Lynn'S Trucking Co.

National Labor Relations Board - Board Decisions

Feb 9, 1987

282 N.L.R.B. 1094 (N.L.R.B. 1987)

1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edna Lynn and Dudley Lynn , Individuals, d/b/a
Lynn's Trucking Company and Local 699, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America. Case 5-CA-17791
9 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 24 October 1986 Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and the General Counsel
filed a responding brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Edna Lynn and Dudley Lynn, Individ-
uals, d/b/a Lynn's Trucking Company, Landover,
Maryland, its officers, agents , successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer Tyrone Parrotte immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, removing
any records of his discharge which may appear in
his personnel file and notifying him in writing that
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
2 The judge granted the General Counsel's request that the order in-
clude a visitatorial clause authorizing the Board, for compliance pur-
poses, to obtain discovery from the Respondent under the Federal Rules
of Civil Procedure under the supervision of the United States court of
appeals enforcing the order. We have concluded that under the circum-
stances of this case such a clause is not warranted We shall modify the
recommended Order accordingly
We have further modified the judge's recommended Order to require
that the Respondent notify discriminatee Tyrone Parrotte in writing that
any records of his discharge have been removed from his personnel file
and that the discharge will not be used against him in any way In addi-
tion, we have modified the notice to include a reference to the expunc-
tion remedy
this has been done and that the discharge will not
be used against him in any, way, and make Tyrone
Parrotte whole for any loss of earnings and other
benefits suffered as a result of the discimination
against him in the manner set forth in the remedy
section of the judge's decision."
2. Substitute the, following for paragraph 2(d).
"(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
We assure our employees that:
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT threaten you with discharge or
discharge any employee because you support the
Union.
WE WILL NOT coercively interrogate our em-
ployees about union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Tyrone Parrotte immediate and
full reinstatement to his former position as a perma-
nent driver or, if that job no longer exists, to a sub-
stantially equivalent position without prejudice to
his seniority or any other rights or privileges previ-
ously enjoyed, discharging if necessary any re-
placement, and WE WILL make him whole for any
earnings lost as a result of our unlawful conduct
against him plus interest.
WE WILL notify Tyrone Parrotte that we have
removed from our files any reference to his dis-
282 NLRB No. 154
LYNN'S TRUCKING CO. 1095
charge and that the discharge will not be used
against him in any way.
EDNA LYNN AND DUDLEY LYNN, IN-
DIVIDUALS, D/B/A LYNN'S TRUCKING
COMPANY
Eric M. Fine, Esq., for the General Counsel.
Vanessa M. Carpenter, Esq_, of Washington, D.C., for the
Respondent.
DECISION
under, subcontract to haul dirt from a construction site to
a landfill. Tyrone Parrotte was hired by Respondent's
vice president, Dudley Lynn, on 19 January and fired 6
days later. The parties gave widely divergent accounts of
the events leading to Parrottes discharge. From the
General Counsel's point of view, Parrotte was fired be-
cause he engaged in union organizing activities. Re-
spondent claims, however, that he was dismissed solely
because he was impeding its drivers' ability to perform
their work, at the jobsites. Although there are other
issues in this case dealing with specific allegations of in-
dependent 8(a)(1) violations, the central issue concerns
the real reasons for Parrotte's discharge.
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Pursuant
to a charge filed 31 January, as amended 12 February
1986, by Local 639, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union or Local 639), a " complaint and
notice of hearing issued 14 March 1986, alleging that the
Respondent, Lynn's Trucking Company, violated Sec-
tion 8(a)(1) and (3) of the Act by discharging Tyrone
Parrotte and by other acts including interrogating em-
ployees and threatening them with discharge for alleged-
ly discriminatory reasons.' The Respondent filed a
timely answer denying the commission of any unfair
labor practices. A trial was held before me on 25 August
1986.2 The parties appeared at the hearing and were af-
forded full opportunity to participate, to introduce and
meet material', evidence, and to engage in oral argument.
