O'Hare-Midway Limousine Service, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 463 (N.L.R.B. 1989)

O'HARE-MIDWAY LIMOUSINE SERVICE 463
O'Hare-Midway Limousine Service , Inc. and Ken-
neth E. Berg, Sr. Cases 13-CA-27460 and 13-
CA-27676
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 20, 1988 , Administrative Law
Judge Nancy M. Sherman issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief,' and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , O'Hare-
Midway Limousine Service, Inc., Wheeling, Illi-
nois, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
' The Respondent has requested oral argument . The request is denied
as the record , exceptions, and briefs adequately present the issues and the
positions of the parties.
8 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
Barbara Sapin, Esq. and Alan Hellman, Esq., for the Gen-
eral Counsel.
Michael Abramson, Esq., of Chicago , Illinois, for the Re-
spondent.
DECISION
May 11, 1988, to reopen the record in Case 13-CA-
27460 and consolidate it with Case 13-CA-27676, which
motion I granted without opposition on May 24, 1988,
the consolidated cases were heard before me on June 28,
1988, in Chicago , Illinois . The complaint in Case 13-
CA-27460 alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by
interrogating an employee about July 14, 1987, regarding
his union membership , activities , and/or sympathies; and
violated Section 8(a)(1) and (3) by refusing about Octo-
ber 13, 1987, and "continuing to date," to return Berg to
a full-time work schedule because of his concerted activi-
ties and his activities on behalf of Auto Livery Chauf-
feurs, Embalmers , Funeral Directors, Apprentices, Am-
bulance Drivers and Helpers, Taxicab Drivers, Miscella-
neous Garage Employees , Car Washers , Greasers, Pol-
ishers, and Wash Rack Attendants Union , Local 727, an
affiliate of International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
AFL-CIO (the Union). The complaint in Case 13-CA-
27676 alleges that about March 31, 1988 , Respondent dis-
charged Berg because of his union and concerted activi-
ties and because of his charges and testimony in Case 13-
CA-27460, in violation of Section 8(a)(1), (3), and (4) of
the Act.
On the entire record , including the demeanor of the
witnesses who testified before me, and after due consid-
eration of the briefs filed by the General Counsel and
Respondent , I issue the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Illinois corporation with an office
and place of business in Wheeling , Illinois. At all materi-
al times, Respondent has been engaged in the business of
booking, billing, and dispatching limousines, mostly to
and from airports in Chicago, Illinois . During the calen-
dar or fiscal year preceding March 30 and May 11, 1988,
Respondent 's gross revenues exceeded $500,000, and Re-
spondent purchased and received at its Wheeling facility
products , goods, and materials valued in excess of $5000
directly from points outside Illinois . I find that, as Re-
spondent admits, Respondent is an employer engaged in
commerce within the meaning of the Act, and that asser-
tion of jurisdiction over Respodent 's operations will ef-
fectuate the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
STATEMENT OF THE CASE
NANCY M . SHERMAN, Administrative Law Judge.
Case 13-CA-27460 was heard before me in Chicago, Illi-
nois, on March 30 and 31 , 1988, pursuant to a charge
filed against Respondent O'Hare-Midway Limousine
Service, Inc., by Kenneth E. Berg, Sr., on January 6,
1988, and a complaint issued on February 11, 1988. After
the close of the hearing , the charge docketed as Case 13-
CA-27676 was filed by Berg against Respondent on
April 12, 1988, and a complaint based on that charge was
issued on May 11, 1988. Pursuant to the motion of coun-
sel for the General Counsel (the General Counsel) dated
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Representation Proceeding,- Berg's Alleged
Employee Status
The limousines booked and dispatched by Respondent
involve three categories of vehicles : limousines that are
owned or leased by Respondent (O'Hare-Midway cars);
limousines that are managed by Respondent, but owned
by other companies or individuals (managed cars); and
vehicles owned by owner -operators . On August 10, 1987,
the Union filed a petition with the Regional Office seek-
295 NLRB No. 52
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing a unit of "all regular full-time and regular part-time
drivers," excluding "Owner operators and drivers em-
ployed by owner operators, dispatchers, office clerical,
guards and supervisors as defined in the Act." Respond-
ent sought dismissal of the petition on the ground that all
the drivers of limousines dispatched by it are independ-
ent contractors rather than statutory employees. Follow-
ing a hearing conducted on September 1 and 10, 1987,
the Regional Director found on October 14, 1987, that
the drivers of O'Hare-Midway cars are employees within
the meaning of the Act, and directed an election in a unit
including them. On December 4, 1987, the Board denied
Respondent's request for review of the Regional Direc-
tor's Decision and Direction of Election.'
