Mississippi Transport

National Labor Relations Board - Board Decisions

May 11, 1993

310 N.L.R.B. 1339 (N.L.R.B. 1993)

1339
310 NLRB No. 222
MISSISSIPPI TRANSPORT
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
1 All dates refer to the 1991 calendar year unless otherwise indi-
cated.
2 Respondent’s indirect outflow to Superamerica, an employer di-
rectly engaged in commerce within the meaning of the Act, exceeds
the dollar volume amount established by the Board for exercising its
statutory jurisdiction. Respondent admits that it is engaged in com-
merce and in a business affecting commerce within the meaning of
Sec. 2(6) and (7) of the Act and I find the Board has jurisdiction
to resolve this labor dispute.
Mississippi Transport, Inc. and General Drivers,
Helpers and Truck Terminal Employees, Local
Union No. 120, affiliated with International
Brotherhood of Teamsters, AFL–CIO.1 Case
18–CA–11809
May 11, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 18, 1992, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision.2
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Mississippi Transport, Inc.,
Stillwater, Minnesota, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Joseph H. Bornong, Esq., for the General Counsel.
Daniel Wachtler and William P. Seehafer, Esqs. (Briggs &
Morgan), of St. Paul, Minnesota, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. General
Drivers, Helpers and Truck Terminal Employees, Local
Union No. 120, affiliated with International Brotherhood of
Teamsters (Union) filed an unfair labor practice charge
against Mississippi Transport, Inc. (Respondent or Company)
on June 26, 1991.1
On August 22, the Regional Director for Region 18 of the
National Labor Relations Board (NLRB or Board) issued a
complaint alleging Respondent had engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act (Act).
Respondent timely answered the complaint on September
5 denying that it engaged in the unfair labor practices al-
leged. The complaint was docketed for hearing before an ad-
ministrative law judge.
I heard this matter on December 17 and 20 at Min-
neapolis, Minnesota. After carefully considering the record,
the demeanor of the witnesses, and the posthearing briefs
filed by the General Counsel and Respondent, I find Re-
spondent engaged in the unfair labor practices alleged based
on the following
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The complaint alleges Respondent violated Section 8(a)(1)
of the Act by: (1) soliciting reports of employee union activ-
ity; (2) creating the impression that employees’ union activi-
ties were under surveillance; and (3) interrogating an em-
ployee about signing a union card.
The complaint also alleges Respondent violated Section
8(a)(3) of the Act by discharging employee Steven Berger on
June 18 for his union and concerted activities.
In his brief, the General Counsel moves to dismiss the in-
terrogation allegation because the evidence adduced in sup-
port fails to prove the matter alleged. As the matter is not
without doubt, I grant the motion.
As noted, Respondent’s answer denies the unfair labor
practices alleged.
B. Facts
1. Background
Respondent, a Minnesota corporation, maintains its head-
quarters and a terminal in Stillwater, Minnesota, where it is
engaged in business as a contract hauler of bulk petroleum
products.2 Respondent also has terminals at Duluth and
Warroad, Minnesota, but they are not involved in this pro-
ceeding.
At Stillwater, Respondent employs about 30 drivers, 3 or
4 mechanics, a truck washer, and several dispatchers. Duane
Ahles, Respondent’s vice president of operations, oversees
the Stillwater day-to-day operations. John Shaleen, the Still-
water safety director and supervisor, directly supervises Re-
spondent’s drivers. Both are admittedly statutory supervisors.
This case arises from the Union’s campaign to organize
Respondent’s Stillwater petroleum transport drivers. That ef-
fort began in earnest during December 1990 following un-
successful union attempt to organize Respondent’s mechanics
and washers. The mechanics and washers’ organizing cam-
paign culminated in a tie vote at an October 25, 1990 NLRB
election and a certification that no collective-bargaining rep-
resentative had been selected by a majority in that unit.
1340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Ahles said that the union activity commenced at about the same
time that Superamerica realigned its hauling accounts which resulted
in Respondent acquiring six high-volume stations previously serviced
by its unionized competitors.
4 Ahles said that driver Gregory Schiltz complained bitterly about
the union solicitors. By mid- to late summer, Ahles provided Schiltz
with a tape recorder to make contemporaneous summaries of any
verbal abuse he encountered at Ashland. Later, according to Ahles,
a sexually explicit solicitation was written anonymously on a wall
at the Ashland refinery together with the name and phone number
of Schlitz’ wife.
Respondent openly opposes the unionization of its employ-
ees; Ahles conceded consideration has been given to the pos-
sibility of transferring work to a related enterprise if its driv-
ers become unionized. Shaleen told driver Michael Tietz
sometime after the discharge at issue here that, ‘‘I don’t like
unions and I don’t want a union in here.’’
Respondent transports petroleum products from area refin-
eries to retail petroleum outlets in the Minneapolis-St. Paul
metropolitan area. It competes with several other local con-
tract haulers, including Dahlen, Kane, Indianhead, Wayne,
and many smaller companies. Only the Dahlen and
Indianhead drivers are represented by the Union.
Respondent’s drivers report to the Stillwater terminal at
the start of their shift where they are dispatched with a list
of loads for transport that day. They then drive to the des-
ignated refinery, load the product and obtain a bill of lading,
and proceed to the customer’s station for unloading. This
process is repeated until the day’s orders are completed.
Frequently, Respondent’s drivers transport petroleum prod-
ucts from the Ashland refinery in St. Paul Park, Minnesota,
a distance of about 19 miles from the Stillwater terminal, to
a variety of area retail stations. Superamerica, Ashland’s re-
tail subsidiary, accounts for about 30 to 35 percent of Re-
spondent’s revenues. Dahlen and Indianhead also haul from
the Ashland refinery to the Superamerica stations.
