Midland Transportation Co.

National Labor Relations Board - Board Decisions

Aug 12, 1991

304 N.L.R.B. 4 (N.L.R.B. 1991)

4
304 NLRB No. 6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
3 The judge’s Order is modified to require the Respondent to preserve and
make available to the Board all records necessary to compute the backpay
owed discriminatees Mark Phillips and Lyndon Walter. 1 The charge was filed on February 22, 1990, and amended on April 12.
Midland Transportation Company, Inc. and Chauf-
feurs, Teamsters and Helpers Local Union No.
238, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO.1 Cases 18–CA–
11218 and 18–RC–14755
August 12, 1991
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 3, 1991, Administrative Law Judge Rich-
ard J. Boyce issued the attached decision. The Re-
spondent filed exceptions and a supporting 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 record in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Midland Transportation
Company, Inc., Marshalltown and Spencer, Iowa, and
other terminal locations in Iowa, Minnesota, and Ne-
braska, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
Insert the following as paragraph 2(e) and reletter
the subsequent paragraphs.
‘‘(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.’’
IT IS FURTHER ORDERED that the election conducted
on April 3 and 4, 1990, in Case 18–RC–14755 is set
aside and that this case be remanded to the Regional
Director for Region 18 for the purpose of scheduling
and conducting a second election at such time as he
deems the circumstances permit a free choice on the
issue of representation.
[Direction of Second Election omitted from publica-
tion.]
A. Marie Simpson, Esq., for the General Counsel.
John B. Grier and John F. Veldey, Esqs. (Cartwright, Druker
& Ryden), of Marshalltown, Iowa, for the Employer.
Neil A. Barrick, Esq., of Des Moines, Iowa, for the Union.
DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This con-
solidated matter was tried before me in Marshalltown, Iowa,
on June 21, l990.
The complaint in Case 18–CA–11218, based on a charge
filed by Chauffeurs, Teamsters and Helpers Local Union No.
238, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union) issued on April 17, 1990.1
The complaint alleges that Midland Transportation Com-
pany, Inc. (Employer) has violated Section 8(a)(1) of the Na-
tional Labor Relations Act (Act) since August 1989 by main-
taining an overly broad no-solicitation rule, and that it further
violated that section in January and February 1990 by em-
ployees about their and their coworkers’ union activities, by
imparting the impression that said activities were under sur-
veillance, by threatening employees with job loss because of
said activities, and by soliciting employees to report on the
union activities of their coworkers thenceforth.
The complaint also alleges that the Employer violated Sec-
tion 8(a)(3) and (1) by discharging employee Mark Phillips
on February 13, 1990, and by suspending employee Lyndon
Walter on February 23, 1990.
An election in Case 18–RC–14755 was held on April 3
and 4, 1990, among the truckdrivers and dock freight han-
dlers employed by the Employer at its several terminals in
Iowa, Minnesota, and Nebraska. It derived from a petition
filed by the Union on February 23, 1990, and a Stipulated
Election Agreement approved by the Acting Regional Direc-
tor on March 26. The tally was 53 votes for the Union and
79 against, with 9 challenged ballots.
The Union filed objections to conduct affecting outcome
of election on April 12, then withdrew certain of the objec-
tions by letter dated April 13. The Regional Director issued
his report on objections, order directing hearing, order con-
solidating cases, and notice of hearing on April 19. In it, not-
ing that the remaining objections correspond with certain of
the allegations of misconduct set forth in the complaint in
Case 18–CA–11218, he concluded that they ‘‘raise substan-
tial and material issues of fact which can best be resolved
by a hearing in connection with the pending unfair labor
practice proceeding.’’ He therefore ordered that the two mat-
ters be ‘‘consolidated for purposes of hearing, ruling and de-
cision by an Administrative Law Judge.’’
The Union thereafter requested the withdrawal of one of
its remaining objections, and that another be withdrawn as
concerns conduct predating February 23. The Regional Di-
rector accordingly issued an order dated April 26, in which
he approved the Union’s request and amended his April 19
report, order, and notice ‘‘to limit the taking of evidence re-
5MIDLAND TRANSPORTATION CO.
2 The Employer admits in its answer that Stellingwerf was a supervisor and
its agent at relevant times.
lating to the objections only . . . [to] . . . conduct [that] oc-
curred on or after February 23, 1990.’’
I. JURISDICTION/LABOR ORGANIZATION
The Employer, an Iowa corporation headquartered in
Marshalltown, is engaged in the interstate transportation of
freight. The complaint alleges, the answer admits, and I find
that it is an employer engaged in and affecting commerce
within Section 2(2), (6), and (7) of the Act.
The pleadings also establish and I find that the Union is
a labor organization as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Complaint Paragraph 5(a)
1. The allegation
Paragraph 5(a) of the complaint alleges that, since about
August 23, 1989, the Employer ‘‘has maintained in its em-
ployee handbook a rule which prohibits employees from en-
gaging in solicitation of any sort during working hours.’’
Paragraph 7 alleges that the Employer thereby violated Sec-
tion 8(a)(1).
2. The evidence
On taking charge of the Marshalltown terminal in 1989,
David Mattox, the Employer’s vice president, ‘‘developed’’
an employee handbook, as it is titled, and caused it to be dis-
tributed to the employees systemwide in November of that
year. Among the handbook entries, under the heading ‘‘Com-
pany Policy’’ and the subheading ‘‘Solicitations,’’ is this:
‘‘Employees shall refrain from solicitations of any sort dur-
ing working hours.’’
On February 26, 1990, in response to word of the Union’s
election petition, Mattox prepared and saw to the distribution
of an all-employee memorandum which stated, among other
things:
5. If anyone causes you any trouble at your work, or
puts you under any pressure to join a union, do not
hesitate to contact myself. Every legal means will be
taken to see that such activity is stopped.
6. No person will be allowed to carry on union orga-
nizational activity during actual working time. Anyone
who does so in other than nonworking mealtimes or
breaktimes will be subject to discipline.
Mattox testified that he issued the February 26 memoran-
dum because he felt a need ‘‘to clarify some of the rules in
the Employee Handbook.’’ The memorandum nowhere men-
tions the handbook, however; nor does it otherwise intimate
that this was its purpose.
3. Conclusion
I conclude that the no-solicitation rule contained in the
employee handbook is overly broad, and so violates Section
8(a)(1) as alleged. Quoting from Our Way, Inc., 268 NLRB
394, 394–395 (1983);
[R]ules using ‘‘working hours’’ are presumptively in-
valid because the term connotes periods from the begin-
ning to the end of workshifts, periods that include the
employees’ own time.
The Employer has proffered no evidence to offset the ad-
verse presumption—that is, that the rule is necessary for the
maintenance of production or discipline, or serves some other
compelling, legitimate interest. See Brigadier Industries, 271
NLRB 656, 657 (1984).
The above-quoted passages from the February 26 memo-
randum, far from working to exculpate, compound the initial
illegality. Item 5 is but a blatantly antiunion version of the
overly broad handbook rule, while Item 6 is unlawfully dis-
criminatory on its face. As stated in Montgomery Ward, 269
NLRB 598, 599 (1984):
[A]n employer may prohibit employees from engaging
in activities not associated or connected with their work
during working time however, such a prohibition may
not single out union activities.
Items 5 and 6 are improper for the additional reason that
their issuance was triggered by the election petition; thus,
even if facially valid, they plainly were intended to discour-
age union activities rather than serve a valid management
concern. Montgomery Ward, supra at 599; Ramada Inn of
Fremont, 221 NLRB 331, 331 (1975); Ward Mfg., 152
NLRB 1270, 1271 (1965).