Respondent seeks dismissal of the instant complaints
on the grounds that Kenneth E. Berg Sr. was an inde-
pendent contractor rather than an employee. When driv-
ing limousines dispatched by Respondent, Berg almost
always drove O'Hare-Midway cars. The exhibits re-
ceived into evidence in the cases at bar include the rep-
resentation case record. With the exception noted in the
margin,2 I perceive nothing in the other portions of the
unfair labor practice case record which the Regional Di-
rector based his finding that drivers of O'Hare-Midway
cars are statutory employees, Thus, I feel constrained to
make a similar finding with respect to Berg's status. Serv-
U-Stores, 234 NLRB 1143, 1144 (1978). Accordingly, I
need not and do not consider whether a contrary finding
would require dismissal of the discharge allegations of
the complaint as to Berg, who is not contended to have
supplied anything to Respondent other than his own per-
sonal services, cf. Parker-Robb Chevrolet, 262 NLRB 402
(1982), affd. 711 F.2d 383 (D.C. Cir. 1983); Teamsters
Local 70 (Department of Defense), 288 NLRB 1224
(1988); Valley Forge Flag Co., 158 NLRB 1227, 1230,
1235 fn. 3 (1966).3
' Sua sponte , the Board found that the Regional Director had erred by
including in the unit the drivers of managed cars . The Board so found on
the ground that such drivers are jointly employed by Respondent and the
owners of the managed cars.
2 When Berg filed an application to drive for Respondent in March
1985, the application form included , before a blank calling for "signature
of applicant," the following language (emphasis supplied , for reasons
which will appear). "I authorize investigation of all statements contained
in this application as may be necessary in arriving at an employment [deci-
sion] I understand that this application is not an employment contract. In
the event of employment , I understand that false or misleading informa-
tion given in my application or interviews may result in discharge." The
representation case record shows that as of about March 1987 , and by the
time of the September 1987 representation case hearing, Respondent was
using an application which omitted the italicized language , and substitut-
ed for the last quoted sentence the sentence, "In the event of becoming a
chauffeur I understand that false or misleading information given in my
application or interviews may result in discharge " At the representation
case hearing , Company President George Parker testified that drivers like
Berg "have always been independent contractors, " and that Respondent
had operated in the same way since at least 1972
a As of the time of the hearings before me, the results of this election
(conducted on December 12 and 14 , 1987) were inconclusive because all
the ballots had been challenged and the Union had filed objections to the
election On November 23, 1988 , the Board overruled the pending objec-
tions and most of the challenges , including the challenge to Berg 's ballot,
and directed the Regional Director to open most of the challenged bal-
lots and prepare a revised tally of ballots.
B. Berg's History as a Driver for Respondent Before
the Union Campaign
Berg has had three or four tours of duty with Re-
spondent, the last of which began in March 1985. His ap-
plication for that job indicates that his penultimate tour
of duty for Respondent ended no later than 1971. On
February 13, 1984, while Berg wes driving his own car,
he received a ticket for lane usage and another ticket for
driving under the influence of intoxicating liquor (DUT).
He paid a fine, of an undisclosed amount, for lane usage.
On his attorney's advice, Berg agreed on April 2, 1984,
to the following disposition of DUI charge: he pleaded
guilty to the DUI charge, was fined $550 (which he
paid), and received a year of "supervision" pursuant to
Ill. Rev./ Stat., c. 38, par. 1005-6-1 (see infra fns. 25 and
27). Under the "supervision" order, Berg retained his
driver's license and, if he received no more tickets for a
year, the DUI charge would not be on his driving
record. Although the court records state that his "super-
vision" was not to end until April 1, 1985, 1 year after
his DUI plea, Berg credibly testified to the belief that
the "Supervision" period ended on February 14, 1985, 1
year after he received his ticket. Berg was not in fact
found guilty of any traffic violations between his DUI
plea and February 14, 1985, or (so far as the record
shows) at any time thereafter as of June 28, 1988, the
date of the reopened hearing.
On March 7, 1985, in connection with an application
to resume driving for Respondent, Berg filled out a form
headed "Employment Experience" in which he was
asked to list all traffic violations within the last 3 years.
He listed the "lane usage" but not the DUI matter. In
response to the question on the form, "Have you ever
had you license suspended or revoked?" he checked the
"Yes" box and added, in his own hand-printing, "When I
was 16 [years] old"-that is, captioned "Agreement,"
and stating, inter alia, "In the event of employment, I un-
derstand that false or misleading information given in my
application . . . may result in discharge." On March 18,
1985, he resumed driving for Respondent.
C. The Union's Campaign and Berg's Participation
About the end of June 1987, Berg and other drivers
approached the Union to become the drivers' bargaining
agent . On July 10, 1987, Berg signed a union authoriza-
tion card which he gave to fellow driver on the Union's
organizing committee. On August 10, 1987, the Union
filed a representation petition with the Board's Regional
Office, seeking to represent Respondent's drivers. Re-
spondent sought dismissal of the petition on the ground
that all drivers dispatched by it were independent con-
tractors rather than employees.
Berg passed out authorization cards in the drivers'
O'Hare Field "stating area" for signature by other driv-
ers and, on the Union's behalf, attended the representa-
tion case hearing on September 1 and 10, 1987. In addi-
tion, he acted as a union observer during the election on
December 12 and 14, 1987.
