LSF Trucking, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 2000

330 N.L.R.B. 1054 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
L.S.F. Transportation, Inc. a/k/a L.S.F. Trucking,
Inc. and International Brotherhood of Team-
sters, Local 142, AFL–CIO. Cases 13–CA–
33256, 13–CA–33289, 13–CA–33374-2, 13–CA–
33385, 13–CA–33417, 13–CA–33511, 13–CA–
33539, and 13–RC–19111
March 27, 2000
DECISION, ORDER, AND DIRECTION
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On November 4, 1996, Administrative Law Judge
George Alemán issued the attached decision. The Re-
spondent filed exceptions and a brief in support. 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 as
modified and to adopt his recommended Order as modi-
fied and set forth in full below.2

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 this regard, we find no merit to the
Respondent’s contention that the judge’s credibility findings are un-
dermined by his consistent crediting of the General Counsel’s witnesses
over those of the Respondent. The total rejection of one party’s wit-
nesses does not of itself constitute a basis for overturning a judge’s
credibility determinations. NLRB v. Pittsburgh Steamship Co., 337
U.S. 656, 659 (1949).
In finding that the Respondent unlawfully discharged Mark Hasse
and unlawfully issued a written warning to Ronald Holland, the judge
relied on testimony by Cindy Olsen, a dispatcher, that she was present
at a mandatory safety meeting held on or about February 21,1995, at
which she heard Operations Manager Scott Belt instruct drivers not to
scale every load but to use their discretion in deciding when to scale.
Olsen did not offer such testimony. We correct this factual error, which
does not affect the result of the case in light of the other credited and
mutually corroborative testimony of drivers Ronald Holland, William
Owens, Mark Hasse, Michael Dooley, and Dennis Hill, that despite the
January 9 memo mandating that all loads be scaled, after the February
safety meeting, drivers had been advised they were under no obligation
to scale every load.
In the absence of exceptions, we adopt, pro forma, the judge’s rec-
ommendation to sustain the challenges to the ballots of voters Kevin
Sadler and Steve Andrysiak and to overrule the challenge to the ballot
of Ronald Holland.
Finally, in the absence of exceptions, we adopt, pro forma, the
judge’s recommendation that the Petitioner’s Objections 4, 8, 13, and
18 be overruled.
2 The judge found that the Respondent unlawfully discontinued the
practice of allowing drivers to use their ComData cards for cash ad-
vances and instituted new work rules for employees on April 8, 1995,
in violation of Sec. 8(a)(3). The judge, however, failed to include these
findings in his conclusions of law. We shall correct this inadvertent
error.
We shall also modify the judge’s conclusions of law, recommended
remedy, and Order and notice to conform to his finding that the Re-
spondent unlawfully changed Dennis Hill’s driving assignments from
long hauls to shorter runs and subsequently refused to assign him work
at all after placing him on medical leave and further unlawfully
changed Michael Dooley’s driving assignments from long hauls to
shorter runs.
1. The judge found, and we agree, contrary to our dis-
senting colleague, that the Respondent constructively
discharged Walter Michaels in violation of Section
8(a)(3). Michaels, upon commencing employment in
September 1992, informed the Respondent’s manage-
ment that he only wanted to make short or local runs, i.e.,
runs within a 120-mile radius of the Respondent’s facil-
ity. Indeed, Michaels’ interest in making only short runs
was common knowledge among the Respondent’s dis-
patchers and, as requested, he was assigned to short runs
almost exclusively. However, after the Respondent was
awarded a contract to deliver beer within a two- to three-
state area, Michaels was asked to make long-haul runs
because there was a shortage of drivers. He agreed to
making these runs, but only after receiving assurances
from the Respondent’s operations manager, Scott Belt,
and Valerie Day, one of its dispatchers, that he would be
reassigned to primarily short runs after additional drivers
were hired. He subsequently made eight nonconsecutive
long-haul runs from November 1994 through January
1995, the last of which was made on January 31. There-
after, Michaels returned to making short runs.
On March 27, just days after the representation petition
was filed, Michaels made a short run as usual. Later that
evening, however, Day called Michaels at home to ask
him if he would take a long-haul run to Detroit that same
evening. Michaels declined, stating that he had already
worked a full day and that he did not believe he would
have sufficient hours left to drive to Detroit under the
Department of Transportation’s regulations. Almost
immediately thereafter, Day called Michaels back to ask
if he would reconsider taking the long-haul run, but he
again declined. Belt then got on the telephone with
Michaels and asked him to take the run. Michaels de-
clined yet again, whereupon Belt unlawfully suspended
him for 2 days.3 While suspended, Michaels went on
medical leave to undergo surgery.

Finally, in accordance with our decision in Excel Container, Inc.,
325 NLRB 17 (1997), we shall also change the date in par. 2(f) of the
judge’s recommended Order to March 21, 1995, the date of the first
unfair labor practice.
3 The judge found, and we agree, that Michaels’ 2-day suspension
was unlawful and retaliatory in nature. In so finding, the judge rea-
soned that Michaels had made it clear that he had no interest in doing
long-haul runs, the Respondent had honored this request in the past by
assigning him primarily to short runs, and Michaels had refused such
additional runs in the past without repercussions. Since the Respondent
did not establish that such an assignment could not have been given to
some other driver, the judge found, and we agree, that the Respondent
set up the situation knowing full well, or at least suspecting, that
Michaels would decline, affording it an opportunity to retaliate against
him by suspending him. We note that our dissenting colleague, like us,
adopts the judge’s finding regarding the unlawful nature of the suspen-
sion.
330 NLRB No. 145
L.S.F. TRANSPORTATION, INC. 1055
Upon reporting back to work on the evening of May
15, Michaels was assigned a long-haul run to Detroit, the
very run which he had declined to make on March 27,
and which led to his unlawful suspension. Prior to mak-
ing the run, Michaels informed Day and Belt, yet again,
that he did not want to be assigned long-haul runs. On
May 17, Michaels was dispatched to Indianapolis and on
May 18 to Des Moines, both long-haul runs. In each
instance, Michaels informed Day that he did not want
long-haul assignments. Subsequent to arriving in Des
Moines on May 18, Michaels called the Respondent’s
facility and was told that he had to pick up a “backhaul”
load in Cedar Rapids and bring it directly to Chicago.4
He was then informed that after he returned to the Re-
spondent’s facility from Chicago he had to make yet an-
other long-haul run, this time to Indianapolis. It was at
this point that Michaels realized that things were “not
going to get better at L.S.F.” After calling his wife to
discuss the situation, they agreed that he had no choice
but to quit. Michaels then called the Respondent. He
spoke with Day first, informing her that he was quitting,
whereupon she put Belt on the telephone. Michaels then
informed Belt that he was quitting because his body
could not handle the amount of hours he had been asked
to work since his return from medical leave and he did
not want to risk having an accident. Belt’s only response
was that Michaels should bring the truck back to the Re-
spondent’s facility and turn in his property.
Unlike our colleague, we agree with the judge that the
Respondent constructively discharged Michaels by as-
signing him upon his return from medical leave to long-
haul runs exclusively. The test for such cases is set forth
in Crystal Princeton Refining Co.:5

There are two elements which must be proven to estab-
lish a “constructive discharge.” First, the burdens im-
posed upon the employee must cause, and be intended
to cause, a change in his working conditions so difficult
or unpleasant as to force him to resign. Second, it must
be shown that those burdens were imposed because of
the employee’s union activities.

With respect to Michaels’ situation, we find, like the
judge, that the General Counsel met his burden and
proved both elements for establishing a constructive dis-
charge. Although conceding that long-haul runs are
more difficult and unpleasant than short runs,6 our disent-
ing colleague concludes, nonetheless, that the General

4 A “backhaul” load was ordinarily brought back to the Respon-
dent’s facility by one driver and then was delivered the next day to its
final destination by another driver.
5 222 NLRB 1068, 1069 (1976).
6 As noted by the judge, long-haul runs require driving for extended
hours, spending nights away from home, and sleeping in small com-
partments. Indeed, the judge credited Michaels that this was precisely
why he did not want to do long-haul runs and why he had requested
short runs.
Counsel did not meet his burden with respect to the first
element of Crystal Princeton.7 Thus, our colleague con-
tends that a few long run assignments do not establish an
intolerable working condition. In this regard, he suggests
that the General Counsel failed to establish that the Re-
spondent planned on subjecting Michaels to a “steady
diet” of long-haul runs.8 We disagree.
In support of his contention that the long-haul runs
were so difficult and unpleasant so as to cause Michaels,
the Respondent’s most senior employee, to quit, the
General Counsel established not only that Michaels had
made it clear to the Respondent when he was hired that
he wanted to make short runs only, but that the Respon-
dent had honored his wishes by assigning him primarily
to short runs except for a brief period in late 1994. Even
then, the Respondent assigned long-haul runs to
Michaels only after assuring Michaels that this change in
assignments would be temporary. When Michaels re-
turned from medical leave, however, the Respondent,
with no explanation, immediately assigned him, not co-
incidentally we believe, to the very run which he had
only recently declined to make and which ultimately re-
sulted in his unlawful suspension. Thus, unlike before,
the Respondent gave Michaels no assurances that the
long-haul run assignments would not go on indefinitely.
And unlike before, Michaels was assigned to consecutive
long-haul runs, making his working conditions all the
more intolerable. Further, we find it significant that at
the same time that the Respondent reassigned Michaels
to long-haul runs exclusively it also, as found by the
judge, unlawfully changed the driving assignments of
employees Holland, Hasse, Hill, Kawa, and Dooley, be-
cause of their union activities. Thus, almost immediately
after the representation petition was filed, the Respon-
dent undertook a course of action whereby, without ex-
planation, it reassigned Holland, Dooley, and Kawa, who
had previously made primarily long-haul runs, to short
runs, while simultaneously reassigning Michaels and
Hasse, who had previously made primarily short runs, to
long-haul runs.
Based on the above, we find that, upon Michaels’ re-
turn from medical leave, the Respondent subjected
Michaels to a “steady diet” of long-haul runs, knowing
full well, or at least suspecting, that Michaels would quit
if it indefinitely and exclusively assigned him to long-
haul runs day after day. Under these circumstances, we
agree with the judge that it was reasonably foreseeable
7 Our colleague does not appear to dispute that the General Counsel
proved the second element of Crystal Princeton, i.e., that the burdens
were imposed because of Michaels’ union activities. Indeed, we note,
that like us, our colleague adopts the judge’s finding that the Respon-
dent unlawfully interrogated Michaels on two occasions and, as noted
above, further adopts the judge’s finding that Michaels was unlawfully
suspended in retaliation for his union activities.
8 Our colleague, nevertheless, concedes that if Michaels was, in fact,
subjected to a “steady diet” of long-haul runs it would be foreseeable
that he would quit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
that the continued assignment of long-haul runs would
eventually cause, and ultimately did cause, Michaels to
quit the Respondent’s employ. Accordingly, we adopt
the judge’s decision finding that Michaels was construc-
tively discharged in violation of Section 8(a)(3) and (1).
2. We further agree with the judge’s conclusion that
the Respondent discharged John Kawa because of his
support for the Union, and not for the citations he re-
ceived on May 1, in violation of Section 8(a)(3) and (1).
While en route to Detroit, Kawa was stopped and cited
for speeding. He was then given a breathalyzer test,
which registered .009 percent, whereupon he received a
second citation for having a “detectable amount of alco-
hol” in his system, but not for driving under the influ-
ence. Kawa’s license was subsequently confiscated to
serve as a cash bond for the speeding citation. Upon
returning to the Respondent’s facility, Kawa gave Belt
copies of the citations, including the results of the
breathalyzer test. Belt immediately suspended Kawa,
pending the return of his license. Although the suspen-
sion notice noted that Kawa was suspended indefinitely
“pending further investigation,” Kawa nevertheless re-
ceived repeated assurances from Belt that as soon as he
regained his license he would in all likelihood be brought
back to work. On May 18, after his license was returned,
Kawa spoke with Comptroller Jerry Helton, who also
offered him similar assurances. On May 23, Kawa met
with Belt, Helton, and the Respondent’s attorney who
told him, contrary to those repeated assurances, that he
could either quit or be fired because of the May 1 cita-
tions. According to the Respondent, its rules require
immediate dismissal for consuming alcohol “prior to or
during working hours.”
The judge found, and we agree, contrary to our dis-
senting colleague, that the Respondent failed to demon-
strate by a preponderance of the credible evidence that it
would have discharged Kawa even in the absence of any
union conduct.9 See Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). The judge found, with ample re-
cord support, that the Respondent’s explanation for dis-
charging Kawa was pretextual. For example, despite its
contention that Kawa was terminated because he re-
ceived the citations, it offered no explanation for why it
did not follow its own purported rules and immediately
terminate him for consuming alcohol “prior to or during
working hours.” In addition, it failed to explain why it
did not immediately discharge Kawa even though it
clearly had all the evidence that it needed as of May 1.
Further, it did not explain, and offered no evidence to
show what, if any, investigation it conducted between
May 1 and 23. Finally, it offered no explanation why, if

9 Our colleague assumes arguendo that the General Counsel estab-
lished that animus against Kawa’s union activities was a motivating
factor in the Respondent’s decision to discharge him.
it was likely that Kawa would be discharged, he was re-
peatedly assured that he would in all likelihood be re-
turning to work once he got his license back. Thus, as
noted by the judge, the Respondent offered no explana-
tion as to what occurred between May 1 and 23 to cause
it to change its mind and convert Kawa’s suspension into
a discharge. Therefore, the judge concluded, and we
agree, that the Respondent seized on the May 1 incident
as a way of ridding itself of a union adherent.10
Finally, and most significantly, the judge specifically
discredited the testimony of Belt and Helton that Kawa
was discharged because of the citations he received on
May 1, and there is no basis for reversing the judge’s
credibility determinations. See footnote 1, supra. Re-
gardless of whether the reasons advanced by the Respon-
dent are reasons that the Respondent could have relied on
as a basis for discharging Kawa, the judge has made
credibility based findings that these were not the reasons
that the Respondent did rely on. We therefore reject our
dissenting colleague’s contention that the Respondent
has carried its burden of showing that it would have dis-
charged Kawa because of the May 1 incident even in the
absence of Kawa’s union activity.11
3. Finally, we agree with the judge that under the cir-
cumstances of this case that a Gissel12 bargaining order is
warranted. As explained in General Fabrications Corp.,
328 NLRB 1114, 1116 fn. 17 (1999), we disagree with
our dissenting colleague’s position that the Board should
reserve judgment on the Gissel bargaining order until
after the election results in the representation case are
known.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 6.
“6. The Respondent has violated Section 8(a)(3) and
(1) of the Act by:
“(a) Issuing written warnings to Ron Holland and
Dennis Hill in retaliation for their support for, or activi-
ties on behalf of, the Union.
“(b) Laying off Mark Hasse for 1 day and Walter
Michaels for 2 days because of their support for, or ac-
tivities on behalf of, the Union.
“(c) Changing the work assignments of Ronald Hol-
land, Walter Michaels, Mark Hasse, Dennis Hill, John
Kawa, and Michael Dooley because of their support for,
or activities on behalf of, the Union.
10 In this regard, we note that Kawa was not simply another union
adherent, but as of May 23, he was the last known union adherent still
left in the Respondent’s employ.
11 Although we find the judge’s discrediting of Belt’s and Helton’s
testimony concerning their reason for discharging Kawa significant
support for our conclusion that the Respondent did not sustain its
Wright Line defense, we do not, as our dissenting colleague asserts, rely
on that alone. As explained above, other circumstances also suggest
that the Respondent’s asserted reason was a pretext for discrimination.
12 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
L.S.F. TRANSPORTATION, INC. 1057
“(d) Discharging, constructively or otherwise, Mark
Hasse, Michael Dooley, Ronald Holland, Walter
Michaels, William Owens, and John Kawa because of
their support for, or activities on behalf of, the Union.
“(e) Refusing to assign work to Dennis Hill after plac-
ing him on medical leave because of his support for or
activities on behalf of, the Union.
“(f) Discontinuing the practice of allowing drivers to
use their ComData cards for cash advances because of
their activities on behalf of, or their support for, the Un-
ion.
“(g) Instituting new work rules for employees.”
2. Substitute the following for Conclusion of Law 8.
“8. By the foregoing conduct, the Respondent has en-
gaged in objectionable conduct requiring that the election
conducted on April 29, 1995, in Case 13–RC–19111 be
set aside if the Petitioner has not received a majority of
the ballots cast once the challenged ballots of employees
Michael Dooley, Mark Hasse, and Ronald Holland are
opened and counted and a revised tally of ballots is pre-
pared and served on the parties.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, L.S.F. Trans-
portation, Inc. a/k/a L.S.F. Trucking, Inc., Hammond,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the Union, International Brotherhood of Teamsters, Lo-
cal 142, AFL–CIO, as the exclusive collective-
bargaining representative of its employees in the follow-
ing appropriate unit:

All full-time and regular part-time truck drivers em-
ployed by the Employer at its facility currently located
at 1334 Field Street, Hammond, Indiana; but excluding
all other employees, dispatchers, office clerical em-
ployees, guards and supervisors as defined in the Act.

(b) Making unilateral changes in the employees’ terms
and conditions of employment without providing the
Union with notice and an opportunity to bargain over
such changes to agreement or valid impasse.
(c) Coercively interrogating employees concerning
their union activities and those of other employees.
(d) Creating the impression that it is engaging in the
surveillance of its employees’ union activities.
(e) Threatening employees with plant closure, job loss,
discharge, and other unspecified reprisals for engaging in
union activities.
(f) Issuing warning notices, suspending, laying off,
changing the driving assignments, discharging, construc-
tively or otherwise, refusing to give work assignments to
employees by placing them on medical leave, and dis-
continuing the practice of allowing drivers to use their
ComData cards for cash advances, because of their ac-
tivities on behalf of, or support they lent to, the Union.
(g) 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) Recognize and, on request, bargain with the Union
as the exclusive representative of all employees in the
above-described appropriate unit and, if an understand-
ing is reached, embody such understanding in a signed
written agreement.
(b) Rescind the work rules enacted on April 8, 1995,
and reinstate its policy of allowing drivers to use the
Company’s ComData cards for cash advances.
(c) Within 14 days from the date of the Order, offer
immediate and full reinstatement to Mark Hasse, Michael
Dooley, Ronald Holland, Dennis Hill, Walter Michaels,
William Owens, and John Kawa to their former jobs or,
if those positions no longer exist, to substantially equiva-
lent jobs, without prejudice to their seniority or other
rights and privileges.
(d) Make the above employees whole for any pecuni-
ary or other losses they may have sustained by reason of
the discrimination against them, including losses sus-
tained due to suspensions and/or layoffs, changes in their
work assignments, and/or being placed on medical leave
in the manner set forth in the remedy section of this deci-
sion.
(e) Within 14 days of this Order, remove from its files
any and all reference to the unlawful suspensions and/or
layoffs, discharges, and being placed on medical leave,
and also remove from the files of Ronald Holland and
Dennis Hill the warnings issued to them, and within 3
days thereafter notify all of the above employees in writ-
ing that this has been done and that the suspensions
and/or layoffs, discharges, warnings, and being placed on
medical leave will not be used against them in any way.
(f) 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.
(g) Within 14 days after service by the Region, post at
its facility in Hammond, Indiana, copies of the attached
notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places

13 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 1058
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current and former employees employed by the
Respondent at any time since March 21, 1995.
(h) 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 that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the challenges to the bal-
lots of the following employees are overruled: Michael
Dooley, Mark Hasse, and Ronald Holland; and that the
challenges to the ballots of Steve Andrysiak and Kevin
Sadler are sustained.
IT IS FURTHER ORDERED that Case 13–RC–19111 is
severed from Cases 13–CA–33256, 13–CA–33289, 13–
CA–33374–2, 13–CA–33385, 13–CA–33417, 13–CA–
33511, and 13–CA–33539, and that it is remanded to the
Regional Director for Region 13 for action consistent
with the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
13 shall, within 14 days from the date of this decision,
open and count the ballots of the employees listed above,
and that she shall prepare and serve on the parties a re-
vised tally of ballots.
If the revised tally of ballots in this proceeding reveals
that the Petitioner has received a majority of the valid
ballots cast, the Regional Director shall issue a certifica-
tion of representative. If, however, the revised tally of
ballots shows that the Petitioner has not received a ma-
jority of the valid ballots cast, the Regional Director shall
set aside the election, dismiss the petition, and vacate the
proceedings in Case 13–RC–19111.

MEMBER HURTGEN, dissenting in part.
Contrary to my colleagues and the judge, I cannot find
that the Respondent unlawfully discharged employees
Walter Michaels and John Kawa. Further, I would not
pass at this time on the propriety of imposing a Gissel
bargaining order.
The judge found, and my colleagues agree, that the
Respondent constructively discharged Walter Michaels.
As fully described by the judge, driver Michaels per-
formed mostly short runs for the Respondent, and he had
stated to the Respondent that he was only interested in
performing short runs. In May 1995, after receiving a
few longrun assignments, Michaels quit. The judge
found that the Respondent assigned Michaels long runs
because of his union activity. The judge found that the
Respondent knew, or should have reasonably foreseen,
that its assignments would cause Michaels to quit. The
judge therefore concluded that the Respondent construc-
tively discharged Michaels in violation of Section 8(a)(3)
and (1) of the Act.
As the judge correctly stated, the General Counsel
must establish that the new working condition was so
difficult or unpleasant as to force the employee to resign.
The General Counsel has not established a violation
under that standard. It is true that long runs are more
difficult and unpleasant than short runs. However, a few
such assignments do not establish an intolerable working
condition. Indeed, Michaels had driven long runs in the
past and had nonetheless continued working. Conced-
edly, if Michaels had been subjected to a steady diet of
long runs, it may well have been foreseeable that he
would quit. But there is no evidence that Michaels was
subjected to such a steady diet. He was assigned long
runs on March 27 and for a few days in May. At that
point, he came to his own conclusion that “things were
not going to get any better.” He therefore quit. He did
not ask the Respondent whether a steady assignment of
long runs would continue. If he had done so, and if the
answer had been affirmative, the General Counsel may
well have met his burden. However, absent that, and
absent any indication that the Respondent intended to
subject him to a steady diet of long runs, I believe that
the General Counsel has not met his burden of proof.1
The judge also found, and my colleagues agree, that
the Respondent’s discharge of driver Kawa violated Sec-
tion 8(a)(3) and (1) of the Act. I disagree. I assume ar-
guendo that the General Counsel presented a prima facie
case in regard to Kawa’s discharge. However, I find that
the Respondent met its rebuttal burden of showing that it
would have discharged Kawa even absent his union ac-
tivity. As fully set forth by the judge, the Michigan State
Police cited Kawa for speeding on May 1, 1995. The
police also confiscated Kawa’s driver’s license and gave
him an additional citation for failing a breathalyzer test.
When the Respondent learned of this incident, it sus-
pended Kawa indefinitely, pending further investigation.
That suspension is not challenged. When Kawa spoke
with the Respondent’s operations manager, Scott Belt,
Belt said that when Kawa got his license back he would
“probably go back to work.” After getting his license

1 The essential difference between me and my colleagues is that they
conclude that “the Respondent subjected Michaels to a ‘steady diet’ of
long-haul runs.” In my view, the long runs of March 27 and a few days
in May do not establish a “steady diet” of long runs. The fact is that
Michaels decided on his own—and prematurely—that the long runs
would not change. Michaels did not ask Operations Manager Scott Belt
how long his assignments of long runs would continue. Belt did not tell
Michaels that longrun assignments would continue indefinitely.
Rather, Michaels, without in any manner confirming that he would
continue to receive longrun assignments, took it on himself to quit. I
cannot agree that—at the time Michaels quit—his assignments had
been so difficult or unpleasant as to cause his resignation.
L.S.F. TRANSPORTATION, INC. 1059
back on May 18, Kawa spoke with the Respondent’s
comptroller, Jerry Helton, who also stated that Kawa
would “probably” be put back to work. However, on
May 23, the Respondent ultimately refused to reinstate
Kawa and instead discharged him.
In rejecting the Respondent’s rebuttal case, the judge
faulted the Respondent for not explaining why, between
May 1 and 23, it decided to discharge Kawa rather than
reinstate him. The judge concluded that the Respondent
must have seized on an opportunity to rid itself of a un-
ion activist. In my view, the flaw in the judge’s reason-
ing is that there is no showing that Kawa engaged in fur-
ther union activity between May 1 and 23. Thus, the
Respondent knew of his union activity on May 1, and yet
it held out the possibility of leniency. I see no basis to
infer that Kawa’s union activity had an impact on the
Respondent’s ultimate decision to discharge. In these
circumstances, and noting especially the seriousness of
Kawa’s misconduct, I conclude that the Respondent
would have discharged Kawa even absent his union ac-
tivity.
My colleagues raised questions concerning the Re-
spondent’s decision not to discharge Kawa on May 1.
My colleagues’ position on this point is a curious one.
The Respondent knew, as of May 1, of Kawa’s activities
on behalf of the Union. Clearly, if the Respondent
wanted to rid itself of Kawa, that would have been the
perfect opportunity to do so. As discussed, it did not do
so. To the contrary, it offered the likelihood of his reten-
tion.
Further, I do not agree with the majority that the issue
of whether there is discriminatory motive is one of credi-
bility. My colleagues submit that the judge discredited
the Respondent’s witnesses, Belt (the operations man-
ager) and Helton (the comptroller), and “therefore” the
Respondent’s rebuttal case must be rejected. While the
judge did not credit witnesses Belt and Helton, the judge
acknowledged that “the inquiry does not end here.”
Rather, the ultimate issue—the “question remaining” as
the judge put it—is whether Kawa would have been
terminated even absent his union activity. Again, given
that the Respondent knew full well of Kawa’s union
activity on May 1, I find no basis to conclude—as did the
judge—that the Respondent’s May 23 decision was
based on Kawa’s union activity. Thus, I cannot agree
with the judge and my colleagues’ finding of a violation.
I conclude that Kawa would have been discharged, even
in the absence of union activity, for his serious miscon-
duct.2
Finally, unlike the judge and my colleagues, I would
not impose a Gissel bargaining order at this time. As set
forth in my dissent in General Fabrications Corp., 328

2 If my colleagues were correct, a judge could find a violation based
solely on the discrediting of a respondent’s testimony that “I did not
discharge the employee for his union activity.” In my view, more
analysis is required.
NLRB 1114 (1999), I would not impose a Gissel order
when a representation election has yet to be resolved.
Here, the current tally is 5 for the Union, 7 against, with
3 challenged votes to be counted. It is quite possible that
the union has won the election and no second election
will be held. As I said in General Fabrications, if the
union is certified as the collective-bargaining representa-
tive, a Gissel order is not appropriate. If the union has
lost, I would at that point resolve the need for this rem-
edy.