B. Complaint Paragraph 5(b)
1. The allegation
Paragraph 5(b) of the complaint alleges that, on or about
January 7, 1990, David Stellingwerf, night operations man-
ager at the Marshalltown terminal, ‘‘interrogated an em-
ployee concerning the employee’s union activities and cre-
ated the impression that employees’ union activities were
being surveilled.’’ Paragraph 7 alleges that the Employer
thereby violated Section 8(a)(1).2
2. The evidence
Alan Maxfield, who worked nights in the office at the
Marshalltown terminal, testified that, as he and Stellingwerf
were walking down a hallway at the terminal on January 7,
Stellingwerf asked him if he had ‘‘attended’’ a union meet-
ing the night before; and that, upon his replying that he had,
Stellingwerf asked, ‘‘Who was there?’’ or ‘‘something in this
order.’’ Maxfield demurred that he could not discuss it ‘‘on
company time,’’ as he recalled, and Stellingwerf, saying he
understood, dropped the subject.
Apparently addressing the same incident, Stellingwerf tes-
tified:
I had heard [a] rumor that Al was involved with the
Union and I asked him about it, I think it was relative
to some meeting or something. And when I asked him
he replied, ‘‘Yes, I’m involved with it.’’ . . . I con-
veyed to Al my disappointment that he was involved
with it and I thought it was wrong and I thought there
was other methods to get done what he and the other
employees were trying to get done.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Stellingwerf’s testimony that Maxfield told a driver he ‘‘might as well go
home,’’ etc., when the driver refused a run, suggests the unavailability of alter-
native runs rather than the existence of discharge authority.
The Employer, in its brief, ‘‘does not challenge the fact
that Maxfield was questioned concerning his union activities
on the 7th.’’
Stellingwerf testified, in answer to a leading question from
the Employer’s attorney, that he ‘‘considered’’ Maxfield to
be ‘‘part of [the] management team.’’ Asked his reasons for
so thinking, he testified that Maxfield’s ‘‘primary function
was to route our delivery,’’ that he ‘‘had to schedule the
routes’’ to coordinate ‘‘with the committed daily pickups,’’
and that he was ‘‘responsible for the revenues on those
routes.’’ Asked if Maxfield had ever fired anyone,
Stellingwerf recounted the time a driver refused a certain
run. Maxfield told the driver, according to Stellingwerf:
Well, then, don’t punch in, you might as well go home
because I have nothing else for you, and if you don’t
take that route, I guess you don’t want a job.
Maxfield testified that he ‘‘went into the office as a clerk’’
in April 1989, previously having been on the dock crew and
then a truckdriver for the Employer; that he remained a clerk
until March l990; that his duties included organizing the var-
ious daily deliveries into routes and figuring the daily reve-
nues per truck; and that, four nights each week, after com-
pleting those tasks, he drove a truck to Keystone or Cedar
Rapids and back.
3. Conclusions
While not disputing Maxfield’s rendition of the incident in
question, the Employer argues that Stellingwerf’s conduct
was privileged because of Maxfield’s ‘‘status’’ as a super-
visor or a managerial employee.
The party urging the existence of such status bears the
burden of proof. Tucson Gas & Electric Co., 241 NLRB 181
(1979). The weight of evidence indicates that Maxfield exer-
cised minimal independent discretion in the discharge of his
duties, seldom if ever deviating from settled guidelines and
procedures and the counsel of his superiors.3 I conclude,
therefore, even if Maxfield was not deemed part of the elec-
tion unit ultimately to emerge, that the Employer has not met
its burden. NLRB v. Textron, 416 U.S. 267, 288 (1974); Ari-
zona Electric Power Cooperative, 250 NLRB 1132, 1132 fn.
1 (1980); Southwest Airlines, 239 NLRB 1253, 1253–1254
(1978); Raytee Co., 228 NLRB 646, 646–647 (1977).
I also conclude, in the circumstances, that Stellingwerf
violated Section 8(a)(1) by asking Maxfield if he had at-
tended the previous night’s union meeting and who else was
there. Maxfield was not then openly prounion, and the ques-
tions neither served a legitimate purpose nor were accom-
panied by assurances against reprisal. They thus reasonably
tended to interfere with, restrain, or coerce Maxfield in the
exercise of his Section 7 rights. See generally, Pennsy Sup-
ply, 295 NLRB 324, 325 (1989); UARCO, 286 NLRB 55,
55–56 (1987); Meda-Care Ambulance, 285 NLRB 471, 472
(1987); Sunnyvale Medical Clinic, 277 NLRB 1217, 1217
(1985).
Moreover, extracting from Liquitane Corp., 298 NLRB
292, 293 fn. 4 (1990):
[P]robing attempts by a supervisor to find out from em-
ployees about the specific union activities of other em-
ployees, who had not disclosed their attitudes toward
the union, had a reasonable tendency, under the circum-
stances, to interfere with, restrain, and coerce those em-
ployees in the exercise of their rights.
See also Salvation Army Residence, 293 NLRB 944, 973 fn.
107 (1989); Raytheon Co., 279 NLRB 245, 246 (1986).
I find no merit, however, in the allegation that
Stellingwerf’s comments unlawfully imparted an impression
that the employees’ union activities were under surveillance.
Yolo Transport, 286 NLRB 1087, 1094 fn. 20 (1987);
Gemco, 279 NLRB 1138, (1986).
C. Complaint Paragraph 5(c)
1. The allegation
Paragraph 5(c) of the complaint alleges that, on or about
January 8, 1990, Stellingwerf ‘‘threatened’’ an employee that
the Employer ‘‘would close the terminal and reopen under a
different name and that employees would lose jobs because
of their activities for and on behalf of the Union.’’ Paragraph
7 alleges that the Employer thereby violated Section 8(a)(1).
2. The evidence
Maxfield testified that, on January 8, Stellingwerf called
him to the backroom at the Marshalltown terminal, then re-
lated a telephone conversation he assertedly had had with the
Employer’s president (and David’s father), Gerald Mattox.
Stellingwerf said, by Maxfield’s account, that Mattox had
asked if he ‘‘knew anything about’’ the Union, and he said
he did not ‘‘know anything about it.’’ Stellingwerf then stat-
ed, according to Maxfield, that David Mattox called him
soon after, ‘‘wanting to know why’ Stellingwerf had called
his father, and he replied that the senior Mattox had called
him. David then remarked, per Stellingwerf as averred by
Maxfield, ‘‘That’s all right, because if they try to get the
Union in, we’ll just shut the thing down, we’ll just open
under another name.’’
Stellingwerf described a union-related conversation he as-
sertedly had had with Maxfield. It bore no resemblance to
that detailed by Maxfield. He denied ever being told ‘‘by any
of the managers . . . that if the plant was unionized, it
would be shut down or the name changed.’’ He also denied
relaying ‘‘such information’’ to Maxfield; and, when the Em-
ployer’s attorney then asked, ‘‘And I take it, if you ever told
Mr. Maxfield that, that would not be based on anything that
any of the Mattoxes ever said to you?’’ he answered,
‘‘That’s correct.’’
3. Conclusion
I credit Maxfield that Stellingwerf made the
shutdown/new-name remark. attributing it to David Mattox.
Maxfield displayed convincing testimonial demeanor, his re-
cital contained a number of details seemingly at odds with
fabrication, and he held up well under cross-examination.
Stellingwerf was less impressive both in demeanor and con-
tent, and his testimony that, if he made the remark, it did not
originate with one of the Mattoxes, came across as a virtual
admission.
7MIDLAND TRANSPORTATION CO.
4 The quotations within the quotation are from NLRB v. River Togs, 382
F.2d 198, 202 (2d Cir. 1967).
5 The Employer admits in its answer that Jespersen was a supervisor and
its agent at relevant times.
I conclude that this remark, whatever its provenance, vio-
lated Section 8(a)(1) as alleged. As stated in NLRB v. Gissel
Packing Co., 395 U.S. 575, 618–619 (1969), the projection
to employees of the adverse effects of unionization,
must be carefully phrased on the basis of objective fact
to convey an employer’s belief as to demonstrably
probable consequences beyond his control. . . . [A]n
employer is free only to tell ‘‘what he reasonably be-
lieves will be the likely consequences of unionization
that are outside his control,’’ and not ‘‘threats of eco-
nomic reprisal to be taken solely on his own volition.’’4
See also Bert Wolfe Ford, 239 NLRB 555, 564 (1978);
Sturgis-Newport Business Forms, 227 NLRB 1426, 1426
(1977).