Upon arrival at the Ashland refinery, drivers first obtain
a customer card (resembling a plastic credit card) at the dis-
patch office, and then drive to the self-service overhead load-
ing bays which accommodate four tank trucks per bay.
There, the driver attaches an inlet hose to the tank trailer, ac-
tivates the pump using the customer card and a driver’s card
(carried by the driver), sets the pump for the amount and
type of product ordered by the retailer, and turns the pump
on to start the loading process. After the load is aboard and
the pump is shut down, the driver returns to the dispatch of-
fice to replace the customer card and obtain a bill of lading
for the on-board order.
At a minimum, the loading process at the Ashland refinery
takes about 15 minutes; frequently, drivers are detained there
for half an hour or, on occasion, much longer if the dispatch
office and the bays are busy or if some of the refinery equip-
ment malfunctions. The drivers of the various different com-
panies which haul from Ashland routinely meet at the dis-
patch office and at the loading bays. At such times, they dis-
cuss topics which, metaphorically speaking, range from soup
to nuts but all are expected monitor the loading and paper-
work processes to assure against petroleum spills and errors.
2. The drivers’ organizing campaign
In the December 1990–January 1991 period, some of the
unionized drivers began promoting unionization among the
nonunion drivers at their Ashland refinery encounters.
Indianhead drivers Jeff Johnson and James Kroschel were
two of the most ardent union solicitors.3
Word of the union activity quickly came to the attention
of company officials through reports from its drivers. Gerald
Leonard said safety director Shaleen called him into his of-
fice at one point in December 1990 and told him that a new
company driver reported that Leonard had been ‘‘talking
union’’ at the Ashland refinery. When Shaleen disclosed fur-
ther that his source said it occurred on a particular Sunday
night when Leonard was not on duty, Leonard pointed that
out and the conversation concluded.
Driver Tietz, who disclosed to Shaleen that he had a union
card when he was first employed, said that Shaleen asked
him in the Spring whether anyone had approached him about
joining the Union. Tietz told Shaleen that ‘‘some people
were trying to pass out some cards at Ashland Petroleum.’’
When Shaleen inquired if he was being bothered, Tietz re-
plied that he could take care of it himself.
However, the Company began receiving reports from other
employees (mainly drivers) about a number of untoward inci-
dents, including a bogus dispatch, a false dispatch request,
the splashing of winter slush on one of Respondent’s trucks
as two trucks passed on a city street, a charge that Respond-
ent’s driver verbally abused a female Superamerica customer,
and the switching of customer cards at the Ashland dispatch
office to cause incorrect bills of lading. Company officials
attributed the bogus dispatch to Kroschel and Berger identi-
fied Kroschel as the driver responsible for the slush splash-
ing.
In the latter half of March 1991, the Union held an open
meeting for the drivers of all contract haulers at its hall in
St. Paul. Kroschel attended and obtained authorization cards
from a union agent for his use in soliciting nonunion drivers.
Both Johnson and Kroschel persisted as union promoters
and card solicitors for the Union around the Ashland refin-
ery. At first, very few of Respondent’s drivers expressed in-
terest in the Union. A few of Respondent’s drivers even ex-
pressed open hostility toward the union solicitations; some
interpreted Johnson’s and Kroschel’s persistence as harass-
ment and complained about their conduct to company offi-
cials.4
Kroschel admittedly traded insults with some of Respond-
ent’s drivers about the Union. On occasion, he called the
nonunion drivers ‘‘scab’’ drivers and used the same epithet
in referring to the nonunion companies. He claimed that one
company driver called him ‘‘asshole’’ and that the same
driver once left the Ashland dispatch office when Kroschel
entered saying, ‘‘I better get out of here before some union
shit rubs off on me.’’ Johnson also acknowledged that some
of Respondent’s drivers were irritated by his repeated solici-
tations and that some angry exchanges occurred.
Following reports of the solicitations from its drivers and
having encountered uncomplimentary claims about its serv-
ice, Ahles posted his ‘‘You must be getting to the competi-
tion.’’ notice to company drivers at Stillwater dated March
26. The notice begins by accusing competitors or their driv-
ers of spreading ‘‘slander and lies’’ and continues:
1341MISSISSIPPI TRANSPORT
5 Shaleen was substituting for driver Tietz who was absent with an
injury. Since his promotion to his current position in early 1989,
Shaleen no longer drives company transports regularly.
6 Kroschel said that he learned Shaleen’s true identity after Shaleen
left. By Kroschel’s account, Shaleen and Johnson (who knew
Shaleen) passed each other going in opposite directions as Shaleen
left the refinery property. When Johnson spoke with Kroschel, he
identified Shaleen for Kroschel. Johnson corroborates Kroschel’s
identity account.
7 Kroschel’s impression obviously had some substance. In Decem-
ber 1990, the company drivers voted to select Berger as one of their
representatives on an employee committee Ahles formed. Berger said
that Ahles met with the committee on three occasions in December
and January.
On the one hand they are pushing you and harassing
you about joining the Union and on the other they are
trying to take your jobs[.]
Today I had a call from Ashland who informed me
they had received a photo of our unit dropping product
with no one in attendance, no fire extinguisher out, and
no vapor recover hose hooked up. This photo was sent
to them by someone who said he was a Unocal driver.
Interesting that he carrys [sic] a camera with him. He
should know that he is a Uno-Ven driver. I believe that
it is another carrier who used Uno-Ven as a cover.
I have heard a rumor that one of our drivers had a
spill at AN SA and our driver paid off the manager not
to report it.
These types of rumors and lies have become an
every day occurance [sic].
I am asking you to be sure that you do everything
right. You are being watched.
If you are harassed at the rack or while you are
working about union activities I want to know imme-
diately. When, where and who.