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 refuse to bargain with International
Brotherhood of Teamsters, Local 142, AFL–CIO as the
exclusive representative of the employees in the follow-
ing appropriate unit:

All full-time and regular part-time truck drivers em-
ployed by the Employer at its facility currently located
at 1334 Field Street, Hammond, Indiana; but excluding
all other employees, dispatchers, office clerical em-
ployees, guards and supervisors as defined in the Act.

WE WILL NOT alter the terms and conditions of em-
ployment for unit employees by imposing new work
rules and changing our policy regarding their use of
ComData cards without first bargaining with the Union
to agreement or impasse.
WE WILL NOT interrogate our employees regarding their
activities in support of Teamsters Local 142, create the
impression that their activities are being kept under sur-
veillance, or threaten them with plant closure, loss of
jobs, discharge, or other unspecified reprisals because
they support the Union.
WE WILL NOT discharge, constructively or otherwise,
suspend, lay off, refuse to assign work by placing on
medical leave, change the work assignments of, or issue
written warnings to, employees or discontinue the prac-
tice of allowing drivers to use their ComData cards for
cash advances, because they engaged in activities on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
behalf of, or lent their support to, Teamsters Local 142,
or to discourage other employees from supporting Team-
sters Local 142 or any other union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with
Teamsters Local 142, and put in writing and sign any
agreement reached on terms and conditions of employ-
ment for our employees in the above-described bargain-
ing unit.
WE WILL rescind the work rules implemented April 8,
1995, and reinstate our policy regarding driver use of
ComData cards for cash advances.
WE WILL, within 14 days from the date of the Board’s
Order, offer Mark Hasse, Michael Dooley, Ronald Hol-
land, Dennis Hill, Walter Michaels, William Owens, and
John Kawa 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.
WE WILL make Mark Hasse, Michael Dooley, Ronald
Holland, Dennis Hill, Walter Michaels, William Owens,
and John Kawa whole for any loss of earnings and other
benefits sustained by them resulting from their unlawful
discharges and forced medical leave, and shall further
make whole Mark Hasse and Walter Michaels for any
loss of earnings resulting from their unlawful suspension
and/or layoff, and for any losses Mark Hasse, Michael
Dooley, Walter Michaels, Ronald Holland, Dennis Hill,
and John Kawa may have sustained resulting from the
change in their work assignments, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to unlawful
discharge, placement on medical leave, suspension, or
layoff of the above employees, and shall further remove
from the files of Dennis Hill and Ronald Holland the
unlawful warnings issued to them, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that such actions will not be used against them
in any way.

L.S.F. TRANSPORTATION, INC. A/K/A L.S.F.
TRUCKING, INC.
Sheryl Sternberg and Mary F. Herrmann, Esqs., for the General
Counsel.1
Walter J. Liszka and Renée L. LeGrand, Esqs. (Wessels &
Pautsch, PC), for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. Pursuant to
various charges filed by the Union, International Brotherhood
of Teamsters, Local 42, AFL–CIO, between March 23 and

1 Referred to as the General Counsel.
August 8, 1995,2 the Regional Director for Region 13 of the
National Labor Relations Board (the Board), on August 18,
1995, issued an order consolidating cases, consolidated com-
plaint and notice of hearing, alleging that Respondent L.S.F.
Transportation, Inc. a/k/a L.S.F. Trucking, Inc. had violated
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act (the Act). On August 25, 1995, the Regional Director is-
sued a Report on Challenged Ballots and Objections to an elec-
tion held in Case 13–RC–19111, finding that the issues raised
by the challenged ballots and objections parallel the unfair la-
bor practice allegations contained in the August 18, 1995 con-
solidated complaint, and ordered that Case 13–RC–19111 be
consolidated for hearing with the unfair labor practice allega-
tions. A hearing in the matter was held before me in Chicago,
Illinois, between October 16–19, and November 13–14, 1995,
during which all parties were afforded full opportunity to call
and examine witnesses, to submit oral as well as written evi-
dence, and to argue orally on the record.
On the entire record, including my observation of the de-
meanor of the witnesses,3 and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporate entity, with an office and place
of business in Hammond, Indiana, has, at all material times,
been engaged in the interstate and intrastate transportation of
freight and has, during the same period and in the conduct of its
business operations, purchased and received at its above facility
products, goods, and materials valued in excess of $50,000
directly from points outside the State of Indiana. The Respon-
dent admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. It also admits, and I further find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this case are:
1. Whether the Respondent violated Section 8(a)(1) of the
Act by:
(a) Interrogating employees about their sympathies for or ac-
tivities on behalf of the Union, promising them higher wages
and additional work if they did not select the Union as their
collective-bargaining representative, and threatening them with
discharge, layoff, plant closure, freezing of benefits, and other
unspecified reprisals if they did so.
2. Whether it violated Section 8(a)(3) and (1) of the Act by:4
2 All dates are in 1995, unless otherwise indicated.
3 The credibility resolutions have been derived from a review of the
entire testimonial record and exhibits, with due regard for the logic of
probability, the demeanor of the witnesses, and the teachings of NLRB
v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses
testifying in contradiction to the findings, their testimony has been
discredited, either as having been in conflict with credited documentary
or testimonial evidence, or because it was in and of itself incredible and
unworthy of belief.
4 At the hearing, the Respondent moved to dismiss any and all com-
plaint allegations pertaining to employees Wayne Sigler and Kevin
Sadler, as well as any objections to the election relating to these two
L.S.F. TRANSPORTATION, INC. 1061
(a) Withholding work from and/or changing the work as-
signments of employees Ronald Holland, John Kawa, Dennis
Hill, Michael Dooley, and Mark Hasse because of their support
for or activities on behalf of the Union.
(b) Temporarily laying off Hasse for 1 day, and subsequently
discharging him on March 31 because of his union activities.
(c) Issuing employee Walter Michaels a 2-day suspension on
or about March 27, constructively discharging him on or about
May 18, because of his support for the Union.
(d) Issuing written reprimands to employees Holland and
Hills, and thereafter discharging Holland on April 7, and
unlawfully placing Hill on medical leave on April 13, because
they supported the Union.
(e) Retaliating against employees for their union activities by
instituting new work rules and prohibiting them from using the
company credit (ComData) card for cash advances.
3. Whether the unilateral institution of new work rules and
policy change regarding employee use of the ComData card
violated Section 8(a)(5) and (1) of the Act, and whether a bar-
gaining order is an appropriate remedy in this case.
B. Factual Background
The Respondent, a trucking operation in Hammond, Indiana,
is owned and operated by the Faure family, with Amy Faure, an
admitted supervisor and agent of Respondent within the mean-
ing of Section 2(11) and (13) of the Act, serving as its presi-
dent. Its day-to-day operations are managed by Operations
Manager Scott Belt, an admitted supervisor. Other managerial
personnel involved in this proceeding are Craig Crohan, vice
president of operations; Bill Burnson, manager; Jerry Helton,
the comptroller; and Valerie Day, a dispatcher, all of whom are
admitted supervisors and agents of Respondent under Section
2(11) and (13) of the Act. The Respondent had two other dis-
patchers—Cindy Olson and Diane (Dee) Qualls—who made
the daily routes and delivery assignments to the drivers.5
The Faure family also owns and operates other warehouse
facilities, including the Great Lakes Warehouse located in
Hammond just 3 miles from the L.S.F. Warehouse facility, the
Gateway Warehouse located in Calumet City, Illinois, and the
Iliana Transit Warehouse. The Respondent began operations in
1992, utilizing five leased trucks and five drivers. In August
1994, the Respondent was awarded a contract to deliver Coors
beer within a two- to three-state area. To handle the increased
business, the Respondent expanded its operations by leasing
additional trucks and hiring additional drivers. Thus, in August
1994, Respondent’s fleet of trucks increased from 5 to 21 units,
and its complement of drivers went from 5 to approximately
25.6 In addition to the Coors account, the Respondent serviced
two other long-distance clients—Rhone Poulenc in St. Louis,
Missouri, and Frank’s Nursery in Detroit, Michigan. The Re-
spondent also handled what was commonly referred to as local

individuals (Tr. 659–662). I deferred ruling on the motion pending
receipt of the parties’ briefs. Having duly considered the matter, and as
no evidence was adduced regarding these two individuals, the Respon-
dent’s motion to dismiss with respect to Sigler and Sadler is granted.
5 No contention has been made that either Olson or Qualls is a statu-
tory supervisor.
6 The Respondent utilizes two types of trucks—tractor-trailers and
straight trucks—to carry freight. The tractor-trailer, a two-piece unit,
was the larger of the two and often contained a sleeping compartment.
The straight truck was a smaller single unit, essentially a 20-foot box,
used to haul less than 15,000 pounds of freight, referred to as a “less
than a trailer” load (LTLs).
runs of no more than 120 miles. These local runs included
deliveries to locations in Indianapolis, Indiana, Milwaukee,
Wisconsin, Chicago, Illinois, and surrounding areas. For local
runs, drivers were paid an on-the-clock rate of $12.50 per hour.
Drivers performing the long-distance hauls to Coors, Rhone
Poulenc, and other areas were paid on a mileage basis com-
puted at 26 cents per mile.
Respondent’s drivers possessed either a class A or class B
commercial driver’s license (CDL). The class A-CDL drivers
are licensed to drive straight as well as tractor-trailer type
trucks, while class B-CDL drivers are restricted to driving the
smaller (straight) trucks and are limited as to the amount of
weight they may carry in their trucks. To obtain either a class
A or B CDL, drivers must undergo a physical examination, and
every 2 years must also pass a Department of Transportation
(DOT) physical examination. On passing a DOT exam, drivers
are given a medical card, which they must carry as proof that
they have complied with DOT regulations. DOT regulations
further limit the amount of hours a driver can be “on duty” to
no more than 15 hours in a 24-hour period. Thus, while a
driver is permitted to drive for no more than 10 hours, he or she
may be “on duty” for an additional 5 hours, which would allow
for any downtime required for loading or unloading of trucks.
To ensure compliance with these rules, drivers maintain a daily
log reflecting the number of hours driven and their destination.
DOT regulations further limit to 80,000 pounds the total
amount of weight (including tractor, cargo, and fuel weight)
that can be carried by trucks on interstate highways. To ensure
compliance, weigh stations are located along interstate high-
ways and truckers are required to stop and weigh or “scale”
their trucks. The record reflects that by memo dated January 9,
the Respondent instituted a policy mandating that all loads be
scaled. However, according to the testimony of several em-
ployee witnesses, approximately 1 month later in February,
during a mandatory safety meeting, Belt told the drivers that
scaling every load was becoming too expensive and that they
should henceforth use their own discretion in deciding whether
or not to scale a load. I credit the mutually corroborative testi-
mony of the employee witnesses and find that despite its Janu-
ary 9 memo, after the February meeting, drivers were under no
obligation to scale every load.7
7 Belt testified that each employee was notified of the policy through
placement of a copy of the memo in their company mailbox. However,
his testimony in this regard is at odds with the testimony of several
employee witnesses, e.g., Hasse and Holland, who stated they first saw
the document on March 31, Dooley who claims Belt ordered all loads
scaled after Hasse’s “failure to scale” incident (discussed below), and
Hill who testified he had no knowledge of such a policy. I credit the
mutually corroborative testimony of the employee witnesses over that
provided by Belt and find that assuming that Respondent established a
scaling policy on January 9, employees were not made aware of its
existence until March 31, or sometime thereafter. Holland, Owens,
Hasse, Dooley, and Hill also provided mutually corroborative and
credible testimony on how Belt instructed drivers during the February
meeting not to scale every load but to use discretion in deciding when
to scale. Cindy Olson, a dispatcher, also testified to having been pre-
sent at the meeting and to hearing Belt make the above comment. The
Respondent argues that Olson could not have been present at the meet-
ing because she had left Respondent’s employ by then, citing Belt’s
testimony as support for its position. Belt’s testimony as to when Ol-
son left her employ was not credible. Thus, when asked if Olson was
still employed on February 21 (presumably the date of the meeting),
Belt stated, “I am not sure,” and when asked if he recalled when Olson
left Respondent’s employ, Belt answered, “I believe around March is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
The Union commenced its organizational campaign among
Respondent’s drivers on March 20, when, following a discus-
sion between employee Dennis Hill and Union Business Agent
John Jurcik, a union meeting was held that evening at the union
hall attended by Hill and employees Holland, Sadler, and
Michaels. At this meeting, an “Open Letter to Management,”
addressed to Respondent, was prepared which read, “As mem-
bers of the union Committee, we know our rights to organize.
We expect the Company to respect these rights.” (See G.C.
Exh. 4.) The Union also provided employees at the meeting
with two copies of a “Petition for the Union,” each of which
was to be circulated to other employees by Holland and Hill,
which contained the following language: “We the undersigned
hereby declare that in order to achieve fairness on the job, we
authorize the Teamsters Union Local No. 142 to represent us
for the purposes of Collective Bargaining” (G.C. Exhs. 5[a]–
[b]). All four employees present at this meeting signed both
petitions. Employees Hasse and Dooley signed later that eve-
ning. Hasse also signed the “Open Letter to Management”
letter that had earlier been signed by Holland and Hill.8 The
following day, March 21, employees Bill Owens, John Kawa,
Daniel Babcock, Jose Saenz, Jeffrey Perz, and Dwayne Sigler
signed the petitions, bringing to 12 the total of number of em-
ployees expressing a desire to be represented by the Union.
That same day, Holland and Hill went to Belt’s office at ap-
proximately 2:30 p.m. and personally handed him the “Open
Letter to Management.” As to the Union’s petitions, Hill stated
that after he obtained the last signatures on his petition on
March 21, he called Union Agent Jurcik who came to his house
that evening to pick up the petitions. Although Holland testi-
fied he believed the petitions were turned over to the Union on
March 22, I find that he was mistaken in this regard, and that
they were in fact turned over during the evening of March 21,
as suggested by Hill, given that the petition was filed in the
afternoon of March 22.
On receipt of the employee petitions, the Union, as noted,
filed a petition for an election with the Board on March 22, in
Case 13–RC–19111, seeking to represent certain of Respon-
dent’s employees.9 On April 5, the parties agreed to an elec-

the date.” It was only after being shown a disciplinary notice issued to
Olson on January 16 (R. Exh. 27), and in response to a leading question
by Respondent’s counsel, that Belt stated he “believed” Olson left her
employ before the February meeting. His uncertainty and vacillation
regarding his knowledge of whether Olson attended the meeting is not
worthy of belief. The disciplinary notice that purportedly triggered
Belt’s “recollection” makes no reference whatsoever to the date she
was last employed and states only that she was on suspension for an
incident that occurred from “12–29–94 thru 1–6–95.” Any doubt as to
when Olson was separated from employment could easily have been
cleared up by Respondent by providing documentary evidence from its
own files. It failed to do so, opting instead to rely on Belt’s rather
dubious testimony, which I reject.
8 Holland and Hill each took a copy of the petition to circulate to
other employees. Hasse arrived late to the meeting and, after being
brought up to date by Hill on what transpired there, signed the petition
(G.C. Exh. 5[a]), as well as the open letter to management. Hill also
contacted Dooley at home later that evening at which time the latter
signed Hill’s petition.
9 The petitioned-for unit includes:

All full-time and regular part-time truck drivers employed by the Em-
ployer at its facility currently located at 1334 Field Street, Hammond,
Indiana; but excluding all other employees, dispatchers, office clerical
employees, guards and supervisors as defined in the Act.
tion, which was held on April 29. Of the 17 ballots casts (out
of approximately 19 eligible voters), 5 were cast for, and 7
against, the Union, with 5 challenged ballots remaining which
are sufficient in number to affect the results of the election.
(G.C. Exhs. 1[a] and [ee].) The challenged ballots include that
of employee Steve Andrysiak, who the Union alleges is an
office clerical employee, rather than a driver, and should be
excluded from the unit, and that of employees Dooley, Hasse,
and Holland, who were challenged by the Board agent because
their names did not appear on the voter eligibility list provided
by the Respondent. The Respondent asserts that these indi-
viduals are not eligible to vote because they were lawfully dis-
charged prior to the election.10 The representational issues
raised in Case 13–RC–19111 will be discussed later on in this
decision.
The General Counsel contends that on learning of the Un-
ion’s attempt to organize its drivers the Respondent, through its
owner, officers, and managerial personnel, embarked on a
course of unlawful conduct that included, inter alia, threats,
interrogations, impression of surveillance, promise of benefits,
warnings, suspensions, work reassignments, and eventually the
discharge of drivers who supported the Union, all of which was
aimed at undermining and discouraging employee support for
the Union. A discussion of these allegations follows.
C. Discussion and Findings
1. The 8(a)(1) allegations
Section 8(a)(1) of the Act provides that it shall be an unfair
labor practice for an employer to interfere with, restrain, or
coerce employees in the exercise of their statutory right to en-
gage in, or refrain from engaging in, concerted activity. The
complaint alleges that beginning on or about March 21, and
continuing through the eve of the Board-conducted election on
April 29, the Respondent, through admitted Supervisors Day,
Belt, Amy Faure, Crohan, and Burnson, unlawfully interrogated
employees regarding their union activities, created the impres-
sion that their activities were being kept under surveillance, and
threatened them with plant closure, loss of jobs, discharge, and
other unspecified reprisals, all in violation of Section 8(a)(1). It
also alleges that on April 25, the Respondent further violated
Section 8(a)(1) when Faure issued a letter to employees entitled
“What will Local 142 Bring to the Table” which threatened that
wages and benefits would be frozen if the Union were selected
as their collective-bargaining representative. Although the
Respondent in its answer denies the remarks attributed to
Faure, Crohan, and Burnson, none of these individuals was
called to testify. Accordingly, the remarks attributed to them
by employee witnesses, discussed infra, are found to have oc-
curred. Day and Belt, who did testify at the hearing, were not
10 The Respondent also challenged the ballot of employee Sadler on
grounds he had voluntarily quit his employ prior to the election and was
therefore ineligible to vote. The General Counsel had alleged in a
separate charge that Sadler was constructively discharged in violation
of Sec. 8(a)(3) and (1) of the Act. However, the parties stipulated at the
hearing that the charge regarding Sadler had been withdrawn by the
Union, which withdrawal was approved by the Regional Director (Tr.
292–293). As there is no allegation that Sadler was unlawfully dis-
charged, his own testimony that he voluntarily quit his employ, and the
fact that the General Counsel did not contend otherwise at the hearing
or in her posthearing brief, I find that Sadler was not eligible to vote in
the April 29 election. Accordingly, the challenge to his ballot is sus-
tained.
L.S.F. TRANSPORTATION, INC. 1063
asked about, and consequently did not dispute, the various
statements attributed to them by employee witnesses. Thus, the
employees’ testimony as to what they were told by Day and
Belt is credited.11 A description of that conduct, and my find-
ings with respect thereto, follow.
a. Unlawful conduct by Supervisor Day
(1) Towards employee Michaels
On March 21, Michaels was in Respondent’s office, along
with dispatcher Qualls and employee Andrysiak, when Day
asked him how the union meeting had gone. Michaels,
“shocked” by Day’s inquiry, simply responded, “Okay.” Fol-
lowing Day’s query, a general discussion regarding unions
ensued among Qualls, Andrysiak, and Day about the bad ex-
periences they’d had with unions in the past. Midway through
that discussion, Belt entered and expressed his own view that
unions were no good because “they just take your money and
do nothing for you.”
The complaint alleges that Day’s query of Michaels
amounted to an unlawful interrogation and created the impres-
sion that his activities and that of other employees were being
kept under surveillance. Although the questioning of an em-
ployee is not illegal per se, the Board has held that an interroga-
tion will violate Section 8(a)(1) when, under all the circum-
stances, the questioning reasonably tends to restrain, coerce, or
interfere with the rights guaranteed employees under Section 7
of the Act. Rossmore House, 269 NLRB 1176 (1984), enfd.
sub nom. Hotel & Restaurant Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). In applying this test, the Board
considers such factors as the background in which the question-
ing occurs, the nature of the information sought, the identity of
the questioner, and the place and method of the interrogation.
Kellwood Co., 299 NLRB 1026 (1990). This analysis applies
to all interrogations, and not simply to those directed at open
and active union supporters. The fact that the recipient of the
interrogation openly and actively supports the union is simply
one factor to be considered in evaluating the total context of the
interrogation. Sunnyvale Medical Clinic, 277 NLRB 1217
(1985).
Applying the Rossmore House/Sunnyvale test to Day’s ques-
tioning of Michaels, I conclude that her inquiry was coercive
and violative of Section 8(a)(1). Day’s inquiry as to how the
union meeting had gone took place in Respondent’s office and
was not the product of any casual or friendly conversation be-
tween the two but rather came straight out of the blue. That it
was totally unexpected and indeed troubling to Michaels is
evident from his testimony that he was “shocked” by her re-
mark. Nothing in Michaels’ testimony suggests that he was
involved in any discussion with Day prior to her question or,
for that matter, that he took part in the subsequent discussion