O'HARE-MIDWAY LIMOUSINE SERVICE
D. Alleged Unlawful Interrogation
July 13, 1987 , while driving an O'Hare -Midway car,
Berg rear-ended another car, his first chargeable accident
in almost 25 years of professional driving . The collision
resulted in property damage totaling $3000, of which,
under the standard arrangements between Respondent
and the drivers, Berg had to and did pay $1000. One of
Respondent 's brand new cars had been involved in this
collision, and the owner of the other car happened to be
the best friend of Company President George Parker.
Although Berg was not scheduled to drive on the fol-
lowing day , July 14, 1987, that day was his "turn-in
day," when he was required by company rule to turn in
the cash, checks , and charge slips received for fares, and
also "trip envelopes" on which the driver is supposed to
enter certain operational records, generated since his last
"turn-in day ." Berg came to Respondent 's office, turned
in this material to bookkeeper Susan Perry , and also
either made a payment in connection with the July 13
accident or made arrangements for a payment schedule.
Then, he waited in the office for the return of Oper-
ations Manager Neal Mehr, who was not there and from
whom Berg wanted to find out what car he would be as-
signed to on the following day, July 15. Also in the
office at that time were Company General Manager
Gregory B. Eggan (whose supervisory status was stipu-
lated at the representation case hearing ), Company Presi-
dent George Parker, and his brother , Operations Manag-
er Guy Parker, who has the authority to hire and reject
applicants and is in charge of a screening and training
process involving all new drivers dispatched by Re-
spondent. George Parker routinely is present in the
office during most "turn-in days, "during which he asks
the drivers questions about "the money ," what is new
and exciting out there , and about "the competition." In
turn, the drivers ask him a lot of questions about "differ-
ent things that are happening at the company ." In addi-
tion , on these occasions Parker and the drivers discuss
matters unrelated to business.
A few minutes before reaching the office that day,
George Parker had been talking with the friend who
owned the car Berg had damaged, and was a "little bit
annoyed" and a "little bit aggravated " at the "haras-
ment" Parker had taken . When Berg came into the
office, George Parker, who had not seen Berg for at
least a month , asked Berg what other company would let
a driver pay off a $3000 accident which was the driver's
fault. Then Parker said that he had received "rumors"
from other drivers, and asked , "what is with this union
stuff'!" Berg said that he was involved in it, but that this
was not the time or the place to discuss it. Parker said
that he wanted to discuss it now . Berg said that he did
not want to discuss it in the office , but that they could
discuss it if George Parker would like to step outside.
Parker said no, that he did not want to step outside.
Berg said that he was there just to take care of busi-
ness-namely , the turn-ins and the accident . Becoming
angry, Parker asked whether Berg had finished with his
business . Berg said yes. Parker said that he was Respond-
ent's president and owner, and told Berg to leave. Berg
did so.
465
My findings in the foregoing paragraph are based on a
composite of credible parts of the testimony of Berg,
Perry, and George Parker . I do not credit George Park-
er's denial that he asked Berg about his union activity,
for demeanor reasons and because Perry (who still works
for Respondent and was a reluctant witness for the Gen-
eral Counsel), although she in effect denied that union
organizing was mentioned , did not corroborate Parker's
testimony that (in effect) the accident was the sole sub-
ject of the conversation ; rather she testified that Parker
said "something along [the] line" of "what is this about
discussions with other drivers," whose subject her testi-
mony did not specify . I note, moreover , that Respondent
did not explain its failure to call Eggan or Guy Parker.4
E. The Alleged Unlawful Refusal to Restore Berg to
an "All-Day Shift"
The compensation received by Respondent 's drivers
consists solely of tips plus a percentage of their fares. At
all relevant times, Respondent 's drivers have worked an
"a.m. shift" (namely, from 4:30 or 4:45 a.m. until some
time between 11 a.m. and 1 p .m.), a "p.m . shift" (namely,
from noon or 1 p.m . until released by the dispatcher), or
an "all-day shift" (namely, from 5 a.m. until released by
the dispatcher in the evening, perhaps as late as 11 p.m.).
Between the March 1985 date when Berg resumed driv-
ing Respondent's cars and August 10, 1987, Berg had
worked an "all-day shift" Monday through Thursday
and an "a.m. shift" on Friday . On August 10, 1987, Berg
asked Operations Manager Mehr to put Berg on an "a.m.
shift" Monday through Friday, with the explanation that
Berg's son had had a bad time in school the preceding
year, and Berg wanted to be home with him "to get him
started off on the right foot and everything." Berg went
on to say that "maybe in the future" he would go back
to an "all day shift" again. Mehr said "okay."
