McLean Trucking Co.

National Labor Relations Board - Board Decisions

Mar 6, 1975

216 N.L.R.B. 925 (N.L.R.B. 1975)

MCLEAN TRUCKING COMPANY 925
McLean Trucking Company and James Banyard. Case
8-CA-5706
March 6, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, KENNEDY,
AND PENELLO
On March 23, 1973, the National Labor Relations
Board issued its Decision and Order in this proceed-
ingI deferring to the joint committee's denial of the
Charging Party's grievance and dismissing the
complaint in its entirety. Thereafter, on August 14,
1974, the United States Circuit Court of Appeals for
the District of Columbia held that deferral was not
appropriate in this case and remanded to the Board
for consideration of the unfair labor practice issues?
Thereafter, the Charging Party and the Respondent
each filed a brief on remand.3
The Board has reconsidered its Decision and Order
herein in light of the court's opinion and remand
order, has reconsidered the record and the Adminis-
trative Law Judge's Decision in light of the excep-
tions, briefs, and various papers filed herein , and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
McLean Trucking Company, Cleveland, Ohio, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to hire or tenure, or any other
term or condition of employment, for engaging in
any concerted activity protected by Section 7 of the
Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Offer to James Banyard 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 other rights,
privileges , or working conditions , and make him
216 NLRB No. 161
whole for any loss of earnings he may have suffered,
backpay to be computed in the manner set forth in F.
W Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1963).
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its facilities in Cleveland, Ohio, copies of
the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional
Director for Region 8, after being signed by a
representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by Respondent for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
1 202 NLRB 710 (Members Fanning and Jenkins, dissenting).
2 James Banyard v. N. L. R. B and Clay D Ferguson v. N L R B., 505 F.2d
342 (C.A.D.C., 1974).
3 The Respondent has requested , and the Charging Party has opposed,
oral argument . This request is hereby denied as the record , the exceptions,
and the various briefs and papers filed herein adequately present the issues
and the positions of the parties.
4 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employee in regard to hire or
tenure of employment, or any term or condition
of employment, because he has engaged in any
concerted activity protected by Section 7 of the
Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed in
Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring
membership in a labor organization as a condi-
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of employment , as authorized in Section other rights and privileges, and make him whole
8(a)(3) of the Act. for any loss of pay suffered as a result of the
WE WILL offer James Banyard immediate and discrimination against him.
full- reinstatement to his former job or, if that job
no longer exists , to a substantially equivalent MCLEAN TRUCKING
position , without prejudice to his seniority and COMPANY