North Dixie Truck & Trailer, Cal'S Trucking, Inc. And Roeder Cartage Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 158 (N.L.R.B. 1988)

158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
North Dixie Truck & Trailer, Cal's Trucking, Inc
and Roeder Cartage Company , Inc and Team
sters Local Union No 908 , a/w International
Brotherhood of Teamsters, Chauffeurs, Ware
housemen and Helpers of America , AFL-CIO i
Case 8-CA-20136
September 30 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT AND
HIGGINS
On April 26 1988 Administrative Law Judge
Marvin Roth issued the attached decision The Re
spondent filed exceptions and a supporting brief 2
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and a supporting
brief and has decided to affirm the judge s rulings
findings 3 and conclusions and to adopt the recom
mended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent North Dixie
Truck & Trailer Cal s Trucking Inc and Roeder
Cartage Company Inc Lima Ohio its officers
agents successors and assigns shall take the action
set forth in the Order
On November 1 1987 the Teamsters International Union was read
milted to the AFL-CIO Accordingly the caption has been amended to
reflect that change
The Respondent has requested oral argument The request is denied
as the record exceptions and brief adequately present the issues and the
positions of the parties
3 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Paul C Lund Esq for the General Counsel
Thomas J Gibson Esq and Patrick J Johnson Lsq of
Toledo Ohio for the Respondents
Mr Jerry Rhinock of Lima Ohio for the Charging
Party
DECISION
STATEMENT OF THE CASE
MARVIN ROTH Administrative Law Judge This case
was heard at Lima Ohio on 18 November 1987 1 The
' All dates are for 1987 unless otherwise indicated
charge was filed on 29 May by Teamsters Local Union
No 908 a/w International Brotherhood of Teamsters
Chauffeurs Warehousemen and Helpers of America (the
Union) The complaint which issued on 13 July alleges
that North Dixie Truck & Trailer Cal s Trucking Inc
and Roeder Cartage Company Inc (respectively North
Dixie Cal s and Cartage and collectively the Company
or Respondents) violated Section 8(a)(1) and (3) of the
National Labor Relations Act The gravamen of the
complaint is that the Company allegedly discharged em
ployees Richard Roeder and Gary Joseph because of
their union activities and engaged in unlawful interroga
tion threats of reprisal surveillance and creating the im
pression of surveillance The Company s answer denies
the commission of the alleged unfair labor practices All
parties were afforded full opportunity to participate to
present relevant evidence to argue orally and to file
briefs The General Counsel and the Company each filed
a brief
On the entire record in this case2 and from my obser
vation of the demeanor of the witnesses and having con
sidered the briefs and argument of the parties I make the
following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
North Dixie a sole proprietorship and Cal s and Cart
age each an Ohio corporation maintain a common
office and place of busines. in Lima Ohio North Dixie
is engaged in the service and repair of trucks and trailers
Cal s is engaged in interstate and intrastate transportation
of freight and Cartage is engaged in interstate and intra
state transportation of liquid chemicals In their respec
tive operations Cal s and Cartage each annually derive
gross revenues in excess of $50 000 from interstate trans
portation of freight and commodities and North Dixie
annually provides services valued in excess of $50 000
for other enterprises that are directly engaged in inter
state commerce It is undisputed that North Dixie Cal s
and Cartage are commonly owned operated and con
trolled have a common labor policy and constitute a
single business enterprise and a single employer or joint
employer within the meaning of the Act It is also undis
puted and I so find that Respondents are employers en
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel presented uncontroverted evi
dence concerning the Union s organizational campaign
and the Company s response including alleged interroga
tion threats surve llance and creating the impression of
surveillance As will be discussed the facts established
by that testimony are to a considerable extent dispositive
Errors in the transcript have been noted and corrected
291 NLRB No 21
NORTH DIXIE TRUCK & TRAILER 159
of the allegations that Richard Roeder and Gary Joseph
were discriminatorily discharged
Calvin Roeder is president and principal owner of the
Company He has and still does employ members of his
family In February Dana Roether Calvin Roeder s son
in law was working for Cartage as a truckdriver and
Richard Roeder Calvin s brother was working as a me
chanic for North Dixie (Because of the similarity or
identity of surnames I shall sometimes refer to Calvin
Roeder Richard Roeder and Dana Roether by their
first names) During the week of February 16 there was
talk of union organization among the employees at the
Company s Lima facility The Union scheduled a meet
ing for employees for Saturday February 21 at 11 am
at a union hall in Lima On Friday February 20 be