11 I draw an adverse inference from Respondent’s failure to call
Faure, Crohan, and Burnson to testify regarding the allegations that
they engaged in unlawful conduct, and from its failure to question, or to
elicit denials from, Day or Belt regarding the alleged unlawful state-
ments attributed to them by various employee witnesses. Asarco, Inc.,
316 NLRB 636, 640 (1995); Flexsteel Industries, 316 NLRB 745, 757
(1995). Regarding Day, it appears that Respondent called her as a
witness for the sole purpose of contesting her supervisory status. How-
ever, when advised that Day’s supervisory status had been admitted to
in Respondent’s answer, counsel for Respondent abruptly ended his
examination of Day, and made no effort to refute the allegations per-
taining to her conduct.
between Day, Qualls, and Andrysiak, and subsequently Belt, in
their antiunion conversation. Although Michaels had signed
one of the union petitions, he was not an open and active union
supporter. Nor was Day’s interrogation an isolated incident, for
as more fully described below, Day, along with other manage-
ment officials, subsequently engaged in a pattern of unlawful
conduct, that included among other things further interrogations
and threats of plant closure, which I find was purposefully de-
signed to frustrate and undermine employee efforts at obtaining
union representation. Thus, while at first blush Day’s inquiry
may seem somewhat innocuous, when viewed in light of her
subsequent conduct and that of other management officials,
there can be no doubt that her interrogation of Michaels was
simply the start of what was to be a deliberate and calculated
attempt by Respondent to thwart the employees’ organizational
efforts. By asking Michaels how the meeting had gone, Day
hoped to elicit from him information that would be of use to
Respondent in gauging the level of union support among its
drivers, and in developing a response thereto, and moreover
created the clear impression in Michaels’ mind, as evident from
his “shocked” reaction to her remark, that the Respondent was
fully aware of, and was keeping close tabs on, the driver’s or-
ganizational attempts. I therefore find that Day’s comment was
indeed coercive and violative of Section 8(a)(1) of the Act.
Flexsteel Industries, 311 NLRB 257 (1993); R & L Transfer,
295 NLRB 1170, 1174 (1989).
(2) Towards employee Hill
At approximately 7 a.m. on March 21, while Hill and Day
were alone in Respondent’s office, Day asked Hill if he knew
anything about L.S.F. employees “trying to go union.” Hill
denied having any such knowledge, at which time Day stated
that “if Amy [Faure] would find out we were trying to go un-
ion, she would close the doors.” I find that Day’s comments
amounted to an unlawful interrogation and threat of plant clo-
sure. Like the Michaels interrogation, Day’s questioning of
Hill took place in Respondent’s office, was initiated by Super-
visor Day, and was not the product of any casual or friendly
conversation between the two. Although Hill, unlike Michaels,
openly declared his support for the Union later that same day
by identifying himself as a member of the Union’s committee
in the “Open Letter to Management,” and by wearing a button
with the words “Teamsters Local 142” on it, when she ques-
tioned and threatened Hill at 7 a.m., Day in all likelihood would
not have known of Hill’s involvement with, or sympathies for,
the Union.12 Accordingly, Day’s query to Hill—if he knew
whether Respondent’s employees were trying to go union, fol-
lowed by Day’s remark that Faure would close the plant if she
found the drivers were trying to unionize, would reasonably
have been interpreted by Hill to mean that if the Union came in
the plant might be closed and jobs could be lost. For this rea-
son, Day’s comments were coercive and violated Section
8(a)(1) of the Act. American Wire Products, 313 NLRB 989,
993 (1994).
12 The “Open Letter to Management” in which Hill identified him-
self as a member of the Union’s committee was not delivered to Re-
spondent until 2:30 p.m. on March 21, hours after Day interrogated
Hill. Further, Hill began wearing his prounion button on March 22, the
day after Day’s encounter with Hill.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
(3) Towards employee Hasse
On March 21, while in Day’s office, Day asked Hasse if he
“had any knowledge of the people wanting to unionize.” Hasse
told Day that to protect himself he would not answer her ques-
tion. Two days later, on March 23, after the “Open Letter to
Management” identifying Hasse as a member of the Union’s
committee was turned over to Belt, Day again questioned him
about the Union. Thus, while in her office, Day asked Hasse
why the employees wanted to unionize, and why he was behind
it. Hasse replied that it was their right to do so.13 Approxi-
mately 1 week after the petitions were signed and the “Open
Letter” was delivered to Belt, Hasse heard Day remark to an-
other employee, identified only as Sharon, that she did not
know why employees wanted to unionize, and that should this
occur, “the company would close.”
There is no evidence to suggest that when she questioned
Hasse on March 21, Day had knowledge of his involvement
with the Union. In fact, her question suggests that while she
may have suspected that there was union activity afoot, she was
unaware of the extent of the activity or which employees were
involved. Nor does the record show that Day’s question to
Hasse, which took place in Day’s office, was part of any casual
or friendly conversation between the two. Further, Day’s in-
quiry was not limited to a simple discussion of Hasse’s own
views, but rather was clearly aimed at soliciting from Hasse any
information he may have had regarding the organizational ef-
forts of other employees. In these circumstances, Day’s ques-
tion to Hasse was coercive, Avery Leasing, 315 NLRB 576, 580
(1994); BRC Injected Rubber Products, 311 NLRB 66, 72
(1993), and Hasse’s refusal to respond to protect himself is
clear evidence that he viewed it as such. Ironically, his reluc-
tance to respond in all likelihood gave Day reason to believe
that he indeed supported the Union, a fact that was subse-
quently confirmed when the “Open Letter to Management”
identifying Hasse as a member of the Union’s organizing com-
mittee, was delivered to Respondent. Thus, on March 23, when
Day again questioned Hasse, she was fully aware of his proun-
ion stance, and so indicated by asking him why he was behind
the effort to unionize the drivers. However, the fact that by this
time Hasse had openly declared himself to be prounion does
not render Day’s March 23 interrogation any less coercive than
her March 21 interrogation, for her March 23 conduct cannot be
viewed in isolation but must be viewed in light of the other
extensive unfair labor practices committed by Day and other
management officials (discussed infra) during this period.
Jennmar Corp., 301 NLRB 623 (1991). Further, a supervisor’s
question aimed at determining why employees are seeking to
organize constitutes coercive interrogation because this is pre-
cisely the type of information which employees under the Act
are privileged and permitted to keep to themselves. Custom
Window Extrusions, 314 NLRB 850, 858 (1994). For these
reasons, I find that Day’s March 23 questioning of Hasse vio-
lated Section 8(a)(1) of the Act.
Day’s comment to Sharon that the Company would close if
the employees unionized is also found to be violative of Section
8(a)(1). It is unclear from the record who Sharon was or what

13 Hasse’s testimony as to when the second conversation with Day
occurred is somewhat confusing. Initially, he testified that it occurred 1
week after the first incident, but later corrected himself by stating it
occurred on March 23. This minor inconsistency does not affect his
overall credibility.
her position was with the Company. It is clear, however, that
Hasse was within hearing range of the conversation and his
presence in the area must have been known to Day. Thus, I am
convinced that the remark, while made to Sharon, was also
intended for Hasse’s consumption. There is no indication from
Hasse’s account that Day was merely stating the predictable
consequence based on objective factors of what might occur
should the union drive prove successful. Rather, the remark
directly linked the closure of the facility to the success or fail-
ure of the employees’ organizational efforts. Under these cir-
cumstances, Day’s threat of plant closure amounted to a viola-
tion of Section 8(a)(1) of the Act. Roadway Package System,
302 NLRB 961, 973 (1991).
(4) Towards employee Kawa
Sometime during the week of March 21, Day, in the pres-
ence of Andrysiak and another unidentified dispatcher, asked
Kawa what he thought about the Union. Kawa answered he
thought it would be a pretty good thing because he had some
prior time with the Teamsters that would count towards his
retirement, that the Teamsters had pretty good insurance, and
that he “would probably go along with the majority of the guys
on the vote, if it was ever to come in.” Although Kawa signed
the petition, he was not an open and active union supporter.
Indeed, Kawa testified the conversation occurred before he
even signed the petition. This inquiry, initiated by his supervi-
sor and conducted at the L.S.F office without any indication
that it was part of a friendly or casual conversation, and occur-
ring as it did in the context of other unlawful interrogations
conducted by Day, was simply part of Day’s overall agenda to
determine the extent of sympathy or support enjoyed by the
Union among Respondent’s employees, and is found to have
been coercive and violative of Section 8(a)(1).
(5) Towards employee Holland
Two or three days after giving Belt the “Open Letter to Man-
agement,” e.g., on or about March 24, Holland called the office
for a dispatch between 3 and 4 p.m. and spoke with Day. Dur-
ing that conversation, Day expressed concern about L.S.F.
drivers getting involved with the Union, and related to Holland
that Amy Faure had told her “she would close the doors to
L.S.F. before she would let the Union come in.” Faure, as
noted, was not called to refute this testimony, and Day, while
called, was not questioned about Holland’s assertion and con-
sequently did not deny it. Given these facts, I find that Day
unlawfully threatened Holland with plant closure in violation
8(a)(1) of the Act. Dlubak Corp., 307 NLRB 1138, 1144
(1992). Roadway Package System, supra.
b. Unlawful conduct by Operations Manager Scott Belt
(1) Towards employee Owens
Sometime between 11:30 and 12 p.m. on March 21, Owens
was in the L.S.F. office when Belt called him into his office and
asked him if was “aware of a petition going around to start the
union for L.S.F.” When Owens replied he knew nothing about
it, Belt proceeded to tell him that he (Belt) had spoken to two
other drivers about it, that Amy Faure was opposed to the Un-
ion, and that she was “already looking at another warehouse
and closing down that warehouse, sending all 15 or 20 trucks
back to Biddle, breaking the lease.” Belt further commented
that “anybody who wants to go in the union is just greedy; if
they make $1,000, they want to make $1,500.” Finally, Belt
L.S.F. TRANSPORTATION, INC. 1065
remarked that he “would not go to Amy [Faure] with this, that
he would consider it a personal vendetta after all the work he
has done for the drivers.” Owens interpreted Belt’s comment
as suggesting that Belt had a suspicion that drivers were in-
volved in union activity, and that Belt would be preparing a “hit
list” of drivers who supported the Union.14 While he testified
at the hearing, Belt was not asked about and consequently did
not deny Owen’s above assertions.
I find merit to the complaint allegation that Belt unlawfully
interrogated Owens by asking him if a union petition was being
circulated among employees. The questioning was initiated by
Belt, a high-level member of Respondent’s managerial hierar-
chy, occurred in Belt’s own office, and there is no indication
that Owens, who despite his support for the Union was not an
open and active adherent, was summoned there for any other
purpose than to obtain information regarding the Union. Fur-
ther, Belt’s question was followed immediately by what is fur-
ther alleged to be, and I find was, a threat of plant closure.
Thus, Belt’s remarks about Faure’s plan to close down a ware-
house, to return a large portion of its truck fleet to Biddle, and
to break its lease with Biddle, made as they were in connection
with his comment that Faure was strongly opposed to the Union
and viewed union supporters as greedy, conveyed the clear
message that unionization, rather than economic factors beyond
the Respondent’s control, would result in the closing of Re-
spondent’s facility and a possible loss of jobs. Accordingly, I
find that Respondent, through Belt, unlawfully interrogated
Owens and threatened him with plant closure and job loss, in
violation of Section 8(a)(1).
(2) Towards employee William Keener
Keener, subpoenaed by the General Counsel to testify in this
proceeding, was still employed by Respondent at the time of
the hearing. Prior to the hearing, more particularly on April 15,
Keener provided the Board with a sworn affidavit in which he
recounted certain union-related comments Belt made to him in
March and early April. However, during the hearing, Keener
became evasive and nonresponsive to questions posed to him
by the General Counsel regarding these and other incidents, and
claimed to have a poor recollection of these events. When the
General Counsel sought to refresh his recollection by referring
him to his affidavit, Keener sought to downplay the signifi-
cance of the statements contained therein, suggesting that the
affidavit was incomplete and that, in any event, he did not con-
sider the remarks made to him by Belt and others as threats
(G.C. Exh. 26). It is fairly obvious from his testimony that
Keener was reluctant to testify against his Employer. Thus, in
response to the General Counsel’s questions, Keener became
visibly upset and stated, “No. This is not right. I don’t want to
be here. Okay? I have been summoned to be here. I am saying
what I have to say. I am not sitting here, I am not going to put
anybody up. I don’t know. I can’t remember.” He further
added, “The only reason I came is because I don’t want to be
picked up in front of my kids by the police.”
Given Keener’s reluctance to testify, the General Counsel of-
fered into evidence Keener’s affidavit, which I accepted over

14 The General Counsel’s assertion in her posthearing brief, at p. 60,
fn. 27, that Belt actually told Owens that he knew who had attended
union meetings and that prounion drivers were on a “hit list,” is a mis-
characterization of Owens’ testimony, for the latter simply testified that
this was his interpretation of what Belt meant by his “personal ven-
detta” remark.
Respondent’s objection, and which I now consider as substan-
tive evidence as a past recollection recorded, and rely on in
place of the Keener’s contradictory oral testimony. See, e.g.,
Three Sisters Sportswear Co., 312 NLRB 853, 865 (1993).
Keener states that in late March, just a few days after he and
Hill discussed the union petitions (which Keener incidentally
did not sign), Belt asked him if he “was aware of any union
activity.” Keener responded that he had heard something about
the Union, but did not know how far the unionizing effort had
gone at L.S.F. Belt then stated that he (Keener) “did not know
how much damage a union could do to the company and that a
union at L.S.F. could mean [Keener’s] job.” Keener answered
that “we would have to see what happened.” Later that same
day, Keener called Belt at his home to discuss an unrelated
matter, at which time Belt asked Keener his opinion of the Un-
ion. Keener replied that he preferred to look at both sides of
the issue, and that he believed that the drivers were simply
looking for a wage increase and some job security. Belt re-
sponded by asking Keener if he “would rather see the drivers
earn more money or to see L.S.F. close.” Belt did not deny
Keener’s assertions.
The complaint alleges that Belt unlawfully interrogated
Keener by asking him if he was aware of any union activity
among employees, and how he felt about the Union. Clearly,
Keener was not an active and open union supporter, and indeed
did not sign the union petition, and nothing in Belt’s questions
suggest that he had some legitimate reason for questioning
Keener regarding his knowledge or opinion of union activities
at the facility. Further, in both instances, the inquiry regarding
the Union was initiated by Belt and was followed immediately
by what the complaint further alleges, and I find, were clear
threats of discharge and plant closure. Nothing in Belt’s com-
ments suggest that he had some factual objective basis for his
assertion regarding the loss of jobs and probability of plant
closure. In view thereof, and as the above remarks were clearly
intended to obtain information regarding the protected activities
of other employees and occurred within a framework of other
unfair labor practices committed by Belt and others, I find that
Belt’s questioning of Keener and his subsequent threat of dis-
charge and plant closure were coercive in nature and violative
of Section 8(a)(1) of the Act. Midland Transportation Co., 304
NLRB 4, 6–7 (1991).
(3) Towards employee Hill
As more fully discussed below, on April 13, the Respondent
placed Hill on medical leave presumably until he obtained a
full physical examination and was medically released to return
to work. Approximately 1 week after being placed on medical
leave, Belt called him and asked if he had heard anything from
the doctors. Hill responded he had not, at which time Belt told
Hill that he was “a little confused on the way [Hill] was going
to vote” in the upcoming Board election. When Hill simply
stated, “No comment,” Belt responded that he had a truck “sit-
ting there, and that it couldn’t be sitting.” Hill claims he simply
said, “[O]h, well,” and that the conversation ended at that point.
The complaint alleges that Belt’s comment about being a lit-
tle confused on how Hill was going to vote amounted to an
unlawful interrogation, and that his further comment about the
truck “sitting there” was an implied threat that Hill could lose
his job depending on the outcome of the election. I agree.
Belt, as noted, initiated the conversation, in my view, under the
guise of seeking to determine if Hill had obtained the necessary
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
medical release forms. Having received Hill’s negative re-
sponse, Belt then revealed the true purpose of the call, to wit, to
ascertain how Hill intended to vote in the upcoming Board
election. Although Hill’s active involvement with the Union
was by now fairly well-known to Respondent, Belt’s attempt to
ascertain how Hill intended to vote served no legitimate pur-
pose and, when viewed in light of what was clearly a veiled
threat of job loss, constituted an unlawful interrogation and
threat of job loss, and violated Section 8(a)(1) of the Act.
Hoffman Fuel Co., 309 NLRB 327 (1992).
c. Unlawful conduct by Owner Faure and husband Crohan
(1) Towards employee Holland
On March 25, a payday, Holland went to get his paycheck
but was told by Day that employees first had to watch a video
before receiving their checks. Just prior to watching the video,
Faure approached Holland and asked him if he was allowed to
talk to her, or if the Union forbade it. When Holland responded
that he could talk to her, Faure asked Holland, presumably in
the presence of others, why they were bringing in the Union,
and stated that Holland would not like what she would do to
him if employees pursued the Union, that he would quit and
walk away. Following Faure’s remark, her husband, Crohan,
commented to Holland that they (presumably the employees)
were “all chicken-shits for not coming to them first before
[they] went to the Union.” Crohan added that “for 50 cents an
hour he would sit there and promise us the moon, just like the
Union did,” and that “we could go ahead and bring the Union
in, but when we went on strike that he would bring in tempo-
rary or replacement workers to replace us.” As noted, neither
Faure nor Crohan was called to testify. Accordingly, Holland
is credited.
The complaint alleges that Faure’s above comments to Hol-
land were unlawful and violative of Section 8(a)(1). I agree.
Although Holland was an active and open union adherent,
Faure’s attempt to ascertain his and other employees’ reasons
for wanting to organize, when viewed in light of her subsequent
not so subtle threat that his prounion endeavors would result in
certain unspecified reprisals, was coercive and amounted to an
unlawful interrogation. While Faure’s threat of reprisal was
nonspecific, her claim that Holland “would quit and walk
away” could reasonably be interpreted as a threat that Faure
would make Holland’s life at work so unbearable that he would
be forced to quit. In these circumstances, Faure’s questioning
of Holland and her subsequent threat of unspecified reprisals
was coercive and violative of Section 8(a)(1). Hoffman Fuel
Co., supra.
I also find that Crohan unlawfully threatened Holland and
employees in general with job loss when he stated that employ-
ees could go ahead and bring in the Union but when employees
went out on strike, he would bring in temporary or replacement
workers to replace them. Generally speaking, Section 8(c) of
the Act permits an employer to make predictions about the
consequences of unionization provided its remarks are not ac-
companied by a threat of reprisal or force or promise of benefit.
In Eagle Comtronics, 263 NLRB 515 (1983), the Board held
that an employer does not violate the Act when it truthfully
informs employees that they are subject to permanent replace-
ment in the event of an economic strike, since such a statement
is consistent with the Board’s holding in Laidlaw Corp., 171
NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1969).15 Crohan’s remark, in my view,
exceeds the permissible bounds of free speech permitted under
Section 8(c), and by the holding in Eagle Comtronics, supra.
Thus, rather than expressing his view as to what might possibly
occur following the give and take of negotiations, Crohan made
it clear to Holland that a strike was inevitable by telling him
that Respondent intended to hire replacement workers “when”
(not “if”) employees went on strike. If this was not the mes-
sage Crohan intended to convey, then it was incumbent on him
to clarify or explain his strike remark. Absent any such expla-
nation or clarification, Holland could reasonably have inter-
preted Crohan’s remark to mean that Respondent would not be
averse to, and indeed might encourage, a strike so that it could
hire replacements and discharge the striking employees.
Clearly, any ambiguity in this regard must be resolved against
Crohan. I therefore find that Crohan’s strike remark, especially
when viewed in the context in which it was made, e.g., Faure’s
threat of unspecified reprisal against Holland and Crohan’s
pejorative description of union supporters as “chicken shits,”
amounted to a veiled threat of discharge and violated Section
8(a)(1) of the Act. LRM Packaging, 308 NLRB 826, 832
(1992).
(2) Towards employee Keener
Keener’s testimony, as adduced from his oral presentation at
the hearing and his sworn affidavit, reflects that after viewing
the video which Respondent had employees watch before re-
ceiving their paychecks on March 25, Faure asked him what he
thought of the video, and that he responded that he found it to
be “very far fetched.” Keener claims that on hearing his com-
ment, Crohan “got in [his] face” and said that he “should ask a
certain union member how much of his pension benefits he was
getting from his union pension fund.” Crohan further stated
that “L.S.F. would not be able to operate with the union” and
Faure added that the drivers “did not know what we had.” (See
GC Exh. 26, p. 3.)
The complaint alleges that Faure unlawfully interrogated
Keener by asking him what he thought of the video. By itself,
Faure’s inquiry seems somewhat innocuous and hardly coercive
and but for the circumstances in which it was made, I would be
inclined to dismiss this particular allegation. However, Faure’s
inquiry occurred immediately after the viewing by employees
of the company film, and was immediately followed by Cro-
han’s apparent tirade during which he “got in Keener’s face”
and told him, inter alia, that the Company would not be able to
operate with the Union. Given the circumstances in which it
was made, I agree that Faure’s comment to Keener was coer-
cive and violative of Section 8(a)(1).
d. Unlawful conduct by Supervisor Burnson
(1) Toward employee Owens
On April 28, 1 day prior to the election, Burnson approached
Owens in the Respondent’s parking lot and asked, “Do you
know how the election is going to go? Do you know who you
are going to vote for yet?” Owens replied he did not yet know
how he was going to vote, adding that “[i]f I vote with my

15 Under Laidlaw, permanently replaced economic strikers who have
made unconditional offers to return to work are entitled to full rein-
statement when positions become available and to be placed on a pref-
erential hiring list if positions are not available.
L.S.F. TRANSPORTATION, INC. 1067
head, I go with the Union; if I vote with my loyalty, I go with
my heart which is Amy [Faure].” Burnson retorted, “I hope
you vote with your heart.” Burnson did not testify and Owens’
undisputed account is credited.
The complaint alleges, and I find, that Burnson unlawfully
interrogated Owens by asking him how he was going to vote in
the election. Owens, as previously found, was not an active
and open union supporter, and Burnson’s inquiry of Owens
served no legitimate purpose and was obviously designed to
ascertain where Owens’ sympathies lay. As the Board noted in
Advo System, 297 NLRB 926, 933 (1990), an employee’s view
regarding unionization may be kept to himself and his freedom
of choice should not be influenced by the employer’s knowl-
edge or suspicion about those views. Accordingly, Burnson’s
questioning of Owens on how he intended to vote was coercive
and violated Section 8(a)(1).
(2) Towards employee Michaels
Burnson also interrogated Michaels in the parking lot on
April 28, on how he was going to vote. Michaels replied that
he “was kind of unsure because if I would have voted yes, then
I would have the company upset with me, and if I voted no, that
I would have had the drivers upset with me.” Michaels stated
that they then engaged in some small talk but that soon thereaf-
ter Burnson again asked him pointblank, “which way are you
going to vote?” and he responded, “None of your business.”
Michaels’ above testimony is undisputed and is credited.
The reasoning set forth above regarding Burnson’s inquiry of
Owens is equally applicable here. Accordingly, I find for the
above stated reasons that Burnson’s inquiry of Michaels regard-
ing how he expected to vote was coercive and violative of Sec-
tion 8(a)(1) of the Act. Advo System, supra.
e. Faure’s April 25 letter to employees
In her April 25 letter to employees entitled “What Will Lo-
cal 142 Bring to the Table,” Faure informed employees that
the Union at one time represented its employees but were voted
out in 1986, and suggested to employees that they ask those
who were present in 1986 why the Union was voted out. (R.
Exh. 40, p. 7.) The letter went on to state that:

Irregardless of those reasons, all of you who are in the eligible
voters group should clearly understand that you are “gambling
with”—current wages, benefits and terms and conditions of
employment. If you vote to have Local 142 represent you, all
of your current wages, and benefits will be frozen during any
negotiations for a contract. Once the contract is negotiated, it
(the contract) will establish your wages, benefits and terms
and conditions of employment.” [Emphasis added.]16