On the entire record, including my observation of the
witnesses' demeanor, and after due consideration of the
brief filed by the General Counsel, I make the following
FINDINGS OF FACT
Respondent, jointly owned by copartners Edna and
Dudley Lynn, doing business' and trading under the
name of Lynn's Trucking Company, has its office and
place of business in Landover, Maryland, and is engaged
in the commercial hauling and dumping of excavated
soil. During the preceding 12 months, a representative
period, Respondent, in the course and conduct of its
business operations described herein, ,derived gross reve-
nues in excess of $50,000 directly from customers located
outside the State of Maryland. Respondent, admits and I
find that it has been at all material times herein an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Union is now, and has been at all material times, a
labor ,organization within the meaning of Section 2(5) of
the Act.
1. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent, a small trucking business, employing six
or seven drivers, was at the time of the events described,
1 At the hearing in this matter, I granted the General Counsel's motion
to amend par 5 of the complaint thereby adding two allegations of
8(a)(1) violations. The Respondent entered a denial to the amended alle-
gations on the record at the hearing.
2 Hereinafter, all dates will refer to 1986 unless otherwise specified
The General Counsel's Case
Parrotte testified that he called Edna Lynn 17 January
about a possible job opening as a truckdriver with Re-
spondent and was referred to Dudley Lynn who asked
him to report for a road test the following day. Parrotte
did so and, on passing the test, testified that Lynn told
him he would begin working as a permanent driver 21
January, replacing another employee who had been
jailed.
As instructed, Parrotte began driving on 21 January,
hauling dirt from a site operated by the Kiewit Construc-
tion Company 'to a landfill owned by the Hutchinson
Brothers Excavating firm. Based on 'prior experience,
Parrotte believed that the Kiewit job was covered by the
Davis-Bacon Act. After inspecting, a sheet posted at the
jobsite, Parrotte concluded that wage rates for truckdriv-
ers like himself were supposed to begin at $10 per hour
plus $1.85 in fringe benefit payments. However, Par-
rotte's' starting hourly rate with Respondent was only $8
an hour.3 Parrotte telephoned union business agent
Lewis, Scott at, noon that same day to inquire about the
discrepancy between his and the posted , wage rates.
Scott promised to look into the matter.
At the end of his first day of work, Parrotte men-
tioned to Lynn that he was not getting the wages re-
quired under the Davis-Bacon Act. Lynn replied that he
could pay what he wanted because he was not a union
firm.
During his lunch period the next day, 22 January, Par-
rotte spoke with his coworkers about joining the Union.
He stated that they agreed to join and to attend a meet-
ing the following, evening- with the union business agent.
After work that day, Parrotte met Scott and signed a
union authorization card. On the following day, Parrotte
reminded his fellow drivers of the meeting which would
be held at the union hall between 5 and 6 p.m. However,
none of the employees attended that meeting. After wait-
ing at the hall for their arrival for over an hour, Parrotte
finally went home, only to receive a telephone call from
the Lynns. Dudley Lynn told Parrotte he heard that he
had been talking about the Union, that "he was not
union, didn't care to join any union, and as of that day
no longer required his services."
$ Respondent admitted that it paid its starting truckdnvers $8 an hour
during the first year of employment, $9 during their second year, and $10
during their third year
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parrotte returned immediately to the union hall to tell
Scott of his just-concluded telephone call with the
Lynns. The next day, 24 January, Parrotte, accompanied
by Scott, drove to the landfill site. Because Local 639
had a collective-bargaining agreement with Hutchinson
Brothers, Scott obtained the consent of Ralph Baker, a
part owner of that company, to talk with Respondent's
drivers. Parrotte testified that Scott spoke to three to
four drivers as they were preparing to leave the landfill.
Parrotte maintained- that at no time during his brief
employ with Respondent did he interfere with or block
any driver's passage either at the Kiewit or Hutchinson
locations.
Several other witnesses called by the General Counsel
corroborated important aspects of Parrotte's testimony
about those events in which they participated. Thus,
business agent Scott confirmed the fact that Parrotte first
called him on 21 January to inquire about the proper
rates of pay at the Kiewit job; that he determined the
following day that the proper wage scale was the one
which Parrotte had seen posted at the jobsite; and that
he informed Parrotte of this when they met later that
day. Scott also testified that Parrotte returned to the
union hall 23 January to tell him of his dismissal and that
he suggested Parrotte's dismissal might warrant filing a
charge with the NLRB. He also confirmed Parrotte's
testimony regarding his conversation with Baker at the
landfill site on 24 January and his subsequent distribution
of union materials to and conversations with Respond-
ent's drivers as they were leaving the site. He insisted
that he had no need to stop any driver's departure be-
cause each of them paused before leaving the landfill to
check their tires and remove excess dirt from their
trucks. He also insisted that the only date on which he
and Parrotte attempted to solicit union membership
among Respondent's drivers was 24 January, the day
after Parrotte's discharge.