tween 5 and 6 p in Richard went to the shop foreman s
office with his worksheets before leaving work for the
day Richard previously told other employees that he
would attend the union meeting He overheard part of
two telephone conversations involving Cartage Chief
Dispatcher and Safety Coordinator Roy Alexander who
is undisputedly a supervisor within the meaning of the
Act The telephone rang and Alexander answered He
said Okay thank you I will notify Cal right away
Alexander then made a call He said Cal this is Roy I
just heard of a union meeting for tomorrow morning
After further conversation Alexander said I 11 explain
the rest of it to you when you get here About 6 p in
after Richard left Dana came into the dispatch office
from a run Alexander asked if he knew about the union
meeting Dana admitted that he did Alexander asked if
he was going to attend Dana answered that he would
probably go that It s a free country Alexander replied
that Cal would close the doors before he would let a
union in and that we all knew that (The quoted
words were Alexander s) Alexander said that they
would just start a bunch of trouble Alexander asked
how many drivers were going to the meeting Dana an
swered that he did not know Also during the same
period of time (5 to 6 p m) driver Gary Joseph called in
about a dispatch Alexander asked if he knew about the
union meeting Joseph answered that he did Alexander
replied Well you know you guys are starting a bunch
of trouble Cal s going to close the doors The forego
ing findings are based on the testimony of Richard
Dana and Joseph Alexander was presented as a compa
ny witness but did not testify concerning these matters
The next morning some 8 to 13 employees went to the
union meeting including Don Armer (who evidently iris
tiated the union campaign) Joseph Dana and Richard
Union Business Agent Jerry Rhinock was late and the
meeting eventually started about 11 45 a in In the mean
time the employees went across the street to a carryout
As they were standing in the parking lot they saw Alex
ander drive by with another person On Monday Febru
ary 23 Alexander asked Dana if he saw Alexander in the
parking lot Dana answered that he saw him drive by
Alexander replied that he and Cal s manager William
Russell (also a supervisor) sat in the parking lot to see
who went to the union meeting Alexander did not tests
fy about the matter on his direct examination On cross
examination by the General Counsel (over the objection
of company counsel) Alexander testified that he and
Russell knew there would be a union meeting that they
drove by the union hall and saw a few of the employees
there and that he (Alexander) went because he was cu
sous to see who was there
The employees who were present at the meeting
signed union authorization cards and Joseph took addi
tional cards with him The next day (Sunday February
22) Dana s wife told him that her mother told her that
Calvin thought Dana started the union talk Dana went
to Calvin s home and explained that he did not start the
union campaign Calvin answered that he was taking all
that with a grain of salt (i e that he was skeptical of
such denials) Calvin pulled out a sheet of paper with a
list of names and proceeded to read them off one by
one asking Dana if each was present at the union meet
ing Dana confirmed that all those named were present
Calvin made remarks concerning some of those named
He said that he was hurt because Dana was present
He said that it also hurt him that Don Armer went be
cause they had gone hunting together He said that he
was also hurt by Joseph s presence because he had done
a lot for Gary over the years As for his brother Rich
and he said that Dick had been a thorn in his side since
he had been there and he was going to take care of
him Calvin added that he knew who the troublemakers
were and would take care of them The foregoing find
ings concerning the event of February 22 are based on
Dana s testimony Calvin was not presented as a compa
ny witness He was called to testify by the General
Coansel concerning other matters I reject the Compa
ny s argument (Br 15) that the February 22 conversation
should be disregarded as being just a friendly family con
versation that could not possibly have any bearing on the
merits of this case As indicated Calvin employed mem
bers of his family Calvin also felt free to fire family
members when he was so inclined He fired his brother
Russell in 1986 he fired Richard on February 23 and he
fired Dana on March 19 3 It is evident that when it came
to the business Calvin dealt with his family at arm s
length Dana was an employee entitled to the protection
of the Act See Laborers Local 282 (Millstone Construc
tion) 236 NLRB 621 640-641 (1978) Under the Act the
February 22 conversation should be considered in the
same manner as any other conversation between an em
ployer and employee I find in light of the evidence dis
cussed above that Calvin instructed Supervisors Alexan
der and Russell to spy on the union meeting and identify
those employees who attended the meeting that the su
pervisors did so and furnished Calvin with a list of the
names of the employees who attended the meeting and