16 Faure’s April 25 letter was not the only document in which “fro-
zen wages and benefits” was discussed. Thus, Respondent also distrib-
uted a document entitled, “QUESTIONS AND ANSWERS,” respond-
ing hypothetically with “facts” to questions employees may have as to
what would occur if the Union won the election. One such question
dealt with the effect a union victory would have on the employees’
“current wages and benefits.” In response to this hypothetical question,
the document stated that: “Your current wages and benefits will be
frozen with no changes during the negotiation of a contract. In fact,
any wage increases that go to any other facilities or employees here at
Field Street who are not part of the election group cannot be imple-
mented here. It is likely that negotiations may take a long time—even
up to one year. Your wages and benefits would be frozen at current
levels for the period of negotiation until a final agreement is reached.”
The complaint, as noted, alleges, and the General Counsel
contends in her posthearing brief, that the above statement con-
stitutes an unlawful threat to employees that their wages and
benefits would be frozen because of their support for the Union.
I agree. It is well-settled that once the Union is voted in as the
bargaining representative of Respondent’s employees the Re-
spondent remains obligated to continue in effect its existing
wage and benefit policies until such time as the parties bargain
in good faith to agreement on any proposed change to the poli-
cies or to an impasse in negotiations. Faure’s letter, however,
makes clear that the Respondent intended to freeze employee
wages and benefits at their current levels without regard to any
right employees may have had under existing policies or prac-
tices to receive periodic wage increases and/or increases in
benefits. In these circumstances, Faure’s letter amounted to a
threat to deprive employees of existing benefits if they sup-
ported the Union, and violated Section 8(a)(1) of the Act. 299
Lincoln Street, Inc., 292 NLRB 172, 174 (1988).
2. The 8(a)(3) allegations
a. The issuance of the company policy and proce-
dures manual
The complaint alleges that on April 8 the Respondent insti-
tuted, and has since maintained, new work rules for drivers, and
that its purpose in doing so was to discourage employee support
for the Union. Despite the Respondent’s denial in its answer
that it did not implement any new work rules, the General
Counsel introduced into evidence, without objection from the
Respondent, a manual entitled, “LSF Transportation Driver
Company Policies and Procedures,” which Belt identified as
work rules that were issued by Respondent in April (G.C. Exh.
10). The evidence therefore confirms, contrary to Respon-
dent’s denial, that new work rules were in fact enacted and
implemented soon after the Respondent learned of the Union’s
campaign to organize its drivers. The question remains
whether the implementation of the work rules was discrimina-
torily motivated.
Applying the causation test established by the Board in
Wright Line, 251 NLRB 1083 (1980),17 for determining
whether employer conduct violates Section 8(a)(3) and (1), I
find that there is sufficient, credible, and undisputed evidence
to support the inference that the enactment of the work rules
was motivated by antiunion considerations. Thus, there is no
question that Respondent knew, as early as March 21, when it
unlawfully interrogated Michaels about the union meeting held
the day before, that its drivers were engaged in an organiza-
tional drive. The Respondent’s suspicion in this regard was
subsequently confirmed on March 22, when Belt received the
“Open Letter to Management,” signed by Holland, Hill, and
Hasse. Furthermore, just 3 days prior to enacting the rules in
question, the Respondent had agreed to a Board-conducted
17 Enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Corp., 462 U.S. 393
(1983). Under Wright Line, the General Counsel bears the initial bur-
den of showing that respondent’s actions were motivated, at least in
part, by antiunion considerations. In making out a prima facie case, the
General Counsel must show that employees had engaged in union or
other protected activity, that the employer knew of such activities, and
that it harbored animosity towards the employees or the union. Once
this is established, the burden shifts to the employer to demonstrate that
it would have taken the same action even in the absence of the pro-
tected conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
election to decide whether its drivers wished to be represented
by the Union. Respondent’s knowledge of its employees’ un-
ion activities is therefore irrefutable. Respondent’s antiunion
animus is also well established and evident by the course of
unlawful conduct on which it embarked on learning of its em-
ployees’ activities. Such conduct, as found above, included the
repeated interrogation of suspected union supporters, and
threats of plant closure, discharge, and other reprisals. Given
these facts, an inference is warranted that the Respondent’s
enactment of the work rules, just 3 days after agreeing to an
election, was motivated by antiunion considerations.18 As the
General Counsel has satisfied her Wright Line burden of proof,
the burden now shifts to the Respondent to demonstrate that the
work rules would have been enacted even if employees had not
engaged in any union activity. In this regard, the Respondent
offered no explanation either during the hearing or in its
posthearing brief for its decision in this regard. Consequently,
the General Counsel’s prima facie case remains unrebutted,
warranting a finding, which I make here, that the enactment of
the work rules violated Section 8(a)(3) and (1) of the Act, as
alleged.
b. The policy change on use of ComData cards
The General Counsel contends in her posthearing brief that
Respondent further violated Section 8(a)(3) and (1) by discon-
tinuing the practice of allowing drivers to obtain cash advances
with their company credit card, known as a ComData card. The
record reflects that Respondent issued these ComData cards to
drivers to enable them to purchase fuel and for emergency pur-
poses. It is also undisputed that prior to March 27 employees
were permitted to use the cards to obtain cash advances to pay
for meals, etc., which would then be automatically deducted
from their paychecks. On March 27, soon after learning of the
employees’ union activities, the Respondent issued a memo
restricting the use of the ComData cards for fuel purchases
only, and prohibiting employees from obtaining cash advances
(G.C. Exh. 19). The memo states that the change in practice
resulted from driver abuse of the cash advance privilege.
I agree with the General Counsel that the change in policy
was unlawful. Clearly, the timing of the change in policy, just
a few days after Respondent learned of the drivers’ activities,
coupled with its demonstrated hostility towards the Union,
affords a sufficient basis for drawing an inference that anti-
union animus was a motivating factor in Respondent’s sudden
change in policy regarding employee use of the ComData card.
Masland Industries, 311 NLRB 184, 197 (1993). In these cir-
cumstances, I find that the General Counsel has made a prima
facie showing that the change in policy was motivated by anti-
union considerations. The Respondent has presented no evi-
dence, and indeed made no argument at the hearing or in its
posthearing brief, to refute the General Counsel’s prima facie
case. The only explanation found for the change in policy is
the statement in General Counsel’s Exhibit 19, that employees
had been abusing the ComData card privileges. However, an
employer does not satisfy its Wright Line burden simply by
presenting a legitimate reason for its action, but must instead
persuade by a preponderance of the evidence that the same
action would have occurred even in the absence of the employ-

18 Equitable Gas Co., 303 NLRB 923, 928 fn. 17 (1991). (“Anti-
union motivation may be reasonably inferred from various factors
including an employer’s expressed hostility toward a union together
with its knowledge of the employee’s union activities.”)
ees’ protected conduct. Peter Vitale Co., 310 NLRB 865, 871
(1993). Here, the Respondent could have, but did not, present
credible oral or documentary evidence to substantiate the claim
of driver abuse of the ComData cards asserted in General
Counsel’s Exhibit 19. As the General Counsel’s prima facie
case remains unrebutted, I find that termination of the drivers’
cash advance privilege was purely retaliatory in nature and a
direct response their involvement with the Union. By its con-
duct, the Respondent sought to discourage further employee
support for the Union and thereby violated Section 8(a)(3) and
(1) of the Act.
c. The change in work assignments/suspension/discharge of
individual drivers
(1) Mark Hasse
Hasse was hired by Respondent on January 13 and, except
for an occasional long haul, was primarily assigned to local
runs. On March 23, as found above, Day unlawfully interro-
gated Hasse about his union activities. Hasse credibly testified
this conversation occurred at approximately 1 p.m., after he had
finished his local runs, and that immediately after making her
comment, Day informed him that he was through for the day
and that due to a lack of work, he would not be working the
following day, Friday. Hasse credibly and without contradic-
tion testified that his normal workday lasted anywhere from 10
to 15 hours per day. When sent home by Day, Hasse had only
worked 7 hours. He further testified, again without contradic-
tion, that he had never previously been asked to take a day off.
The following day, Friday, Hasse called Day at approximately
9 a.m. to inquire about work, and was told there was still no
work available. Day further informed him that on Monday, he
was scheduled to go out on a long haul to Indianapolis. Hasse
admits having done long hauls to Indianapolis “on very few
occasions.” Hasse recalls having done two Indianapolis runs in
a row, and that on March 28, he was assigned another long haul
to East Alton, Illinois.
In the early morning of March 28, Hasse arrived at the
Hammond terminal of the Great Lakes warehouse to pick up
his cargo for the East Alton trip. On receiving his paperwork,
he inspected the truck, noticed that it had been loaded and
sealed, and began his drive to East Alton. On the way, Hasse
came across a weigh station at Springfield, Illinois, and at that
time learned that his truck was 4900 pounds’ overweight.
Hasse received a citation for the overweight vehicle and was
not permitted to continue until the weight was brought within
legal limits and the fine of $562 paid.19 Hasse testified, without
contradiction, that he notified Belt that same morning about the
ticket. The record reflects that Hasse made another trip on
March 29. On March 30, Day asked Hasse to come in early on
March 31. As instructed, Hasse reported for work on March 31
and was told Belt wanted to speak with him. Hasse then met
with Belt in his office and after asking Hasse about the ticket,
presented him with a form to sign authorizing Respondent to
deduct the cost of the fine from his paycheck. Hasse objected
to paying the fine, stating that this was not a moving violation
19 Eventually, another driver was sent to remove the excess cargo,
which consisted of several pallets of beer that had erroneously been
loaded in Hasse’s truck. This additional freight was not listed on the
bill of lading, which on its face gave no indication that Hasse’s truck
and cargo exceeded the maximum allowable weight of 80,000 pounds.
Respondent also paid the $562 fine.
L.S.F. TRANSPORTATION, INC. 1069
for which he should be responsible, but that the overweight fine
was a company ticket for which the Company, not the em-
ployee, is responsible. Belt, according to Hasse, insisted that
Hasse was responsible for paying the fine, and showed Hasse a
copy of a memo dated January 9 which advised employees that
all loads were to be scaled, and that where a driver was “irre-
sponsible” in this regard, “he must pay for the fines or cost
incurred.” (See R. Exh. 1.) Hasse informed Belt that he had
never before seen the January 9, memo on scaling, and had
never initialed a copy of the memo.20 Belt nevertheless insisted
that Hasse pay the fine, and stated that if he refused, he would
be terminated. When Hasse reiterated his position, Belt pur-
portedly told him to clean out his personal effects from his
tractor, and to turn in his cellular phone and beeper.
The complaint alleges that the Respondent violated Section
8(a)(3) and (1) when Day sent Hasse home early on March 23,
and laid him off for 1 day on March 24, and by thereafter dis-
charging him on March 31. The General Counsel has made out
a prima facie case that Respondent’s conduct was motivated at
least in part by Hasse’s involvement with the Union. The re-
cord evidence clearly establishes, and the Respondent does not
dispute, that Hasse was an active and open union supporter and
that Respondent was fully aware of his prounion sympathies
and activities. Hasse, for example, signed both the petition and
the “Open Letter to Management,” and also wore a bright or-
ange button with the words “UNION YES” on his jacket for all
to see. Respondent’s knowledge of his prounion sympathies is
evident from the fact that Belt received the “Open Letter to
Management” and from Day’s inquiry as to why Hasse was
behind the union movement. Further, as found above, the nu-
merous incidents of unlawful interrogations and threats en-
gaged in by most of Respondent’s managerial staff establish
quite clearly the antiunion animus which Respondent harbored
towards the Union and its supporters.
Regarding the allegation that Respondent discriminated
against Hasse for his union activities by sending him home
early on March 23, and laying him off for an alleged lack of
work on March 24, the Respondent offered no explanation or
justification, either at the hearing or in its posthearing brief, for
its conduct in this regard. The timing of Day’s decision to send
Hasse home early and not to assign him any work for the fol-
lowing day, occurring as it did immediately after her unlawful
interrogation of him and his response that it was his right to
unionize, supports the General Counsel’s assertion that Day’s
decision was motivated by antiunion considerations. As the
Respondent failed to present any evidence, testimonial or oth-
erwise, to rebut the General Counsel’s prima facie case, a find-
ing is warranted that Respondent violated Section 8(a)(3) and
(1) when Day sent Hasse home early on March 23, and laid him
off for 1 day on March 24.
As to the allegation that Hasse was unlawfully discharged for
his union activities, the Respondent contends that Hasse was
not terminated but instead chose to voluntarily quit his em-
ployment rather than reimburse Respondent $560 for the fine it
paid on the overweight citation received by Hasse. The Re-
spondent points out that Hasse’s failure to scale his load before
embarking on his trip to East Alton was a breach of its January

20 Hasse testified, credibly and without contradiction, that when a
new company policy was instituted, the practice was to furnish each
employee with two copies of the policy, one of which would be ini-
tialed and placed in the employee file, and the other was to be retained
by the employee.
9 policy (R. Exh. 1), rendering him liable for the fine he re-
ceived, and contends, through testimony provided by Belt, that
when asked to sign a form authorizing Respondent to make
deductions from his paycheck, Hasse declined to do so and left
the office.
The Respondent’s contention that Hasse quit and was not
terminated rings hollow and is simply not believable. Initially,
I credit Hasse over Belt as to what occurred and was said dur-
ing the March 31 meeting. Hasse appeared to be testifying in
an honest and forthright manner. Belt, on the other hand, ex-
hibited a poor demeanor on the witness stand, at times seemed
confused by questions posed to him by Respondent’s counsel,
and often was able to recollect events only after being
prompted by leading questions from counsel. Thus, I accept as
true Hasse’s claim that during the March 31 meeting Belt de-
manded that he sign the payroll deduction form or face termina-
tion, and that when he declined to do so Belt ordered him to
clean out his personal effects from his tractor and to turn in his
cellular phone and beeper, effectively discharging him. Indeed,
Belt’s own testimony would seem to undermine Respondent’s
claim that Hasse quit on March 31. Thus, in describing what
Hasse said and did after being asked to reimburse Respondent,
Belt stated only that Hasse simply left the office after express-
ing his unwillingness to pay the fine, and made no mention of
Hasse ever having verbalized an intention to quit over this mat-
ter.
The Respondent’s suggestion that Hasse was fully aware of
the January 9 policy mandating that all loads be scaled and
requiring an “irresponsible” driver who failed to do so to pay
the fine, and that he quit rather than comply with the policy’s
requirements, is contrary to the credible evidence of record.
Hasse, as noted, testified in a credible and uncontroverted fash-
ion that he was unaware of the existence of such a policy, and
further testified, consistent with the testimony of other drivers,
that during a February meeting drivers were told to use their
own judgment in deciding which loads to scale. While there is
no question that Hasse did not scale the East Alton load he
delivered on March 28, Hasse’s decision not to do so was con-
sistent with Respondent’s discretionary scaling policy an-
nounced to drivers in February.21 Having found that Hasse was
terminated by Respondent, and that it has not come forth with a
legitimate, nondiscriminatory reason for doing so, the General
Counsel’s prima facie showing that Hasse was terminated for
his union activities remains intact. Accordingly, I find that
Hasse’s termination on March 31 violated Section 8(a)(3) and
(1) of the Act.
21 Nor was there any reason for Hasse to believe that the East Alton
load would need to be scaled since the combined weight of the tractor-
trailer and the cargo contained therein, as per the bill of lading given to
Hasse, would have been well below the maximum allowable weight of
80,000 pounds. As it turned out, an error had been made by the load-
ers, which was not reflected in the bill of lading, that caused the truck
to become overweight. Clearly, this was not Hasse’s doing. Thus,
Respondent would not have had any basis for insisting that Hasse pay
the fine under its January 9 policy since he was not the “irresponsible”
party in this matter. In fact, Belt readily admitted that where extra
product was loaded onto a truck and not reflected on the bill of lading,
the individual or individuals responsible for loading the truck would be
responsible. (Tr. 38.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
(2) Ron Holland
Holland had been employed by Respondent as a truckdriver
from July 1993 until his discharge on April 7.22 His signature
on the “Open Letter to Management,” and his actions in deliv-
ering it in person to Belt, clearly identified him to Respondent
as an open and active union supporter and establishes Respon-
dent’s knowledge of his activities. From about December 1994
to March 23, Holland primarily drove long-distance mileage
runs, and averaged weekly earnings of approximately $750–
$800. Holland would on occasion be asked to drive a short run
but only when no one else was available to do so. Beginning
March 23, just 2 days after delivering the “Open Letter to Man-
agement,” the Respondent began assigning Holland to short
runs, which effectively reduced his weekly take-home pay to
about $450 to $460. On March 31, Holland was issued a writ-
ten warning by Belt for having an overweight truck. When
Holland reminded Belt that they had been instructed during the
February meeting to use their own discretion in deciding
whether or not to scale, Belt simply responded that company
policy required that all loads be weighed, and that this had been
set forth in a January 9 memo. Holland, however, insisted that
he had never seen such a memo, at which time Belt asked him
if he wanted a copy of the memo, and Holland replied he did.
Holland claims that that same day, he found a copy of the Janu-
ary 9 memo in his company mailbox.
On April 7, Holland was assigned to drive a load to East Al-
ton, Illinois. The record reflects that he picked up the load at
approximately 12:30 a.m. from Respondent’s facility and made
the delivery at about 7 a.m. While there, Holland called the
office at which time he was dispatched to pick up a “backhaul”
in St. Louis, Missouri.23 On arriving at St. Louis, Holland had
to wait for the shipment to be loaded and eventually left St.
Louis at approximately 12:30 p.m. with the backhaul and
headed for Respondent’s facility. Holland testified, credibly
and without contradiction, that 70 percent of his runs usually
entailed a backhaul and that the Respondent’s practice regard-
ing backhaul loads was to have the driver bring the load back to
the Hammond warehouse where it would be reassigned to an-
other local driver for delivery. His testimony in this regard was
corroborated by Michaels, Hill, Hasse, Kawa, and indeed Belt
himself. (Tr. 35.) On his way back to Hammond, Holland
called the office and was instructed by backhaul dispatcher
Qualls to deliver the shipment directly to its destination in
Niles, Illinois. Holland advised Qualls that he did not have
sufficient DOT hours remaining to complete the trip to Niles,
and stated that he would take the load to the Hammond facility,
take his 8-hour break, and then deliver the backhaul himself.24
22 Holland apparently had a break in his employment from October
to December 1994.
23 A backhaul occurs when a driver, after delivering an initial load to
a particular destination, is asked to pick up a load at another destination
and deliver it back to the Hammond terminal. On rare occasions, a
driver might be asked to deliver a backhaul directly to its destination
instead of returning it to the terminal. However, Holland testified,
credibly and without contradiction, that during his entire 2-year em-
ployment with Respondent he had only had to do this on one occasion,
and that he did so because the backhaul load was a mileage run and the
destination was nowhere near the Hammond facility.
24 Holland in fact had approximately 5 hours remaining. However, it
appears that with the rush hour traffic in Chicago, it would have taken
Holland anywhere from 6 to 7 hours to deliver the load to Niles, which
would have put him over the allowable 15-hour DOT limit.
Qualls then put Belt on the phone at which time the latter in-
formed Holland that he wanted the delivery made directly to
Niles and that Holland should continue towards Niles until his
DOT hours had been used up, take his break, and then proceed
to make the delivery. Holland, however, declined to do so, and
repeated that he would return to the Hammond facility and drop
off the backhaul load. It should be noted that Holland had an-
ticipated being able to return to the Hammond facility by 5 p.m.
to pick up his children, as he was customarily allowed to do
every other Friday.25 According to Holland, Belt then told him
to bring the truck back to Respondent’s facility and clean out
his things. Holland did so, arriving at the Hammond facility at
about 5 p.m.
The complaint alleges that Respondent discriminated against
Holland because of his union activities by assigning him after
March 23 to short runs only, resulting in a loss of pay, issuing
him a warning for not scaling an overweight truck, and dis-
charging him for failing to take the overhaul load to Niles. I
find merit to these allegations.
The General Counsel has sustained his Wright Line burden
of proof with respect to each one of these allegations. There is,
as noted above, no question that Holland was an active and
open union supporter, that Respondent was fully aware of his
activities, and that it harbored animus towards the Union and its
supporters. Regarding the reassignment of work, the Respon-
dent’s answer denies the allegation that Holland’s work as-
signments changed after March 23. Holland testified that when
he returned to work for Respondent in December 1994, he in-
formed both Belt and Day that he was interested in doing only
long runs, and that from that time until March 23, 95 percent of
his trips involved long runs. He further testified that on or
about March 23 the Respondent began assigning him to only
local runs, resulting in a decrease in his take-home pay. Not
only is Holland’s above testimony uncontroverted, it is also
supported by Respondent’s own payroll records (see R. Exh. 2).
Thus, the payroll record reflects that during the week ending
March 30 Holland’s hourly based earnings increased signifi-
cantly in comparison to hourly earnings of prior weeks, indicat-
ing clearly that he had a marked increase in the number of local
runs assigned to him during the week of March 23. Con-
versely, his mileage earnings for the same period dropped dra-
matically, suggesting that Holland had fewer long haul runs
during the week of March 23. While Holland readily admits
that his overall earnings for the 6-week period preceding his
discharge exceeded that of other drivers, the payroll records
support his claim that his take-home pay decreased after being
assigned to do short hauls on March 23.26 I credit Holland’s
above undisputed testimony and find that on or about March
25 Holland was a divorced parent who had custody of his children
every other weekend. The credible evidence of record reveals that the
Respondent was fully of his situation and accomodated him by permit-
ting him to return to home by 5 p.m. every other Friday to pick up his
children. Holland testified that there was no requirement he submit in
writing his request to be home early on such days, as testified to by
Belt. Holland’s testimony in this regard is corroborated by Olson, and
is credited.
26 Thus, his take-home pay for the week ending March 30, was ap-
proximately $459.23. However, his earnings for the weeks ending
March 23, 17, 9, and 2 were respectively $707.80, $907.44, $1038.77,
and $774.29. For the week ending April 6, it appears that Holland was
back to doing primarily long hauls since his weekly hour and mileage
earnings for that week approximate the weekly hour and mileage earn-
ings for periods preceding the week of March 23.
L.S.F. TRANSPORTATION, INC. 1071
23, Holland was indeed reassigned to do mostly short runs re-
sulting in a decrease in his weekly take-home pay. The sudden
and unexplained change in his work assignment, its timing,
e.g., just 2 days after Respondent learned of his involvement
with the Union, and Respondent’s antiunion animus, provide a
sufficient basis for inferring that Holland’s reassignment to
short hauls for the week beginning March 23, was retaliatory in
nature, and was intended to punish Holland for his prounion
stance. The Respondent offered no explanation or justification,
either by way of evidence or through simple argument in its
posthearing brief, for the sudden reassignment of Holland to
such duties. As the Respondent produced no evidence to refute
the General Counsel’s prima facie case, I find that Holland’s
March 23 reassignment to local runs was discriminatorily moti-
vated and violative of Section 8(a)(3) and (1) of the Act.
The Respondent also failed to refute the General Counsel’s
prima facie showing that antiunion animus was a motivating
factor in the Respondent’s decision to issue Holland a warning
for not scaling a load. The Respondent, in its answer, initially
denied having issued such a warning, but when confronted with
Holland’s undisputed testimony that he received the warning on
March 31, and documentary evidence establishing that one was
issued to him (G.C. Exh. 6[a]), suggested implicitly that the
warning was justified because Holland violated company pol-
icy, as set forth in the January 9 memo, requiring the scaling of
all loads.27 However, Holland was not only unaware of such a
policy prior to being disciplined for its alleged breach, but for
reasons of economy that policy, as found above, had been ef-
fectively rescinded by Belt less than 1 month after its enact-
ment. Under these circumstances, the issuance of the warning
to Holland for failing to scale a load, occurring as it did just
days after Respondent learned of his union activities and fol-
lowing closely on the heels of his unlawful change in his driv-
ing assignments, was clearly retaliatory and intended as a mes-
sage to Holland and others that their support for the Union
would not go unpunished. The Respondent’s shift in position
from initially denying in its answer that it issued such a warn-
ing to its implicit argument at the hearing that the warning was
justified because Holland had violated its January 9 scaling
policy, a policy which, as found above, was rescinded a month
later, serves to further underscore the pretextual nature of its
claim, and warrants a finding that the warning violated Section
8(a)(3) and (1) of the Act.
As to his discharge on April 7, the Respondent contends that
Holland was lawfully terminated for insubordination stemming
from his refusal to make the backhaul delivery to Niles. The
General Counsel has made a prima facie showing that Respon-
dent was motivated at least in part by antiunion considerations
when it discharged Holland. As found above, the Respondent
was fully aware of Holland’s active role in the Union’s organiz-
ing campaign and was vehemently opposed to his and other
employees’ activities in this regard, so much so that it felt com-
pelled to interfere with its employees’ involvement there by