D. Complaint Paragraph 5(d)
1. The allegation
Paragraph 5(d) of the complaint alleges that, on or about
January 13, 1990, Vice President David Mattox ‘‘interro-
gated an employee concerning, and otherwise solicited infor-
mation regarding, employees’ union activities, and requested
[that] an employee attend union meetings and report to him
who attended and the events that transpired.’’ Paragraph 7 al-
leges that the Employer thereby violated Section 8(a)(1).
2. The evidence
Maxfield testified that Mattox called him at home on a
Saturday morning in early January 1990, asking that he come
to the terminal; and that, in the resulting meeting in Mattox’s
office, this occurred:
[Mattox] wanted to know if I had attended the union
meetings, and I said I had, and he wanted to know who
was all there. I told him I couldn’t tell him who was
all there because there was so many people. He said,
could I give him names? I said, no, I would not give
him names. He then asked me who was the organizer
of this and I told him, being as he had me in his office,
it must be me. And then he told me, ‘‘Well, I don’t
know how much toilet paper I can use at home to even
take—’’ [and] I said, Well, I think what you should do
is contact your attorney, what you can and cannot do.
Maxfield added: ‘‘He asked me . . . if I could attend any
of the meetings and come back and give him names, and I
said, ‘No, I would not.’’’ Maxfield testified that, when
Mattox announced the meeting’s end, he rejoined, ‘‘Fine, it
was still [a] violation of law to have this meeting.’’
Mattox testified that the meeting occurred on either Janu-
ary 6 or 13, after he had summoned Maxfield to the termi-
nal; and that, considering Maxfield to be ‘‘part of the man-
agement team,’’ he asked Maxfield if had had heard ‘‘the
grumblings and rumors’’ about union activity. Mattox contin-
ued: ‘‘[T]o my surprise. he said not only had he heard ru-
mors about it, but in fact there had been a meeting and in
fact he was the contact person for Marshalltown.’’ Maxfield
further disclosed, according to Mattox, that he had attended
the meeting, as did ‘‘a large majority of’’ the Marshalltown
drivers and dockmen.
With that, Mattox recounted, he persuaded Maxfield that
he ‘‘was not a driver or a dockman, that he was indeed a
[sic] office personnel. and that he would quit all of his ac-
tivities representing the Union.’’
The Employer, in its brief, does not dispute that Maxfield
‘‘was questioned concerning his union activities on the . . .
13th of January 1990.’’
3. Conclusion
I credit Maxfield’s substantially uncontradicted testimony
that Mattox questioned him about his and others’ union ac-
tivities, and asked that he thenceforth report on the activities
of others.
I conclude in the circumstances that this conduct reason-
ably tended to interfere with, restrain, or coerce Maxfield and
other employees, violating Section 8(a)(1) as alleged. Among
the inculpating circumstances: Mattox was the ranking man-
agement official at Marshalltown; he specially summoned
Maxfield on his day off; the questions were propounded in
his office, the seat of management power; the questioning
was insistent, served no valid purpose, and was not accom-
panied by assurances against reprisal; and Maxfield as yet
was not openly prounion. See generally, Liquitane Corp.
supra; Pennsy Supply, supra; UARCO, supra; Meda-Care
Ambulance, supra; Sunnyvale Medical Clinic, supra.
E. Paragraph 5(e)
l. The allegation
Paragraph 5(e) of the complaint alleges that, on or about
February 13, 1990, Terry Jespersen, the manager of the Em-
ployer’s Spencer, Iowa, terminal, ‘‘threatened an employee
with loss of jobs because of employees’ activities for and on
behalf of the Union.’’ Paragraph 7 alleges that the Employer
thereby violated Section 8(a)(1).5
2. The Evidence
Mark Phillips, a truckdriver at the Employer’s Spencer ter-
minal until discharged on February 13, 1990, testified that,
in the midst of a conversation with Jespersen on February 12
regarding the length of Phillips’ hair, Jespersen exclaimed:
Well, you guys think you’re so smart, trying to orga-
nize this union stuff, this union bull. . . . I worked for
All-American Freight, and those guys over there . . .
wanted to go union, too, and I told them, I said, that
that’s a bad deal, . . . trying to go union, . . . and they
had their union vote, and they went union. Fourteen
guys lost their jobs. Now they are driving around in old
cars trying to find a job.
Phillips responded, so he testified, ‘‘Well, I think the
Union might be closer than you think,’’ whereupon Jespersen
offered to bet $1000 to Phillips’ $100 that the terminal
would not be union by year’s end. Phillips declined, but re-
peated that ‘‘the Union might be closer than what you
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 This conversation in toto, as described by Phillips and Jespersen, appears
below in the discussion of Phillips’ discharge.
7 More on Jespersen’s credibility appears below in the discussion of Phillips’
discharge.
8 Although Gregg did not testify, let alone refute Walter, the Employer sug-
gests in its brief that Walter should not be credited. Noting that Walter by
then had worn a union hat to work several times, the brief asks, ‘‘Does it
make any sense that Gregg Mattox would inquire of such an employee how
he was going to vote?’’ Perhaps, under the guise of seeking information,
Gregg had other things in mind.
9 That Walter, by wearing a union hat, had ‘‘gone public’’ with his union
sympathies does not override the array of convervailing circumstances. See
United Artists Communications, supra.
10 The Employer admitted on the record that Marks was a supervisor and
its agent at relevant times.
11 Marks’ testimony in this regard was weak, however. He first testified,
‘‘Not that I remember,’’ then, ‘‘I’m sure that he didn’t.’’ Later, asked if con-
trary testimony ‘‘would not be true,’’ he testified: ‘‘I couldn’t tell you. I don’t
recall him giving me any names over the phone that evening.’’
think.’’ The conversation then returned, as Phillips recalled,
to the subject of his hair.6
Jespersen denied that he ever had a conversation with Phil-
lips ‘‘involving union activities.’’ And, while he once
worked for All-American, he testified that it was ‘‘always
unionized’’ and that he was never with a company when it
‘‘went from a nonunion status to a union status.’’
3. Conclusion
Phillips’ account was detailed and cogently delivered,
whereas Jespersen’s blanket denial that he ever talked with
Phillips about union activities was lamely wrought and gen-
erally unconvincing.7 I therefore credit Phillips that Jespersen
made the remarks attributed to him
Given Jespersen’s testimony that All-American was ‘‘al-
ways unionized’’ while he was there, and did not go ‘‘from
a nonunion status to a union status,’’ one can only infer that
the remarks in question were not based on personal knowl-
edge, but rather were fabricated solely to raise the specter of
job loss should the employees bring in the Union.
I conclude that this exceeded the bounds of permissible
projection, violating Section 8(a)(1) as alleged. NLRB v.
Gissel Packing Co., supra.
F. Complaint Paragraph 5(f)
l. The allegation
Paragraph 5(f) of the complaint alleges that, on or about
February 22, 1990, Gregg Mattox, the Employer’s general
manager, ‘‘interrogated an employee concerning the employ-
ee’s union sentiments.’’ Paragraph 7 alleges that the Em-
ployer thereby violated Section 8(a)(1).
2. The evidence
Lyndon Walter, a dockman at the Marshalltown terminal,
testified that Gregg Mattox (Jerry’s son, David’s brother)
called him to the office on February 22, then said that two
employees had reported that Walter had ‘‘threatened’’ them.
Mattox elaborated, according to Walter, that Walter had told
the two they ‘‘would be fired if the Union came in.’’ Wal-
ters’ recital proceeded that he denied saying such a thing,
then remarked to Mattox that he ‘‘understood . . . the com-
pany’s concern about the Union.’’