that Calvin did so in order to intimidate the employees
and obtain information in order to retaliate against the
employees In the context of the February 22 conversa
tion which concerned the union meeting Calvin s ex
pressed anger at those who attended the meeting and his
expressed intent to punish the troublemaker., I find
'Some testimony was introduced concerning the circumstances in
which Russell and Dana were terminated However their discharges are
not at issue in this case and I have not made any findings on the record
for their terminations
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Calvin threatened to take care of Richard because
of his union activity and not because of his work per
formance and that Calvin s threat may properly be con
sidered as evidence indicating the real reason for Rich
and s subsequent discharge
On Monday February 23 Richard was at work when
he was summoned to Calvin s office Calvin said I hear
you don t like working here Richard did not answer
Calvin then declared that from your appraisal it has not
improved and that you re fired Calvin did not show
Richard any appraisal Richard was not aware of any
actual or ostensible current appraisal and was not shown
any such appraisal until he subsequently applied for un
employment compensation (On January 19 Shop Fore
man Thomas Eickholt gave Richard a written appraisal
which will be discussed )
That same day when Dana came in from a run Chief
Dispatcher Alexander told him that the shit hit the
fan that there would be a safety meeting on Saturday
and that the Company would be making changes includ
ing two manning drivers Alexander subsequently told
Dana that the Company would be making these changes
because of the Union Two manning is a system that is
usually used for a hot load (i e one that must run
continuously and would not allow time for the driver to
stop for sleep) Two drivers are assigned to the truck so
that one can sleep in the truck while the other drives
The drivers do not like this system because their pay is
divided (i e the drivers divide their mileage loading
and unloading pay) The Company also uses two drivers
for training runs In these situations an experienced
driver is assigned to a run with a new driver who al
though qualified to drive the truck may not be familar
with loading and unloading procedures (e g with liquid
chemical loads) As will be discussed the testimony is in
dispute concerning the manner of pay on these runs and
whether they constitute two manning
The safety meeting was conducted on February 28 as
scheduled The drivers were not required to be present
at the meeting and Gary Joseph chose not to attend
Dana was present and testified concerning the meeting
Calvin was present and addressed the employees Alex
ander told the employees that the Company was going
to start two manning One employee asked if the drivers
were required to accept a two man run Alexander an
swered No if you don t accept your two man run you
just probably won t work the day Alexander testified
that the employees were told that the Company had to
train four new drivers because it anticipated new busi
ness He testified that the Company also discussed insur
ance and the purchase of new equipment However Al
exander did not deny Dana s testimony concerning the
meeting or Alexander s prior statements I credit Dana I
find in light of his testimony that the Company initiated
two manning in reprisal for the employees union activi
ty and that the Company led the drivers to believe that
they were not required to accept a two man run but
would at most lose a day s work
The Company fired Dana on March 19 Dana testified
that at that time Alexander told him that he was fired be
cause he went to the union meeting and that the em
ployees were all getting their just desserts Dana s tes
timony is uncontradicted and I credit his testimony As
indicated Dana s discharge is not an issue in this case
However I find that Alexander s statement may proper
ly be considered as evidence on the discharges of Rich
and and Joseph which are at issue
I find that the Company by Alexander violated Sec
tion 8(a)(1) of the Act by threatening Dana and Joseph
with plant closure if the employees chose a union as
their representative Alexander did not make a carefully
phrased prediction of the possible economic conse
quences of specific union proposals Rather he flatly
equated unionization with plant closure I further find
that the Company by Calvin violated Section 8(a)(1) by
threatening to fire employees including Richard because
of their union activities and that the Company by Alex
ander violated Section 8(a)(1) by threatening more oner
ous working conditions including two manning because
of the employees union activity I also find that the
Company by Supervisors Alexander and Russell violat
ed Section 8(a)(1) by engaging in surveillance of a union
meeting I further find that the Company by Calvin un
lawfully created the impression of company surveillance
of union activity by indicating to employee Dana that he
had a list of employees who attended the February 21
union meeting and by Alexander also unlawfully cre