27 Holland testified he found the warning in his company mailbox.
As the warning was signed by him on March 31, Holland presumably
signed the warning after finding it in his box. Although the Respondent
did not take a position, either at the hearing or in its posthearing brief
regarding the warning issued to Holland, it would appear from the
questions directed at Holland on cross-examination and from the posi-
tion taken regarding employee Hasse’s alleged breach of this policy,
that Respondent, despite the initial denial that such a warning was
issued to Holland, is arguing implicitly that the warning was justified.
engaging in, inter alia, unlawful threats, interrogations, and
other unlawful conduct all designed to thwart their organiza-
tional drive. Holland was on the receiving end of some of this
unlawful conduct which included, as noted, a direct threat from
Faure that she would make Holland’s employment with Re-
spondent so unbearable that Holland would want to quit rather
put up with the harassment that inevitably would follow if he
persisted in his union activities. Thus, when viewed against
this background, one may reasonably infer, as I do here, that
Respondent’s discharge of Holland on April 7, just 1 week after
issuing him an unlawful warning, was retaliatory in nature and
motivated by antiunion considerations.
The Respondent contends that it lawfully discharged Holland
for insubordination when he refused to comply with Belt’s
directive on April 7 that he deliver the backhaul load directly to
Niles. Although Holland testified he refused to deliver the load
at that time28 because he did not have sufficient DOT hours to
complete the run, the evidence suggests that Holland was also
eager to return to the Hammond facility in time to pick up his
children, as it was his practice to do every other week (see fn.
25, supra), and that this, along with the shortage of DOT hours,
were the reasons for his reluctance to make the Niles run. The
only explanation provided by Belt as to why he did not want
Holland to return the backhaul load to the Hammond facility
for delivery by another local driver was because the Niles cargo
presumably had been designated a “hot load.” Other than
Belt’s self-serving explanation in this regard which was raised
for the first time at the hearing, there is no evidence to support
Belt’s assertion that the Niles run was a “hot load.” The record,
for example, reflects that during the several hours Holland had
to wait in St. Louis for the Niles shipment to be loaded into his
trailer, no mention was made to him that the shipment had to go
directly to Niles or that it was a “hot load.” In fact, it was only
when he was en route back to Hammond with the Niles ship-
ment, and only after he called the L.S.F. office to check in, that
Qualls mentioned to him for the first time that Respondent
wanted the backhaul load delivered directly to Niles rather than
being returned to its facility, as was the customary practice.
Thus, while Holland readily admits being told by Qualls that
the shipment had to go directly to Niles, he testified that neither
Qualls nor Belt advised him that this was a “hot load.” Qualls
was not called as a witness to refute Holland’s claim in this
regard, and Belt, who did testify, did not contradict Holland on
this point. Accordingly, I credit Holland’s assertion in this
regard and find that he was never told that the Niles shipment
was a “hot load.” Further, I find, given the lack of evidence to
the contrary, that the Niles run had never been designated a
“hot load” as suggested by the Respondent. Why then did Belt
insist that Holland make the delivery rather than return the load
to Respondent’s warehouse? The answer becomes readily ap-
parent when one considers Belt’s conduct in light of Faure’s
earlier threat to make life so difficult for Holland that he would
simply “quit and walk away.” I am convinced that the Respon-
dent, knowing full well that Holland anticipated being back at
its facility by 5 p.m. to pick up his children, and knowing full
well that Holland could not make the run without violating
DOT regulations,29 insisted that Holland complete the run to
28 Holland did offer to make the run, provided he were permitted to
return the load to Hammond and after taking his required 8-hour break.
29 The Respondent, it should be noted, did suggest to Holland that he
continue until he ran out of hours, take his required time off, than pro-
ceed to make the delivery. No explanation, however, was provided as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
Niles in the hope that Holland would, as predicted by Faure,
simply “quit and walk away” rather than be unable to pick up
his children. I am equally convinced that the Respondent con-
jured up the “hot load” theory as a way of justifying having
deviated from its established past practice of returning all back-
haul loads to its own facility for subsequent delivery by a local
driver. While there is no doubt that Holland declined to make
the Niles run at that particular time, the Respondent’s failure to
provide a credible explanation for deviating from its past prac-
tice persuades me that it was deliberately setting up Holland in
the hope that he would quit or, if he failed to do so, provide
Respondent with some excuse for terminating him if he failed
to comply with Belt’s directive. As the Respondent’s explana-
tion for the discharge lacks evidentiary support, I conclude it
has failed to rebut the General Counsel’s prima facie showing
that Holland’s discharge was motivated by Respondent’s desire
to rid itself of one of the Union’s leading adherents and, ac-
cordingly, violated Section 8(a)(3) and (1) of the Act.
(3) Michael Dooley
Dooley had been employed primarily as a long-run driver
from September 1994 until his discharge on April 4. Sometime
in November 1994, Dooley made a run to Frank’s Nursery in
Ohio, accompanied by his dog (Dakota). Dooley testified that
he frequently carried Dakota with him on long hauls, and that
Respondent was fully aware of his practice and did not object
or otherwise prohibit him from doing so. On November 4,
however, following his arrival at Frank’s Nursery, and while
outside the cab of the truck, Dakota “bit” a Frank’s employee,
causing a small abrasion. The matter was reported to the police
and immediately thereafter Dooley attempted to notify Respon-
dent of the incident. Dooley testified that he called his wife at
home who got him dispatcher Olson’s phone number, at which
time he called Olson and explained what had happened. Olson
informed him that she would report the matter to Belt, and in-
structed Dooley to come in the next day and talk to Belt about
it. The next day, according to Dooley, he met with Belt and
Olson. Belt told him he should not have had the dog with him,
to which Dooley responded that he was unaware that such con-
duct was prohibited. Belt replied that Olson should have in-
formed him of the restriction to which Olson, according to
Dooley, replied she had not done so. Belt then instructed Doo-
ley to refrain from carrying his dog on runs. Olson corrobo-
rated Dooley, testifying that a meeting was in fact held with
Belt the day after the incident, and agreeing for the most part
with Dooley’s version of what was said. Olson also testified
that Belt may have told Dooley that “if L.S.F. got sued or re-
percussions came from it, that at that point something would
have to be done.” Dooley, according to Olson, assured Belt
that his homeowner’s insurance would cover any potential li-

to why, if it did not object to Holland taking his required 8-hour break,
it could not simply have allowed Holland to return the load to Respon-
dent’s warehouse and immediately reassigned to another driver for
immediate delivery to Niles. In this manner, Respondent would have
avoided Holland going over the allowable number of DOT hours, per-
mitted him to be home in time to pick up his children, and avoided the
8-hour downtime that would have resulted if Holland were to take his
8-hour break while en route directly to Niles, as Respondent had pro-
posed. While I do not profess to tell the Respondent how to conduct its
affairs, it is patently obvious to me that Respondent’s above suggestion
to Holland that he take his 8-hour break while en route to Niles was
inconsistent with its asserted claim of urgency regarding the delivery of
the Niles shipment.
ability and that there would be no repercussions to L.S.F. aris-
ing from the incident. After the dog-biting incident, Dooley
stopped taking Dakota on his runs. On or about March 13,
Dooley received a letter from an attorney representing the indi-
vidual who had been bitten by Dakota.30 Immediately upon
receipt of the letter, Dooley showed it to Belt, and informed
him that his insurance company was taking care of the problem
and that L.S.F. would not be involved. Belt thereafter made a
copy of the letter purportedly for his file.
Dooley, as noted, signed the union petition on March 20, and
the next day began wearing a prounion button on his jacket. He
also attended several union meetings. Within days of signing
the petition and during the time he began wearing his button,
Faure, according to Dooley, approached him as he sat in the
main office and, in front of the office staff, said to him, “You
lied to me.” When Dooley asked what she was referring to,
Faure replied, “You said you liked working here.” Dooley
responded that he did and then remarked, “Wait a minute; if
you are going to yell at me, I am going to clock back in,” to
which Faure replied, “This is private property, buddy; You
cross that line, you live with it.” Following his exchange with
Faure, Dooley was approached by another employee, identified
only as Sharon, who told him she had overheard Faure yelling
at him, and inquired if Dooley would be returning to work the
following day. Dooley said he would, and inquired of Sharon
why she was asking, to which Sharon replied, “Well, I just
wanted to know if you quit.” Dooley responded that he was
“not going to get into a kissing contest with it because I can’t
win.” Faure, as noted, was not called to refute this or any other
statement attributed to her by Dooley and other employee wit-
nesses. Accordingly, I credit Dooley and find that Faure made
the above comments.
Dooley testified that before he began wearing the union but-
ton, his driving assignments for the most part involved making
long hauls to Carbondale, in southern Illinois, and that he per-
formed these runs anywhere from three to five times a week.
He claims that after he started wearing the button, he had fewer
mileage hours and accordingly experienced a reduction in
wages. Record evidence supports Dooley’s assertion that a
change in assignment from primarily long haul driving to short
haul assignments occurred sometime after Respondent learned
of his union activities. Thus, according to Respondent’s Ex-
hibit 2, most of Dooley’s earnings for the pay periods ending
“3–2–95, 3–9–95, and 3–23–95” stemmed from the long-haul
mileage runs which he performed, rather than hourly based
local runs. However, the pay periods ending “3–30–95 and 4–
6–95” show a significant increase in his hourly based earnings
as well as a dramatic decrease in mileage based income, in
contrast to the prior pay periods mentioned above.31 It is fur-
ther evident from a comparison of his earnings after he became
involved in union activities on March 20, with earnings prior to
30 The letter, addressed only to Dooley, makes reference to an inci-
dent that occurred on “11/09/44” without mentioning that it involved a
“dog-bite,” and suggests that Dooley refer the letter to his insurance
company (see G.C. Exh. 8).
31 Dooley’s hourly (H) and mileage (M) earnings for the periods in
question are:

3–2–95 3–9–95 3–17–95 3–23–95 3–30–95 4–6–95

$121.88H 106.25H 16.50H 246.88H 500.00H 253.13H
$816.51M 742.40M 884.26M 707.54M 158.34M 88.92M

L.S.F. TRANSPORTATION, INC. 1073
such involvement, that the assignment of local runs netted him
a reduction in his overall earnings.
Belt testified that he first learned of the “dog-biting” incident
when Dooley showed him the letter, which he claims was pre-
sented to him on April 3, not in mid-March as asserted by Doo-
ley. However, except for stating that Dooley showed him the
letter on April 3, Belt offered little in the way of specifics as to
what he and Dooley may have said to each other on April 3.
Belt claims that he thereafter decided to terminate Dooley for
having violated company policy prohibiting the carrying of an
unauthorized passenger in a company vehicle, and that he did
not consult with anyone regarding the termination. Dooley
provided a somewhat different version of the discharge. Thus,
he states that on returning from a run to Champaign, Illinois, he
returned his empty trailer to Respondent’s Great Lake ware-
house and went to Belt’s office, as Day had instructed him to
do. Soon after going into Belt’s office, Helton appeared and
told Dooley he was being terminated for “putting the company
in jeopardy” by carrying an unauthorized passenger in his
truck. Dooley responded that he had never been told about
such a prohibition, to which Belt replied, “Well, I don’t know
why you weren’t told, but if you have to make a response,
make it on this, on your discharge, on your termination form.”
According to Dooley, at no time did either Helton or Belt ex-
plain who the unauthorized passenger was they were referring
to, or when the incident was alleged to have occurred. How-
ever, when shown the termination notice (see G.C. Exh. 11),
Dooley, believing that the incident in question related to the
November “dog-biting” incident, told Helton and Belt that the
incident occurred in November 1994, not April 3, as indicated
on the notice. Either Helton or Belt then changed the date of
the incident on the discharge form to conform to the November
9, 1994 date provided to them by Dooley. Dooley explained
that while neither Helton nor Belt informed him who the pas-
senger was, except for the November 9, incident when he had
his dog, Dakota, in his truck, he had not carried with Dakota, or
any other human passenger, in his truck since that incident, and
did not do so on April 3, the date stated on the discharge form.
Absent any explanation, Dooley reasonably surmised that
Helton and Belt were referring to the November 9 incident, and
this appears to be so given the fact that either Helton or Belt
thereafter changed the date of the incident to coincide with the
November 1994 “dog-biting” incident.
I do not credit Belt as to when he first learned of the “dog-
bite” incident. Rather, I find, as testified to by Dooley and
corroborated by Olson, that Belt was informed at a meeting
held between himself, Dooley, and Olson the day after the inci-
dent in November, and that Dooley informed Belt sometime
near mid-March of the letter he received from the attorney re-
garding the incident. In discrediting Belt’s version, I note that
Respondent’s own brief, which states that “[s]ometime in
March 1995, the Employer was put on notice by Dooley of a
claim for personal injuries arising out of the November dog
incident” (R. Br. 10), amounts to a repudiation of Belt’s sworn
testimony that he first learned of the incident on April 3, when
Dooley purportedly showed him the attorney’s letter (Tr. 38–
39). I also credit Dooley’s claim that Helton was present at the
discharge meeting and reject Belt’s assertion that he acted
alone. Of significance in this regard is the fact that despite
being called as a witness by Respondent and testifying on other
matters, Helton was not asked about and did not deny Dooley’s
claim as to his involvement in the discharge meeting. The Re-
spondent’s failure to corroborate, through Helton, Belt’s claim
that he acted alone warrants an adverse inference that if ques-
tioned on this matter Helton would not have corroborated Belt.
Guardian Industries Corp., 319 NLRB 542, 543 (1995). Nor
was Belt’s testimony a picture of clarity. When asked, for ex-
ample, whether a decision was made regarding Dooley’s con-
tinued employment after receipt of the letter, Belt responded,
“No,” and when asked further by Respondent’s counsel
whether Dooley had been terminated, Belt again answered,
“No.” Only when prodded by a surprised Respondent’s coun-
sel did Belt admit he was getting confused and finally aver that
Dooley had indeed been terminated. Given the above and
Belt’s overall poor demeanor on the witness stand, I reject his
testimony regarding the specifics surrounding Dooley’s termi-
nation.
The complaint alleges, and the General Counsel in her
posthearing brief contends, that the Dooley’s reassignment of
work to primarily local runs, with a concomitant loss in pay,
and his subsequent discharge, resulted from his involvement in
union activities, and violated Section 8(a)(3) and (1) of the Act.
I find merit in these contentions.
Dooley’s involvement in union matters, and Respondent’s
knowledge of such activities can hardly be disputed. Thus, on
March 20, Dooley, as noted, signed the petition expressing his
support for the Union, and on the very next day conspicuously
wore a prounion button on his jacket for all to see. Further, as
found above, Respondent’s animosity towards the Union and its
supporters is well documented. Indeed, aside from the fact that
he openly wore a prounion button, Faure’s above-described
unsolicited comment to Dooley, chastising him for purportedly
“lying” to her about liking his employment with Respondent,
further supports a finding that Faure was fully aware of Doo-
ley’s prounion sympathies. While Respondent made no effort
to explain what, if anything, caused Faure to comment as she
did, the timing of her remarks, e.g., soon after observing Doo-
ley wearing his union button,32 and around the time she threatu-
ened Holland with discharge for his own union activities, raises
a strong suspicion that Faure’s remarks were intended to con-
vey to Dooley that Faure was aware of and did not approve of
his prounion stance. Further, her comment, taken together with
her subsequent “you cross that line, you live with it” remark,
could reasonably have led Dooley to believe that Faure might
take some unspecified action or reprisal against him for his
union involvement. By her remarks, Faure not only violated
Section 8(a)(1) of the Act, as alleged, but also demonstrated
clearly and unequivocally Respondent’s knowledge of Doo-
ley’s union activity, as well as its antiunion animus. Given
these circumstances, I find that the General Counsel has made a
prima facie showing under Wright Line, supra, that the actions
taken against Dooley by Respondent, e.g., the change in driving
assignment and the discharge, neither of which the Respondent
denies occurred, were motivated by Dooley’s union activities. I
further find that the Respondent has presented no credible evi-
dence to refute the General Counsel’s prima facie case regard-
ing either allegation.

32 The Respondent at the hearing tried to undermine Dooley’s credi-
bility by pointing out that in his affidavit to the Board, Dooley had
stated that Faure did not see him wearing his union button. However, I
credit Dooley’s subsequent explanation that he had no way of knowing
whether Faure did or did not see the union button he wore. Given his
undisputed testimony that he overtly wore the union button on his
jacket, I find that Faure must have seen him wearing the union button.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
As to the change in his driving assignment from long-haul to
short-haul runs, except for the general denial in its answer and
some questions directed at Dooley during cross-examination
aimed at obtaining admissions that no reassignment had oc-
curred or that the run had been discontinued, no evidence was
presented by the Respondent to refute the documentary evi-
dence and testimony by Dooley showing that a change in as-
signment with a resulting decrease in weekly wages occurred
soon after the latter began wearing his prounion button. In-
deed, except as noted above, the Respondent did not bother to
address itself to this particular question either at the hearing or
in its posthearing brief. There is, to be sure, one document that
Respondent introduced into evidence which purports to show
that the Carbondale run to which Dooley had been regularly
assigned until sometime in late March was eliminated. The
document in question, a memo from Belt to all drivers dated
April 24, states that L.S.F. “will no longer be handling” several
deliveries for the Coors account, including the Carbondale run.
(R. Exh. 39.) It is patently clear, however, that the run was to
be eliminated sometime on or about April 24, and that another
company, Ivan Transport, would as of that date be performing
the run to Carbondale. (See R. Exh. 41.) Thus, the memo
lends support to Dooley’s assertion, and refutes Respondent’s
contrary intimation during its cross-examination of Dooley, that
the long hauls were still being made after Dooley was removed
from that assignment. In fact, Dooley testified without contra-
diction that after he was taken off the Carbondale run, two
other drivers whom he believed to be Dan Babcock and Jose
Sanchez, continued to make the run.33 Respondent’s failure to
provide a reason for its actions leaves the General Counsel’s
prima facie case intact, and warrants a finding that the Respon-
dent changed Dooley’s driving assignment from long hauls to
short hauls in retaliation for his union activities, and in so doing
violated Section 8(a)(3) and (1) of the Act, as alleged. Bestway
Trucking, 310 NLRB 651, 674 (1993).
Regarding the discharge, there is no question that the reason
provided for terminating Dooley, e.g., violation of company
policy prohibiting drivers from carrying unauthorized passen-
gers in company vehicles, was simply used by Respondent as a
pretext to rid itself of one of several union adherents.34 The
Respondent points out that company policy at the time the inci-
dent occurred clearly prohibited drivers from carrying unau-
thorized “individuals” in their trucks, that written permission
was needed for an individual to do so, and that Dooley was
fully aware of this restriction as evidenced by his signature on a
list of company rules given to him in October 1994 (G.C. Exhs.
7a–b). Given Dooley’s signature on the copy of the rules, I
find that Dooley was in fact put on notice regarding the exis-
tence of this particular restriction on unauthorized passengers.
However, I am also convinced, given Dooley’s undisputed

33 Babcock and Sanchez were named by alleged discriminatee
Owens as individuals who wore antiunion buttons, suggesting that they
were opposed to the Union.
34 The Respondent does not contend that it fired Dooley because of
some liability it had assumed as a result of the November incident. In
this regard, Dooley provided Respondent with assurances that his
homeowner’s insurance policy would cover any liability that might
ensue, and the attorney’s letter regarding this incident clearly holds
Dooley liable for the incident and requests that Dooley notify his own
insurance company, not the company or its liability carrier, of the attor-
ney’s request. Thus, any repercussions in terms of liability arising from
this incident fell on Dooley only, and did not affect the Respondent.
testimony in this regard, that prior to the November 9 incident
he often carried Dakota with him in his truck with Respon-
dent’s knowledge and without the latter’s objection. I am in
any event not convinced, despite Respondent’s assertion to the
contrary, that the rule in question prohibiting “individuals”
from riding without authorization was applicable to pets, such
as Dakota, which are not “individuals” as that term is com-
monly understood and used in everyday parlance. However,
even if by some stretch of the imagination it could be estab-
lished that Respondent’s rule was intended to apply also to pets,
it is patently clear that, as testified to by Dooley, Respondent
had acquiesced in his practice of taking his dog along on runs
without first obtaining the requisite permission.35 More impor-
tantly, however, for purposes of showing the pretextual nature
of the discharge, is the fact that despite this alleged breach of
company policy, the Respondent took no immediate action
against Dooley, but simply instructed him to refrain from tak-
ing his dog with him on runs, which instructions were thereafter
strictly adhered to by Dooley. Nor did Respondent take any
action against Dooley when the latter advised Belt on or about
March 13 of the attorney’s letter threatening him with legal
action stemming from the November incident. Indeed, only
after it became aware of Dooley’s prounion stance sometime
around March 21, did Respondent resurrect the “dog-bite” inci-
dent, almost 5 months after it occurred, to justify discharging
Dooley.36 The abrupt nature of Dooley’s discharge on April 4,
its timing, e.g., within 2 weeks of Respondent’s learning of
Dooley’s prounion sympathies, the 5-month delay between the
occurrence of the incident and the discharge, and the fact that
prior to the November incident the Respondent had condoned
similar conduct by Dooley, all militate in favor of a finding that
the “dog-biting” incident was not the true reason for the dis-
charge but was instead seized on by the Respondent to justify
ridding itself of one of several union adherents within its midst.
Where the reason advanced by an employer for a discharge
35 The Respondent introduced into evidence three authorization
forms reflecting that employees Hill and Caposey had requested and
been granted permission to carry family members with them during
their runs (R. Exh. 7). I have no difficulty believing that drivers were
indeed required to obtain permission before carrying “individuals” with
them in company vehicles. However, these documents do not establish
that such permission was required when pets were involved. In fact, a
cursory review of the authorization form suggests that Respondent
expected the passenger to read and sign the form before consent would
be given, a feat which Dakota, regardless of his innate abilities or train-
ing, could hardly be expected to perform.
36 The Respondent’s suggestion in its posthearing brief (p. 10) that
Dooley’s “termination occurred shortly after the Employer was put on
notice” of the attorney’s claim against Dooley and “was well prior to
the Employer’s notice of Mr. Dooley’s” union involvement, is contrary
to the evidence of record and its own admissions. The Respondent, as
noted, readily admits in its brief that Belt, contrary to his own testi-
mony, became aware of the attorney letter sometime in March. Given
that the only testimony as to a March date came from Dooley, who
testified that he gave Belt notice of the letter on or about March 13, it
logically follows that Respondent was referring to the March 13 date
mentioned by Dooley. As Dooley was discharged on April 4, some 3
weeks after advising Belt of the letter, it can hardly be said, as argued
by Respondent, that Dooley’s “termination occurred shortly after” the
Respondent learned of the letter. Further, as Respondent must have
become aware of Dooley’s involvement with the Union at about the
time he began wearing his union button on March 21, his discharge on
April 4, contrary to Respondent, occurred after and not before it at-
tained such knowledge of Dooley’s activities.
L.S.F. TRANSPORTATION, INC. 1075
either did not exist or was in fact not relied on, the inference of
unlawful motivation established by the General Counsel re-
mains intact, and is indeed logically reinforced by the pretex-
tual reason proffered by the employer. Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982). Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466,
470 (9th Cir. 1966). Having relied on a pretextual reason for
the discharge and having failed, in any event, to show that it
would have discharged Dooley for violating company policy
even if Dooley had not engaged in any union activity, I find
that the Respondent has not satisfied its Wright Line burden,
and therefore conclude that Dooley was unlawfully discharged
for his union activities in violation of Section 8(a)(3) and (1) of
the Act.
(4) William Owens
Owens began his employment with Respondent in March
1993 and worked until May 19 when, according to Respondent,
he chose to quit rather than obtain a class A-CDL license. The
General Counsel alleges that the Respondent unlawfully dis-
charged Owens for his union activities and simply used Owens’
lack of a class A-CDL license as a pretext to mask its true mo-
tive. The weight of the credible evidence supports the General
Counsel’s position.
When hired, Owens had only a class B-CDL license. Al-
though it appears that Belt was initially in search of a driver
possessing a class A license, he decided to hire Owens because
of his 20 years of truck driving experience. Owens testified
credibly and without contradiction that he made it clear to Belt
from the very beginning that he had no desire to obtain a class
A-CDL license. As a result, Owens drove only straight trucks.
It appears that at least one other driver, Sadler, who was hired
in June 1994, possessed only a class B license.37 It appears that
in December 1994, the Respondent issued a memo advising
drivers that they would all have to obtain a class A-CDL license
by January 15.38 Owens testified that in early January, Belt met
with him and Sadler. According to Owens, Belt told Sadler that
as a new employee he would have to get his class A license,
and assured Owens he would protect him from having to get his
class A license, and further offered to give him a written state-
ment guaranteeing he would not have to drive a tractor trailer.
Owens then commented to Belt that if he had to get a class A
license he might as well be looking for a new job, at which time
Belt repeated that Owens’ job was secure, that he would not
have to drive a tractor-trailer, and reiterated he would put it in
writing if Owens wanted him to. Owens declined the written
assurance because he “trusted” Belt due to his long employ-
ment with him, and because most things at the Company were
usually resolved with a “handshake.”
Sadler corroborated Owens’ above testimony regarding the
January meeting. Thus, he testified that Owens told Belt he had