Walter testified that Mattox presently asked how he was
‘‘going to vote,’’ and he answered that he would vote ‘‘with
the majority’’; that is, ‘‘yes.’’ Mattox rejoined, per Walter,
that the employees ‘‘really ought to think about what they
were doing,’’ and admonished Walter to ‘‘play fair.’’ Wal-
ters took this last as an allusion to his alleged threats to co-
workers. Mattox ‘‘emphasized,’’ according to Walters, ‘‘that
he wanted to make sure that both sides played fair and that
there weren’t threats.’’
Walter at times had worn a union hat at work before Feb-
ruary 22.
Gregg Mattox generally officed at the Employer’s Cedar
Rapids terminal. He did not testify.
3. Conclusion
Crediting Walter’s uncontradicted testimony that Gregg
asked him how he was going to vote.8 I conclude that the
Employer violated Section 8(a)(1) as alleged. The cir-
cumstances underlying this conclusion: Gregg, as general
manager, was the Employer’s second in command; he called
Walter in; the incident took place in the office, the core of
management authority; the question was part of a larger pres-
entation in which Gregg admonished Walter about threaten-
ing coworkers in the context of the union campaign; the
question served no proper purpose; and, unless Gregg’s com-
ments about playing fair can be so deemed (I think not), the
question was not accompanied by assurances against reprisal.
See, in addition to the cases previously cited regarding inter-
rogation, Structural Finishing, 284 NLRB 981, 981 (1987);
United Artists Communications, 280 NLRB 1056, 1056–1057
(1986); Noral Color Corp., 276 NLRB 567, 572 (1985).9
G. Complaint Paragraph 5(g)
l. The allegation
Paragraph 5(g) of the complaint alleges that, on or about
February 22, 1990. David Marks, a supervisor at the Spencer
terminal, ‘‘interrogated an employee and otherwise solicited
information regarding employees’ union activities.’’ Para-
graph 7 alleges that the Employer thereby violated Section
8(a)(l).10
2. The evidence
Phillips testified that he had a telephone conversation with
Marks on February 22—that is several days after Phillips’
discharge—in which Marks asked, ‘‘Well, who’s in the
Union, what’s going on with the Union?’’ Phillips then
‘‘named off some names,’’ as he recalled.
Marks testified, ‘‘I just asked him if he heard anything
[about the Union], and he said he had heard rumors around
about it, too.’’ That, Marks continued, ‘‘was the extent of the
conversation.’’ Marks did not expressly deny that he asked
who was in the Union. He denied, however, that Phillips
gave him any names.11
Phillips and Marks agree that the conversation dealt with
other, unrelated matters at the outset.
3. Conclusion
I credit Phillips that Marks asked who was in the Union,
and that Phillips obligingly ‘‘named off some names.’’ Phil-
lips was a generally believable witness; and Marks admit-
tedly asked Phillips about the union situation, did not specifi-
9MIDLAND TRANSPORTATION CO.
12 The Employer argues in its brief that resolution of the testimonial con-
flicts between Phillips and Marks ‘‘is of no consequence’’ inasmuch as Phil-
lips ‘‘was no longer an employee’’ of the Employer and the ‘‘interrogation
of former employees . . . cannot form the basis for a violation of Section
8(a)(1).’’ The Employer’s premise is thrice flawed. First, as I conclude below,
Phillips’ discharge was unlawful, and Section 2(3) of the Act defines the term
‘‘employee’’ to include ‘‘any individual whose work has ceased . . . because
of any unfair labor practice.’’ Second, even if not an employee of the Em-
ployer, he was a statutory ‘‘employee.’’ Allied Chemical Workers v. Pittsburgh
Plate Glass Co., 404 U.S. 157, 168 (1971). Third, as revealed by the earlier-
quoted language from Liquitane Corp., the mischief in questioning an individ-
ual about the union activities of employee/others rests as much on its tendency
to impinge upon the statutory rights of those employee others as upon the
rights of the individual questioned.
cally deny that he asked the subject question, and was nota-
bly tentative when asked if Phillips gave him names.12
I conclude that Marks’ inquiry into the union activities of
employees other than Phillips reasonably tended to interfere
with, restrain, or coerce those employees, violating Section
8(a)(1) as alleged. Liquitane Corp., supra; Salvation Army,
supra; Raytheon, supra.
H. The Allegedly Unlawful Discharge of Mark Phillips
on February 13, 1990
1. The evidence
Phillips, as previously mentioned, was a driver at the Em-
ployer’s Spencer terminal until discharged on February 13.
He was hired on March 27, 1989.
On February 12, Phillips testified, Jespersen, the Spencer
terminal manager, remarked to him that he was ‘‘looking
pretty shaggy’’ and asked when he was ‘‘planning on getting
a haircut.’’ Phillips replied, ‘‘Spring’s coming, I will get it
cut then,’’ and Jespersen rejoined, ’Well, that really isn’t
soon enough.’’ Phillips began to comment on the appearance
of ‘‘the guys at Marshalltown.’’ Jespersen interrupted that he
did not ‘‘care about the guys at Marshalltown,’’ that he
wanted ‘‘it done’’ his way at Spencer. Phillips grumbled,
‘‘Well, bullshit, I work for Midland Transportation,’’ and the
conversation ended.
Jespersen’s less detailed account initially differed from
Phillips’ in two significant respects. He testified that he di-
rected Phillips, firmly and without equivocation, ‘‘Mark, get
your hair cur,’’ and that Phillips brought the exchange to an
abrupt end by storming out and slamming the door. Later,
however, confronted with a statement he had prepared that
day or the next, Jespersen amended that he said to Phillips,
‘‘Mark, I’d appreciate you getting your hair cut in the next
several days,’’ and that Phillips left when Jespersen answered
the telephone, ‘‘shut[ting] the door, hard.’’
Jespersen testified that he then discussed the incident with
David Marks, telling Marks:
What I plan to do, Dave, what I’m going to do, I’m
going to let him stew for a day, and he’s a good kid.
If he’s got any common courtesy at all, he’ll apologize
the next day.
Marks failed to corroborate Jespersen in this particular.
Asked by the Employer’s counsel if Jespersen ‘‘ever dis-
cussed with [him] what he should do because of’’ the inci-
dent on the 12th, Marks testified, ‘‘No, sir.’’
Phillips testified that, when he arrived at work the next
morning, February 13, one of the night-shift drivers, Paul
Treweiler, asked him and Barry Anderson, a night-shift driv-
er, if they wanted ‘‘to sign a union petition.’’ Phillips, but
not Anderson, answered that he did, and he proceeded to
Treweiler’s car in the parking lot, where he volunteered to
solicit the signatures of coworkers and Treweiler gave him
a petition for that purpose. Treweiler advised him to do this
‘‘after work,’’ so Phillips took the petition inside, put it on
his clipboard, and joined others loading and unloading cargo.
Later that same morning, Jespersen called a meeting of the
Spencer employees. He explained:
I had planned to conduct this meeting. We had just
moved into our new terminal facilities in January,
brought the guys all together, and we had started that
operation a year and a half ago, just two of us, and now
I really wanted to say, ‘‘Hey, we are up to 11 employ-
ees, guys, we’ve got a brand-new freight facility here,
with a heated dock . . . we’ve got uniforms for you
guys, we’ve got new equipment, you’re doing one heck
of a bang-up job out there in the industry.’’
[I]t was a meeting of praise and kind of sales-type,
let’s-go-out-and-get-the-competition type thing. Let’s
turn any energies, if we have any bad feelings towards
one another, because there’s been—when you get that
many drivers together, once in a while they are rubbing
up against one another and people get mad. We have
a good group of guys, and [I] primarily said, ‘‘Let’s
turn those energies towards acquiring more business
and making Midland something to be proud of, which
we are.’’