You do not have to put up with this from people
who are more interested in causing you trouble than in
doing the job they are getting paid for (even if their pay
is less than yours).
Do your job right—we will continue to grow and we
will continue to have a job.
I thank you for your performance in the past months.
You come through the winter with a great safety
record. I have every confidence that you will be able
to cope with this situation. [Emphasis in the original.]
Solicitations by Johnson and Kroschel continued over the
next 2 months without much apparent success among Re-
spondent’s drivers. However, Kroschel said he had noticed a
changed attitude in late May or early June after hearing ru-
mors that certain new company policies upset several of Re-
spondent’s drivers and that some would now consider union-
ization.
In fact, on June 6 Ahles posted and distributed a memo-
randum which altered driver scheduling procedures. This
change established mandatory call-in and work requirements
for unscheduled workdays.
More specifically, Berger said that the drivers’ work
schedules were generally posted 2 weeks in advance. Ahles’
June 6 memo states that the normal workweek is 48 hours
but, if work is available, drivers are expected to work up to
60 hours. The June 6 memo provides that drivers who have
worked at least 48 hours but less than 56 hours must tele-
phone the terminal on their offdays and a mandatory rule that
those drivers must accept available assignments. In the
memo’s concluding sentences, Ahles emphasized that ex-
cuses such as babysitter difficulties, a wife’s day off, and
fishing would not be accepted for refusing offday assign-
ments since such activities did not have priority over cus-
tomer demands.
In the meantime, on June 8 Kroschel and Shaleen loaded
gasoline at adjacent racks at the Ashland refinery.5 Kroschel,
unfamiliar with Shaleen’s identity, spoke with Shaleen at the
loading bay. Kroschel thought Shaleen was a new driver; he
noticed Shaleen was wearing a shirt bearing the name of
‘‘Keith’’ or ‘‘Kevin.’’ Kroschel said that Shaleen described
himself at the loading bay as a senior driver who normally
hauled from another refinery.6
Kroschel and Shaleen spoke again in the vicinity of the
dispatch office. At this time, Kroschel offered Shaleen a
union authorization card. According to Kroschel, Shaleen
took the card, agreed to think it over, and asked which of
Respondent’s drivers he could discuss it with. Kroschel said
that he suggested Berger because he felt Respondent’s driv-
ers generally liked Berger.7
Shaleen recalled that Kroschel offered him a union card
and urged him to join. Kroschel purportedly told him that
seven of Respondent’s drivers had signed cards and only a
couple more were needed. Shaleen denies that Kroschel men-
tioned Berger’s name and claims that he eventually identified
himself to Kroschel as the driver’s supervisor.
Senior dispatcher Rodney Shelton said that he was in
Shaleen’s office within the next couple of days and that
Shaleen discussed Kroschel’s June 8 remarks to him at the
Ashland refinery. In their conversation, Shelton said that
Shaleen speculated from a driver’s list about the identity of
probable card signers. At the hearing, Shelton could recollect
the names of four drivers mentioned by Shaleen as likely
card signers but could not recall others named on this occa-
sion. Drivers Berger and Leonard were not mentioned in
Shelton’s testimony on this point. Shaleen denied any recol-
lection of speaking with Shelton about this matter.
3. Steven Berger’s discharge
Steven Berger, who has been a truckdriver for 15 years,
was employed by Respondent from June 1988 until his dis-
charge on June 18. Less than 3 weeks before his termination,
Berger received a promotion consistent with his seniority and
early in 1991 he received a safe driving award under Re-
spondent’s program for having no chargeable accidents dur-
ing the prior year. However, as is the case with most of Re-
spondent’s drivers, his record was not spotless.
Until Ahles’ June 6 call-in memo, Berger opposed union-
ization. He declined Johnson’s invitation to the March union
meeting and when Kroschel handed Berger a union card
early in the campaign, he crumpled it and stuck it back in
Kroschel’s pocket.
According to Berger, some of Respondent’s drivers were
extremely upset about Ahles’ June 6 memo because it effec-
tively precluded them from making other plans for their
offdays. It caused Berger to consider the Union anew and he
talked with other drivers about doing the same when he met
them at both the Stillwater terminal and the Ashland refinery.
1342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The routine procedure reminder related solely to Berger’s failure
to call the terminal as required. Respondent has a different discipli-
nary form used for warnings, suspensions, and discharges. No sepa-
rate exhibit related to Berger’s purported warning and suspension
was offered but its absence might be explained by the fact that
Berger was subsequently terminated on the same day.
9 The other citations on Berger’s official record include tickets for
failing to fasten his seat belt in August 1988 and failing to obey a
semaphore (red light) in August 1989. The latter citation was in a
company transport.
In Berger’s words, he began ‘‘itching [the Union] pretty
hard’’ to his fellow drivers.
During this time, Berger obtained a union authorization
card from a Dahlen driver. He kept the card for about a
week before mailing it, signed and dated, to the Union on
June 12. In addition, Berger said that several drivers agreed
to boycott the call-in requirement.
Berger was among the first to be confronted by the call-
in requirement. He was not scheduled to work on June 13,
14, and 15. By the terms of Ahles’ June 6 memo, Berger
was eligible for assignment on those days and was required
to telephone the terminal. Admittedly, he did not do so.
Berger worked his usual shift on June 16, a Sunday when
Shaleen presumably did not work. When Berger arrived for
work on June 17, Shaleen confronted him about not calling
in on his offdays. A heated argument ensued over the fair-
ness of the Ahles’ memo. Berger told Shaleen ‘‘your finger’s
not broken’’ and asserted further that ‘‘we don’t think it’s a
fair memo.’’ Berger explained that he had difficulty finding
a babysitter for his three small children.