ated the impression of surveillance of union activity by
telling Dana that he and Supervisor Russell watched to
see who attended the union meeting In its brief (pp 16
19) the Company argues that threats and surveillance are
unlawful only when the General Counsel demonstrates
that such conduct had an actual effect on the exercise of
employee rights This is a misstatement of the law
Threats surveillance and the impression of surveillance
like other alleged violations of Section 8(a)(1) (e g
promises and grants of benefit) are unlawful because
they have an inherent tendency to interfere with re
strain and coerce employees in the exercise of their stat
utory rights See NLRB v Gissel Packing Co 395 U S
575 618-619 (1969) NLRB v Exchange Parts Co 375
U S 405 409-410 (1964) I further find that the Compa
ny by Alexander violated Section 8(a)(1) by interrogat
ing Dana and Joseph about their union activities and the
union activities of their fellow employees Alexander had
no legitimate reason to question the employees He did
not give them any assurance against reprisal Rather the
interrogation took place in the context of unlawful
threats and against a background of known employer
hostility to unionization In light of subsequent develop
ments it is evident that the Company was seeking infor
mation and a basis for reprisal against the employees
Therefore the interrogation was unlawful
This leaves the discharges of Richard Roeder and
Gary Joseph Calvin Roeder did not testify concerning
either matter Thomas Eickholt who was shop foreman
and Richard s immediate supervisor in 1987 testified that
he recommended to Calvin that Richard be discharged
Roy Alexander testified that he recommended to Calvin
that Joseph be discharged In each instance Calvin made
the actual decision In the absence of any testimony by
Calvin the testimony of Eickholt and Alexander has lim
ited evidentiary value
NORTH DIXIE TRUCK & TRAILER
With regard to Richard Eickholt testified in sum as
follows In January 1987 the Company began a practice
whereby Eickholt prepared and gave a wntten appraisal
to each of the employees under his supervision Pursuant
to this practice Eickholt gave Richard an appraisal
dated January 19 Thereafter Richards performance did
not improve On Friday February 20 Eickholt prepared
a written appraisal in which he expressed his opinion
that at this time Richard Roeder cannot be considered
an asset to the company and appropriate actions should
be taken The appraisal was dated February 19 Eick
holt did not show the appraisal to Richard Instead on
the evening of February 20 he told Calvin about the ap
praisal As indicated on February 23 Calvin discharged
Richard
The January 19 appraisal which was presented in evi
dence contained spaces for entry of ratings in various
areas of performance e g attendance and quality of
work ranging from poor to excellent Richard was rated
in seven listed areas as fair satisfactory or good He was
not rated as either poor or excellent in any area The text
of Richards appraisal was mildly critical of his perform
ance Eickholt stated in sum that Richard was capable of
performing almost all phases of the work but that he did
not achieve full performance in that he spent too many
hours on the job because he visited with other employees
and had an attitude problem (Richards attitude was
rated as fair) According to the appraisal the attitude
problem stemmed from a family conflict and the fact that
Richard wanted a raise Eickholt commented that Dick
must improve on job results per man hours spent on a
job within time frame set by North Dixie Management
The time frame was not defined However the ap
praisal was designated as an annual appraisal The
Company did not give Richard any warning disciplinary
notice or action or admonition other than the appraisal
itself Eickholt initially testified that we talked to
Richard many times but subsequently admitted that he
first talked to Richard in January 1987 Eickholt had
been Richards supervisor since January or February
1986
Eickholt s version of the events leading to Richard s
termination is incredible Richard worked for the Com
pany for a total of more than 4 years He quit twice and
was rehired twice and worked continuously for the
Company for nearly 2 years until his discharge The
Company never gave him a written warning or other
disciplinary action In the absence of a discriminatory
motive it is unlikely in these circumstances that Calvin
would summarily discharge his brother simply on the
basis of a supervisors appraisal of his performance
Moreover assuming that Richard was discharged for in
adequate work performance his discharge would be in
consistent with the Company s usual procedure in such
cases Testimony and the Company s records indicate
that such discharges would normally follow written
warning or other disciplinary action The Company s
records show that employee Terry Murphy who began
working in early 1986 was discharged on July 10 1987
for poor work (leaving trailer dirty) The records also in
dicate that Murphy was given numerous warnings and a
2 day suspension on June 22 for such poor performance
161
Calvin who was called only as a General Counsel wit