Scott testified that on 25 January, Edna Lynn tele-
phoned to tell him he had no business on her job, that
she did not want him talking to her drivers, and that she
was not union and had no intention of becoming union.
She also volunteered that the Union was no good be-
cause her husband had once been a member and Local
639 had not done anything for him. Scott vainly attempt-
ed to explain that he had good reason, as well as the
right, to be at the landfill.
Subsequently, by letter dated 17 February, the Union
wrote to the Department of Labor alleging that Re-
spondent was failing to pay the wage rates required
under the Davis-Bacon Act and enclosing as proof earn-
ing statements of three of Respondent's drivers-Russell
Smith, Charles Henderson, and Tyrone Parrotte.4 A
copy of the Union's letter with attachments was sent to
the Respondent.
Two of Parrotte's 'co-employees, Charles Henderson
and Russell Smith , offered testimony which supported
Parrotte's and Scott's version of the salient events. Hen-
derson testified that Parrotte spoke to him about the
Union one evening after work at the Lynn yard and
denied that Parrotte interfered with him at the Hutchin-
son landfill. Rather, he stated that Scott, who was ac-
companied by Parrotte, approached him on 24 January
just before he left the landfill. They spoke briefly and
Henderson signed a union card. He explained that he
previously had joined the Union but did not have his
union card with him. Believing that he had to carry one
on his person when working a union job, he signed one
when Scott proffered it to him.
Henderson further stated that much later that same
day, he received a telephone call from Edna Lynn. She
asked him whether he had talked with a union man and
threatened that if he had, he would be discharged be-
cause the Company was nonunion. When asked if he had
signed anything for the Union, he denied having done so.
Several days after this conversation, Henderson was
fired, ostensibly because Dudley Lynn found marijuana
ashes in his truck.5
Another Lynn driver, Russell Smith,, also testified that
he spoke with Scott and Parrotte about signing a union
card as he was leaving the Hutchinson site. He was cer-
tain they did not impede him in performing his work.
Like Henderson, Smith also had an encounter initiated
by Dudley Lynn at the truck yard. Lynn told him he
would have to get rid of Parrotte because he was talking
about the Union and interfering with the drivers.
Smith testified that when he and-other Lynn drivers
were laid off in February, Lynn had assured him he
would be recalled when work picked up. However,
during the layoff, Lynn telephoned him and indicated
that he did not know whether he wanted Smith back. As
the evidence shows, Smith had given his paystub to busi-
ness agent Scott who had submitted it to the Department
of Labor when the Union protested Respondent's failure
to pay employees the wage rate mandated under the
Davis-Bacon Act.
Ralph Baker, executive vice president for Hutchinson
Brothers, also supported Parrotte's and Scott's version of
events. Baker recalled that Scott and Parrotte had ap-
peared together on one occasion at the Hutchinson dump
in January 1986 and had spoken with him while his su-
pervisor, Washington, was present. Baker knew Parrotte
who had worked for Hutchinson Brothers in the past. In
fact, subsequent to his discharge by Respondent, Hutch-
inson Brothers rehired Parrotte. Baker denied that Scott
or Parrotte had blocked any operations at the landfill or
that he had asked them to, leave. He did remember, how-
ever, telephoning the Lynns on a subsequent occasion to
complain that the Respondent's trucks were blocking the
dump, but he believed that happened in the, spring when
Respondent had entered into a contract directly with
Hutchinson Brothers.
As an adverse witness called initially by the General
Counsel, Dudley Lynn testified that he fortuitously en-
countered Baker at the dumpsite on 21 January. Baker
purportedly told him that he could not tolerate having
5 Although Henderson did not allege he was fired because of union
'activity, Scott filed a charge on his behalf after he heard his account of
the events attending his dismissal However, no complaint was issued on
4 The Department of Labor is the Federal agency responsible for ob- this charge and Henderson expressed no interest in pursuing a Board
taming compliance with the Davis-Bacon Act remedy
LYNN'S TRUCKING CO. 1097
Respondent's trucks' block his, dump. Lynn stated that he
did not ask, nor did Baker mention , who in particular
was responsible for this - interference. Lynn continued
that when he returned to his home, his wife told him
that she had received a similar complaint about Par-
rotte's conduct at the Kiewit jobsite.