Their exchange continued slightly beyond 4 p.m., the time
afternoon shift drivers are expected to be on the road. The
conversation ended when Shaleen reminded Berger of that
fact. Noticing that he was already late, Berger promptly
boarded his truck and, admittedly, left without performing a
pretrip inspection of his tractor-trailer even though he signed
an inspection form.
The following morning Shaleen prepared a routine proce-
dure reminder for Berger concerning his failure to call in as
explained above. Shaleen said that he also prepared a warn-
ing notice for Berger’s failure to conduct a pretrip inspection
the prior evening and had decided to suspend Berger 1 day
with pay, a lesser discipline used by the Company essentially
to underscore the unacceptable nature of certain conduct in
the driver’s mind.8 In the process, Shaleen consulted with
Ahles who approved the planned suspension.
At about 10 a.m. (following the approved decision to sus-
pend Berger), Shaleen said that he received a telephone call
from George Titus, a driver formerly employed by Respond-
ent, complaining that one of Respondent’s drivers (later iden-
tified as Berger) was speeding (about 65 mph) when passing
his automobile on a Minneapolis freeway between 7 to 7:30
p.m. on June 16. Titus also claimed that the truck cut too
closely in front of him while completing the passing maneu-
ver. Shaleen testified:
George Titus called and told me on Sunday between 7
and 7:30 one of our trucks, and he stated the unit num-
ber being 202 was driving, he had been going 61 miles
per hour, our truck drove by him and cut back into his
lane without fully going beyond him resulting in him
having to do a hard brake which had a car been behind
him it would have forced him into the guard rails.
. . . .
Q. Did he say anything else about the incident in
terms of how he perceived it or [what] the situation
was?
A. Just he was upset, he had his child and family
with him, had he not had a prior engagement to make
that he would have followed the driver to the terminal
and confronted him immediately but he continued on
and called me later.
Titus, now a construction worker, confirmed the June 18
call to Shaleen. Titus explained that he and his family were
on their way home from dinner with his wife’s parents when
the incident occurred. Titus said the speed limit was 55 mph
in the general area of the incident, and on the particular cor-
ner where it occurred, the speed limit was 50. Titus esti-
mated his speed at about 62 mph and the truck’s speed at
64 to 65 mph. When the truck cut into his lane, Titus said
that he had to apply his auto’s brakes and that he ‘‘kind of
cussed a little bit.’’ Titus did not sound his horn.
Titus asserted that he was ‘‘very upset that [the truck-
driver] did not take the extra second or two to make sure he
was clear.’’ His wife, who was turned in the front passenger
seat to play with their child in the rear seat child restraint,
did not become conscious of the incident until he ‘‘swore
and put on the brakes.’’
By Titus’ account, he and his family continued to their
home following the incident. He did not call the terminal that
evening because he knew no one would be there and he did
not call the following day because he was ‘‘tied up.’’
After speaking with Titus, Shaleen quickly determined
from company records that Berger drove the transport identi-
fied by Titus on June 16, and that he could have been in the
vicinity described by Titus at the time reported.
Asserting that Titus was a reliable source, Shaleen said
that he decided to discharge Berger ‘‘for . . . speeding once
again.’’ The ‘‘once again’’ alludes to Berger’s official record
showing that he was ticketed for speeding on April 27 in a
company transport and on July 15, 1989, in his private vehi-
cle as well as the fact that Shaleen happened upon Berger
driving a company transport 65 mph in a 55 mph freeway
zone during July 1990.9
Shaleen said that he reported the Titus call and his inten-
tion to discharge Berger to Ahles who concurred in
Shaleen’s the new recommendation. Both Ahles and Shaleen
deny that the Union entered into their discussion about dis-
charging Berger. Shaleen testified that the post-Titus call
conversation with Ahles went as follows:
I told him how I felt termination was the only thing in
order with the night before not doing a pre-trip inspec-
tion, the citations on his record, by following him he
did not want to slow down for me either, I told him
to slow down. He thought termination was in order
also.
Thereafter, Shaleen prepared a termination notice and left
a request in Berger’s box to speak with him when Berger ar-
rived for work. When Berger reported as requested, Shaleen
1343MISSISSIPPI TRANSPORT
10 In February, the Company received a complaint from a woman
employed by Superamerica alleging that driver Arliss Nyberg had
failed to yield as she entered a freeway from an approach ramp.
Shaleen gave the complainant’s name and phone number to Nyberg
with instructions for him to straighten the matter out with the
woman. Later the woman complained to a company dispatcher that
Nyberg hassled her for reporting him. Because of this experience,
Shaleen said that he no longer provides complainant’s names to driv-
ers.
handed him the termination notice. Shaleen said that Berger
read the dismissal notice and asserted that the incident
‘‘didn’t happen.’’ Purportedly, Berger then threw the notice
but Shaleen retrieved it and secured Berger’s signature on it.
Shaleen said that Berger then proceeded out of his office, ob-
viously in an agitated state, using vulgar language, threat-
ening ‘‘he would have [Shaleen’s] job,’’ and proclaiming
that ‘‘this company would . . . go down the tubes.’’ Shaleen
followed Berger to collect his keys, driver’s card, and manu-
als. Berger went to the drivers’ room where he began speak-
ing with other drivers.
In the preprinted disciplinary notice, Shaleen checked two
boxes, ‘‘Violation of Safety Rules’’ and ‘‘Other.’’ The
‘‘Other’’ category was completed with the words, ‘‘Public
Complaint.’’ In the supervisor’s remarks section, the Titus
incident is recited, including the claim that Titus said he
would have chased the driver to the ‘‘loading terminal’’ but
for a private engagement. The remarks section lists, in order,
Shaleen’s observation of Berger speeding in July 1990, the
August 1989 semaphore violation, the April 1991 speeding
violation, and Titus’ complaints about speeding and ‘‘unpro-
fessional driving.’’ The next remarks paragraph asserts that
Berger falsified his logbook on June 16 and failed to conduct
a pretrip inspection on June 17 followed by a concluding
paragraph which reads:
Your disregard for the safety of the public with the
driving behavior you have displayed in the past two
years with [the Company] has left me to my decision
as safety director/driver supervisor, to terminate you
from this day forward, as to not cause any harm to the
public, as well as to your well being while driving a
gasoline transport for [the Company].