ness testified that he knew nothing about the suspen
sion However Eickholt testified that Calvin approved
the suspension (Eickholt subsequently attempted to avoid
responsibility for Murphy s suspension by contradicting
his earlier testimony and asserting that he was a supervi
sor on June 22) The Company s records also show that
employee Anthony Van Winter was hired on October 1
1986 and discharged on October 19 1987 On January
20 or February 20 Eickholt gave Van Winter a ntten ap
praisal that indicated his work was satisfatory but he
was hesitant in making decisions Thereafter according
to the Company s records Van Winter s work and atti
tude deteriorated Nevertheless unlike Richard he was
kept on the job Van Winter was given a written warn
ing for absenteeism on July 9 and another warning on
September 20 Calvin testified that he did not know why
Eickholt did not give Richard any warning or disciple
nary suspension
I do not credit Eickholt Calvin made clear to Dana
the real reason for Richards discharge I find in light of
Calvin s statements the timing of the discharge the pre
textural reason given by the Company for the discharge
the demonstrated lack of credibility of Eickholt and
Calvin and the absence of any testimony by Calvin con
cerning the discharge that Calvin fired Richard because
of his union activity and for no other reason I find that
the alleged February 19 appraisal was probably prepared
on the morning of February 23 as a pretext for the dis
charge after Calvin learned that his brother attended the
union meeting Therefore the Company violated Section
8(a)(1) and (3) of the Act by discharging Richard
Roeder
Gary Joseph worked for the Company as a truckdriv
er He was employed by the Company from 1976 to
1979 quit was rehired in 1982 and worked continuously
for the Company until his discharge on March 2 The
Company prior to February 26 never gave Joseph a
reprimand or other disciplinary action In November
1986 Chief Dispatcher Alexander asked Joseph to take a
two man run They argued Joseph agreed to take the
run but said that from then on he wanted another truck
specifically another truck that was not suitable for two
man runs Alexander switched Joseph to another run
gave him an old truck and thereafter until March 1
Joseph was never assigned a second driver
During the week following the union organizational
meeting Joseph was running a tanker truck On Tuesday
or Wednesday he found the inside of his cab covered
with grease He cleaned the cab and proceeded on his
run Each day Joseph called the dispatch office to get his
assignment Alexander did not object to this procedure
However on Friday when Joseph picked up his pay
check the check was accompanied by a wntten warning
notice to Joseph dated February 26 admonishing him for
needless late night or early morning calls to dispatcher
for reasons that do not require his or her notification
Joseph protested to Alexander but Alexander offered no
explanation and he did not testify about the matter
As indicated Joseph did not attend the February 28
safety meeting Joseph testified in sum concerning the
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
events of March 1 and 2 as follows On Sunday evening
March 1 Alexander called Joseph to assign him a run
Alexander said that Joseph had to take a new driver
with him Joseph answered that he would not two
man Alexander insisted that Joseph had to take the run
and said that he would get back to Joseph About 15
minutes later Alexander called again saying that Calvin
said he had to take the run or be terminated Joseph an
swered that he was not quitting and that Calvin could
do whatever he wanted Joseph next called Union Bu
sines Agent Rhinock who advised him to take the run
About 30 minutes after his second conversation with Al
exander Joseph called Alexander and said he would take
the run Alexander answered that the run was covered
and Joseph should bung in his truck on Monday When
Joseph came in the next day he was summoned to the
office where supervisors Alexander and Russell told him
that he had voluntarily quit Joseph denied that he quit
and refused to sign a resignation form
Chief Dispatcher Alexander testified that Joseph was
discharged on March 1 for refusing a dispatch Alexan
der testified that on the evening of March 1 he called
drivers to assign runs proceeding in order of seniority
he first called Don Armer and assigned him a training
run which Armer accepted Alexander next called
Joseph to assign him a training run although Joseph was
fifth in seniority among the Company s 16 to 18 drivers
According to Alexander no driver with higher seniority
was available for a training run As found Armer initiat
ed the union campaign and Calvin in his conversation
with Dana explained that he was hurt by the presence
of Armer and Joseph at the union meeting Alexander
testified that Joseph answered that he would not go be
cause he was not going to put his life in someone else s
hands Alexander said he was not doing that and that
Joseph previously went on training runs He asked if
Joseph was sure he would not make the run and Joseph
said he was According to Alexander he said if Joseph