Phillips recalled Jespersen’s giving a ‘‘brief history’’ of
the company; describing the chain of command; saying he
wanted the employees to come directly to him if they had
‘‘something to say,’’ rather than have ‘‘that kind of stuff
floating around out there on [the] dock’’; and discussing the
employees’ appearance. Jespersen elaborated as concerns ap-
pearance, according to Phillips, that ‘‘a couple of’’ the em-
ployees were ‘‘looking kind of shaggy’’ and ‘‘needed to get
trimmed up a little bit’’; that he would ‘‘pay for it’’ if the
employees ‘‘couldn’t afford it;’’ and that all the employees
should wear their company-provided uniforms inasmuch as
they ‘‘look[ed] good in them,’’ the wives thought they
should wear them, and they ‘‘were out there representing
Midland Transportation.’’
One of the employees commented, per Phillips, that ‘‘a
guy in Omaha had a Mohawk and a long earring,’’ and
Jespersen shot back that he did not care about Omaha, but
wanted the Spencer terminal to ‘‘put out a good image.’’
Jespersen added that anyone ignoring his wishes in this re-
gard ‘‘didn’t need to be working there’’; that he had bor-
rowed $60,000 to build the Spencer terminal, which he then
leased to the Employer, and he did not ‘‘want one guy out
there screwing the whole thing up and having it go down the
drain.’’
Phillips testified that, after this meeting, in the yard, a co-
worker, Larry Kramer, asked him what the petition was ‘‘all
about’’; that another employee, Steve Daley. entered in while
he ‘‘was telling Larry about the petition’’; and that, after
Kramer and Daley left, he told another coworker, Dennis
Wisebrose, to ‘‘contact’’ him after work if he wished to sign
‘‘a union petition going around.’’
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The record does not divulge what transpired between Anderson and
Jespersen.
14 I previously credited Phillips that Jespersen made these remarks, and con-
cluded that they violated Sec. 8(a)(1).
15 Phillips later testified that he could not remember ‘‘for sure’’ if Jespersen
spoke favorably of his performance at this time.
Phillips recounted that he then returned inside, where he
sought out Jespersen to talk about ‘‘this problem that I have
with my hair.’’ He found Jespersen in conversation with the
aforementioned Barry Anderson.13 When Anderson left, Phil-
lips engaged Jespersen in an extended discussion. Phillips de-
scribed it this way:
I walked in and I said. ‘‘Terry, we’ve got a problem
here with my hair.’’ And he says, ‘‘We don’t have a
problem, you’ve got a problem.’’ And . . . he wanted
to know why I didn’t get it cut, and I said, ‘‘Well, why
do I have to get my hair cut when there are guys run-
ning around in Marshalltown and Omaha with longer
hair than I’ve got?
And he said. ‘‘Well, that’s the way we want it.’’ I
said, ‘‘Well, why am I being singled out as an em-
ployee?’’ And he says, ‘‘Well, we’ll just get the hand-
book here and we will see what it says about it.’’
So he ran in and grabbed the handbook and came out
and read the section on personal care and personal
looks. or whatever . . . . [A]nd when he got done, I
says, ‘‘Where does it say anything about it in there?’’
And he said, ‘‘You know, Dave Marks told me this
when I hired you, he said that he’d be like a tiger,’’
and I said, ‘‘What does that mean?’’ He said, ‘‘Well,
you’d work like a trooper for about a year, and then
you’d turn on me.’’ And I said, ‘‘Turn on you?’’ He
goes, ‘‘Yeah, you’d turn on the company.’’
And I said, ‘‘Well, I don’t know what you mean by
that.’’ And so, anyway, I said, ‘‘Well, all I want to
know is why I need to get my hair cut when other Mid-
land employees have longer hair than mine.’’ He said,
‘‘Well, you guys think you’re so smart, trying to orga-
nize this union stuff, this union bull,’’ and he says: ‘‘I
worked All-American Freight and those guys over
there, they wanted to go union, too, and I told them,
I said, that that’s a bad deal. you know, trying to go
union, and they said, well they—I talked to them about
it and they didn’t give a fuck, you know, and they had
their union vote and they went union. Fourteen guys
lost jobs, now they are driving around in old cars trying
to find a job.’’14
I replied . . . ‘‘Well, I think the Union might be
closer than you think.’’ He says: ‘‘I’ll tell you what, I
bet you $1,000 to $100 . . . . At the end of one year,
I’ll bet you that this terminal is not union.’’ And I said,
‘‘Well, I don’t want to bet you, but I think the Union
might be closer than what you think.’’
So that ended that talk there, and then he just asked
me why I was fighting him on this [haircut] deal, why
I wouldn’t meet him half-way, you know, just get it cut
a little, you know, meet him half-way. And I said:
‘‘Why? Are you going to fire me because I’ve got long
hair?’’ And he said, ‘‘No, I wouldn’t do that, I’d fire
you for insubordination.’’ I said, ‘‘What’s that?’’ He
said, ‘‘Well, that’s what you’re doing right now, you’re
not following orders.’’ He said, ‘‘I don’t want to fire
you, I don’t want to have you quit, you do a good job
for us, you could work here for a long time, but just
think about it and meet me half-way on this hair deal,
think about it today when you run your route and come
back in tonight and tell me what you’ve decided to do.
I said, ‘‘Okay,’’ and I left.
Jespersen, apart from his previously discredited denial that
he ever had a conversation with Phillips ‘‘involving union
activities,’’ did not dispute Phillips’ account of this conversa-
tion. He admittedly told Phillips that, while he ‘‘would ap-
preciate it if [Phillips] would cut his hair to the length it was
when he started,’’ he ‘‘didn’t want to nor did [he] have any
intentions to fire him’’; that Phillips did ‘‘a very good job
for’’ the Employer; and that he urged Phillips to ‘‘just meet
him half-way on this.’’
Phillips’ testified that, when he returned to the terminal
that evening after finishing his route, Marks told him that
Jespersen wanted to see him. He and Marks went to
Jespersen’s office. The resulting conversation went like this,
as Phillips recalled:
Terry says, ‘‘As of this moment, you’re terminated,
you no longer work for Midland Transportation.’’ . . .
I said, ‘‘Well, I thought we were going to talk about
this a little bit,’’ and he said, ‘‘I’m done messing with
this.’’ . . . I started to walk out, and I said, ‘‘Well,
that’s great, a guy gets fired because he won’t cut his
hair.’’ He says, ‘‘That’s not it and you know it.’’ I said,
‘‘What is it?’’ He says, ‘‘It’s being insubordinate for
getting into my face and saying ‘bullshit.’’’ And I said:
‘‘Well, I didn’t get into your face and say ‘bullshit.’ All
I did was use ‘bullshit’ in a sentence and said,
‘Bullshit,’ I work for Midland Transportation.’’
And Terry says: ‘‘Well, it don’t matter, you did a
good job for us, you’re a hell of a man, you worked
here a long time.15 Dave [Marks] will pay you any va-
cation you’ve got coming, Dave will help you clean out
your truck. Sorry.’’ And he left.
Jespersen’s version of this final exchange was more abbre-
viated than, but did not materially conflict with, Phillips’.
His account:
[W]e sat there for what seemed like a long period of
time without saying a word, and I said, ‘‘Mark, as of
this moment, you are terminated.’’ And he said, ‘‘Was
it because of my hair?’’ And I said, ‘‘It wasn’t because
of your hair, Mark, it was because of what you said to
me and the manner in which you said it.’’
He said, ‘‘Well, I thought it over, I’m going to get
my hair cut now.’’ I said, ‘‘It’s too late, you’ve had
two days in which to react.’’
Jespersen testified that he terminated Phillips not because
of his hair length or because he had used profanity
(‘‘bullshit’’), but because of ‘‘the manner’’ in which he ‘‘di-
rected’’ that profanity, which struck Jespersen as insubordi-
nate, and ‘‘because he never apologized for his ’bullshit’ re-
mark in [Jespersen’s] face.’’ He added that Phillips had had
‘‘all kinds of opportunity’’ earlier the day of the discharge
11MIDLAND TRANSPORTATION CO.
16 Phillips would have it that he did this not to appease the Employer, but
to qualify for a job with Wonder Bread, to whom he also had applied. Wonder
Bread, he testified, ‘‘required short hair and no beard.’’