On March 30, 1988, Mehr testified before me, on
direct examination as an adverse witness for the General
Counsel , "we are not putting all day drivers out any
more . We are not putting what we call an all day sched-
ule." On redirect examination that same day, Mehr testi-
fied, "We still utilize drivers that work all day . .. that
is basically because of lack of number of drivers"; and
replied , "Yes," to the question , "You are telling me then
that you do have use and you need all day drivers?" On
the following day, as a witness for Respondent, Mehr
testified before me on direct examination that in January
1987, when Mehr was still a rank-and-file driver and was
acting as a spokesman for the other drivers, Company
President Parker told him that Respondent did not want
all-day drivers any more. Mehr's testimony in this re-
spect was not corroborated by Parker. At the representa-
tion case hearing (which was attended by Berg ) on Sep-
tember 10, 1987 , when asked what options a driver has,
Mehr testified that the driver "can work just the morn-
ing shift , just the p.m. shift, just an all day shift, or a
combination of all of them," and that "Basically, what-
4 See Golden State Bottling Ca v NLRB, 414 U S. 168, 174 ( 1972),
NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263 , 1269 (7th Cir.
1987); Zapex Corp., 235 NLRB 1237 , 1239 (1978), enfd . 621 F.2d 328 (9th
Cir. 1980).
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever the driver asks me I comply with ." At the represen-
tation case hearing (which was attended by Berg) on
September 1, 1987, President George Parker testified that
Respondent's "greatest need . . . is for drivers" ; that the
turnover among them is "tremendous"; and that they
"drive a day, a half-day, a full day, three days, five days,
seven days , whatever they want to drive ." Parker fur-
ther testified that a "full-time" driver was one who
worked 5 full days, was in his car for 12 hours a day,
and put in 60 to 70 hours a week . An "Application for
Chauffeurs" received into evidence in the representation
case hearing, which "Application" had been updated no
earlier than March 1987 and was in use as of September
1, 1987, states , "We have three shifts available ," includ-
ing an "all-day shift" which starts at 5 a.m. and ends at 9
or 10 p.m.
On October 13, 1987, Berg asked Mehr to return him
to an "all day shift." Mehr had admittedly heard that
Berg had been handing out union cards at O'Hare Field,
an airport served by Respondent 's limousines . Berg testi-
fied that Mehr refused Berg 's shift-change request with-
out giving a reason . Mehr testified to telling Berg that he
would have to fill out a form requesting this change, and
that "on the basis of suitability and availability he was
not a guy that I would want to put out in the full shift
again." Because the printed form used for such requests
contains the printed date of November 30, 1987 (more
than 6 weeks after Berg made this request ), because
Mehr testified that he did not start requiring the use of
this form until "right after" November 30, 1987, and for
demeanor reasons, I credit Berg.
Throughout Berg's last tour of duty with Respondent,
his normal workweek was Monday through Friday. In-
ferentially about mid-December 1987, he filled out a
form requesting a half-day off on Thursday , December
24, and a full day off on Christmas Day. On the follow-
ing week , he orally requested a half-day off on Thurs-
day, December 31, and a full day off on New Year's
Day. Both of these requests were denied . 5 On both occa-
sions, he orally asked Mehr to restore him to an "all-day
shift," and Mehr refused without giving him a reason.
Thereafter, Berg filled out written requests for 2 days
off the week of January 10, 1988, 1 day off the week of
January 24, and a day off (for a court appearance) the
week of February 7, 1988 . All of these requests were
granted . In addition, he made a written request for, and
received , enough days off during the week of March 28,
1988, to attend the first unfair labor practice hearing.6
On March 30, 1988, the first day of the first unfair labor
practice hearing, Mehr testified that a few weeks earlier,
driver Paul Haines , who had previously driven for Re-
spondent, asked to be put on a "full-time schedule," that
Mehr said he could not, and that Mehr put the driver on
5 Berg's testimony as to whether these requests were granted is some-
what ambiguous My finding that they were not is based on Respondent's
records , which state that he was scheduled to (although he did not) work
on December 24 and 25 , and that he worked on December 31 and Janu-
ary 1
His written request specified "off" for the first day (Wednesday,
March 30) and a question mark for the next 2 days . As described infra, he
was discharged on March 31 , immediately after the end of the first hear-
ing.
an "all day shift" on Wednesday and an "a .m. shift" 5
days a week.
F. The Alleged Unlawful Discharge of Berg
Berg testified on both days of the initial hearing
herein-that is, on March 30 and 31, 1988 . At that time,
he was still driving O'Hare-Midway cars, although on an
"a.m. shift" only . Mehr, who was the General Counsel's
first witness, testified as an adverse witness that he had
refused to restore Berg to an "all-day shift" partly be-
cause, while Mehr was still a rank -and-file driver for Re-
spondent between July 1985 and May 1987, he had been
advised by Berg and other drivers that they would go
out drinking after their shift had ended . Mehr admitted
that he never told any members of management that
Berg said he drank , and, after becoming operations man-
ager, never spoke to him about having a drinking prob-
lem. On direct examination , Berg gave the uncontradict-
ed and credible testimony that nobody had ever dis-
cussed a drinking problem with him. Also, he replied no
to the question , "Since you have worked with [Respond-
ent] have you ever been stopped for driving under the
influence?" On cross-examination , he testified on March
30, 1988, that he had been "stopped" for drunk driving
on an undisclosed date between two of his three of tours
of duty with Respondent.