did not go he was terminating himself whereupon
Joseph answered that he was not going to quit However
in his investigatory affidavit Alexander did not indicate
any other driver and that the supervisors would always
confer with Calvin before terminating an employee On
being confronted with his affidavit Alexander testified
that he was not sure what he said in this first conversa
tion Alexander testified that he next called Calvin who
agreed that Joseph should be terminated Alexander
again called Joseph who again declined the run Alexan
der admitted in his testimony that he could have assigned
Joseph a single run Instead of offering Joseph an alter
native run he proceeded down his list until he complet
ed all assignments No other driver refused a run Alex
ander testified that some 60 to 75 minutes after his
second conversation Joseph called and said he changed
his mind Alexander answered that Joseph was too late
and that the dispatch was completed Alexander testified
that he could not recall whether he knew at the time
that Joseph was involved with the Union In view of Al
exander s surveillance of the union meeting his assertion
is incredible
Joseph testified that when he previously ran training
runs he was put on half pay Alexander testified that on
training runs the trainer gets full pay If this was true
then the Company could have produced payroll records
to substantiate Alexander s testimony However the
Company did not do so Alexander s testimony is uncor
roborated Between Joseph and Alexander I credit
Josepn As indicated I have problems with Alexander s
credibility I have no comparable problems with Joseph s
testimony I credit his testimony concerning the events
of March 1 After Joseph attended the union organiza
tional meeting the Company proceeded to harass him
giving him an unwarranted disciplinary warning On
March 1 the Company assigned training runs to Armer
and Joseph in reprisal for their union activity When
Joseph refused to accept the run Calvin used his refusal
as a pretext to fire him Because the assignment itself was
discriminatory it follows that the discharge was also un
lawful Even if the assignment were not discriminatory
the Company would not absent a discriminatory motive
have discharged Joseph for refusing to take the run In
stead the Company would have assigned Joseph to a
single run (in accordance with their standing arrange
ment) or simply denied him a run that day in accord
ance with company policy as stated at the February 28
safety meeting I find that the Company discharged
Joseph because of his union activity and for no other
reason and thereby violated Section 8(a)(1) and (3) of
the Act Regarding both Richard and Joseph the Getter
al Counsel presented a prima facie case that the Compa
ny discharged them because of their union activity and
the Company failed to meet its burden of establishing
that it would have discharged them in the absence of
such activity 4
CONCLUSIONS OF LAW
1 Respondents are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 By interfering with restraining and coercing its em
ployees in the exercise of the rights guaranteed in Sec
tion 7 of the Act the Company has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act
4 By discriminating in regard to the tenure of employ
ment of Richard Roeder and Gary Joseph thereby dis
couraging membership in the Union the Company has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act
4 Following their terminations Richard and Joseph each applied for un
employment compensation The Company contested both claims Both
initially and on review the Ohio Department of Unemployment Compen
sahon sustained Richards claim and denied that of Joseph The depart
ment concluded that Richard was discharged without just cause and that
Joseph was discharged for just cause because he refused a reasonable as
signment from his Employer Both determinations were substantially
based on an overall appraisal of the evidence rather than on any finding
or findings concerning disputed operative facts As the department did
not in either proceeding consider whether the employees were dis
charged because of their union activity the determinations have minimal
evidentiary value in the present case However I have considered both
determinations in making this decision
NORTH DIXIE TRUCK & TRAILER 163
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
THE REMEDY
Having found that the Company has committed viola
tions of Section 8(a)(1) and (3) of the Act I shall recom
mend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act
Having found that the Company discriminatorily ter
minated Richard Roeder and Gary Joseph it will be rec
ommended that the Company be ordered to offer each of
them immediate and full reinstatement to his former job
or if it no longer exists to a substantially equivalent po
sition without prejudice to his seniority or other rights
and privileges previously enjoyed and make him whole
for any loss of earnings and benefits that he may have
suffered from the time of his discharge to the date of the
Company s offer or reinstatement I shall also recom
mend that the Company be ordered to expunge from its
records any reference to the unlawful discharges of