Meanwhile, Shaleen invited driver Leonard into his office.
Leonard, who overheard Berger heatedly refer to his dis-
charge shortly before as he passed Shaleen and Berger, testi-
fied in these words about Shaleen’s remarks:
It was very short, very brief. He [Shaleen] told me
there was word going around that I had sent in a union
card and he said, ‘‘I’m not going to ask you whether
you did or didn’t,’’ but he said, ‘‘there’s word going
around that you did’’ and he said, ‘‘maybe you would
like to talk it over with some of your friends how this
got around.’’
In fact, Leonard had signed and mailed a union authoriza-
tion card to the Union on June 13. Shaleen’s account of this
conversation essentially accords with Leonard’s. Shaleen said
that he told Leonard that ‘‘he should tell some of them peo-
ple’’ if he had not signed a union card.
After Shaleen had spoken to Leonard, Berger returned to
Shaleen’s office. At this time, Berger asked for the name of
the complainant but Shaleen refused to give it to him.10
Shaleen said they then talked about other matters during
which he told Berger, ‘‘I told you to slow down once and
you didn’t do that, you got a ticket for excessive speeding
you didn’t do that, now we got a customer complaint. Maybe
you could slow down so your kids could enjoy you.’’
Berger’s account of his termination differs only in minor
respects from Shaleen’s. Berger says that he pressed Shaleen
for the name of the complainant in the first conversation and
that in the second conversation he essentially pleaded to get
his job back which Shaleen refused to consider. The Union
was not mentioned in either June 18 conversation between
Shaleen and Berger.
Berger appealed his termination to Ahles in a June 20 let-
ter. Addressing a reference in his dismissal notice about his
disregard of public safety in the past 2 years, Berger re-
minded Ahles that he had received a safe driving award in
1990 and that his May 31 promotion letter, signed by Ahles,
stated, ‘‘Thank you for doing a great job your first 36
months with MTI, and I believe your job performance will
continue in the professional manner in which you have prov-
en it to be for the past 3 years.’’
Ahles replied by a letter dated June 21. In it, he advised
Berger that the only safety award criterion was no chargeable
accidents during the award period. About May 31 promotion
letter, Ahles wrote that ‘‘[t]his is standard procedure and is
based on seniority and acceptable performance overall.’’
However, Ahles reminded Berger that ‘‘the periods covered
[by the safety award and the promotion] were not incident
free.’’
Thereafter, Ahles said that his ‘‘concern is confined to the
past 3 months’’ and went on to state that ‘‘[t]he list of inci-
dents that led to your dismissal’’ included: (1) speeding on
March 25 and 26 as ascertained from log audits; (2) the
April 27 speeding ticket; (3) logbook falsification on June
16; (4) the public complaint concerning speeding and a reck-
less lane change on June 16; and (5) failure to perform a
pretrip inspection on June 17. These incidents, Ahles stated,
‘‘indicates that you have decided to disregard public law and
company policy and operate as you please.’’ Ahles letter
concludes:
Although you may be willing to operate a vehicle with-
out a proper pre-trip inspection and at speeds exceeding
posted limits, the Company will not take the risk of en-
dangering the public and yourself by allowing our vehi-
cles to be operated in an unsafe manner.
I endorse the Safety Director[’]s actions in this matter.
Under Respondent’s promotion system, established about 3
years ago, driver pay is progressively increased through six
levels. Ahles asserted that promotions are essentially an auto-
matic longevity-based scheme. ‘‘In real simple terms,’’ he
testified, ‘‘if you worked with us a year and you’re still
there, you are going to go up, another step.’’
Nonetheless, Ahles acknowledged that driver Schiltz was
reduced one driver proficiency level for 6 months under the
same personnel policy following an accident. In addition, a
summary of Respondent’s safe driver award program alludes
to the fact that the operations manager has the responsibility
1344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Schliecher was cited for speeding 70 mph in a 55-mph zone.
The warning reflects that the Minnesota Highway Patrolman who
cited Schliecher asserted that the manner in which Schliecher was
operating his company transport was ‘‘very unprofessional, with a
disregard for the safety of people and property.’’
to notify the safety committee that a driver has completed a
year of employment, normally ‘‘when the driver[’]s records
are given the annual review.’’ However, no written personnel
policies related to annual reviews, promotions, or demotions
are in evidence.
To put Berger’s driving record in perspective, the General
Counsel introduced selected records of several other drivers.
The records of three drivers, Ted Burkhardt, Dean
Schliecher, and Schiltz, merit summary.
As noted, Schiltz, who vehemently opposed to the Union,
was reduced one pay level in November 1990 following an
accident. Ahles’ memo imposing that discipline states that
senior drivers described Schiltz as ‘‘accident waiting to hap-
pen’’ because of his speeding habits. A month later, Schiltz
received a speeding citation in his private automobile.
Other records related to Schiltz reflect that he was subse-
quently respon- sible for a spill in May 1991 at the Ashland
refinery and was the subject of a public complaint about
speeding and reckless driving in July 1991. In addition to the
foregoing, Ahles acknowledged that Schiltz had numerous
other routine procedure reminders in his file and his logbook
audit for the month of March 1991 (the same month and the
same audit alluded to by Ahles in his response to Berger’s
appeal) reflects speeds in excess of the company standard on
five separate dates.
