding that Howard’s
conduct was sufficiently serious to deny him the protection of
Section 7 of the Act. Severence Tool Industries, 301 NLRB
1166, 1169 (1991); Guardian Industries Corp., supra at 542.
This is so, because “there are certain parameters within which
employees may act when engaged in concerted activities.” Con-
sumer Power Co., 282 NLRB 130, 132 (1986). The relevant
question in such cases is whether the conduct is so egregious as
to take it outside the protection of the Act, or of such a character
as to render the employee unfit for further service. Id. Clearly,
the employee’s conduct was not of such egregious nature. I ac-
cordingly find that Howard’s conduct was protected by Section 7
of the Act. Where protected concerted activity is the basis for an
adverse action against an employee, it is not necessary to apply
the Wright Line1 analysis. Caval Food, 331 NLRB 858 (2000).
The Respondent advanced additional justifications, which I
find to be trivial and pretextual and unrelated to Howard’s pro-
tected concerted activities or his union activities. For example,
Blackwell claimed that Howard ridiculed a Christmas card and a
present received from her when he said over the CB radio to a
driver of another trucking company, “he got a card from her and
it brought tears to his eyes . . . . There wasn’t nothing in it.” (Tr.
284–85.) She also testified that Howard discarded into the trash a
Christmas gift consisting of a stocking filled with candy and an
ink pen. Howard testified that he did not throw the Christmas
gift into the trash and he denied making fun of management with
respect to the Christmas bonus. I credit his testimony and find, in
any case, that these matters were simply a pretext for Blackwell’s
refusal to recall Howard.2
The General Counsel has clearly also met his burden under
Wright Line, supra, by showing that the employee had engaged in
union and protected concerted activities, that management was

1 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
2 I find the testimony of Crowe and Howard to be consistent and
credible; however, Lana Blackwell was frequently reluctant to agree
with her earlier statements made under oath. Her testimony was not
always reliable.
LANA BLACKWELL TRUCKING, LLC 1063
aware of it, and that animus against the protected conduct was a
motivating factor in the employer’s conduct. Once this showing
is made the burden shifts to the Respondent that the same action
would have taken place even in the absence of the protected con-
duct. The Respondent has clearly failed to meet that burden, for
Howard was admittedly regarded as a good employee and as an
excellent driver. But for his protected conduct, he would have
been recalled in lieu of the other employees who were hired by
the Company. I, accordingly, find that the Respondent violated
Section 8(a)(1) and (3) of the Act.
Maurice Crowe
The record with regard to Crowe is similar in several respects.
According to the Respondent, Crowe was not recalled, because
of his attitude towards Lana and her lead driver, Smale. The
Respondent refers to two incidents, one in September or October
2002. According to Blackwell, Crowe had failed to report some
damage to his truck, and later told her that she did not need to
know about it, because he had repaired the damage and taken
care of it himself. This, according to the Respondent, upset Lana
and was considered arrogant and condescending. I credit Crowe
that he did not make the “not need to know” comment.
The other incident cited by the Company was a comment
made by Crowe over the CB radio and directed at Smale. Ac-
cording to Smale, Crowe made the following remark (Tr. 286):

Okay. He said that there was a milk crate at the shop that I
could stand on, to look them in the eyes and that I could sit
on to suck Justin Blackwell’s dick.

Crowe testified that he did not make that crude comment about
Smale, but that he said (Tr. 370):

I told him we would make him a new milk crate where he
could sit and kiss Justin’s butt, and then he could stand and
look us into the eye when he needed to be the boss.