37 According to R. Exh. 2, Respondent had other drivers besides
Owens and Sadler who did local runs only. The record does not make
clear if these other drivers did so as a matter of choice or because they
too lacked class A licenses that precluded them from driving tractor
trailers and limited them to short runs only on straight trucks.
38 The December 1994 memo was not produced, and the January 15
deadline is taken from Owens’ undisputed testimony. Sadler credibly
and without contradiction testified that he believed employees were
given 30 days within which to upgrade their licenses to class A, sug-
gesting inferentially that the memo would have been issued on or about
December 15, 1994.
no intentions of getting a class A license and if this meant he
would lose his job, Owens would go out and get a newspaper
that very night, presumably to search the want ads. Belt, how-
ever, assured Owens he was in no danger of losing his job.
Sadler testified he told Belt that as the newer employee, he
would make an attempt at getting his class A license. The re-
cord reflects that Sadler voluntarily terminated his employment
in late March or early April without ever obtaining his class A
license.
Belt admits that a meeting was held with Owens and Sadler
in January, but denies telling Owens he did not have to get a
class A license or assuring him he would not be terminated.
Indeed, except for admitting that Owens stated he had no inter-
est in getting a class A license, Belt provided no information
whatsoever as to what, if anything, was said by himself,
Owens, or Sadler at this meeting. I credit Owens’ more de-
tailed account of the meeting, which, as noted, was corrobo-
rated by Sadler. While Sadler did not specifically testify that
Belt informed Owens he did not have to get his class A license,
his testimony that Owens informed Belt he had no intentions of
getting the class A license and would immediately go out and
look for a new job if he did, and Belt’s assurance that he was in
no danger of losing his job, strongly suggests that Belt was
indeed exempting Owens from the requirement of having to
obtain a class A license.
Owens heard nothing further on the matter until May 8,
when he received a memo advising him he had until May 19 to
obtain the license, and that failure to do so “will result in disci-
plinary action.” (R. Exh. 8.) Owens testified, without contra-
diction, that it would not have been possible for him to obtain
his class A license by the May 19 date, given the amount of
training required to learn how to drive a tractor-trailer and the
procedures involved. According to Owens, “[I]f one practiced
every day of the week, or every other day, you could probably
learn it in 2 months.” Owens’ testimony in this regard is sup-
ported by Sadler who testified, also without contradiction, that
it would take more than 30 days to obtain a class A license. In
light of their mutually corroborative testimony, I find that
Owens would not have been able to obtain his license by the
May 19 deadline set forth in the May 8 memo. Owens con-
cedes that after receiving the May 8 letter, he did not inform
management of his difficulty in complying with Respondent’s
deadline, or seek an extension in which to do so. Nor did he
remind Belt of the assurances Belt had given him in January
regarding the class A license. By the same token, there is no
indication that Belt or any other management official had in-
quired prior to May 19, whether Owens had indeed obtained his
class A license.
On May 19, Owens appeared for work and, after clocking in,
went to pick up his bill of lading for his daily trip, as was his
practice. On not finding his paperwork in its usual location, he
checked with Day, who asked him, “Do you have your Class A
license?” Owens replied he did not, and Day responded, “Well,
I cannot dispatch you without a class A CDL, so you will have
to wait for Scott Belt.” Owens then asked whether he should
punch out or stay punched in and Day replied, “No, punch out
and wait for Scott.” A short time later, Belt arrived and Owens
and Day went into Belt’s office to discuss the matter. In the
office, Owens asked Belt what was going on, and Belt re-
sponded, “I cannot dispatch you without a class A CDL.”
Owens inquired of Belt whether he was being terminated, and
Belt simply repeated, “I cannot dispatch you without a class A
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
CDL.” Unclear as to what his status was, Owens asked Belt
what he meant, and then inquired whether he should turn over
his cellular phone and other equipment to Day, and Belt re-
sponded, “Yes, turn everything over to Val [Day].” Owens
testified that the meeting ended on a friendly note, with him
telling Belt that it had been a pleasure working for the Com-
pany, and that he enjoyed working for Faure and Belt.
The General Counsel has presented sufficient evidence to
support a finding that Owens did not quit but rather was termi-
nated, and that the discharge was motivated, at least in part, by
his support for the Union. It is undisputed that when he arrived
for work on May 19, the bills of lading needed for Owens to
make his deliveries were not in their usual location, suggesting
that Respondent had no intentions of allowing Owens to make
his runs that day, a fact confirmed when Day informed him that
he could not be dispatched without a class A license. Further,
Day’s instruction that Owens punch out and wait for Belt indi-
cates clearly that Respondent had plans to either suspend or
discharge Owens if he could not produce a class A license.
Indeed, Respondent’s posthearing brief makes clear that Re-
spondent intended to “discipline” Owens for insubordination
for failing to obtain his class A license. (See R. Br. 23.) Al-
though Respondent does not specify what discipline it would
have imposed, the removal of the bills of lading from its usual
location, and the fact that he was not allowed to clock in,
strongly suggests that the discipline intended was either a sus-
pension or termination. Further, although he repeatedly re-
quested Belt to advise him of his status on May 19, Belt de-
clined to do so and left it up to Owens to further inquire what
he should with his equipment. Belt’s instruction to him that he
should turn everything over to Day provides clear evidence that
Respondent was in fact terminating him, presumably for not
having his class license.39 Owens, as noted, was a union sup-

39 Hoping to bolster Belt’s rather feeble and scant testimony as to
what occurred at the May 19 meeting, the Respondent produced an
unsigned May 30 memo, which Belt claims was a “synopsis of what
happened in the meeting” between Day, Owens, and himself. Belt
stated that he dictated and his secretary typed the memo. (R. Exh. 10.)
I place no credence in the letter. While allowed into evidence, the letter
apparently was intended by Respondent to serve as a substitute for oral
testimony, which the Respondent, for reasons unknown, failed to elicit
from either Belt or Day, both of whom testified at the hearing. Al-
though identified by Belt as something he dictated, no testimony was
adduced by Respondent from Belt or Day as to the accuracy of its con-
tent. Indeed, when compared to Owens’ testimony, which I credit, it
does appear that the memo contains certain inaccuracies. For example,
the memo states that Day instructed Owens not to clock out until he
spoke with Belt, which is contrary to Owens’ claim that Day indeed
directed him to clock out before he spoke with Belt. As Belt was not
present during the premeeting discussion between Day and Owens, he
could not have known what was said between the two. Day was not
asked to confirm the accuracy of the memo in this regard. Further,
Owens credibly denied telling Belt, “I am not going to drive a big
truck, I don’t want to,” contrary to what is contained in the memo.
Again neither Belt nor Day refuted Owens’ denial in this regard, and
the Respondent’s attempt to do so through R. Exh. 10, an unsigned
document prepared more than one week after the occurrence, without
so much as attempting to elicit corroborating oral testimony from Day
or even Belt himself, renders the document unreliable and not worthy
of belief. Further, R. Exh. 11, which Belt identified as Owens’ resigna-
tion notice, is found to be a self-serving document entitled to no weight.
Owens credibly testified he never saw the document prior to the hear-
ing, and no testimony was adduced from either Belt or Day that this
document had indeed been shown to Owens. Accordingly, I am con-
vinced R. Exh 11 was prepared after the fact in order to bolster Re-
porter. Thus, he signed the union petition on March 21, and
credibly testified that he attended union meetings. That same
day, although it is unclear from the record whether it was be-
fore or after Owens signed the petition,40 Belt unlawfully
sought to ascertain from him whether a union petition was be-
ing circulated among the drivers, threatened him with plant
closure and loss of jobs, and informed him in no uncertain
terms that he viewed such organizational efforts as a personal
affront to him. Nor was this the only instance of unlawful be-
havior by Respondent towards Owens for, as noted, the day
before the election Owens was again unlawfully questioned by
Burnson regarding his union sympathies, more particularly,
how he intended to vote in the election. Owens’ reply that if he
voted with his head he would vote for the Union, conveyed the
message that for Owens the logical choice was to throw his
support behind the Union. On election day, according to
Owens’ undisputed testimony, he observed certain employees
who were opposed to the Union wearing “Vote No” buttons.
Although a union supporter, Owens wore neither a prounion or
antiunion button. While there is no direct evidence to link Re-
spondent to knowledge of Owens’ union activities, the fact that
he was interrogated and threatened by Belt on the day he signed
the petition strongly suggests that Respondent either knew or
suspected that Owens was somehow involved in union activity.
Further, Owens’ response to Burnson’s unlawful interrogation,
intimating that the logical choice for him would be to vote for
the Union, along with the fact that the following day Owens,
unlike other employees, did not wear a “Vote No” button, be-
havior which could not have escaped Respondent’s notice
given the relatively small number of employees involved in the
election, provides a reasonable basis for inferring, as I do here,
that Respondent either knew or suspected, by no later than
April 29, that Owens was indeed a union supporter.41 This
knowledge, together with Respondent’s clear animosity to-
wards the Union and its supporters, the timing of the discharge
just 3 weeks after it became aware of his sympathies, and the
circumstances surrounding the discharge, described below,
provides ample basis for inferring that Owens’ discharge was
motivated by antiunion considerations. Accordingly, the Gen-
eral Counsel has made out a prima facie case regarding Owens’
discharge.
The Respondent’s sole defense is that Owens failed to obtain
a class A license despite being given ample warning and suffi-
cient time in which to do so. Thus, it points to the fact that
Owens and other employees were put on notice as far back as
December 1994 that they were required to have a class A li-
cense by January 15, and Owens was again reminded in the
May 8 memo of the need to obtain the license. While no one
disputes that a December memo was issued, Owens’ credited
testimony, as corroborated by Sadler, makes clear that some-
time in January, Belt effectively exempted Owens from this
requirement and further reassured him he was in no danger of
losing his job for failing to obtain a class A license. Indeed, it
does not appear that this particular issue was one of great con-

spondent’s assertion that Owens’ voluntarily quit his employ, and was
not fired.
40 Employee Hill, who solicited Owens signature on the petition, tes-
tified that Owens signed the petition in a McDonald’s parking lot on
March 21. Owens did not state whether the signing occurred before or
after his 11:30 p.m. encounter with Belt that same day.
41 I note in any event that the Respondent does not deny having
knowledge of Owen’s union activities.
L.S.F. TRANSPORTATION, INC. 1077
cern to Respondent for despite its December memo and January
15 deadline, the Respondent did not bring up the matter of class
A licenses until almost 4 months after the January 15 deadline
had passed, and coincidentally some 3 weeks after learning of
Owens’ involvement with the Union. When it did raise the
issue again, it gave Owens a little more than 1 week in which to
obtain his license or face disciplinary action, a feat which
Owens could not possibly achieve in such a limited time frame.
Belt offered no explanation as to why, after exempted Owens
from having to upgrade his license, he had a sudden change of
mind some 4 months later, nor did he explain the urgency be-
hind his insistence in the May 8 memo that Owens acquire the
license within 10 days or face discipline. While Respondent
may very well argue that Belt provided Owens with no such
exemption, I have, as noted, rejected such a claim. Nor was
Owens the only class B driver who continued driving without a
class A license despite the January 15, deadline. Thus, Sadler
who, for unexplained reasons, voluntarily quit his employ in
late March or early April, never obtained a class A license.
Nothing in his or indeed Belt’s testimony suggests that during
the period after the January meeting and his departure, Sadler
was similarly instructed by Respondent to obtain his class A
license or face discipline. Nor did Respondent produce evi-
dence to show whether other drivers who possessed only class
B licenses received similar memos warning of disciplinary
action if they did not obtain a class A license by a date certain.
Given these facts, I am convinced that but for his union activi-
ties, Owens would not have been asked to obtain his class A
license and would have been allowed to continue performing
his normal driving duties for Respondent with a class B license,
as he had been doing since first hired 2 years earlier. Accord-
ingly, the Respondent has not sustained its Wright Line burden
and a finding is warranted that Respondent’s discharge of
Owens violated Section 8(a)(3) and (1) of the Act.
(5) Walter Michaels
Michaels, Respondent’s most senior driver, worked for Re-
spondent from September 1992 until May 15, 1995. Michaels
testified that from the very beginning of his employment he
made it clear to management that he was interested only in
doing local runs and that this was common knowledge among
the dispatchers, including Day. According to Michaels, in late
1994, shortly after Respondent picked up the Coors account, he
was asked to do long-haul runs because of a shortage of drivers.
He further testified, without contradiction, that both Day and
Belt assured him that once Respondent hired sufficient drivers,
he would be assigned primarily to local runs. The record sup-
ports Michaels’ above assertion. Thus, except for the brief
period after the Respondent acquired the Coors account in late
1994, Michaels was assigned almost exclusively to local runs.
Respondent’s Exhibit 13, consisting of Michaels’ “Driver’s
Daily Log,” reflects that the last long-haul run performed by
Michaels prior to his return from medical leave on May 15,
occurred some 5 months earlier on January 31.42
Michaels, as noted, attended the March 20 union meeting
and signed the petition that same evening. Further, the morning

42 The Respondent produced no evidence to show what, if any, long-
haul runs Michaels may have been assigned between January 31, and
May 15. The only other long-haul assignment relating to Michaels
during this period occurred on March 27, when the latter declined to
take the Detroit run which, as found infra, led to an unlawful 2-day
suspension.
after the union meeting Michaels, as found above, was sub-
jected to unlawful interrogation by Day and was led to believe
that his activities and that of other employees were under sur-
veillance. On March 27, Michaels was dispatched to a local
run at about 7 a.m., and returned later that afternoon at about 3
or 4 p.m. After checking in with the dispatcher, Day, he was
told he was through for the day and to clock out and go home.
Later that evening, Day called Michaels at home to ask if he
would take a long-haul run to Detroit that same night.
Michaels informed Day that he was not interested in making
the run as he had worked all day and probably would not have
sufficient DOT hours to make the run. Day told Michaels that
she would try to find someone else to take the Detroit run.
However, not long after hanging up, Day called back and again
asked Michaels to make the Detroit run and when Michaels
refused, told him that Belt wanted to talk to him. Belt reiter-
ated Day’s request and when Michaels again refused, Belt in-
formed him he was being suspended for 2 days. Michaels pro-
tested that Belt was being unfair but Belt declined to discuss it
further. Michaels then drove to Respondent’s office in an effort
to discuss the suspension with Belt, but the latter declined to
meet with him.
During his 2-day suspension, Michaels went on medical
leave to undergo surgery for an inguinal hernia, which was
performed on April 5. On May 9, Michaels was medically
released by his physician to return to regular work duties, and
he thereafter reported for work on May 15. Michaels claims
that on the evening of May 15, he was dispatched to make a
long haul run to Frank’s Nursery in Detroit, and that he per-
formed the run despite protesting to both Day and Belt that he
was a local driver and had no interest in doing the Detroit run.
He further testified that the following day, May 16, after com-
pleting the Detroit run, he was dispatched to Indianapolis,
which was another long-haul run, and that either on May 17 or
18, he was dispatched yet again to an over-the-road run to Des
Moines, Iowa. Michaels testified, without contradiction, that
he again expressed his dissatisfaction about making the long-
haul runs to Day. On completion of the Des Moines run,
Michaels was instructed to pick up a backhaul load from Cedar
Rapids, Iowa, and to deliver it directly to Chicago that same
evening. Although he agreed to make the backhaul delivery,
Michaels testified that after thinking it over he concluded that
things were not “going to get any better” for him and that after
phoning and discussing the matter with his wife, he decided to
quit. He thereafter called Respondent’s office and informed
Day that he was quitting and would be returning the backhaul
load to Respondent’s yard instead of delivering it to Chicago.
Day thereafter put Belt on the phone at which time Michaels
told Belt that his “body just couldn’t physically handle driving
the amount of hours” he had been driving recently, and that he
was quitting because “it was best for everybody concerned
because [he] didn’t want to hurt nobody getting into an accident
or anything.”
The General Counsel contends, and I agree, that Michaels’ 2-
day suspension was unlawfully motivated by antiunion consid-
erations. Day’s interrogation of Michaels the morning follow-
ing the union meeting as to how the meeting had gone strongly
suggests that Respondent either knew or strongly suspected that
Michaels had attended the meeting and was a union supporter.
Further, Michaels’ “none of your business” response to Burn-
son’s unlawful repeated inquiry as to how he intended to vote
in the Board election, when viewed in light of Day’s comment
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
suggesting that Respondent was keeping union activities under
surveillance and knew of Michael’s involvement there, would
clearly have given Respondent cause to believe that Michaels
intended to vote for the Union. Given Respondent’s knowledge
of Michaels’ prounion sympathies and its established antiunion
animus, the General Counsel has made out a prima facie case
under Wright Line that the 2-day suspension handed to
Michaels for refusing to make the Detroit long-haul run was
retaliatory in nature and in response to his support for the Un-
ion.
The Respondent has failed to rebut the General Counsel’s
prima facie showing regarding Michaels’ suspension. It should
be noted that Respondent in its answer initially denied having
handed Michaels a 2-day suspension. However, when faced
with Michaels’ undisputed testimony and documentary evi-
dence of record showing such a suspension, the Respondent
conceded the suspension, but asserted that the suspension was
valid because Michaels “understood that if a driver refuses a
run that that driver is subject to disciplinary action.” (R. Br.
14.) However, Michaels credibly and without contradiction
testified that he had in the past refused to take such additional
runs without repercussions. The Respondent in this regard
produced no evidence to show that Michaels or any other driver
had previously been disciplined for refusing such additional
runs. Thus, assuming arguendo that drivers could have been
subject to discipline for refusing to take a run, the Respondent
failed to establish that such a policy, if it existed, had been
applied in the past. Further, it should be noted that this was not
a case in which Michaels refused to perform his regularly as-
signed duties. Rather, Michaels was being asked to make an
additional run after having completed a full day’s work, and
was asked to do so almost immediately on returning home from
work. Given that Michaels had made it clear to Respondent
that he had no interest in doing long-haul runs, that the Re-
spondent had always honored his request by assigning him to
local runs only, that Michaels had previously declined such
long-haul runs without repercussions, and that Respondent did
not establish that such assignment could not have been given to
some other driver, I find that the Respondent deliberately set up
this situation knowing full well, or at a minimum suspecting,
that Michaels would not accept the assignment, thereby afford-
ing it an opportunity to further retaliate against Michaels for his
involvement with the Union. In these circumstances, I find that
the Respondent has not demonstrated that it would have sus-
pended Michaels for 2 days for refusing to take the assignment
had he not engaged in union activities. Accordingly, his sus-
pension is found to have violated Section 8(a)(3) and (1) of the
Act.
The General Counsel further alleges that Respondent con-
structively discharged Michaels, by assigning him upon his
return from medical leave to long-haul runs exclusively causing
him to resign on May 18. I find merit in the General Counsel’s
contention. To support a finding of constructive discharge, the
General Counsel must establish that the burdens imposed on the
employee caused, or was intended to cause, a change in work-
ing conditions so difficult or unpleasant as to force the em-
ployee to resign. Manufacturing Services, 295 NLRB 254, 255
(1989). Here, there is no question, and the Respondent does
not contend otherwise, that the long-haul runs were more diffi-
cult and for the most part more unpleasant in comparison to the
local runs. These long-haul runs more often than not required
drivers to drive long distances and to spend nights away from
home sleeping in small compartments in their tractor-trailers.
Compare, Bestway Trucking, Inc., supra at 674–675. Michaels
credibly testified that this was precisely why he had no interest
in the long-haul runs and why he had requested only local run
assignments, a request that Respondent had no difficulty honor-
ing until after it became aware of Michaels’ prounion position.
Thus, when the Respondent assigned Michaels to a long-haul
run to Detroit on his return from medical leave, which inciden-
tally was the same run Michaels had declined to do on March
27 and which led to his unlawful suspension, it must have
known that Michaels would find such an assignment objection-
able. Predictably, Michaels did object to both Day and Belt
about his assignment, although he proceeded to make the run.
To compound Michaels’ aggravation regarding this assignment,
the Respondent went one step further and assigned him to long-
haul runs for the next 2 days, which it had not done since the
Coors account was first acquired in late 1994. The Respondent
gave no explanation for having assigned Michaels to these par-
ticular long runs, or for insisting that he deliver a backhaul
directly to its destination contrary to existing practice, or why it
did not assign Michaels to his regular local runs. Nor does it
claim that there was a shortage of long-haul drivers, which
necessitated the assignment to Michaels of the long runs.43
While there is no question that Michaels quit his employ,
Michaels’ testimony makes clear that his resignation was a
direct result of the Respondent’s conduct in assigning him to
the more difficult, unpleasant, and in Michaels’ mind undesire-
able, task of driving long-haul runs. I am convinced that the
Respondent must have known or at least suspected, given his
employment history with the Company and his refusal to accept
the March 27, long-haul assignment which led to the unlawful
suspension, that Michaels’ resignation was a distinct possibility
if it continued to assign him to long runs. In any event, whether
or not Respondent actually intended Michaels to quit is imma-
terial, for it is readily apparent to me, and I find, that Respon-
dent should reasonably have foreseen that the continued as-
signment of long-haul runs to Michaels would eventually cause
Michaels to quit his employ. La Favorita, Inc., 306 NLRB
203, 205 (1992). For these reasons, I find that the Respondent
constructively discharged Michaels on May 15, because of his
union activity and that its conduct in this regard violated Sec-
tion 8(a)(3) and (1) of the Act, as alleged.
(6) John Kawa
Kawa began his employment with Respondent in September
1994 as an over-the-road or long-haul driver. He testified
without contradiction that when hired, then-Operations Man-
ager Terry Trojak, assured him that for the most part he would
be primarily responsible for handling the Frank’s Nursery runs
to and from various locations. Sometime during a safety meet-
ing conducted in January, Belt, according to Kawa’s undisputed
testimony, assured him that because of the fine job he had been
doing with the Frank’s account, Kawa would never be taken off
the run. Belt’s comment in this regard was designed to allay
fears expressed by Kawa to Belt that because other drivers had
occasionally been assigned to the Frank’s run Kawa might be in
danger of losing the run to other employees. Kawa thereafter,
until about March 22, continued to be assigned the Frank’s runs

43 The Respondent’s erroneously suggests that Michaels’ testimony
reflects that he was aware that a number of drivers were unavailable for
work. Michaels’ testimony in this regard is that he did not know
whether or not certain drivers were available for work.
L.S.F. TRANSPORTATION, INC. 1079
almost exclusively, although on few occasions he was asked to
make a Coors run as well as some local runs.
Kawa, as noted, signed the union petition on March 21. A
day or so prior to signing, Kawa, as found above, was unlaw-
fully interrogated by Day regarding his views on the Union.
While Kawa was not a known union activist, he left no doubt in
Day’s mind as to his prounion sympathies when in response to
her inquiry, he told Day that he felt having a union would be a
good thing for him, and that he would probably join the other
employees in voting for the Union if it was ever to come in.
Beginning around March 22, Day reassigned Kawa to a differ-
ent route. When Kawa inquired why he had not been assigned
to do the Frank’s run on March 22, Day informed him that the
other drivers had complained to her that Kawa was making too
much money on the run and that she had therefore decided to
take him off the run. Kawa thereafter saw a sharp reduction in
the number of Frank’s runs assigned to him, and claims that as
a result he experienced an almost 50-percent reduction in his
weekly take-home pay. On or about April 8, Kawa spoke to
Faure and Crohan about the reduction in the number of Frank’s
assignments he had been receiving. Neither Faure nor Crohan,
however, was able to provide Kawa with an explanation, and
when Kawa stated he believed it was somehow related to the
Union, Faure responded that it had nothing to do with the Un-
ion but declined to provide him with some other explanation.
On April 30, Kawa was assigned to make a Frank’s delivery
to a Detroit location by 6 a.m. the following day, May 1. Kawa
testified that on April 30, he worked on his boat from about 10
a.m. to 2:30 p.m., and drank some four to five beers during that
period. Kawa thereafter reported for work at 11 p.m. that day,
and began the run at midnight. While en route, Kawa was
stopped around 3 a.m. by a Michigan State policeman and cited
for speeding, e.g., going 69 miles per hour in a 55-mile per
hour zone. (G.C. Exh. 22.) The policeman thereafter confis-
cated Kawa’s license, which was to serve as a cash bond to
ensure that the fine imposed would be paid. Noticing some
alcohol on his breath, the policeman gave Kawa a breathalyzer
test which registered .009 percent. Kawa then received another
citation reflecting the results of the breathalyzer test, but was
assured by the policeman that he was not being cited for a
“Driving under the Influence” (DUI) violation, and that this
particular writeup would not be reflected on his driving record,
a fact which Kawa later confirmed through a review of his driv-
ing record.
At about 7 a.m. on May 1, Kawa phoned Day to tell her
about the above incident and to notify her he had not arrived at
his Detroit destination. When he got to Detroit, he again called
Day wherein she instructed him to return to Respondent’s facil-
ity because Belt wanted to see him. When he arrived at Re-
spondent’s facility, he met with Belt and, after recounting what
had happened, Belt, according to Kawa’s uncontroverted testi-
mony, stated: “Well, John, I have no alternative except to sus-
pend you from this time on, pending your getting your license
back.” Kawa further testified, without contradiction, that the
following day, he returned to the Company’s facility to turn in
certain items (radio, credit cards, phone cards, etc.) and that
during another discussion with Belt the latter told him that “[a]s
soon as you get your license back, give me a call, and you will
probably go back to work.” A record of his suspension was
prepared on May 2, containing a notation that Kawa had been
placed on indefinite suspension pending further investigation
(R. Exh. 43). On May 18, Kawa got his license back and im-
mediately phoned Respondent and spoke with Helton, who
seemed pleased that Kawa was able to get his license, and who
thereafter told Kawa “you will probably come back to work.”
Helton, who testified in this matter, did not dispute Kawa’s
above assertion. Helton thereafter transferred Kawa’s call to
Belt, who told Kawa that Respondent’s attorney, Walter Liszka,
wanted to speak with him. On May 23, Kawa met with Belt,
Helton, and Liszka. At this meeting, Liszka informed Kawa
that he had two options: either quit or be fired. Although Kawa
explained that the only thing on his driving record was a speed-
ing ticket, and that he had not been charged with a DUI viola-
tion, Liszka remained firm that Respondent did not want him
working there any longer. Kawa thereafter shook hands with
Belt and Helton and left.
The complaint alleges and the General Counsel contends that
Kawa, like Dooley, was removed from his regularly assigned
routes because he supported the Union. The credible evidence
of record establishes that on or about March 22, the Respondent
reduced the number of Frank’s runs that had been regularly
assigned to him, and that such change was motivated by anti-
union considerations. Thus, there is no question that Kawa was
a union supporter and that Respondent was aware of this fact,
for after signing the union petition he stated to Day that he
favored and would lend his support to the Union. Further, as
found above, there is an abundance of evidence demonstrating
Respondent’s antiunion animus. These facts, coupled with the
fact that the assignment change occurred just 1 day after Kawa
signed the petition and after informing Day of his prounion
position, supports the inference that the change in Kawa’s driv-
ing assignment on or about March 22, which Respondent does
not dispute occurred, was motivated, at least in part, by Kawa’s
prounion stance. The Respondent made no effort to rebut the
General Counsel’s prima facie showing in this regard. In fact,
the Respondent in its posthearing brief argues only that Kawa’s
earnings during the period in question remained high, possibly
exceeding that of other drivers, and that the earnings belie any
claim that the admitted change in Kawa’s driving assignments
may have been motivated by antiunion considerations. How-
ever, the fact that Kawa’s weekly earnings during the period
after March 22 may have exceeded that of other drivers does
not alter the fact that Respondent indeed reduced the number of
Frank’s runs that were routinely assigned to Kawa, and that it
did so in retaliation for his support of the Union.44 Clearly, the