17 Jespersen’s account: ‘‘I said, ‘Mark, it looks bad, can you get it cut? I’d
appreciate it if you would.’’’
18 This formulation received Supreme Court approval in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983).
19 I credit Phillips that these events occurred as he described them.
20 To the extent that I have not already done so, I credit Phillips that
Jespersen made these remarks. I do not deem especially probative Phillips’ tes-
timony, during cross-examination, that he had no reason to believe either
Jespersen or Marks knew of his union activities before the discharge. Lay peo-
ple commonly are unable to integrate bits and pieces of information that, to
the trained observer, bespeak vivid inference, particularly under the stress of
cross-examination.
21 I am unpersuaded by Jespersen’s uncorroborated testimony that he ‘‘had
planned to conduct this meeting’’ for some time.
‘‘to apologize for the outburst,’’ and that he called Phillips
in because he had failed to do so.
Jespersen denied having ‘‘any information that [Phillips]
was involved in union activities’’ when he terminated him.
Similarly, Marks denied having ‘‘any information that led
[him] to believe that union activities were underway at Spen-
cer.’’ Phillips testified, during cross-examination, that he had
no reason to believe either Jespersen or Marks knew of his
union activities before his discharge; and that it did not occur
to him, at that time, that those activities had anything to do
with it.
Jespersen and David Mattox interviewed Phillips before
his hire. Phillips estimated that his hair fell 3 to 4 inches
below his collar at that time. The interviewers commented,
he testified, that he had ‘‘kinda long hair’’ and that they did
not want ‘‘any employees working here that’s got more hair
than’’ they. Phillips assertedly took this ‘‘as kinda a joke’’
and did not respond. Jespersen recounted, on the other hand,
that he and Mattox specifically asked Phillips ‘‘if he would
please get his hair trimmed up above his collar.’’
Regardless, Phillips did get a haircut (and remove his
beard) before reporting for work,16 and the subject went dor-
mant for 6 or 7 months. Jespersen revived it in October, tell-
ing Phillips that his hair looked ‘‘bad’’ or was ‘‘getting pret-
ty long,’’ and gently asking that he get it cut.17 Phillips said
little if anything in response, and the subject was dropped.
Jespersen next raised the matter in December, observing that
Phillips was ‘‘looking really long haired’’ and ‘‘should get
it cut.’’ Phillips, by his own admission, did not ‘‘even ac-
knowledge’’ Jespersen this time.
Phillips admittedly ‘‘had the most hair of anybody’’ at the
Spencer terminal, and ‘‘kinda got razzed about it a little bit.’’
He estimated that it was about the same length in February
1990 as it had been when he was interviewed for the job.
He got only the one haircut in the interim.
2. Conclusions
In Wright Line, 251 NLRB 1083 (1980), the Board stated
at 1089:
[W]e shall henceforth employ the following causation
test in all cases alleging violation of Section 8(a)(3) or
violations of Section 8(a)(1) turning on employer moti-
vation. First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a ‘‘motivating fac-
tor’’ in the employer’s decision. Once this is estab-
lished, the burden will shift to the employer to dem-
onstrate that the same action would have taken place
even in the absence of the protected conduct.18
I conclude that the General Counsel has made the requisite
prima facie showing that Phillips’ protected union sym-
pathies and activities were a motivating factor in the Em-
ployer’s decision to discharge him. The circumstances under-
lying this conclusion are:
(a) By Jespersen’s admission, Phillips was an effective
employee.
(b) The discharge occurred later the very day that Phillips
became overtly prounion. That morning, he variously told a
coworker that he wanted to sign a petition for the Union,
volunteered to solicit the signatures of others, explained the
petition to another employee, and told yet another to contact
him after work if he wished to sign.19
(c) Jespersen’s denial notwithstanding, the weight of evi-
dence leaves no doubt that he knew of Phillips’ union in-
volvement. He gratuitously mentioned, in their conversation
the morning of the 13th, that ‘‘you guys think you’re so
smart, trying to organize this union stuff,’’ he unlawfully
raised the specter of job loss should the employees bring in
the Union, and he cited Marks’ supposed prophecy that Phil-
lips would ‘‘work like a trooper for about a year, and then
[would] . . . turn on the company’’—a manifest allusion to
Phillips’ union sympathies.20
(d) Jespersen clearly was distraught at the possibility of
unionization. Not only did he unlawfully threaten Phillips by
lying that ‘‘fourteen guys lost their jobs’’ after they ‘‘went
union’’ when he was with All-American, and charge Phillips
with ‘‘turning on’’ the company, but he convened an em-
ployee meeting that same morning, during which he be-
seeched them to bury their ‘‘bad feelings’’ and to come to
him if they had ‘‘something to say,’’ rather than have ‘‘that
kind of stuff floating around out there on [the] dock.’’ He
proclaimed, moreover, that he had borrowed a substantial
sum of money to build the Spencer terminal and did not
‘‘want one guy out there screwing the whole thing up and
having it go down the drain.’’ The timing of this meeting,21
the nature of these remarks, and the absence of evident prov-
ocation for it and them otherwise, betray a pronounced
antiunion bias.
(e) Jespersen’s antiunion bias mirrored that of the Em-
ployer generally, as revealed by the sundry instances of mis-
conduct herein.
I further conclude that the Employer has not overcome the
General Counsel’s prima facie showing. Jespersen’s stated
reason for Phillips’ discharge—Phillips’ failure to apologize
for his alleged February 12 insubordination—is unpersuasive
for several reasons:
(a) Jespersen’s testimonial demeanor, when professing that
the discharge was for want of an apology, did not evince sin-
cerity.
(b) Although Phillips’ supposed insubordination occurred
on February 12, Jespersen did not discharge him until the
evening of the 13th—after he had become actively prounion.
This further suggests that the business about the apology was
of after-the-fact contrivance, to elude the otherwise compel-
ling inference that the discharge was triggered by Phillips’
intervening union activities.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 As mentioned, Phillips told Jespersen the night of the 13th that he had
decided to get a haircut, only to be told, ‘‘It s too late.’’
23 I concluded above that this interrogation violated Sec. 8(a)(1).
24 No pun intended, so far as I can ascertain.
(c) In the rough-and-tumble of the trucking industry, one
must question that a failure to apologize, rather than the con-
duct underlying the perceived need to apologize, would
prompt the discharge of a valued employee. This likewise
suggests post hoc invention to escape the otherwise unavoid-
able inference.
(d) As against Jespersen’s testimony that he told Marks on
the 12th of his decision to discharge Phillips absent an apol-
ogy, Marks denied that Jespersen ‘‘ever discussed with [him]
what he should do.’’ Marks thus effectively impeached
Jespersen that the apologize-or-be-gone scenario was in place
before Phillips became actively prounion.
(e) In their conversation the morning of the 13th,
Jespersen expressly eschewed the idea of firing Phillips, de-
claring that Phillips did ‘‘a very good job,’’ that he had no
intention and did not want to fire him, and that he did not
want him to quit. This, too, indicates that the decision was
made not on the 12th, but sometime after this conversation
on the 13th.
(f) While Jespersen urged Phillips, the morning of the
13th, to meet him ‘‘half-way’’ on the hair issue, and to tell
him that evening what he had ‘‘decided to do,’’ he an-
nounced Phillips’ discharge that night without inviting him
to speak. This reveals not only that the decision was reached
on the 13th, but that it hinged upon neither Phillips’ apolo-
gizing nor his consenting to get a haircut.22
(g) Finally, Jespersen’s overall credibility suffered major
enfeeblement. As I have found, he falsely denied that the
subject of union activity came up with Phillips the morning
of the 13th; as noted above, Marks impeached him on a criti-
cal point; and, until confronted with and impeached by his
contemporaneous statement, he resorted to self-serving hy-
perbole when describing the way he asked Phillips to get a
haircut on February 12 and Phillips’ manner upon leaving
that encounter. That Jespersen perceived this need to fab-
ricate exposes his awareness that the Employer’s cause here-
in could not withstand an undoctored presentation of the evi-
dence.