Burkhardt, a senior driver whose union proclivities are un-
known, was said by Ahles to have numerous routine proce-
dure reminders in his file. In addition, Burkhardt received a
disciplinary warning in May 1990 for failing to conduct a
pretrip inspection and his log audit for the month of March
1991 reflects speeds in excess of the company standard on
four separate dates.
On September 4, Burkhardt failed to appear for work as
scheduled and Shaleen set out to locate him. Later that morn-
ing, Burkhardt called to report that he had been arrested driv-
ing his private auto at 4:30 a.m. that morning (he was due
at work at 5 or 5:30 a.m.), charged with driving while intoxi-
cated, and jailed. Burkhardt was given a disciplinary warning
for an ‘‘unexcused absence.’’ Subsequently, Burkhardt’s li-
cense was revoked for 1 year and he was granted a year’s
leave of absence from his company driving position. Shortly
more than a week later, Burkhardt was hired as a truck
washer, and promoted a short while later to one of the dis-
patcher positions.
Schliecher, a driver whose union proclivities are also un-
known, was given a routine procedure reminder for failing
to call in on July 16, 17, and 18 ‘‘per the new policy.’’ In
January 1991, Schliecher received a speeding citation and be-
came embroiled in an argument with the highway patrolman.
Schliecher received a written warning about this incident
which, in effect, placed him on probation for 1 year. The
warning states that he would be subject to termination for
‘‘one (1) more incident with unfavorable behavior in the op-
eration of company equipment in the next year.’’11 In April
1991, Schliecher was given another written warning for fail-
ing to report traffic citations as required following a citation
on April 7 for ‘‘failure to obey semaphore.’’ Schliecher was
still employed at the time of the hearing but the claim was
made that he was very close to being discharged.
C. Further Findings and Conclusions
1. The 8(a)(1) allegations
Employer interference, restraint, or coercion of employees
exercising the statutory right, inter alia, to ‘‘form, join, or as-
sist labor organizations’’ is an unfair labor practice under
Section 8(a)(1) of the Act. The test under Section 8(a)(1) is
not whether the questioned employer conduct succeeded but
whether, in the circumstances, the conduct reasonably tends
to interfere with, restrain, or coerce employees in the exer-
cise of Section 7 rights. Jay Foods v. NLRB, 573 F.2d 438
(7th Cir. 1978).
The General Counsel argues that Ahles’ March 26 notice
both asks employees to report union activities and implies
that Ahles intended to take action against the perpetrators,
i.e., ‘‘You do not have to put up with this’’ Respondent ar-
gues that the notice implicitly limited the solicitation of re-
ports about union activity to those actions by noncompany
drivers which interfere with workplace safety and the Com-
pany’s reputation, both legitimate concerns of the Respond-
ent.
Although the bulk of Ahles’ March 26 memo addresses
nonemployee activity of a potentially illicit character, his so-
licitation to report about union activities ‘‘[i]f you are har-
assed at the rack or while you are working’’ is plainly a
dragnet response. In the circumstances found here, Respond-
ent’s claim that it intended for employees to report only il-
licit activities by drivers of other companies is extremely du-
bious. On the contrary, Shaleen’s subsequent conduct dem-
onstrates, if the testimony of Leonard, Shelton, and Tietz is
any gauge, that he entertained or acted on many rumors of
union activity without regard for their source or content.
The Board has found employer solicitations to employees
about reporting union activity if they felt ‘‘harassed’’ to be
unlawful ‘‘because they have the potential dual effect of en-
couraging employees to identify union supporters based on
the employees’ subjective view of harassment and discour-
aging employees from engaging in protected activities.’’
Hawkins-Hawkins Co., 289 NLRB 1423 (1988), and the
cases cited there at footnote 5.
Such subjectivity is evident here. Some drivers obviously
interpreted the persistence of the union solicitors as harass-
ment; others, such as Tietz, did not. When this is coupled
with Respondent’s implied willingness to intervene so em-
ployees would not have to ‘‘put up with this,’’ the message
becomes clear. Employees choosing to lawfully promote the
Union in the course of their routine contacts away from Re-
spondent’s premises would be doing so at the risk that their
activities might be misconstrued and that management ret-
ribution might result. I find that any such message would
reasonably tend to interfere with employee protected activity
and, hence, that the solicitation about reporting union activity
in Ahles’ March 26 notice is unlawful.
With respect to the June 18 Shaleen-Leonard conversation,
the General Counsel argues, in effect, that the tenor of the
exchange creates the impression that Leonard’s union activi-
ties are under surveillance by Respondent. Respondent claims
that the conversation fails to establish that Shaleen was en-
1345MISSISSIPPI TRANSPORT
12 Although Respondent’s claim that this exchange did not amount
to coercive interrogation might be true, that argument misperceives
the allegation.
13 The post-June 8 conversation between Shaleen and Shelton is
further evidence of Shaleen’s union monitoring activity. However, as
this evidence was offered on rebuttal following claims by manage-
ment officials that they were unaware of Berger’s union activity, no
consideration is given that evidence in assessing General Counsel’s
prima facie case.
14 I reach this conclusion notwithstanding Shelton’s failure to re-
call any mention of Berger’s name during his testimony about his
post-June 8 meeting with Shaleen. As noted, Shelton likewise made
no mention of a reference to Leonard in this conversation but
Shaleen admittedly confronted Leonard about signing a union card
only a few days later.
gaged in coercive interrogation and that the incident was iso-
lated.