In addition to these complaints, Lynn further testified
that a number of employees came to him protesting Par-
rotte's bothersome behavior. On 21 January, the first day
of Parrotte's employ, three drivers, Henderson, Mickel,
and Morant, allegedly told Lynn in substantially identical
terms that he would have to do something about Par-
rotte because he had been blocking their trucks and pass-
ing out leaflets. When Lynn was reminded that Parrotte
had been hired to replace Morant, he altered his testimo-
ny, stating that Morant's complaint about Parrotte's be-
havior came to his attention on 24 January. Lynn also
testified that on 22 January, employee Russell Smith pur-
portedly told him that Parrotte had engaged in the same
blocking conduct that had been reported the day before.
Still another employee, Bernard Brown, protested that
Parrotte had entered the cab of his truck to discuss the
Union with him.
Lynn stated that he warned Parrotte on both 21 and
22 January that he had received, reports from drivers
that they could not do their jobs because he had inter-
fered with them at the dump, and that such conduct was
wholly unacceptable. According to Lynn, after the first
warning Parrotte responded with a non sequitur: that he
was not in the Union. The second warning was much
like the first with Lynn stating that he again told Par-
rotte that he was continuing to receive complaints about
him. Parrotte purportedly responded with a shrug of his
shoulders.
At one point in his testimony, Lynn acknowledged
that he was aware of Parrotte's organizing activities
prior to, his discharge. However, subsequently, he denied
having such knowledge. In fact, he disclaimed knowing
what sort of material Parrotte was distributing, asserting
that it did not matter to him because he did not care if
his employees joined the Union.
Edna' Lynn also testified about a series of complaints
made to her in addition to those which her husband re-
ceived-One such complaint allegedly came during'a tele-
phone call from Washington of the Hutchinson 'Brothers
firm, the same man whom Baker said would not have
made such a call. According to Edna Lynn, Washington
told her that Parrotte had blocked the dump and" had,
union people with him. He also said he knew Parrotte
because he had previously worked for and been fired by
Hutchinson Brothers. After receiving this call, Edna
Lynn stated that she contacted, her husband and urged
him to' hasten to the dump to investigate the matter.
Edna Lynn also stated she heard from Field Superin-
tendent Sloane at the Kiewit job who allegedly called on
the following day with the identical complaint about
Parrotte blocking the job. Edna Lynn further testified
that two employees, Henry Anderson and Bernard
Brown , came to her on the same day complaining just as
the other drivers had, that Parrotte was stopping the
flow of trucks and preventing them from doing their
work. After telling her that Parrotte had a union man
with'- him, Anderson gave her Lewis Scott's business
card.
Edna Lynn acknowledged that she and her husband
had conferred before discharging Parrotte. She also ad-
mitted that shortly after his termination on 27 January,
she prepared and distributed to the employees a memo
which stated, inter alia, that: "Lynn's Trucking Compa-
ny is not a union company and we do not choose to be;
contrary to anyone's thinking that we should change. If
and when we do change anything that will pertain to
you, we will let you know." Following this unequivocal
message, the memo enumerated certain work rules. Edna
Lynn explained that the principal purpose of this note
was to communicate to the drivers once again the opera-
tive work rules. The brief reference to the Union was
added solely to dispel the employees' mistaken impres-
sions and doubts about the necessity of having to join a
union.
In addition, Edna Lynn conceded that she had reser-
vations about and ultimately did not reemploy Russell
Smith after a layoff because he was associated with a
complaint the Union filed with the Department of Labor
accusing Respondent of paying him and other employees
improper wages.
To bolster the Lynns' testimony, Respondent adduced
testimony from employees James Mickel and Henry An-
derson, drivers who continued to be in Respondent's
employ at the time of the hearing. Mickel, the man who
road-tested Parrotte, said that Lynn hired` Parrotte as a
temporary employee, telling him that he would ,replace a
driver named Morant who was absent due to a death in
his family.