The first hearing herein , on the first charge and com-
plaint, was closed at 11:35 a.m. on March 31, 1988. After
I had left the hearing room , and while Berg, Mehr,
George Parker, and Company Attorney Michael Abram-
son were still there, Berg told Mehr that Berg was avail-
able for April 1, 1988, to come back to work . Mehr said
that there would be no car available "based on his testi-
mony admitting the drunken driving ." About 2 :30 p.m.
that same day, Berg telephoned Mehr and asked if he
was serious about not having a car available for Berg.
Mehr said yes. Berg asked whether a car would ever be
available for him. Mehr said no. Berg asked him to send
Berg a letter stating that there would never be a car
available for Berg . Mehr said that he had to check with
Respondent 's attorney . Berg never received such a
letter.7
Mehr testified that on April 1 or 2, 1988, Abramson
advised him that Abramson had checked into Berg's
driving record and found "quite a few violations , includ-
ing DUI ," and that "other tickets [were] pending." Mehr
went on to testify that on an undisclosed later date
before the hearing resumed on June 28 , 1988, "we
checked [Berg 's] driving record" in the files of Lake
County "[c]hecked the tickets that were issued to him,
and we found quite a few tickets that had been issued
that he never told us about . When he first came to [Re-
spondent] he wrote that he had one violation, and he
was under . . . supervision for . . . driving under the in-
fluence of alcohol when he made application to [Re-
spondent], which he did not disclose ." There is no evi-
dence that at any material time Berg ever received any
T My findings in this paragraph are based on credible parts of Berg's
and Mehr's testimony . For demeanor reasons , I do not credit Mehr's tes-
timony that the telephone conversation did not take place until April 1 or
2, or that this conversation was confined to whether Mehr was "serious."
O'HARE-MIDWAY LIMOUSINE SERVICE
tickets other than the lane usage and DUI tickets, a Sep-
tember 1983 speeding ticket which Respondent had
known about since at least January 1988, and an October
1984 ticket which was dismissed . Mehr testified that the
first time he actually saw a copy of the exhibit, received
into evidence , which shows the DUI ticket and its judi-
cial disposition was June 27 , 1988, the day before the
second hearing.
G. Analysis and Conclusions
1. Respondent 's October 1987 refusal to permit
Berg to return to an "all-day shift"
Responent 's opposition to unionization is shown by its
unsuccessful efforts to procure dismissal of the Union's
representation petition , by Company President George
Parker's action in bringing up the Union with Berg at a
time when Parker was annoyed with Berg because of the
automobile accident , and by Parker's anger , and his
action in ordering Berg to leave the office at once, when
Berg resisted Parker's pressure for immediate , on-the-
spot discussion of the union drive . Respondent 's knowl-
edge of Berg 's union sympathies , at the time he initially
asked on October 13, 1987, to return to an "all-day
shift," is shown by his admission to President Parker on
July 14 , 1987, that Berg was involved in the union activi-
ty; by Berg's September 1 and 10, 1987, action in attend-
ing the representation case hearing on the Union 's behalf;
and by Operations Manager Mehr's admission that before
Berg's request for an "all-day shift," Mehr had heard
that Berg had been passing out authorzation cards.
Moreover, before Berg bootlessly repeated this request in
about the third week of December 1987, he had acted as
the Union 's observer during the representation election.
Furthermore , the credible evidence shows that Mehr
never gave Berg any reason for refusing to return him to
an "all-day shift ," even though Mehr had not told Berg,
in granting his August 1987 request to be transferred to
an "a.m . shift," that he might experience some difficulty
in returning to an "all-day shift," as Berg said he might
eventually want to do. Further, at the representation
case hearing both Mehr himself and Company President
Parker testified (on September 10 and September 1, 1987,
respectively) that at that time, Respondent was permit-
ting drivers to drive "all-day shifts" if they wanted to.
Although Mehr gave uncorroborated testimony before
me that Responent 's alleged policy against "all-day
shifts" was initiated by President Parker about February
1987, there is no evidence that Respondent 's policy as to
"all-day shifts" changed at all after September 1, 1987, or
(for that matter) after August 10, 1987, when Berg was
permitted to transfer to an "a . m. shift." Indeed, Mehr
testified before me in late March 1988 , during the hear-
ing which put at issue Respondent's failure to restore
Berg to an "all-day shift" at any time after October 13,
1987, that because of a shortage of drivers, Respondent
was still using "all-day drivers ."8 Moreover, the forego-
8 Mehr testified in March 1988 that some of the 110 drivers who drive
cars owned or managed by Respondent (but he did not know how many)
were working an "all-day shift " once a week or more , and that 6 or 8
were working such shifts 4 days a week , as had Berg before August 1987
Mehr further testified that "all-day shifts" are worked (sometimes at the
467
ing testimony by Respondent 's own witnesses shows that
Mehr was not telling the truth when he testified that he
refused Berg 's request to return him to an "all -day shift"
because Respondent was "not putting all day drivers out
anymore" and was "not putting what we call an all-day
schedule" ; indeed , when giving reasons for denying
Berg's request, Mehr's perhearing affidavit says nothing
about any such policy . I note , moreover, Mehr's testimo-
ny that about February 1988, when driver Paul Haines
returned to work following a 1987 injury , Mehr assigned
him to an "all-day shift" on Wednesday as well as 5
"a.m. shifts" a week . The foregoing evidence preponder-
antly shows that in denying Berg's request to be returned
to an "all-day shift," Respondent was motivated , at least
in part, by Berg's union activity.