I agree with the General Counsel’s contention. Clearly,
Shaleen’s words on this occasion served to inform Leonard
that rumors about lawful union activities were monitored by
management. And by suggesting that Leonard talk to other
drivers if he had not signed a union card plainly burdened
this driver with the dilemma of proving to Shaleen’s satisfac-
tion that the rumor about him was not true by publicly repu-
diating the Union before his fellow drivers, or facing some
consequence for failing to do so. Accordingly, I find that the
Shaleen’s June 18 remarks to Leonard amount to unlawful
interference.12
2. The 8(a)(3) allegation
Employer ‘‘discrimination in regard to hire or tenure or
any term or condition of employment to encourage or dis-
courage membership in any labor organization’’ is an unfair
labor practice under Section 8(a)(3) of the Act. Proof of dis-
crimination within the meaning of the Act is governed by the
following principles, summarized by the Board in Hunter
Douglas, Inc., 277 NLRB 1179 (1985):
The Board held in Wright Line, 251 NLRB 1083
(1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied.
455 U.S. 989, that once the General Counsel makes a
prima facie showing that protected conduct was a moti-
vating factor in an employer’s action against an em-
ployee, the burden shifts to the employer to dem-
onstrate that it would have taken the same action even
in the absence of the protected conduct. The employer
cannot carry this burden merely by showing that it also
had a legitimate reason for the action, but must ‘‘per-
suade’’ that the action would have taken place absent
the protected conduct ‘‘by a preponderance of the evi-
dence.’’ Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984); NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983). If an employer fails to satisfy its
burden of persuasion, a violation of the Act may be
found. Bronco Wine Co., 256 NLRB 53 (1981).
I find that the General Counsel’s prima facie showing that
Berger’s discharge was motivated by protected conduct was
sufficient to shift the burden of persuasion to Respondent.
The General Counsel’s evidence shows that Berger, initially
an opponent of unionization, became sufficiently interested to
sign a card and promote the Union among his fellow drivers
shortly before his termination and shortly after his May 31
promotion.
The General Counsel also established that Respondent was
strongly opposed to unionization among its drivers and care-
fully monitored union support among its drivers, especially
at the precise time of Berger’s discharge as evidenced by the
Shaleen-Leonard June 18 conversation found unlawful
above.13 Moreover, the General Counsel’s case established a
basis for finding Respondent knew of Berger’s conversion to
the union cause based on the June 8 Shaleen-Kroschel con-
versation at the Ashland refinery.
Berger admittedly failed to follow the call-in procedure
specified in the June 6 notice and failed to perform a pretrip
inspection on June 17. Likewise, his traffic citations are a
matter of public record and Berger made no effort to contest
the fact that Shaleen observed him speeding in July 1990. To
establish, nevertheless, the discriminatory character of
Berger’s termination even in the face of what appears at first
blush as solid grounds for discharge, the General Counsel in-
troduced numerous personnel records reflecting, in sum, that
Respondent’s tolerance of numerous similar, or worse,
derelictions on the part of other drivers before and after
Berger’s discharge.
In my judgment, the foregoing summary describes a strong
prima facie showing that Berger was discharged for his
union activity.
Respondent’s defense is threefold. First, it claims that it
was not aware of Berger’s union sympathies. Second, it
claims good cause existed for Berger’s discharge. And third,
it argues that Berger was not treated disparately.
At the outset, I credit Kroschel’s claim that he suggested
Berger as a person Shaleen could speak with about the Union
during their June 8 exchange. Shaleen’s claim that he eventu-
ally identified himself as the drivers’ supervisor and, thus,
would be an unlikely person to whom Kroschel would iden-
tify any of Respondent’s employees as union adherents, de-
tracts considerably from my willingness to rely on his
version of the June 8 exchange.
The evidence shows that Shaleen was previously unknown
to Kroschel. Shaleen’s testimony about their conversation
prior to the supposed disclosure of his status indicates that
he was attempting to mislead Kroschel about his identity.
That evidence and other circumstances indicating that
Berger’s union interest was recent and intense as well as
Johnson’s corroboration of Kroschel’s identity claim causes
me to rely on Kroschel’s testimony about the June 8 ex-
change where it conflicts with Shaleen’s.14
For this reason, I reject Respondent’s assertion that it was
unaware of Berger’s union interest. Clearly the June 8 ex-
change between Kroschel and Shaleen served to signify a
connection between Berger and Kroschel, the unrelenting
union protagonist long known to company officials.
Moreover, other evidence shows that many drivers fre-
quently reported on the ongoing union activity at the Ash-
land refinery and that Shaleen became keenly interested
about identifying union supporters among Respondent’s driv-
ers following his June 8 exchange with Kroschel. Based on
these circumstances and Shaleen’s accuracy in singling Leon-
ard out as a card signer—supposedly based on rumor—at this
critical time, I conclude that Respondent’s claimed ignorance
of Berger’s union activity is not truthful.
1346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Berger’s claim that the Titus incident did not occur does not
raise any further question. As the incident was described by Titus,
Berger may well have been unaware that it did occur.
Respondent’s next two defenses are related but, of neces-
sity, the focus must be on its claim that Berger was not treat-
ed disparately. The Wright Line standard requires more than
a mere showing that legitimate cause for discharge existed;
as seen above, it requires Respondent to persuade by a pre-
ponderance of the evidence that the action at issue would
have taken place absent the protected conduct. Furthermore,
if this case illustrates anything, it is that Respondent must
tolerate a certain level of imperfection among its drivers. If
it did not, hardly any of Respondent’s current drivers would
still be employed.
In my judgment, Respondent has failed to carry its burden
of persuasion. The dividing line between Berger’s
derelictions and those of some other drivers is hazy, if not
nonexistent altogether. This is especially true with respect to
drivers Burkhardt, Schliecher, and Schiltz.
In each of these three other cases, serious deficiencies ap-
pear to have been ignored or tolerated. Thus, despite the
warning that Schliecher would face termination for one fur-
ther incident similar to his speeding violation in January, Re-
spondent failed to carry out this threat 3 months later when
he again received a traffic citation, this time for running a
traffic signal. Burkhardt was given a leave and placed in a
nondriving position and subsequently promoted after being
arrested and having his license suspended for driving while
intoxicated. Even worse, the circumstances strongly indicate
that Burkhardt was enroute to work when this incident oc-
curred despite Shaleen’s unsubstantiated assertion to the con-
trary. Schiltz, characterized as an accident waiting to happen
by his fellow drivers and demoted, kept his job despite sev-
eral subsequent incidents.