Mickel next stated that on Tuesday, 21 June, when he
was attempting to leave the Hutchinson dump, Parrotte's
truck blocked the exit. While he was thus impeded, Scott
and Parrotte approached his truck and handed him union
literature. Three other drivers who were behind him had
their trucks blocked as well. He indicated that this was
the only occasion on which he was solicited by both
Scott and Parrotte. Mickel also testified that at the end
of the workday, he and fellow driver Henderson told
Dudley Lynn that Parrotte had been blocking the road-
way at the dump, that Parrotte had given him some
cards to join the Union, but he had no desire to do so.
He heard Henderson telling Edna Lynn essentially the
same thing. He also recalled that shortly after this block-
ing episode, Parrotte and Scott joined other drivers at a
luncheon spot and urged them to attend a union meeting
because the Lynns were not paying the drivers their cor-
rect wages. Mickel concluded his direct examination by
admitting that Lynn had told him the Respondent was
not a union company, although the choice as to whether
to join a union was up to each employee.
Anderson did not recollect events as Mickel described
them. He did not recall seeing Business Agent Scott on
the scene at all. Instead, only Parrotte approached him
on Wednesday, 22 January, as he and other truckdrivers
were entering the landfill. He assumed Parrotte was not
working at the time because he had his own car there.
Although Parrotte talked to each of the five other Lynn
truckdrivers who entered the dump at the same time,
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anderson could not recall any of their names. He did
not mention Parrotte's conduct to the Lynns. Rather,
Edna Lynn initiated a conversation with him in which
she made clear that her company was not a union com-
pany but Anderson was free to join if he so chose.
II. DISCUSSION AND CONCLUDING FINDINGS
A. Credibility Resolutions
As in many cases where an employee claims he was
fired for his union activities and the employer alleges
that it was for a different, justifiable business purpose,
the real reason for the employer's conduct must be
found. Often, it is exceedingly difficult to discern the
true motivation underlying an employer's allegedly dis-
criminatory conduct, but this case poses no such prob-
lem. The record abounds with evidence of contradictions
and inconsistencies in the testimony of each of Respond-
ent's witnesses, leaving no doubt that their poorly con-
structed stories warrant disbelief. No useful purpose
would be served by examining each fallacy. Instead, it
will suffice to point out a few of the more blatant and
improbable aspects of their testimony.
Respondent's position paper (see G.C. Exh. 4) states
that Parrotte was hired to replace an employee named
Etheridge. However, Dudley Lynn stated at the hearing
that Parrotte was hired as a temporary employee to re-
place either Etheridge or another driver, Morant. Still, a
third story was offered by employee Mickel who stated
that Parrotte was hired as a substitute for Morant alone.
Contrary to this assertion, the General Counsel estab-
lished from Respondent's business records that Morant
was present on the same days that Parrotte worked. Put-
ting aside the changing identities of the employees who
Parrotte supposedly replaced, Respondent failed to ex-
plain why it was important to prove whether Parrotte
was hired as a substitute employee because his status as
either a temporary or permanent employee had nothing
to do with the, reason assigned by the Respondent for his
termination. Further, Respondent produced no evidence
which might have shown that another employee was
hired to replace Parrotte.
The generally consistent testimony given by the per-
sons whom the General Counsel presented stands in
stark contrast to the confused and irreconcilable state-
ments offered by Respondent's witnesses. Parrotte was a
convincing witness in his own right. He testified in a
forthright manner and described the events leading to his
discharge with precision. Moreover, testimony offered
by Union Business Agent Scott, Hutchinson Brothers'
executive, Baker, and former Lynn employees, Hender-
son and Smith, corroborated Parrotte's account in all
material respects. On the other hand, Respondent's wit-
nesses contradicted each other at every turn. For exam-
ple, Mickel, testified that with Parrotte's truck blocking
their way, Scott and Parrotte distributed union materials
to him and three other drivers as they were leaving the
landfill on a Tuesday. According to Anderson, however,
Parrotte was alone, had his own car with him, and
blocked five Lynn drivers as they were entering the
dump on a Wednesday.