Mehr testified that he refused Berg's request to return
to an "all-day shift" for the additional reason that Berg
"was not somebody I wanted to put out in the evening
because I knew when he was let off early in the evenings
he used to go out drinking ... there is no way I wanted
him using a company car for personal reasons , especially
drinking ." I agree with the General Counsel that this
reason was purely pretextual . By Mehr's own admission,
he did not give this reason to Berg for refusing his re-
quest, although mentioning the matter in this context
would have given Berg a motive to correct any such
habits. Moreover, Mehr admittedly never spoke to other
members of management or to Berg about any drinking
problem , and permitted him to work an "all-day shift" 4
days a week between Mehr 's promotion to operations
manager on June 1, 1987, and Berg 's request for a 5-day
"a.m. shift" on August 10, 1987, more than 2 months
later . Furthermore , there is no evidence that Mehr ever
took any action with respect to the alleged driver par-
ticipants in Berg's alleged drinking practices , or even ex-
pressed any dissatisfaction with them to the drivers in
question.
A more tenable basis for Mehr's refusal to return Berg
to an "all-day shift" is presented by Mehr's testimony
that he had the "feeling" that Berg's attendance was "in-
consistent"; an all-day driver usually keeps the car at his
home (inferentially between shifts on consecutive days);
and if Berg failed to start work on a particular morning,
his place of residence (Lindenhurst , Illinois, 33 miles
from O'Hare Field ) made it difficult to get someone else
to start driving Berg's car reasonably early in the day.9
(The representation case testimony of driver Arnold
Topel , indicates that under such circumstances , the new
driver assigned to the company car which Berg had
taken home would drive his own car to Berg's home
and, at the end of the shift, would return the company
car to Berg's home and pick up his own car.) Further-
more, Respondent 's records show that the ratio between
request of the owner-operators) by some drivers of owner-operators'
cars; the representation case record shows that such cars are sometimes
driven by drivers who (like Berg ) ordinarily dove O'Hare-Midway cars.
When Berg asked to go an "a.m shift " in August 1987, 20 or 25 drivers
were on an "all-day shift "
8 Because Mehr did not become operations manager until June 1, 1987,
I see no warrant for the General Counsel 's reliance on Mehr 's testimony
that his concern about Berg 's attendance did not anse until the summer
of 1987
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the days of the week when the driver normally worked
and the days the driver did not in fact work (regardless
of the reason) was lower for Berg than for other drivers;
and (contrary to General Counsel ) I see nothing suspi-
cious about Respondent 's failure until shortly before the
hearing to prepare a summary of his attendance and its
failure to prepare any similar summaries for other driv-
ers.' ° Moreover , Berg's absences between Mehr's June
1, 1987, accession to operations manager and Berg's
August 1987 request to be transferred from "all-day
shifts" included about three occasions when Berg drove
a company car on a Monday, Tuesday, Wednesday, or
Thursday (and, therefore, likely drove it home) but did
not work on the following day (which may have meant
that the company car was at his Lindenhurst home).'' In
addition , on March 30, 1988, Mehr testified without con-
tradiction that on dates which he was not asked to give,
Berg told him that Berg would probably not come to
work the next day because he was going to attend a late-
night banquet that evening , or was going to watch the
Chicago Bears play football on Monday night televi-
sion .' 2 Also, on March 31, 1988, Mehr testified without
denial that on an undisclosed number of occasions whose
date or dates he was not asked to give, Berg refused to
drive an offered car for what Mehr believed were un-
justified claims that the car was mechanically defec-
tive.' 3 Further, on March 30, 1988, Mehr named about
21 drivers who (on dates he was not asked to give) were
given a less desirable car, had their hours cut, or no
longer had a car available to them at all, because of ab-
senteeism (for reasons which Mehr generally did not
give) or tardiness."
On the other hand , as previously pointed out, Re-
spondent 's records do not as a routine matter contain any
explanation for a driver's absence ; and the record shows
that as to a substantial number of the 20 weekdays which
10 Although Respondent 's recordkeeping practices make it difficult to
determine as to most of Respondent 's approximately 110 drivers how
often they missed days they were scheduled to work , Mehr named 9
drivers whose attendance records could be complied from the same origi-
nal records that were used to prepare the Berg summaries . Although
these original records were made available to the General Counsel, she
makes no claim that the attendance ratio of any of these nine drivers was
as bad as or worse than Berg's.
i 1 One of these days was Thursday , June 11. Respondent 's summaries
state, "No one in car Thurs AM or Friday [June 12 , when Berg was also
absent] AD " However , these summaries do not state that any such result
ensued from his absences on Wednesday , July 8 , or Tuesday , July 14
18 The days on which Berg unexplainedly failed to work included
Tuesday, September 1, and Tuesday , December 15, 1987.