44 The record is unclear as to whether Kawa experienced a 50-
percent reduction in his weekly earnings as a result of the reduction in
the number of Frank’s runs he was asked to do after March 22, as
claimed by him. R. Exh. 2 reflects that for the pay period ending “3–
17–95” which precedes the March 22, assignment change, Kawa’s
earnings totaled $656.33. However, his earnings for the pay period
immediately preceding March 22, e.g., “3–23–95,” were slightly higher
and totaled $839.28. The “3–30–95” pay period, which presumably
includes work performed during the period after the assignment change,
reflects that Kawa earned $734. 33, an amount that, while somewhat
lower than the prior pay period’s earnings, is nevertheless higher than
his earnings for the “3–17–95” pay period. R. Exh. 2 further shows that
for the period ending “4–6–95” Kawa was assigned to do local driving
as well as long-haul runs, and that his combined earnings from local
and long-haul runs totaled $902.25. Although it is difficult to ascertain
what, if any, effect the change in assignment may have had on Kawa’s
weekly earnings, R. Exh 2 casts doubt on Kawa’s claim that he experi-
enced a 50-percent reduction in weekly take-home pay as a result of the
reduction in the number of Frank’s runs assigned to him after March
22. To the extent he suffered a loss as a result of this change, this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
Respondent knew full well that Kawa preferred doing the
Frank’s runs and, consequently, had him assigned to such runs
almost exclusively from the very outset of his employment.
Further, it reassured him in January that he would never be
removed from such runs. Given these facts, I find that the Re-
spondent has not refuted the General Counsel’s prima facie
case, and accordingly further find that the Respondent violated
Section 8(a)(3) and (1) of the Act when it retaliated against
Kawa for his union activity by reducing the number of Frank’s
runs it assigned to him after March 22.
The issue of whether Kawa was thereafter terminated be-
cause of his union activities presents a closer question. The
General Counsel asserts that the change in Kawa’s work as-
signment was merely part and parcel of an attempt by Respon-
dent to force Kawa to resign, and that when Kawa refused to do
so, it jumped on the opportunity afforded it by Kawa’s May 1,
incident to finally rid itself of one more union adherent. Thus,
while not disputing that Kawa was cited on May 1, she avers
that these citations were merely used as a pretext to get rid of
Kawa. For the reasons stated above regarding Kawa’s reas-
signment of work, I find that the General Counsel has made a
prima facie showing sufficient to support the inference that
Kawa’s involvement with the Union was a motivating factor in
Respondent’s decision to terminate him. Having made out a
prima facie case, the burden shifts to the Respondent to show
by a preponderance of the credible evidence that Kawa would
have been discharged for the May 1 incident even if he had not
engaged in any union activity. I am convinced that the Re-
spondent has not sustained its burden in this regard.
Although both Belt and Helton generally testified that Kawa
was discharged on May 23, because of the citations Kawa re-
ceived on May 1, they offered no specifics as to what was said
or who spoke during this particular meeting. Indeed, they did
not agree on who was present at this meeting, for while Helton
agreed with Kawa that attorney Liszka was present, Belt made
no mention of Liszka being at the meeting and testified that the
meeting was attended only by himself, Helton, and Kawa.
Given Liszka’s clear and apparently extensive involvement in
Kawa’s discharge interview (Tr. 533, 555), I find it difficult to
believe that Belt simply forgot to mention that Liszka was also
in attendance at the meeting. Rather, his less than credible
performance as a witness convinces me that Belt intentionally
chose not to reveal that Liszka was in some manner involved in
Kawa’s discharge. Further, his limited testimony as to the un-
derlying reasons for Kawa’s discharge is vague and not very
convincing. Belt, for example, explained that Kawa was dis-
charged because “he had his license suspended, number one;
and number two, he was given a breathalyzer and it was unde-
termined at that point what his reading was from the breatha-
lyzer test, which we had no supporting documents at that
point.” Belt’s latter assertion is somewhat confusing for it sug-
gests that Respondent did not have documentary evidence prior
to the discharge showing the results of the breathalyzer test
given to Kawa on May 1, by the Michigan State police. If this
is what Belt intended by his above statement, then Respon-
dent’s argument that Kawa was lawfully discharged for a DUI
violation is seriously undermined for it would mean that the
Respondent’s decision to terminate Kawa was made without
evidence of such a violation. However, Belt’s comment could

would be a matter that can best be determined at the compliance stage
of the proceeding.
be construed as suggesting that such documentation was not
immediately available to him on or about May 1, suggesting the
likelihood that this might be why Kawa was not instantly ter-
minated on his return from the Detroit run, but was instead
suspended indefinitely pending “further investigation,” as noted
in Respondent’s Exhibit 43, the suspension notice. While this
latter explanation for Belt’s testimony is the more plausible of
the two, it too is rendered specious by Belt’s subsequent admis-
sion that when Kawa returned from Detroit, he provided Belt
with copies of the citations received, including the document
showing that Kawa had registered .009 percent on the breatha-
lyzer test (G.C. Exh. 23). As Belt was not asked to explain
what he meant by his above statement and made no effort to
clarify his statement in this regard, Belt’s confusing testimony
as to why Kawa was discharged is given no weight whatsoever.
Nor do I find persuasive Helton’s testimony regarding the rea-
son for Kawa’s discharge. Thus, Helton stated in very general
terms that Kawa was discharged on May 23, for the citations
received on May 1. Helton did explain that drivers found to
have alcohol in their system were subject to immediate dis-
missal. However, if this is so, Helton offered no explanation as
to why in Kawa’s case Respondent waited more than 3 weeks
to discharge him. Helton also provided no testimony as to what
transpired at the May 23 discharge meeting, nor did he explain
why Kawa was suddenly discharged just 5 days after he told
Kawa he would probably be returning to work. I found
Helton’s testimony regarding Kawa’s discharge unconvincing
and not credible.
The inquiry does not end here, however, for there is no doubt
that Kawa was indeed cited for speeding and for having a “de-
tectable amount of alcohol” in his system, and Kawa concedes
being told on May 23, by Attorney Liszka, that because of the
citations received, Kawa had the choice of quitting or being
terminated. Thus, the question remaining is whether Kawa
would have been terminated for the May 1 driving incident had
he not been engaged in union activity. Several factors convince
me that he would not have been discharged. The Respondent,
for example, did not explain why it waited more than 3 weeks
to discharge him despite the fact that Kawa gave Belt copies of
the citations the same day the incident occurred. Clearly, it had
all the evidence necessary to make its decision by May 1 or 2,
and if, as Respondent suggests, Kawa committed a dischargable
offense by breaching its rule prohibiting the consumption of
alcohol by a driver “prior and or during working hours (see
G.C. Exh. 7[a],” why was he not immediately discharged as
purportedly required by its rules?45 The clear answer is that
except for the suspension, Respondent had no intentions of
further disciplining Kawa for the May 1 incident. Thus, Belt on
two separate occasions assured Kawa that as soon as he got his
license back, he would in all likelihood be returned to work.
Indeed, as of May 18, when he was finally able to obtain his
license, Kawa was again reassured by Helton that Belt would
45 G.C. Exh. 7[a], which is a list of driver rules, provides, inter alia,
that “[a]bsolutely no alcoholic beverages are permitted prior and or
during working hours. Consumption and or possession of alcohl [sic]
while on duty will result in immediate dismissal.” Helton testified that
he understood this particular rule to mean that “any alcohol in a driver
makes him subject to immediate dismissal.” Assuming this is an accu-
rate interpretation of the rule, Helton offered no explanation as to why
Kawa was not “immediately dismissed” on Respondent’s receipt of the
citation which, according to Belt, was given to him by Kawa on or
about May 1.
L.S.F. TRANSPORTATION, INC. 1081
probably put him to work again. Despite these assurances, the
Respondent terminated Kawa on May 23, using the citations
issued to Kawa on May 1, as the basis for the discharge. The
Respondent, however, provided no explanation as to what, if
anything, occurred between May 1 and 23 to cause it to change
its mind and to convert the suspension into a discharge. In this
regard, the Respondent made no claim either at the hearing or
in its posthearing brief that it delayed discharging Kawa pend-
ing further review of the incident.46 The Respondent further
does not contend, nor indeed is there is any evidence to suggest,
that the discharge decision resulted from the enforcement of
some progressive disciplinary policy whereby Kawa’s prior
misconduct was taken into consideration in determining
whether or not to discharge him. In this regard, Kawa credibly
testified, without contradiction by Respondent, that he had
never received any disciplinary writeup or warning prior to the
May 2 suspension.47
The only intervening event between May 1, when the inci-
dent occurred, and May 23, when the discharge occurred is the
involvement by the Respondent’s legal counsel in the matter.
While the record is silent as to what input Liszka may have had
regarding the discharge decision, it is patently clear that prior to
his involvement Belt had every intention of allowing Kawa to
return to work on receipt of his license. Whatever may have
transpired between Respondent and its legal counsel, I am
firmly convinced that the May 1 incident was not the true rea-
son for the discharge and that Respondent, more likely than not
upon the advice of counsel, opportunistically seized on the May
1 incident as a way of ridding itself of one more union adher-
ent. When a respondent’s stated motives for its actions are
found to be false or pretextual, it may be reasonable to infer
from all the circumstances that the true motive for the action
taken is an unlawful one which the respondent desires to con-
ceal. Flour Daniel, Inc., 304 NLRB 970 (1991). Given all the
circumstances surrounding Kawa’s discharge, I find that Re-
spondent discharged Kawa because of his support for the Union
rather than for the citations received by him on May 1. Further,
even if the citations were seriously considered by Respondent, I
am convinced that Kawa would have been retained by Respon-
dent had he not been supportive of the Union. Accordingly, I
find, as alleged in the complaint, that Kawa’s discharge vio-
lated Section 8(a)(3) and (1) of the Act.

46 The only evidence in this regard is found R. Exh. 43, which, as
noted, contains the notation that Kawa was under suspension “until
further investigation.” The Respondent, however, did not explain or
provide evidence to show what, if any, investigation it conducted into
Kawa’s May 1 incident. Nor did it explain why, if there was a likeli-
hood Kawa could be discharged, Belt assured Kawa he would probably
be returning to work once he regained his license.
47 During examination by the General Counsel, Belt claimed that
Kawa had once been reprimanded for failing to make a delivery be-
cause he had overslept, and that the reprimand was documented in
Kawa’s personnel file. However, when handed Kawa’s file and asked
to produce the document in question, Belt was unable to do so, and was
forced to concede that he never mentioned to Kawa that he was receiv-
ing a disciplinary notice. Belt’s testimony in this regard, along with his
failure to identify Liszka as a participant in the May 23 discharge meet-
ing with Kawa, when viewed together with other above-described
inconsistencies in his testimony renders suspect his entire testimony
relating to Kawa’s discharge.
(7) Dennis Hill
Hill was first employed by Respondent in May 1993 as a
truckdriver and, according to his uncontroverted testimony, for
a period of about 6 months prior to March 23, 1995, 90 percent
of his assignments involved long-haul runs. In March 1994,
while making a delivery, Hill experienced a “seizure” which
caused him to interrupt his run. After being examined by
paramedics, Hill was admitted to a local hospital where he re-
mained for 2 days undergoing tests. Shortly thereafter, on or
about March 14, Hill’s neurologist, Dr. Cristea, authorized him
to return to work. On returning to work, Hill was advised by
then-Operations Manager Trojak that he had to undergo another
physical before being allowed to drive as required by DOT
regulations. Hill agreed to undergo the physical examination,
which he underwent at the Hammond Clinic on or about April
7. The examination found Hill to be in “good general health”
and, consequently, Hill was allowed to continue driving. The
record reflects that such DOT medical certifications are valid
for a 2-year period. The evidence reflects that certain of the
medical bills incurred by Hill associated with his hospital stay
were paid by Respondent, and that the latter thereafter began to
recoup the expenses by making deductions from Hill’s pay-
check.48
Hill, as noted, was one of the more active union adherents
who not only signed the union petition but also circulated the
petition to other employees for their signatures. Further, Hill
openly declared himself a union activist when he joined Hol-
land in delivering the “Open Letter to Management” to Belt, by
wearing a union pin identifying him as prounion, and serving as
the Union’s observer at the Board-conducted election. As
found above, Hill became the target of Respondent’s efforts to
learn of the Union’s organizational efforts before it even
learned of Hill’s involvement when, on the morning of March
21, Day unlawfully interrogated him about employees “trying
to go union.” Hill testified, without contradiction, that begin-
ning on March 23, he noticed a change in his work assignments
from primarily long hauls to shorter runs. Thus, he claims that
whereas prior to March 23, he averaged approximately 2000
miles per week, after March 23, his weekly mileage was some-
where between 1300 and 1400, and that this drop in mileage
adversely affected his weekly earnings because he was no
longer “making as much as I used to.”
Hill testified that on or about March 22 or 23, Belt called
him into his office and asked him to sign a document acknowl-
edging that Respondent had advanced him moneys for the pay-
ment of personal debts, e.g., the medical bills, that the debt
remained due and owing to Respondent, and that Hill would
agree to pay off this debt by having payments automatically
deducted from his paycheck. The document further provided
that in the event Hill’s employment was terminated, he would
agree to pay Respondent $200 per month until the total debt
(which was $2315.63 as of March 22), was paid in full. Hill
declined to sign the document, stating to Belt that he had never
borrowed money from Respondent, and that Faure had reneged
on an earlier promise to pay his medical bills. Belt did not
pursue the matter and Hill left without signing. Later that same
day, Faure asked Hill why he had declined to sign the indemni-
48 Hill claims that he inquired of Helton why the deductions were be-
ing made from his paycheck, and that Helton explained that Respon-
dent decided to deduct what it had paid out on Hill’s behalf because it
had not anticipated the medical bills being so high.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
fication letter, and Hill responded that Faure had reneged on her
promise to pay his medical bills and that while he had not pre-
viously objected to Respondent deducting certain amounts from
his paycheck, he was not willing to sign a document that would
bind him to pay the Company for moneys he did not owe in the
event he lost his job. While the conversation with Faure ended
at that point, Hill testified, without contradiction, that some 20
minutes later he was in Belt’s office along with Faure, when
Faure remarked, “You see, you cut me and I bleed,” and that he
responded to Faure, “So do I.” Hill further testified that at that
point, Belt asked him if it was all right for him to comment on
the union pin Hill was wearing, but that Faure instructed Belt
not to do so.
On April 4, after making his delivery, Hill called the office
and spoke with Day who asked him what he had done with the
previous day’s bills of lading. Hill informed Day that he had
forgotten to turn them in and were still in the truck with him.
Day then instructed him to turn them in when he returned and
Hill agreed to do so. That same evening, on his return to Re-
spondent’s facility, Hill turned in the bills he had earlier dis-
cussed with Day. However, on the payday following April 4,
which Hill recalls was a Friday, Hill received a written discipli-
nary warning issued to him by Belt for having failed to turn in
his April 3 paperwork on time. (G.C. Exh. 17.) Hill testified,
without contradiction, that he had in the past turned in his pa-
perwork late but was never disciplined for it, and could not
recall any other employee ever being disciplined for such con-
duct. Hill claims he did not discuss the matter with anyone in
management because he did not believe anything could be
done.
On April 12, Hill made an assigned run and after arriving at
his destination phoned Day, who informed him that she was
assigning him to a short run the following day because he had
to take another physical examination. After completing his run
the next day, Hill called Day, who instructed Hill to hurry back
to Respondent’s facility because she needed the trailer. Hill did
as instructed and hurried back. On his arrival, Day informed
Hill that Belt wanted to speak with him. Hill thereafter met
with Belt in his office at which time, according to Hill, Belt
told him that he had to undergo another physical examination
due to insurance requirements (see R. Exh. 46), and handed him
a letter Belt had received from Dr. Feldman, a DOT physician
at the Hammond Clinic, stating that due to existing medical
conditions two drivers who were not named in the letter should
not be allowed to drive until released to return to work after a
complete evaluation (R. Exh. 18). Following this discussion
with Belt, Hill asked if he would still have a job after his physi-
cal, and Belt responded that he would. Later that same day,
Hill contacted his neurologist, Dr. Cristea, explained the situa-
tion to him, and asked him to fax the necessary documentation
on his medical status to Dr. Feldman. Not having heard from
Dr. Feldman, Hill phoned Dr. Cristea to inquire if the paper-
work he had requested had been sent to Dr. Feldman. On re-
ceiving assurances that it had been sent, Hill called Dr.
Feldman’s office and spoke to a woman, identified only as
“Kelly,” who told him that Dr. Feldman had received certain
information on him but she was not sure if it had been looked at
by Feldman. Hill asserts that he had several conversations with
Kelly regarding this matter. On or about April 13, Hill received
a call from Belt who asked him if he had heard anything yet
from the doctors, and Hill responded he had not. Belt thereaf-
ter, as found above, unlawfully questioned Hill on how he
would vote in the election, and when Hill declined to comment,
Belt made his remark about the how he could not have a truck
just “sitting there.”
Hill testified that he considered himself as having been ter-
minated following receipt of a letter from Respondent dated
August 7, informing him that the medical benefits granted him
under the Family Medical Leave Act were set to expire on Au-
gust 14, and that if he wished to continue receiving medical
benefits coverage he should fill out and return the required
COBRA forms. The letter further advised that if he wished to
return to work as a driver for Respondent, he was to report for
work on August 28, possessing a current certified DOT license,
and if he failed to do so, he would be presumed to have re-
signed his position (R. Exh. 22). Hill testified that he was un-
able to obtain the required DOT medical certification within the
timeframe allotted in the letter, but did not notify Respondent
of this fact. He subsequently obtained the medical certification
on or about September 22 (see G.C. Exh. 18), and went to work
for another company because he “wouldn’t work for [Respon-
dent] again.”
The complaint alleges, and the General Counsel contends,
that the Respondent changed Hill’s driving assignments on or
about March 22, issued him a written warning on April 4, and
thereafter placed him on medical leave on or about April 13, in
retaliation for his union activities, thereby violating Section
8(a)(3) and (1) of the Act. I find merit in these contentions. As
an initial matter, I find that the General Counsel has made a
prima facie showing sufficient to support the inference that the
above conduct by Respondent, which the latter does not dispute
occurred, was motivated by antiunion considerations. Hill, as
found above, was an active and open union adherent, and Re-
spondent’s knowledge of his activities in this regard, and its
opposition thereto, are well documented in the record. These
factors, and the fact that the conduct in question began almost
immediately after the onset of union activities and soon after it
learned of Hill’s involvement there, provides a reasonable basis
for inferring that Respondent’s actions may have been moti-
vated, at least in part, by a desire to retaliate against Hill for
bringing in the Union. The General Counsel having made out a
prima facie case, the burden shifts to the Respondent to show
that the actions it took towards Hill would have occurred even
if Hill had not engaged in any union activity.
Regarding the allegation that Hill’s driving assignments were
suddenly changed on or about March 22, as stated above Hill
credibly testified, and Respondent does not deny, that a change
in his assignment to short runs did occur. Belt, in fact, readily
admitted that after March 21, Hill was assigned to shorter runs.
He claims, however, that Hill was assigned to shorter runs be-
cause of his “health condition.” (Tr. 25.) Belt did not explain
what “health condition” Hill may have been suffering from on
March 21, to have warranted the change in his driving assign-
ment. There is no question that Hill had suffered a seizure
while on the job. However, that incident occurred in March
1994, almost 1 year prior to the change in assignments in
March 1995, and Hill thereafter was released to return to work
without restrictions by his own physician and a DOT physician.
Hill returned to work and continued working without further
incident until forced to go on medical leave on April 13. If Hill
had experienced a recurrence of seizures or suffered from other
medical problems after March 1994, the record does not show
it. Hill did testify that either in December 1994, or January
1995, he mentioned to Belt that he was experiencing headaches
L.S.F. TRANSPORTATION, INC. 1083
due to a lack of sleep resulting from the fact that he was making
long haul runs 5 days in a row, and asked if Belt could assign
him maybe one local run per week to break up the pace. The
record does not make clear if Belt honored Hill’s request.
However, given that this particular conversation, which Belt
did not refute, occurred more than 3 to 4 months prior to the
March 22 change of assignment, I find it highly unlikely that
this is what Belt was referring to when he claimed that Hill’s
“medical condition” prompted the change. As Belt’s explana-
tion for changing Hill’s assignment lacks evidentiary support,
and given his lack of credibility on other matters, I reject Belt’s
explanation for changing Hill’s driving assignments. As no
credible explanation was proffered by Respondent for the
change in Hill’s assignments after March 21, the General
Counsel’s prima facie case remains intact, and a finding is war-
ranted that the change was intended to punish Hill for his union
activity, and violative of Section 8(a)(3) and (1) of the Act.
A similar finding is warranted with respect to the warning is-
sued to Hill on April 4 for failing to turn in his previous day’s
bills of lading. Hill testified, without contradiction, that turning
in bills of lading a few days after a particular run was a com-
mon practice among drivers and that no disciplinary action had
ever been taken against drivers for doing so. Hill’s testimony
in this respect was corroborated by Holland who likewise testi-
fied, without contradiction, that he had on least five or six dif-
ferent occasions turned in his paperwork 2–3 days late and was
never warned or disciplined for it. The Respondent, as noted,
did not dispute the above assertions by Hill and Holland, and
produced no evidence to show that it had disciplined other
drivers in the past for similar conduct. Nor did it offer to ex-
plain either at the hearing or in its posthearing brief what, if
anything, rendered Hill’s failure to turn in his paperwork so
egregious as to suddenly cause it to issue Hill a warning for
conduct which it had been so willing to tolerate in the past.
Given these circumstances, I am convinced that Respondent
would not have issued Hill a warning had he not been engaged
in union activities, and that its purpose in doing so was to dis-
courage Hill and others from further lending their support to the
Union.49 Accordingly, I find that the warning issued to Hill
violated Section 8(a)(3) and (1) of the Act. Action Auto Stores,
298 NLRB 875, 898 (1990).
The final issue regarding Hill involves the question of
whether he was placed on medical leave in retaliation for his
union activities. Hill’s prounion stance and activities on behalf
of the Union are not disputed, nor is Respondent’s knowledge
of such activities. The numerous instances of unlawful conduct
described supra, engaged in by Respondent’s owner and its
various managers and supervisors, sufficiently establish Re-
spondent’s antiunion animus. The above facts, viewed together
with the unlawful change in Hill’s driving assignment and the
warning issued to him, and the fact that when forced to go on
medical leave Hill was fully capable of working and had in fact
been doing so without any problem for more than a year, are
sufficient to support the inference that Respondent placed Hill
on medical leave as further retaliation for his union activities.
As the General Counsel has made a prima facie showing that
Hill was placed on medical leave for discriminatory reasons,
the burden now rests with the Respondent to show that it would