The Lynns did not emerge from this proceeding with
their credibility in-tact either. First, I find it difficult to
believe that Henderson, complained to them about Par-
rotte's intrusions when he willingly signed a union au-
thorization card while still in Respondent's employ. I
also find it difficult to believe that each driver and two
supervisors complained to them. using virtually identical
language to describe Parrotte's behavior. But the most
damaging blow to their credibility was delivered by
Ralph Baker who was a convincing and neutral witness,
having no connection with or interest -in the outcome of
this case. Thus, his denial that Parrotte or Scott blocked
or interfered with any trucks at the landfill, or that he or
Washington complained about their misconduct to the
Lynns, was especially persuasive. His observations com-
pletely negated the reasons proferred by the Lynns for
Parrotte's discharge. Baker not only contradicted Edna
Lynn's testimony that she had spoken to Washington,
but also her assertion that Parrotte had been involuntar-
ily terminated by Hutchinson Brothers. To the contrary,
Baker testified authoritatively that Parrotte quit of his
own accord and was a good enough employee to have
been rehired by the firm approximately a week after his
abrupt dismissal by the Respondent. Based on Baker's
corroborating testimony, I find that Scott and Parrotte
were involved in union solicitation at the landfill on only
one occasion-24 January, the day after Parrotte was
fired.6 Consequently, the Lynns' claims of having re-
ceived complaints from all of their employees about Par-
rotte's interference over the prior, 3 days were false.
B. Respondent Violated the Act in Discharging
Parrotte
The General Counsel has adduced more than sufficient
evidence to satisfy each of the elements necessary to es-
tablish a prima facie case showing that Respondent dis-
charged Tyrone Parrotte in violation of the Act as al-
leged in the complaint. See Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455
U.S. 989 (1982); Transportation Management Corp., 462
U.S. 393 (1983).
No controversy can exist regarding the extent of Par-
rotte's active role in promoting union membership
among the employees of the Lynn Trucking firm from
the first to the last day of his employment. The Lynns
became acutely aware of his organizational efforts some
time before he was discharged. Although I do not credit
the Lynns' testimony that personnel from other business-
es called them to complain about Parrotte or that each of
their employees protested Parrotte's intrusions, I am con-
vinced that the Lynns learned of his activities from some
-of their drivers. In fact, Dudley Lynn admitted that he
knew of Parrotte's organizational activities, prior to dis-
charging him. To believe Dudley Lynn's subsequent dis-
claimer that he was not aware of what sort of literature
Parrotte was distributing or the purpose of the meeting
6 Respondent's position paper indicates that Scott and Parrotte en-
gaged in organizational efforts at the landfill on 21 January, Parrotte's
first day of work
LYNN'S TRUCKING CO. 1099
he had arranged, requires a naivete which no trier of fact
should possess.
Edna Lynn did not even deny knowing of Parrotte's
union activity, but like her husband, insisted that it was
of no consequence to her. Contrary to the Lynns' protes-
tations, the record reveals that they harbored consider-
able antiunion animus. They admitted telling their em-
ployees that they were not a union company, apparently
assuming that such a statement would be received be-
nignly if accompanied by an assurance that employees
were free to join a union ifthey chose to do so. All that
this ambiguous message could signal to the employees is
that a union would not be well received by their employ-
ers. As if these oral pronouncements were not strong
enough, several days after Parrotte's discharge Edna
Lynn distributed a memo to all the drivers which made
it absolutely clear that Respondent did "not choose to
be" a union company. This writing constitutes the ulti-
mate blow toRespondent's attempt to legitimize its con-
duct. Her efforts to assign an innocent purpose to the
memo were unpersuasive. Rather, the document simply
underscored the Respondent's position that it was unal-
terably opposed to union organization. In light of this
memo, the Lynns' assertions that they had no interest in
or concern about the Union are simply ludicrous. In they
absence of any credible evidence that Parrotte blocked
the entrance from the landfill and interfered with em-
ployees while they were on duty, the Respondent's, prof-
fered business justification for terminating him vanishes.
All that remains is , unvarnished proof that Parrotte was
discharged solely because of his organizing efforts on
behalf of Local 639. In concluding that the reason ad-
vanced by the Respondent was pretextual and that his
dismissal was unlawfully motivated, it follows that Re-
spondent's action against him violated Section 8(a)(3)
and (1) of the Act. See Limestone Apparel Corp., 255
NLRB 722 (19$1).