The General Counsel’s prima facie showing having with-
stood the challenge, I conclude that the Employer violated
8(a)(3) and (1) as alleged by discharging Phillips.
I. The Allegedly Unlawful Suspension of Lyndon Walter
on February 23, 1990
1. The evidence
On February 21, 1990, David Mattox directed the dis-
patcher at the Marshalltown terminal, Cindy Klosterman, to
circulate a notice among the drivers and dockmen informing
them of a mandatory meeting to be held February 24. Be-
yond setting forth the date, time, and place of the meeting,
the notice stated, ‘‘If you have received Union Representa-
tion Cards, Please take No action until after the meeting.’’
Klosterman, who worked days, was unable to reach all the
incoming night-shift employees before the end of her shift.
She consequently left copies of the notice on a table in the
drivers’ room, and, encountering Walter on the dock, asked
that he ‘‘make sure’’ each of the night-shift dockmen got a
copy. Walter worked nights.
By Walter’s account, he responded to Klosterman that he
did not think he should do it, that he ‘‘didn’t believe’’ the
employees would attend the meeting, and that ‘‘they might
as well stick this [the notice] up their ass.’’ [Emphasis
added.] Walter testified that he and Klosterman were ‘‘real
good friends’’ at the time, that he ‘‘was joking with’’ her
when he made these remarks, and that ‘‘she didn’t seem to
take any offense.’’ He later distributed the notices as re-
quested.
Klosterman first testified that Walter said to her, ‘‘Well,
none of my employees are going to show up and . . . you
can take the letter and shove it up your ass.’’ [Emphasis
added.] She relented on cross-examination, however, that he
might have said, ‘‘They can shove this up their ass.’’
Klosterman conceded that she had heard variations on this
theme ‘‘in occasions’’ at the Marshalltown terminal, plus ‘‘a
great deal of other profanity from various people.’’
The next day, February 22, without checking whether
Walter had complied with her request, Klosterman reported
the incident just described to Gerald Mattox. Also on the
22d, Gregg Mattox called Walter to the office as previously
described, among other things asking him how he was
‘‘going to vote.’’23 Walter answered that he would vote
‘‘with the majority’’; that is, ‘‘yes.’’ The record contains no
evidence that Gregg mentioned Walter’s exchange with
Klosterman during this encounter.
The afternoon of the 23d, Klosterman called Walter at
home, advising him to call David Mattox at 5 p.m. This was
Walter’s day off. He called David as instructed. David read
a letter informing him that he was suspended for 3 days, and
told him to come in and sign it. The letter stated:
Effective immediately, you are suspended for 3 days,
pending review, for insubordination. This suspension
will be without pay. It has been reported to me that on
Wednesday, February 21, you were asked by our dis-
patcher if you would see that all dock personnel were
given notices of an employee meeting. You refused to
do so and told the dispatcher to ‘‘shove them up her
ass.’’ We consider this insubordination and it will not
be tolerated. If any further breach of company rules oc-
curs, termination will result.
Walter told David he disputed the letter’s accuracy, and
would ‘‘get a lawyer.’’ He nevertheless went to the terminal
that evening, where he signed and obtained a copy of the let-
ter, repeated to David his quarrel with its accuracy, and again
vowed to ‘‘contact an attorney.’’
David testified that he learned about the subject incident
from Gerald, who had related Klosterman’s report to him.
David continued that, while he thought Walter had commit-
ted ‘‘a terminal offense,’’24 he ‘‘contacted’’ a Des Moines
attorney because of the union activity and Walter’s known
union sympathies ‘‘to get professional advice on whether we
should proceed with discipline and to what extent’’; and that,
‘‘taking into consideration . . . Walter’s obvious union in-
volvement, we decided it would be prudent if we suspended
him . . . instead of terminating him.’’
As earlier mentioned, the Union filed its election petition
with the NLRB on February 23. Asked if he was aware of
13MIDLAND TRANSPORTATION CO.
25 David testified that the dock employees nevertheless should have known
Klosterman to be their superior ‘‘because she frequently instructed—from the
day-to-day operations, she became aware of many, many particular details that
needed to be taken care of by the dock personnel, and she was constantly
notating and verbally instructing the second-shift people what to do.’’
26 The manner in which Walter expressed himself to Klosterman was not
so abusive or disruptive as to defeat this protection. E.g., Crown Central Pe-
troleum Corp. v. NLRB, 430 F.2d 7241 729–731 (5th Cir. 1970); Acme-Arsena
Co., 276 NLRB 1291, 1295 (1985); Empire Steel Mfg. Co., 234 NLRB 530,
532 (1978).
that when he Walter was disciplined, David testified that the
decision was made before he learned of the petition, but that
the suspension was imposed after. David further testified, led
by the Employer’s counsel, that ‘‘the only effect’’ Walter’s
union activities had on the discipline was to make it ‘‘less
severe.’’
On the 23d, as well, the Union attempted to send a pack-
age to the Employer, at the Marshalltown terminal, via
United Parcel Service (UPS). Its contents included a letter
demanding recognition and bargaining. David Mattox refused
delivery ‘‘under instructions from the attorney.’’
Prompted by the Employer’s counsel, David testified that
he considered Klosterman to be Walter’s supervisor because,
as dispatcher, ‘‘she frequently instructed through either oral
or in a written log daily instructions . . . that should be car-
ried out by the night crew that evening.’’ Walter’s offense,
he continued, thus was ‘‘more than just swearing[,] . . . it
was swearing to a superior.’’
David later acknowledged, during cross-examination, that
Klosterman was not Walter’s supervisor; that Walter’s imme-
diate supervisor was Terry Cullor; that any messages from
Klosterman to the night dock crew went through Cullor; that
he, David, could not recall ever telling dock personnel that
Klosterman was their superior;25 and that he could not recall
any prior instance in which Klosterman had gone ‘‘to dock
people . . . with a direct order regarding anything except
what was going on trucks.’’
Walter testified that he did not consider Klosterman his
supervisor; further, that he never understood she could assign
him work. Klosterman, called by the Employer, did not ad-
dress this issue.
2. Conclusions
Again applying the Wright Line formulation, I conclude
that the General Counsel has made a prima facie showing
that Walter’s suspension was improperly motivated. Thus:
(a) The Employer knew that Walter was actively prounion;
indeed, David Mattox conferred with a Des Moines attorney
before imposing the suspension because of that knowledge.
(b) Although Klosterman reported the ostensible underly-
ing incident to Gerald Mattox on the 22d, the suspension was
not imposed until the evening of the 23d—after Walter had
stated to Gregg on the 22d his intention to vote for the
Union, after David had refused delivery of the Union’s UPS
package on the 23d, and after the Employer had learned on
the 23d of the Union’s election petition.
(c) The Employer, as demonstrated by its assorted other
unfair labor practices herein, and by its paranoiac refusal of
the UPS package, was resolutely antiunion.
I also conclude that the Employer has failed to override
the General Counsel’s prima facie showing. The
pretextuousness of its stated reason for suspending Walter—
insubordination on the 21st—is shown by this aggregate of
considerations:
(a) Its contention that Klosterman was Walter’s superior
was palpably deceitful. David’s attorney-led testimony on the
point was labored and implausible, and was thoroughly
shredded during cross-examination. Further, the Employer’s
counsel did not invite Klosterman’s testimony on the subject.
(b) Gregg Mattox, in the course of calling Walter to the
office on the 22d and unlawfully asking him how he was
going to vote, did not so much as mention the Klosterman
incident.
(c) The Employer did not give Walter a chance to tell his
side of the story before imposing the suspension; moreover,
he had complied with Klosterman’s request.
(d) The Employer asserts in its brief that, aside from Wal-
ter’s insubordination, ‘‘its female dispatcher should not be
required to put up with this type of offensive and abusive
language.’’ Its posttrial injection of this new element is tacit
acknowledgement of the infirmities in its earlier-taken posi-
tion.