Describing Smale as a little, short guy, Crowe testified that it
was an ongoing thing between him and Smale for 20 years,
which just “all of a sudden,” got serious. In any case, the record
shows that Crowe was never reprimanded nor disciplined for this
or anything else during his tenure with the Respondent.
The Respondent’s real objection to Crowe’s continued em-
ployment was his union activity and his concerted activity, which
Blackwell would not tolerate. Blackwell admitted that Crowe
and Howard used their knowledge about the operations of Local
135 to tell her how to run her business, and she resented it.
Blackwell admitted that Crowe complained about the employees’
working conditions, and that he expressed his intentions to file
grievances with the Union. The Respondent also admitted that
Crowe was not recalled because of the attitude shown in express-
ing his complaints.
Blackwell’s testimony shows that she resented Crowe’s union
activities. In the October 2002 conversation, when Crowe and
Howard entered the breakroom and made a comment to Black-
well that employee Jan Mills had performed union scale work,
which should have belonged to Crowe, they not only confronted
Blackwell’s husband Justin about the issue, but also Lana Black-
well. Crowe’s comments were apparently justified, because the
Company agreed to reimburse Mills. However, Blackwell de-
scribed their demeanor as “loud, obnoxious . . . that’s how they
made their comments . . . always loud, to try to get my attention,
I guess.” (Tr. 67.) The record supports a finding that Crowe’s
conduct in this regard was union related and an effort to have the
Respondent comply with the collective-bargaining agreement.
Crowe also joined Howard in confronting Blackwell in the
parts room in October or November 2002, about the Respon-
dent’s intentions to discipline fellow employee Brown. Crowe
complained that the Company had no work rules and suggested
that it could not simply discipline an employee because of his
attitude, or because management did not like Brown. As a con-
sequence of the efforts of Crowe and Howard, the Respondent
relented and refrained from taking any adverse action against
Brown.
Blackwell denied that she and Crowe had such a discussion.
She also did not recall a conversation with Crowe about the
Company’s lack of work rules. However, Crowe and Howard
credibly testified that in October or November 2002, Howard
spoke to Justin and Lana Blackwell about the Respondent’s im-
plementation of work rules. In that conversation, Howard pro-
posed that Crowe should sit down with the shop steward Smale
and the Company’s representative to negotiate work rules leading
to the Respondent’s adoption of work rules. Howard also spoke
with Justin Blackwell that Maurice Crowe should represent the
drivers. When asked by Justin Blackwell what made Crowe so
special that he should sit in on work rules, Crowe replied: “Well I
have done this longer than you have been alive . . . I am fair.
And the rest of the guys, you know respect me because I am
older, I’ve done it and I’m fair.” (Tr. 199–200.) While it was
agreed between all participants to the conversation, including
Lana Blackwell, that Crowe would represent the employees in an
attempt to formulate acceptable work rules, such a meeting did
not take place. Again, the record shows that Crowe’s activities
involving these issues constituted concerted activity.
When Blackwell testified that she decided not to recall Crowe
because of his attitude, she was clearly motivated by Crowe’s
union activities and his protected concerted activities. Of signifi-
cance in this regard is that she admitted, albeit grudgingly and
only when confronted with her previously executed affidavit, that
Maurice Crowe’s and Michael Howard’s attitude problems had
to do with the union issues.
I cannot accept the Respondent’s argument that its failure to
recall Crowe was due to his “need-to-know comments regarding
the equipment damage and the vulgar comment Crowe made
about Smale.” Blackwell’s testimony in this regard is not credi-
ble and at odds with her affidavit and her general observations
regarding Crowe’s concerted and union activities. His conduct is
clearly protected by Section 7 of the Act. According to the appli-
cable authorities stated above, I find that the Respondent’s failure
to recall Maurice Crowe violated Section 8(a)(1) and (3) of the
Act.
As already discussed above, the evidence with regard to
Crowe, shows that he had engaged in these activities while em-
ployed at the Respondent’s facility and that the Respondent’s
owner and president was not only aware of his activities, but also
responded thereto. The Employer’s animus against these activi-
ties was the motivating factor in the Employer’s decision not to
recall this employee. Wright Line, supra. The Respondent has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
failed to show that the same action would have taken place even
in the absence of the protected conduct. Blackwell admitted that
she never disciplined Crowe, and that he was punctual and had a
good work record. Crowe’s attitude, described by the Respon-
dent as condescending, was revealed, not in the two episodes
referred to by the Respondent, but in his forceful and successful
conduct of furthering the employees’ working conditions. It is
also well settled that a forceful or condescending attitude dis-
played by an employee while engaged in union or concerted
conduct does not render such activities unprotected.
CONCLUSIONS OF LAW
1. Lana Blackwell Trucking, LLC, the Respondent is an em-
ployer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing to recall from layoff and by discharging employ-
ees Michael L. Howard, and Maurice Crowe, because they en-
gaged in protected concerted activities and, or union activities,
the Respondent violated Section 8(a)(1) and (3) of the Act.
4. The unfair labor practices have an effect on commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated Section 8(a)(1)
and (3) of the Act, I recommend that it be required to cease and
desist therefrom and in any like or related manner interfering
with, restraining, or coercing its employees in the exercise of
their rights under Section 7 of the Act. Further, the Respondent
shall be required to recall Maurice Crowe and Michael L. How-
ard and offer them immediate and full reinstatement to their posi-
tions of employment and make them whole for any loss of wages
and other benefits they may have suffered by reason of Respon-
dent’s unfair labor practices in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987). In
addition, the Respondent shall be required to post an appropriate
notice, attached as an “Appendix.”
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended3
ORDER
The Respondent, Lana Blackwell Trucking, LLC, Norman,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to recall from layoff and discharging employees be-
cause they engaged in union or protected concerted activity.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them under Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the purposes of the Act.
(a) Within 14 days from the date of this Order, recall from lay-
off and offer Michael L. Howard and Maurice Crowe full rein-
statement to their former jobs or, if those jobs no longer exist to
substantially equivalent positions without prejudice to seniority
or any other rights or privileges previously enjoyed. Make Mi-
chael L. Howard and Maurice Crowe whole for any loss of earn-
ings and other benefits suffered as a result of the unfair labor
practices against them in the manner set forth in the remedy sec-
tion of the decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful action and within 3 days
thereafter notify the employees in writing that this has been done
and that the discharges will not be used against them in any way.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of back pay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at its facil-
ity in Norman, Indiana, copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices 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 the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the
Respondent at any time since March 12, 2003.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.”

4 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.”