13 As discussed infra , Berg testified that he missed "some days " in July
1987 because of "company car trouble ." Mehr testified that when refus-
ing the car, Berg "made some threats" whose nature Mehr was not asked
to give . I infer that Mehr was referring to his earlier testimony that Berg
..was always threatening to take [Respondent] to every agency , Depart-
ment of Transportation , the State 's Attorney "
14 Some of these instances involved aggravating factors not claimed to
be present as to Berg, e g , the driver had possession of a company car,
but did not drive it when he was supposed to and did not tell Respondent
he was not driving it; or the driver did not call in or may not have done
so. The drivers mentioned in the text do not include Shamoon , for whom
no car made available after he lied about the reason for a particular ab-
sence; Feldmar , who failed to show up after saying that he was coming
in, or Foote and Kloeffer , both of whom Mehr refused to offer a car
again after they had voluntarily stopped driving for Respondent . Nor did
the drivers mentioned in the text include those whose hours were cut at
their own request , or for nondisciplinary reasons.
Berg did not work between June 1, and October 13,
1987, Berg had what under Respondent 's usual practice
would appear to be acceptable explanations for his fail-
ure to work. Thus, Mehr testified at the representation
case hearing that Respondent is "cognizant of the fact
that [the driver] has his own life to lead ." Mehr went on
to cite as acceptable reasons for failure to come to work,
a medical appointment , a court appointment , a need to
go to school for the driver's children , and "something
that cannot be covered at another time." Mehr further
testified at the representation case hearing that at least on
weekends, "a lot of guys" tell him that they would not
come in unless it was busy . Mehr testified before me that
although he would take the car away if the driver was
out 2 or 3 days "for no reason at all" Mehr would take
no action if a driver missed a day or 2 "for a personal
reason ." Mehr testified during the representation pro-
ceeding that driver Arnold Topel, with a schedule of
p.m. shifts Monday to Friday, had taken 3 days off
during the preceding week for "personal business," did
not come in or call in the following Monday , and called
in on Wednesday to say that he was not going to work;
but "He still drives for us . I haven 't done anything."
During the June 1-October 13 period, Berg took 6 vaca-
tion days,' 5 took 2 days off to attend the representation
case hearing, had to go to court on 1 day, failed to drive
on 1 day because Respondent had no car available for
him, and missed about 4 days because of what Berg (at
least) believed to be mechanical problems with O'Hare-
Midway cars offered him.' 6 Further, Mehr testified that
on dates which he was not asked to give, Berg said that
he was not coming to work because he was suffering
from food poisoning or was otherwise ill; Respondent's
records suggest that one of these incidents occurred on
October 19 . 17 Also Mehr testified that as to all of Berg's
absences between the date that Mehr became operations
manager and the date that he refused to return Berg to
an "all-day shift," Berg advised Respondent before the
beginning of his shift that he would be absent . 18 In addi-
tion, although Mehr did discipline some drivers for poor
attendance , he never disciplined Berg or even talked to
him about his attendance ; 19 indeed , Mehr did not men-
15 Berg's testimony indicates that he was on vacation dung all the
days he missed in August except 1 day (August 10) when no car was
available for him and another day (August 25) when he had to be in
court for an undisclosed reason . I infer from his attendance records that
the dates of his vacation were Fnday , July 31 , through Sunday, August
9.
Arnold Topel, who when he testified at the September 1987 represen-
tation case hearing was still a driver for Respondent, there testified that
in April 1987 , Mehr had permitted him to take 2 weeks to a month off to
go abroad.
16 My finding as to these 4 days is based on a composite of Berg's and
Mehr's testimony . Mehr testified to the opinion that at least some of
Berg's complaints in this respect were unjustified (see supra fn 13)
17 At the representation case hearing , Company President Parker testi-
fied that illness was one "obvious" legitimate reason for a driver to refuse
the dispatcher 's instructions
18 President Parker testified at the representation case hearing that
every driver is required to call in every day Operations Manager Mehr,
who as to this matter has more exposure than Parker , testified to a some-
what less regular calling-in practice.
19 For demeanor reasons , I do not credit Mehr's testimony that he
spoke to Berg about his attendance , and credit Berg 's denial
O'HARE-MIDWAY LIMOUSINE SERVICE 469
tion Berg 's attendance to him when refusing to return
him to an "all-day shift," even though this would appear
to be a particularly good opportunity to motivate him to
improve. Finally, the veracity of this reason for Re-
spondent 's action is called into question by the demon-
strable untruthfulness of the other reasons to which
Mehr testified. See Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966).20
In view of the foregoing , and Respondent 's continuing
need for drivers , I am inclined to think that Berg's at-
tendance played no part in Mehr 's decision not to return
him to an "all-day shift." At the very least, Respondent
has failed to dischange its burden of showing that his at-
tendance would have caused Mehr to refuse to return
him to such a shift in the absence of his union activity.2 t
For the foregoing reasons, I find that Respondent's re-
fusal on October 13, 1987, to restore Berg to an "all-day
shift" violated Section 8(a)(1) and (3) of the Act.