Roeder and Joseph to give written notice of such ex
punction to each of them and to inform each of them
that its unlawful conduct will not be used as a basis for
future personnel actions against them See Sterling
Sugars 261 NLRB 472 (1982) Backpay shall be comput
ed in accordance with the formula approved in F W
Woolworth Co 90 NLRB 289 (1950) with interest as
computed in New Horizons for the Retarded 283 NLRB
1173 (1987) 5 It will also be recommended that the Com
pany be required to preserve and make available to the
Board or its agents on request payroll and othe records
to facilitate the computation of backpay due
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ede
ORDER
The Respondents North Dixie Truck & Trailer Cal s
Trucking Inc and Roeder Cartage Company Inc their
officers agents successors and assigns shall
1 Cease and desist from
(a) Discouraging membership in Teamsters Local
Union No 908 a/w International Brotherhood of Team
sters Chauffeurs Warehousemen and Helpers of Amer
ica AFL-CIO or any other labor organization by dis
criminatonly terminating employees or in any other
manner discriminating against them with regard to their
hire or tenure of employment or any term or condition
of employment
(b) Threatening to discharge employees because of
their union activity
5 Under New Horizons interest on and after January 1 1987 is comput
ed at the short term Federal rate for the underpayment of taxes as set
out in the 1986 amendment to 26 U S C § 6621
6 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
(c) Threatening employees with plant closure more
onerous working conditions or other reprisal because of
their union activity
(d) Interrogating employees about their union attitude
or activities or those of their fellow employees
(e) Engaging in surveillance of union activities
(f) Creating the impression of surveillance of union
meetings or other union activity by telling employees
that the Company engaged in such surveillance or by in
dicating that the Company knows who attended union
meetings
(g) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Richard Roeder and Gary Joseph immediate
and full reinstatement to their former jobs or if those
jobs no longer exist to substantially equivalent positions
without prejudice to their seniority or any other rights
or privileges previously enjoyed and make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them in the manner
set forth in the remedy section of the decision
(b) Remove from their files any reference to the dis
charges of Richard Roeder and Gary Joseph and notify
each of them in writing that this has been done and that
evidence of the unlawful discharges will not be used as a
basis for future personnel actions against them
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at their Lima Ohio office and place of busi
ness copies of the attached notice marked Appendix 7
Copies of the notice on forms provided by the Regional
Director for Region 8 after being signed by the Re
spondent s authorized representative shall be posted by
the Respondent immediately upon receipt 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 Respond
ent to ensure that the notices are not altered defaced 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 Re
spondent has taken to comply
If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the national
Labor Relations Board
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT discourage membership in Teamsters
Local Union No 908 a/w International Brotherhood of
Teamsters Chauffeurs Warehousemen and Helpers of
America AFL-CIO or any other labor organization by
discriminatorily terminating employees or in any other
manner discriminating against them with regard to their
hire or tenure of employment or any term or condition
of employment
WE WILL NOT threaten to discharge employees be
cause of their union activity
WE WILL NOT threaten employees with plant closure
more onerous working conditions or other reprisal be
cause of their union activity
WE WILL NOT interrogate employees about their union
attitude or activities or those of their fellow employees
WE WILL NOT engage in surveillance of union activi
ties
WE WILL NOT create the impression of surveillance of
union meetings or other union activity by telling employ
ees that we engaged in such surveillance or by indicating
that we know who attended union meetings
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Richard Roeder and Gary Joseph im
mediate and full reinstatement to their former jobs or if
those jobs no longer exist to substantially equivalent po
sitions without prejudice to their seniority or any other
rights or privileges previously enjoyed and WE WILL
make them whole for any loss of earnings and other ben
efits resulting from their discharge less any net interim
earnings plus interest
WE WILL remove from our files any reference to the
discharges of Richard Roeder and Gary Joseph and
notify them in writing that this has been done and that
evidence of the unlawful discharges will not be used as a
basis for future personnel actions against them
NORTH DIXIE TRUCK & TRAILER CAL S
TRUCKING INC AND ROEDER CARTAGE
COMPANY INC