49 The Respondent’s answer denied that such a warning was ever is-
sued to Hill, despite the documentary evidence in its own files showing
that it did issue such a warning.
have placed Hill on medical leave even if he had not engaged in
such activities. The Respondent, in my view, has not met its
burden.
The Respondent asserts that it had no alternative but to place
Hill on medical leave as it had been directed to do so by DOT
physician, Dr. Feldman and by its insurance carrier, both of
which purportedly instructed Respondent that Hill should not
be allowed to continue driving until such time as he underwent
a full physical evaluation and was certified to return to work.50
In support of its assertion, the Respondent produced the letters
it relied on to justify Hill’s forced medical leave, which docu-
ments have been made part of the record in this matter as Re-
spondent’s Exhibit 18 (Dr. Feldman’s letter) and Respondent’s
Exhibit 46 (letter from Marvin Johnson & Associates, Respon-
dent’s insurance broker). However, having reviewed Respon-
dent’s Exhibits 18 and 46, I have some serious reservations as
to what may have motivated Dr. Feldman and Marvin Johnson
& Associates to pen their respective letters. Dr. Feldman’s
letter, for example, appears to be a followup to an earlier con-
versation Belt had with someone at Dr. Feldman’s office named
“Kelly,” presumably the same individual previously identified
by Hill. There is no evidence, however, to show what may
have precipitated the Belt-Kelly conversation in the first place,
and while it is not clear who may have made the initial contact,
the tenor of Dr. Feldman’s letter leads me to believe that Belt
initiated the contact with Dr. Feldman’s office. Any doubts in
this regard could easily have been dispelled by Belt at the hear-
ing. Belt, however, was not questioned on this matter and con-
sequently offered no clue as to what caused him to consult with
Dr. Feldman. Interestingly enough, while Dr. Feldman’s letter
makes reference to two drivers with “histories of seizures and
chest pains” who should not be driving, the employees in ques-
tion are not mentioned by name. Thus, it is not clear from the
letter if Hill was one of the two drivers referred to by Dr.
Feldman. But even assuming for the moment that Hill was one
of the two drivers alluded to in the Feldman letter, there re-
mains the question what, if anything, may have caused the Re-
spondent to suddenly seek a medical opinion on Hill’s continu-
ing capacity to perform his driving duties. Clearly, Belt could
not have been motivated by any medical problems Hill might
have been experiencing just prior to his medical leave, for the
record reflects that Hill had been performing his driving duties
in a satisfactory manner for more than 1 year without further
incident. In fact, Belt’s own testimony makes it abundantly
clear that it was Hill’s seizure of more than a year ago, which
led Belt to place Hill on medical leave, and not any recent reoc-
50 The Respondent asserts in its posthearing brief that Hill continued
to “suffer innumerable instances which has incapacitated [Hill] from
working,” citing to testimony by Hill and documentary evidence show-
ing that he made several visits to his neurologist, Dr. Cristea, in January
1995 (R. Exh. 17). Hill, however, testified that his visits to Dr. Cristea
were simply followup visits and not due to further instances of seizures
he may have experienced, as Respondent erroneously suggests. The
documentary evidence received in evidence and relied on by the Re-
spondent shows that the followup visits occurred in late January. Dur-
ing one such visit on January 25, Hill underwent a cerebral angiogram.
He was subsequently certified to return to work. Although the certifi-
cate returning him to work releases him for work on January 30 “with
restrictions,” it is unclear whether the restrictions were temporarily
imposed because he had just undergone the angiogram or for some
other reason. In any event, it appears, and the Respondent does not
contend otherwise, that Hill thereafter continued to perform his usual
duties without any restrictions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084
currence of this or any other medical problem. Thus, when
asked what were the “circumstances of Hill’s leaving” Respon-
dent’s employ, Belt responded by referring to the March 1994
seizure episode. It is therefore patently clear to me that Re-
spondent’s decision to place Hill on medical leave was not
premised on any medical problems Hill had been experiencing,
and while I have no reason to question the statements made in
Dr. Feldman’s letter, I am firmly convinced that Belt set up the
chain of events which led Dr. Feldman to unwittingly issue his
letter, thereby providing Belt with an excuse to rid himself,
once and for all, of one of the Union’s most ardent supporters.
For these reasons, I place no credence in Dr. Feldman’s letter.
The letter from one Don Doty of Marvin Johnson & Associ-
ates to Belt suffers from the same infirmity as the Feldman
letter. Like the Feldman letter, the Doty letter makes reference
to a prior conversation between Doty and Belt in which they
purportedly discussed “drivers with known health problems.”
The Doty letter refers Respondent to federal regulations requir-
ing the certification of “any driver whose ability to perform his
normal duties has been impaired by a physical or mental injury
or disease.” It further advises, however, that a waiver may be
obtained by an employer that would permit employees suffer-
ing from some “physical defect” to continue driving if they
were “still able to perform their duties.” Although the Doty
letter, like the Feldman letter, does not identify the two drivers
by name, Belt stated that Hill was one of the two drivers refer-
enced therein. The record also does not make clear what if
anything may have prompted the discussion between Belt and
Doty of “drivers with known health problems,” although Belt
conjectured that Doty must have learned of Hill’s medical con-
dition during an insurance audit of Respondent’s “files” con-
ducted on or about April 11. Doty’s letter, however, makes no
mention of such an audit or provides insight into how he might
have learned of Hill’s alleged medical condition. Clearly, if
Hill’s “file” had been reviewed by the insurance broker, as
suggested by Belt, it more likely than not would have revealed
that since his seizure in March 1994, Hill had been certified by
a DOT physician and had worked consistently without restric-
tion or incident for over 1 year since the seizure. Given these
circumstances, I find it highly unlikely that Hill’s “file” by
itself would have triggered the letter from Doty to Belt. While
I do not disbelief Respondent’s claim that it underwent an in-
surance review sometime around April 11, given the suspicious
circumstances surrounding the Feldman letter, I am inclined to
believe that Belt also had a hand in getting Doty to provide him
with some documentation that would allow him to justify plac-
ing Hill on medical leave. Finally, even if I were to believe that
Belt had no involvement in the issuance of the letter and that
Hill’s prior medical history was of some concern to Doty, the
letter sent by Doty to Belt in no way directs, or even recom-
mends, that Respondent remove Hill from his driving duties
and place him on medical leave, as the Respondent would have
me believe. Rather, the letter simply recommends that the two
unnamed drivers be re-examined to “determine the extent of
their disability and or ability to be certified under federal law.”
Indeed, Doty makes reference to the likelihood of a waiver
being obtained where the employee suffering from the “physi-
cal defect” was able to continue working, as was clearly the
case with Hill. If the Respondent had been interested in retain-
ing Hill, Doty’s letter provided it with the means for doing so.
Instead, anxious to rid itself of one more union adherent, Belt
simply ignored the waiver suggestion provided by Doty in his
letter, and proceeded to interpret, albeit erroneously, Doty’s
letter as support for its decision to place Hill on medical leave.
Under these circumstances, I find that as with the Feldman
letter, the Respondent simply seized on the Doty letter as a way
to justify forcing Hill on medical leave, in the apparent belief
that this would diminish the number of union supporters among
the driver ranks, and thereby undermine employee support for
the Union. As the letters were simply a pretext to help Respon-
dent justify placing Hill on medical leave because of his union
activities, I find that the Respondent has not rebutted the Gen-
eral Counsel’s prima facie case. Accordingly, by placing Hill
on medical leave on April 13, the Respondent violated Section
8(a)(3) and (1) of the Act, as alleged
III. THE ELECTION ISSUES IN CASE 13–RC–19111
A. The Challenged Ballots
1. Dooley, Hasse, and Holland
Having found that Dooley, Hasse, and Holland were unlaw-
fully terminated by Respondent because of their union activi-
ties, I find that all three retained their employee status at all
times prior to the election with the concomitant right to vote.
Accordingly, I shall recommend that the challenge to their bal-
lots be overruled. A-1 Portable Toilet Services, 321 NLRB 800
(1996).
2. Steve Andrysiak
Andrysiak’s ballot, as noted, was challenged by the Union on
grounds that he was an office clerical employee, rather than a
driver, at the time of the election and ineligible to vote. The
Respondent contends that Andrysiak is a “dual function” em-
ployee who performs both driving and office clerical duties,
and who shares a community of interest with other drivers.
Accordingly, it argues that Andrysiak was entitled to vote in the
election. The test for determining whether a “dual function”
employee, that is one who spends part of his or her working
hours performing bargaining unit, should be included in the
bargaining unit was set forth by the Board in Berea Publishing
Co., 140 NLRB 516 (1963). The Board there held that in mak-
ing that determination it would apply the same standards as
those applied to part-time employees. Thus, in each case, an
employee who is “regularly employed for sufficient periods of
time [in unit work] to demonstrate . . . a substantial interest in
the unit’s wages, hours, and conditions of employment” should
be included in the unit. See Manhattan Construction Co., 298
NLRB 501 (1990). Applying that criteria to Andrysiak, I find,
for the reasons set forth below, that he should not be included
in the unit of drivers sought to be represented by the Union.
The record reflects that Andrysiak was hired as a driver by
Respondent in October 1994, and that he performed driving
duties until sometime in mid-February. In February, Andrysiak
was told by Belt that he wanted Andrysiak to begin cross-
training into clerical and operations duties. Soon thereafter,
Belt began training Andrysiak, assisted by Day who trained
him on the dispatching work. By March, Andrysiak was per-
forming duties typically performed by the office clerical staff
such as preparing trip and fuel reports, and reviewing drivers’
logs. Additionally, he assumed responsibility for preparing the
paper work required to have containers transported from rail
yards to Respondent’s facility, and would at times dispatch
drivers to retrieve the containers. Andrysiak, who testified on
behalf of the Respondent, claims that despite his assignment to
L.S.F. TRANSPORTATION, INC. 1085
the office clerical staff, he continued to perform normal driving
duties from January through June, and indeed was continuing to
do so through the date of the hearing in this matter. Andrysiak
was not a convincing witness, for aside from what I find was a
poor demeanor on the witness stand, he was deliberately eva-
sive in responding to questions posed to him by the General
Counsel, and seemed particularly reluctant to confirm state-
ments made by him in a sworn affidavit he had earlier provided
to the Board. Accordingly, except where supported by docu-
mentary evidence or corroborated by other witnesses, I do not
credit Andrysiak. Thus, while the Respondent produced docu-
mentary evidence, in the form of a driver’s daily log, showing
that Andrysiak performed driving duties all of January, half of
February, and 5 days in April, no similar evidence was pro-
duced for March, or for the period after April, to substantiate
Andrysiak’s and Respondent’s claim that Andrysiak continued
to drive on a regular basis from January to June and through the
day of the hearing. Indeed, the logs it did produce establish
that while Andrysiak remained a regular driver through Janu-
ary, such duties changed dramatically in the second half of
February when, by his own admission, Andrysiak performed no
driving duties. No explanation was provided as to why Andry-
siak was not assigned driving duties during the second half of
February, or what other duties he may have been performing
during that period. Absent any such explanation, and given
Andrysiak’s testimony that he was asked by Belt in February to
begin training for a clerical position, I find it reasonable to infer
that Andrysiak was not assigned driving duties because he was
cross-training to become a clerical employee. Likewise, An-
drysiak’s testimony that he began performing clerical duties in
March, and Respondent’s failure to produce a driver’s log for
Andrysiak showing he performed driving assignments during
the month of March, convinces me that in March Andrysiak
performed clerical work exclusively, and was assigned no runs
to make. Thus, except for the five runs he made in April, the
record is devoid of any credible evidence showing that after
mid-February the Respondent continued to assign Andrysiak to
either long- or short-haul delivery runs. The omission of An-
drysiak’s name from Respondent’s Exhibit 2, which identifies
all of Respondent’s drivers and their earnings for the period
from “3–2–95 to 4–6–95” indicates clearly that Andrysiak per-
formed no driving whatsoever during the period in question.
While Andrysiak may have subsequently been assigned to do a
few runs in mid to late April, these five assignments are insuf-
ficient to establish that from the time he became an office cleri-
cal employee in late February or early March to the date of the
election on April 29, Andrysiak was “regularly employed for
sufficient periods of time” as a bargaining unit employee suffi-
cient to establish that he had a substantial and continuing inter-
est in the bargaining unit’s wages and working conditions to
qualify him as a dual purpose employee. Accordingly, I find,
contrary to the Respondent, that Andrysiak is not a dual func-
tion employee, but rather is an office clerical employee. As he
was not eligible to vote in the election, the Union’s challenge to
his ballot is sustained.
B. The Objections
The Union contends that the Respondent interfered with the
employees free choice in the election by engaging in the fol-
lowing conduct:
1. On or about March 21, Belt and Day threatened that Re-
spondent would shut down its Indiana operations and move to
Illinois because of the union activity.
2. Belt interrogated and threatened an employee in his office
about his union activities.
3. Amy Faure threatened union committee member Dooley
and created the impression that Respondent was engaging in the
surveillance of the union activities.
4. Constructively discharged Sadler by withholding work
from him because of his union activities.
5. Belt withheld work and assigned less desirable routes, re-
sulting in loss of income, to Holland, Kawa, Hill, Sadler, Doo-
ley, Hasse, and Michaels.
6. Crohan made threatening remarks to Holland because of
his support of the Union.
7. Day interrogated Michaels about his union activities on or
about March 27, and created the impression she was engaging
in the surveillance of employee union activity.
8. Issuing a written reprimand and laying off Sigler on or
about March 31.
9. Hasse was discriminatorily given a less desirable run and
terminated in late March.
10. Dooley was discriminatorily given a less desirable run
and terminated about April 4.
11. Holland was discriminatorily given a less desirable run,
given a written warning, and terminated about April 6.
12. Hill was discriminatorily given a less desirable run, a
written reprimand, and not allowed to work until he submitted
another medical release.
13. Respondent discriminated against employee Bill Keener
by withholding work from him and not allowing him to work
until he obtained another medical release.
14. Belt interrogated Hill by phone on or about April 24,
about his union activities and made camouflaged threats.
15. Faure made statements and distributed literature on or
about April 25, threatening employees with loss of wages and
benefits if they voted for the Union.
16. Helton implicitly threatened to lay off seven drivers be-
cause of their union activities in literature distributed on or
about April 30.
17. Respondent added an ineligible voter, Andrysiak, to the
voter eligibility list.
18. The Union further alleges that the Respondent engaged
in objectionable conduct during the election when Faure, Belt,
Day, Helton, and Attorney Liszka formed a welcoming com-
mittee at the plant, and positioned themselves in a manner that
would allow employees entering to vote to see them, thereby
allowing them to campaign near the polling area and to intimi-
date employees as they entered to vote.
Objections 4, 8, 13, and 18 are found to be without merit and
are overruled as no evidence was produced in support thereof.
The remaining objections parallel allegations in the complaint,
which have been found to be meritorious. The objections are
therefore sustained and are further found to be sufficient to
warrant setting aside the April 29, 1995 election.
IV. THE PROPRIETY OF A BARGAINING ORDER
The General Counsel seeks a bargaining order under NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969). While acknowl-
edging that a secret-ballot election is the preferred method for
determining if employees wish to be represented by a union, the
General Counsel argues that the Respondent’s unlawful con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
duct here was so egregious and pervasive that it created a coer-
cive atmosphere rendering impossible the holding of a free and
fair second election. It asserts that the only appropriate remedy
given the severity of the Respondent’s conduct is the imposi-
tion of a Gissel bargaining order.
In Gissel the Court identified two situations in which bar-
gaining orders might be warranted: “exceptional” cases fraught
with “outrageous” and “pervasive” unfair labor practices, and
certain “less extraordinary” cases attended by misconduct that
is “less pervasive” but nevertheless had a tendency to under-
mine the Union’s majority strength and impede the Board’s
election processes. Regarding the latter type of cases, the Court
stated that a bargaining order should issue where “the possibil-
ity of erasing the effects of past practices and ensuring a fair
election (or a fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed through cards would, on balance, be better protected
by a bargaining order.” Id. at 614–615.
I agree with the General Counsel that under the circum-
stances of this case, a bargaining order is the only appropriate
remedy for the unfair labor practices committed by the Respon-
dent. In so doing, I need not determine whether the unfair labor
practices fall within the first or second category described in
Gissel, for I find that they are, regardless of category, quite
sufficient to justify a bargaining order. The Union’s majority
status was unequivocally established on March 21, when 10 of
Respondent’s 18 drivers, which constitute the bargaining unit
herein, signed petitions authorizing the Union to represent them
for purposes of collective bargaining (G.C. Exh. 5). This fact is
not disputed by the Respondent. Having learned or suspected
that its drivers were engaged in organizational efforts, the Re-
spondent, on March 21, embarked on a course of unlawful con-
duct designed to not only learn of the extent of its drivers in-
volvement in such activities, but also to intimidate, undermine,
and destroy its drivers’ efforts in this regard. The Respondent’s
efforts included the unlawful interrogation of most of the em-
ployees who signed the petitions, several threats of discharge,
unspecified reprisals, threats of plant closure, creating the im-
pression that the employees’ activities were being kept under
surveillance, and issuing written warnings to employees be-
cause of their involvement with the Union. Some of this
unlawful conduct, more particularly the threats of plant closure
and discharge, amount to “hallmark” violations of the Act. The
Board has long held that “threats to eliminate the employees’
source of livelihood have a devastating and lingering effect on
employees, an effect that most effectively can be remedied by
an order to bargain.” New Life Bakery, 301 NLRB 421, 431
(1991); White Plains Lincoln Mercury, 288 NLRB 1133, 1140
(1988). The coercive nature of such conduct was rendered even
greater by the fact that some of these threats were made by such
high level management officials as Respondent Owner Faure,
her husband, Crohan, Vice President Burnson, and Operations
Manager Belt. See Q-1 Motor Express, 308 NLRB 1267, 1268
(1992); also Weldun International, 321 NLRB 733 (1996). The
involvement by high management officials in such unlawful
activity would clearly convey to employees the message that
Respondent was deeply committed to its antiunion position, and
that this was a commitment from which it would not likely
retreat. Salvation Army Residence, 293 NLRB 944, 945 (1989).
Of greater significance, however, is the fact that Respondent
did not confine itself simply to threats of discharge but indeed
carried out such threats initially by changing the work assign-
ments of certain individuals it knew or suspected were involved
with the Union, issuing 1- or 2-day suspensions, and eventually
discharging, constructively or otherwise, 7 of the 12 employees
who signed the petitions. Given all of the above circumstances,
including the relatively small size of the unit and the swiftness,
severity, and extensiveness of Respondent’s unlawful cam-
paign, and the involvement by upper management in such ac-
tivities, I find it highly unlikely that Respondent’s employees
would be willing or freely able to express their choice in an-
other election and am convinced that merely requiring the Re-
spondent to refrain from any unlawful conduct will not suffice
to erase the lingering effects of the Respondent’s violations.
See, e.g., Adam Wholesalers, Inc., 322 NLRB 313 (1996).
Accordingly, I find that the employees’ desires for union repre-
sentation, as reflected by their signatures on the union petitions
would, on balance, be better protected by a bargaining order
than by traditional remedies. As the Union’s majority status
was achieved on March 21,51 and as the evidence indicates that
Respondent’s conduct began at or about the same time, the
Respondent’s bargaining obligation is deemed to have begun
on March 21, 1995.
Having found that Respondent was obligated to bargain with
the Union on March 21, I further find that Respondent violated
Section 8(a)(1) and (5) of the Act when, on or about April 8, it
unilaterally implemented its L.S.F. driver company policy and
procedures manual containing new work rules for employees,
and by unilaterally discontinuing its long-established practice
of allowing drivers to use their ComData cards for cash ad-
vances. See, e.g., Electro-Voice, Inc., 320 NLRB 1094, 1095
(1996); International Door, 303 NLRB 582, 602 (1991).
CONCLUSIONS OF LAW
1. The Respondent is an employer 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. The following employees of Respondent constitute a unit
appropriate for bargaining within the meaning of Section 9(b)
of the Act:

All full-time and regular part-time truck drivers employed by
the Employer at its facility currently located at 1334 Field
Street, Hammond, Indiana; but excluding all other employees,
dispatchers, office clerical employees, guards and supervisors
as defined in the Act.

4. At all times since March 21, 1995, and continuing to date,
the Union has been the exclusive representative of all the em-
ployees within the appropriate unit for purposes of collective
bargaining.
5. By the following acts and conduct, the Respondent has
violated Section 8(a)(1) of the Act:
(a) Creating the impression that it is keeping its employees’
union activities under surveillance.
(b) Coercively interrogating employees regarding their own
or other employees’ union activities.

51 The General Counsel suggests in her posthearing brief (p. 83, fn.
44), that the Union attained majority status on March 20. However, a
review of G.C. Exh. 5 (the union petitions) clearly reveals that only 6
employees signed the union petitions on March 20, out of a total of 18
(not counting Andrysiak who is found not to have been a unit employee
at the relevant time period here) employees.
L.S.F. TRANSPORTATION, INC. 1087
(c) Threatening employees with plant closure, loss of jobs,
discharge, and other unspecified reprisals because they engaged
in union activities.
6. The Respondent has violated Section 8(a)(3) and (1) of the
Act by:
(a) Issuing written warnings to Ron Holland and Dennis Hill
in retaliation for their union activities.
(b) Laying off Mark Hasse for 1 day, and Walter Michaels
for 2 days because of their union activities.
(c) Changing the work assignments of Ronald Holland, Wal-
ter Michaels, Mark Hasse, and John Kawa because of their
support for or activities on behalf of the Union.
(d) Discharging, constructively or otherwise, Mark Hasse,
Michael Dooley, Ronald Holland, Dennis Hill, Walter
Michaels, William Owens, and John Kawa because of their
activities on behalf of or their support for the Union.
7. The Respondent has violated Section 8(a)(5) and (1) of the
Act by unilaterally instituting new work rules for employees on
April 8, 1995, and by discontinuing its practice of allowing
drivers to use their ComData cards for cash advances.
8. The Respondent engaged in objectionable conduct requir-
ing the election conducted on April 29, 1995, in Case 13–RC–
19111 be set aside.
9. The unfair labor practices found are sufficiently serious
and pervasive as to warrant a remedial order requiring the Re-
spondent to recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of the Respondent’s
employees in the above-described appropriate unit.
10. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
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
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent was obligated to recog-
nize and bargain with International Brotherhood of Teamsters,
Local 142, AFL–CIO as of March 21, 1995, it shall be ordered
to do so. Further, the Respondent shall be required to rescind
the work rules that were unilaterally implemented in April
1995, and to reinstate its policy regarding usage of the Com-
Data cards by employees for cash advances until such time as
the parties negotiate in good faith to agreement on said issues
or a valid impasse is reached.
The Respondent, as noted, discriminated against Mark Hasse
by laying him off for 1 day on March 24, and by giving Walter
Michaels a 2-day suspension beginning on or about March 27.
It also discriminated against both Hasse and Michaels, as well
as Ronald Holland and John Kawa, by changing their driving
assignments, and further discriminated against Mark Hasse,
Michael Dooley, Ronald Holland, Dennis Hill, Walter
Michaels, William Owens, and John Kawa by actually or con-
structively discharging them for engaging in union activities.
To remedy its unlawful conduct, the Respondent shall be di-
rected to offer the above discriminatees full and immediate
reinstatement to their former jobs or, if those positions no
longer exist, to substantially equivalent jobs, without prejudice
to their seniority or other rights and privileges which they pre-
viously enjoyed, and make them whole for any monetary or
other losses resulting from any suspension, change in driving
assignments, or discharge suffered by the above individuals, in
accordance with the formula set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest on the amounts to be com-
puted in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent shall also be
required to remove from its files any and all references to the
unlawful discharge, suspension, or layoff of these individuals,
and shall further be directed to rescind and remove from its
files the discriminatory warnings issued to Ronald Holland and
Dennis Hill, and to notify the above individuals in writing that
it has done so. Finally, given the extensive and egregious na-
ture of Respondent’s conduct, I shall include broad remedial
language in the recommended Order.
[Recommended Order omitted from publication.]