By contrast, Berger was promoted and then terminated less
than 3 weeks later following a complaint by a former driver
who, purportedly, was so concerned about the nonaccident
incident that he took nearly 2 days to report it. And unlike
every other public complaint seen in this case, the decision
to discharge Berger was made before Berger was confronted
with the report and provided with an opportunity to explain
his version of what occurred.15
Ahles assertion that Berger’s May 31 promotion was
merely an automatic longevity step is less than convincing in
light of the evidence that the same personnel policy was used
to demote Schiltz and other evidence suggesting that the
driver’s records are reviewed annually at or near their anni-
versary date.
Equally disturbing are the pretexts and exaggerations cited
to buttress the claim that Berger’s record merited his dis-
charge and the effort to minimize conduct by others similar
to Berger’s.
The claim that Berger falsified his logbook on June 16 is
belied by Respondent’s own effort to explain away the sig-
nificant number speed standard violations reflected in its log
audits. Among the explanations provided for these speeding
excesses is the fact that drivers, on occasion, inaccurately
record their actual driving hours. This explanation alone sug-
gests that the drivers’ logs are not precisely kept, the point
Berger made when asked to respond at the hearing to the fal-
sification claim.
Shaleen’s casual implications that Schliecher’s failure to
call on his offdays in July was understandable because he
lived near the Iowa border at the time and that another driv-
er, in effect, was not entirely responsible for running an auto
off the road into a ditch in an incident similar to the Berger-
Titus matter because the auto was in the driver’s blind spot
further detract from the persuasiveness of Respondent’s case.
In sum, I have concluded that Respondent failed to carry
its burden of persuasion in this case. The ‘‘throw the book
at ’em’’ discharge of Berger lacks credibility in the context
of Respondent’s treatment of other drivers. Hence, I conclude
that after Respondent learned that Berger, a driver obviously
respected by his peers, had been converted to the union
cause, it seized an early opportunity to discharge him. The
circumstances shown to exist here merit the inference, which
I have made, that absent Berger’s union activity, he would
not have been discharged for any of the reasons which arose
between June 13 and the date of his termination. Accord-
ingly, I find that Berger’s June 18 discharge was unlawful.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with Respondent’s business operations, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By soliciting employees to report union activity to man-
agement in a notice posted and distributed on March 26, and
by creating the impression that Gerald Leonard’s union activ-
ity was under surveillance, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By discharging Steven Berger on June 18, Respondent
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) and (3) of the Act.
5. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
1347MISSISSIPPI TRANSPORT
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
17 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
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.’’
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended Order requires Re-
spondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
To remedy Berger’s unlawful discharge, Respondent must
offer, in writing, to immediately reinstate Berger to his
former position or, if that position no longer exists, to a sub-
stantially equivalent position without prejudice to his senior-
ity or any other benefits. Respondent must also make Berger
whole for the loss of pay and benefits suffered by reason of
the discrimination against him.
Backpay, if any, shall be computed on a quarterly basis as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). Contributions due to any trust fund
account on behalf of Berger shall be determined in accord
with Merryweather Optical Co., 240 NLRB 1213 (1979).
Respondent must further expunge from any of its records
any reference to Berger’s June 18 discharge, and notify
Berger, in writing, that such action has been taken and that
any evidence related to that discharge will not be considered
in any future personnel action affecting him. Sterling Sugars,
261 NLRB 472 (1982).
Finally, Respondent must post the attached notice to in-
form employees of their rights and the outcome of this mat-
ter.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Mississippi Transport, Inc., Stillwater,
Minnesota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against its em-
ployees in order to discourage membership in a labor organi-
zation.
(b) Making statements to employees which tend to create
the impression that employee union activity is under surveil-
lance.
(c) Soliciting employees to report lawful union activity to
management officials.
(d) In any like or related manner interfering with, restrain-
ing, coercing, or discriminating against employees because
they exercise rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately offer to reinstate Steven Berger and make
him whole for all losses resulting from his June 18, 1991
discharge as specified in the remedy section of the judge’s
decision in this matter.
(b) Expunge from its records any reference to Steven
Berger’s discharge on June 18, 1991, and notify him, in writ-
ing, that such action has been taken and that this discharge
will not be used in any future personnel action involving
him.
(c) Preserve and, on 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 determine
compliance with paragraphs 2(a) and (b), above.
(d) Post at its Stillwater, Minnesota terminal copies of the
attached notice marked ‘‘Appendix.’’17 Copies of the notice,
on forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) 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 ORDERED that complaint paragraph 5(c) be
dismissed in accord with the General Counsel’s motion
granted herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or discriminate against employees
in order to discourage membership in General Drivers, Help-
ers and Truck Terminal Employees, Local No. 120, affiliated
with International Brotherhood of Teamsters, AFL–CIO, or
any other labor organization.
WE WILL NOT make statements to our employees for the
purpose of creating the impression that your union activities
are under surveillance by us.
WE WILL NOT request our employees to report lawful
union activity to us.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees because they exercise their
rights guaranteed by Section 7 of the Act.
1348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL immediately offer to reinstate Steven Berger to
his former position, and pay him for wages and benefits he
lost as a result of his June 18, 1991 discharge with interest
as provided by law.
WE WILL notify Steven Berger in writing that we have ex-
punged any reference to his June 18, 1991 discharge from
our records and that we will not rely on that discharge in any
future personnel actions involving him.
MISSISSIPPI TRANSPORT, INC.