C. Independent Violations of Section 8(a)(1)
As set forth above, Charles Henderson testified with-
out contro'ersion that during a, late-night telephone call,
Edna Lynn asked him if he had talked to a union man or
signed anything for the Union, warning him that he
would be dismissed if he had done so. This inquiry was
not made in a casual, off-hand manner, but, rather, was
coupled with a threat of severe reprisal. As such, these
remarks are condemned by Section 8(a)(1) of the Act.
See Mclean Roofing Co., 276 NLRB 830 at 833 (1985);
Rossmore House, 269 NLRB 1176 (1984).
Russell Smith testified that Dudley Lynn asked wheth-
er Parrotte had interfered with him. This question came
in the midst of other remarks by Lynn to the effect that
he would have to fire Parrotte because of his union ac-
tivity and for interfering with the other drivers. Without
more, a single question about whether Parrotte had inter-
fered with Smith might seem both meaningless and in-
nocuous. But when taken together with Lynn's other co-
ercive remarks, his use of the word "interfere" appears
to refer to Parrotte's solicitation on behalf of Local 639.
In this context, Lynn's question to Smith can have no le-
gitimate purpose. Smith further stated without dispute
that Lynn called him at home to ask if he had signed a
union card . Coming on the heels of Lynn's other unlaw-
ful comments to him , and bearing in mind that Smith had
not openly avowed support for the Union , this interroga-
tion, too, cannot be regarded as harmless . See Offshore
Shipbuilding, 274 NLRB 539 ( 1985 ); Rossmore House
Hotel, supra. In sum, as the amendments to the complaint
allege , I conclude that Dudley Lynn unlawfully interro-
gated Smith on two occasions and wrongfully threatened
to discharge Parrotte in Smith 's presence , thereby inde-
pendently violating Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Edna Lynn ' and Dudley Lynn, Individuals, d/b/a
Lynn's Trucking Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 639, a/w International, Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of Section
2(5) of the Act.
3. By discharging Tryone Parrotte on 23 January 1986
because of his union organizing activities, the Respond-
ent has engaged in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act.
4. By interrogating employees and threatening dis-
charge in the event they engaged in union activities, Re-
spondent interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by Section 7
in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.,
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I find it necessary to propose an order
which requires the Respondent to cease and desist there-
from and to take certain affirmative action designed to
effectuate the policies of the Act, including posting the
notice appended to this decision.
Specifically, having concluded that Respondent dis-
criminated against Tyrone Parrotte by discharging him
because of his union activities , I shall recommend that
Respondent offer him immediate and full reinstatement
to his former position as a permanent driver and, if that
position no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or other rights
and privileges, and to make him whole for any loss of
earnings and benefits suffered because of the Respond-
ent's discrimination against him. His loss of earnings shall
be computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corp.,
231 NLRB 651 (1977), from the date of his discharge on
23 January 1986 until such time as Respondent properly
offers him reinstatement.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed?
ORDER
The Respondent, Edna Lynn and Dudley Lynn, Indi-
viduals, d/b/a Lynn's Trucking Company, Landover,
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or threatening to discharge its employ-
ees because they support or engage in activities on behalf
of Local 639, a/w International Brotherhood of Team-
sters, Chauffeurs,- Warehousemen and Helpers of Amer-
ica or any other labor organization.
(b) Coercively interrogating its employees about their
union activities.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Tyrone Parrotte immediate and full reinstate-
ment to his former or substantially equivalent position,
removing any records of his discharge which may
appear in his personnel file, and make him whole for any
loss of earnings he may have suffered by reason of his
discriminatory discharge in the manner set forth in the
remedy section.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this-Order.
(c) Post at its Landover, Maryland, facility copies of
the attached notice marked "Appendix."8 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous -places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
For the purpose of determining or securing compli-
ance with this Order, the Board or any of its duly au-
thorized representatives may obtain discovery from Re-
spondent, its officers, agents, successors, or assigns, or
any other person having knowledge concerning any
compliance matter, in the manner provided by the Fed-
eral Rules of Civil Procedure. Such discovery shall be
conducted under the supervision of the United States
court of appeals enforcing this Order and may be had on
any matter reasonably related to compliance with this
Order, as enforced by the court. -
7 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."