(e) The Employer’s chief witness on this issue, David
Mattox, imparted the impression, by both the content of his
testimony and his demeanor in its delivery. that he was more
beholden to strategic and tactical considerations than to the
oath
Apart from all of the above, even if the Employer truly
did suspend Walter for refusing to distribute the meeting no-
tices, the suspension still would be unlawful. The notices, by
urging the employees to ‘‘take no action’’ regarding union
cards, constituted antiunion proselytizing. Walter’s stated re-
fusal to handle them therefore was an activity protected by
Section 7 of the Act.26
In light of the foregoing, the Employer’s suspension of
Walter violated Section 8(a)(3) and (1) as alleged.
III. CONCLUSIONS OF LAW IN CASE 18–CA–11218
The Employer violated Section 8(a)(1) of the Act in each
of these instances:
(a) By distributing an overly broad no-solicitation rule in
the November 1989, and thereafter maintaining that rule.
(b) By distributing overly broad and discriminatory rules
against union activity on and after February 26, 1990, and
thereafter maintaining those rules.
(c) By David Stellingwerf’s interrogation of employee
Alan Maxfield on January 7, 1990, about his and others’
union activities.
(d) By Stellingwerf’s remark to Maxfield on January 81
1990, that David Mattox had said, ‘‘[I]f they try to get the
Union in, we’ll just shut the thing down, we’ll just open
under another name.’’
(e) By David Mattox’s interrogation of Maxfield on Janu-
ary 13, 1990, about his and others’ union activities, and by
his asking Maxfield to report back on future union activities.
(f) By Terry Jespersen’s threatening employee Mark Phil-
lips on February 13, 1990, by implication, that the employees
faced the loss of jobs should they bring in the Union.
(g) By Gregg Mattox’s asking employee Lyndon Walter
on February 22, 1990, how he was ‘‘going to vote.’’
(h) By David Marks’ asking Phillips on February 22,
1990, ‘‘Who’s in the Union, what’s going on with the
Union?’’
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 ‘‘Our normal policy is to direct a new election whenever an unfair labor
practice occurs during the critical period since ‘conduct violative of Section
8(a)(1) [and 8(a)(3)] is, a fortiori, conduct which interferes with the exercise
of a free and untrammeled choice in an election.’ Dal-Tex Optical Co., 137
NLRB 1782, 1786–1787 (1962). The only recognized exception to this policy
is where the violations are such that it is virtually impossible to conclude that
they could have affected the results of the election.’’ Super Thrift Markets,
233 NLRB 409, 409 (1977). See also Madison Industries, 290 NLRB 1226,
1230 (1988); Baton Rouge Hospital, 283 NLRB 192 fn. 5 (1987). The excep-
tion clearly does not obtain in the present case.
28 Any outstanding motions inconsistent with this recommended Order here-
by are denied. 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 purposes.
29 Phillips’ backpay shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987). Under New Horizons, interest is com-
puted at the ‘‘short-term Federal rate’’ for underpayment of taxes as provided
in the 1986 amendment to 26 U.S.C. § 6621.
30 Interest on Walter’s entitlement shall be computed in accordance with
New Horizons for the Retarded, supra.
31 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
The Employer violated Section 8(a)(3) and (1) of the Act
in each of these instances:
(a) By discharging Mark Phillips on February 13, 1990.
(b) By suspending Lyndon Walter on February 23, 1990.
The allegation is without merit that the Employer violated
Section 8(a)(1) on or about January 7, 1990, by ‘‘creat[ing]
the impression that employees’ union activities were being
surveilled.’’
IV. REPORT ON OBJECTIONS IN CASE 18–RC–14755
By its unlawful conduct during the pendency of the elec-
tion in Case 18–RC–14755—that is, its ongoing maintenance
of the overly broad handbook rule against solicitation, its
February 23 suspension of Walter, and its February 26 dis-
semination of improper restrictions against union activity—
the Employer interfered with free voter choice in the election
held on April 3 and 4, 1990. The election therefore should
be set aside and a new election conducted.27
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended28
ORDER
The Employer, Midland Transportation Company, Inc.,
Marshalltown and Spencer, Iowa, and other terminal loca-
tions in Iowa, Minnesota, and Nebraska, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining, or enforcing any rule which
restricts employee union activities during the employees’ free
time, or which discriminates against union activities.
(b) Coercively interrogating employees concerning their
union activities or those of other employees, or how they in-
tend to vote in a union election.
(c) Asking employees to report back on the future union
activities of other employees.
(d) Threatening employees that, if they try to get a union
in, it will shut down and reopen under another name.
(e) Threatening employees, directly or by implication, that
they face a loss of jobs should they bring in a union.
(f) Discharging, suspending, or otherwise discriminating
against employees because of their union sympathies or ac-
tivities.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights pro-
tected by the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the no-solicitation rule contained in the em-
ployee handbook distributed in November 1989, as well as
the rules embodied in Items 5 and 6 of the memorandum
dated February 26, 1990, and advise the employees in writ-
ing that this has been done.
(b) Offer Mark Phillips immediate and full reinstatement
to his former job, or, if such job no longer exists, to a sub-
stantially equivalent position, without prejudice to his senior-
ity or any other rights or privileges; and make him whole for
any loss of earnings and benefits suffered as a result of the
discrimination against him.29
(c) Make Lyndon Walter whole for any loss of earnings
and benefits suffered as a result of the discrimination against
him.30
(d) Remove from its files and destroy Walter’s suspension
notice of February 23, 1990, as well as any other references
to that unlawful suspension or Phillips’ unlawful discharge;
and notify them in writing that this has been done and that
those unlawful actions will in no way serve as a ground for
future personnel or disciplinary action against them.
(e) Post copies of the attached notice marked ‘‘Appen-
dix.’’31 Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed by the Em-
ployer’s authorized representative, shall be posted by it im-
mediately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees customarily are posted. The Employer
shall take reasonable steps to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the allegation that the
Employer violated Section 8(a)(1) on or about January 7,
1990, by ‘‘creat[ing] the impression that employees’ union
activities were being surveilled’’ be dismissed.
IT IS FURTHER RECOMMENDED that the election conducted
April 3 and 4, 1990, be set aside, and that that case be re-
manded to the Regional Director to hold a new election
when he deems it appropriate.
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.
15MIDLAND TRANSPORTATION CO.
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 promulgate, maintain, or enforce any rule
which restricts employee union activities during the employ-
ees’ free time, or which discriminates against union activi-
ties.
WE WILL NOT coercively interrogate employees concerning
their union activities or those of other employees, or how
they intend to vote in a union election.
WE WILL NOT ask employees to report back on the future
union activities of other employees.
WE WILL NOT threaten employees that, if they try to get
a union in, we will shut down and reopen under another
name.
WE WILL NOT threaten employees, directly or by implica-
tion, that they face a loss of jobs should they bring in a
union.
WE WILL NOT discharge, suspend, or otherwise discrimi-
nate against employees because of their union sympathies or
activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
protected by the Act.
WE WILL rescind the no-solicitation rule contained in the
Employee Handbook we distributed in November 1989, as
well as the rules embodied in Items 5 and 6 of the memoran-
dum dated February 26, l990, and WE WILL advise our em-
ployees in writing that this has been done.
WE WILL offer Mark Phillips immediate and full reinstate-
ment to his former job, or, if such job no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges, and WE WILL make
him whole for any loss of earnings and benefits suffered as
a result of the discrimination against him.
WE WILL make Lyndon Walter whole for any loss of earn-
ings and benefits suffered as a result of the discrimination
against him.
WE WILL remove from our files and destroy Walter’s sus-
pension notice of February 23, 1990, as well as any other
references to that unlawful suspension or Phillips’ unlawful
discharge; and WE WILL notify them in writing that this has
been done and that those unlawful actions will in no way
serve as a ground for future personnel or disciplinary action
against them.
MIDLAND TRANSPORTATION COMPANY