2. Berg's allegedly unlawful discharge
During the first hearing in March 1988 , Berg testified
in Mehr's presence that Berg had worked for Respond-
ent during three or four separate tours of duty whose
dates (except for the last one , which began in March
1985) he was not asked to give . Further, he testified that
while driving his own car he had been "stopped" for
"drunk driving" between tours of duty for Respondent,
but was not then asked for the date ; as previously noted,
the interval his then testimony referred to had begun in
1971 or earlier. On the day after Berg gave this testimo-
ny, and immediately after the end of the first hearing,
Berg told Mehr that Berg was available to come back to
work the following day. Mehr told Berg that "based on
his testimony , admitting the drunken driving," a car
would not be available for him. Later that same after-
noon , in response to a question from Berg , Mehr told
him that Mehr was serious about not having a car avail-
able for him.
The foregoing evidence shows that Respondent dis-
charged Berg at least partly because of his testimony at
the first hearing . Moreover, Respondent has produced no
evidence at all to show •that notwithstanding Berg's
action in testifying at that hearing , it would have dis-
charged him without trying to find out what happened
after Berg was "stopped " (for example, whether the traf-
fic citation was dismissed and, indeed , whether he ever
received any), and the date of the incident (which, so far
as Respondent then knew , might have occurred more
than 17 years earlier). Indeed, the application filled out
by Berg in March 1985 when he sought to resume driv-
ing for Respondent merely asks for "all traffic violations
within the last 'three years" ; and Mehr admittedly inter-
preted Berg 's testimony as merely meaning that he had
20 'Mehr also faulted Berg for wanting to leave work around noon on
Fridays, although the driver who drove the car on weekends was not
supposed to start driving it until 3 or 4 p.m. on Friday. However, Mehr
further testified that at all relevant times Berg worked only an "a.m
shift" on Fridays, which shift ends some time between I I a in. and I p in.
21 Transportation Management Corp. v NLRB, 462 U.S 393, 401-403
(1983); NLRB v. Del Rey Tortilleria, Inc., 787 F 2d 1118, 1123 (7th Cir
.1986); Moore Business Forms, 288 NLRB 796 fn 3 (1988)
been "arrested ." 22 Nor has Respondent sustained its
burden of showing that Berg would have been dis-
charged for lawful reasons , even absent his testimony
before me (see supra , fn. 21), by Mehr's testimony that
he discharged Berg because of Berg 's absentee rate23
"and basically the final touch was when he admitted on
the stand that he had been arrested for drunk driving."
Such statements by Mehr constitute an admission that it
was Berg's testimony , and not his absentee rate, which
was the "final touch" in the discharge decision.24
For the foregoing reasons, I find that Respondent dis-
charged Berg because of his testimony in the first hear-
ing and (because such testimony was in support of Berg's
charges and in furtherance of his statutory right to
engage in union activity) because of his filing of these
charges and his union activity , in violation of Section
8(a)(1), (3), and (4) of the Act.
3. The allegedly unlawful interrogation
I agree with the General Counsel that Respondent vio-
lated Section 8(a)(1) when Company President George
Parker asked Berg about the employees' union activity.
In so finding, I rely on the fact that such union activity
led to Berg's failure to obtain an "all-day shift " a month
later and to his discharge about 8 months after that; on
Berg's expressed reluctance to reveal details in the pres-
ence of members of management other than George
Parker ; on George Parker's action in nonetheless press-
ing Berg to answer and Parker's anger when Berg ad-
hered to this response ; on Parker 's status as Respondent's
highest ranking official; on the absence of any claimed or
seeming legitimate reason for such questioning or any as-
22 Because Respondent discharged Berg before conducting as to this
incident the investigation which was prompted by such testimony, I need
not and do not consider whether Respondent could have lawfully dis-
charged him because of evidence discovered during that investigation
Cf. Chrysler Corp., 242 NLRB 577, 581 -582 (1979); Campbell "66" Ex-
press, 238 NLRB 953, 963 ( 1978), enf denied 609 F .2d 312 (7th Cir
1979); Firestone Steel Products Ca, 219 NLRB 492 (1975), enf. denied 539
F.2d 1335 (4th Cir. 1976); American Motors Corp ., 214 NLRB 455, 462
(1974), enfd 525 F.2d 695 (7th Cir. 1975) I discuss under the remedy
section the effect , if any, of such evidence on the appropriate remedy.
23 Between October 14 , 1987, and March 29, 1988 , the day before the
first unfair labor practice hearing , Berg failed to work on about 24 week-
days. These 24 days included 4 days which he had received permission to
take off pursuant to written request , one of which was for a court ap-
pearance; 2 days' when he was out sick; and 1 day when he acted as the
Union 's observer at the representation election. Also, on one day he was
out without calling in in advance , on all other occasions, he gave ad-
vance notice that he would be absent. Mehr testified that about mid-
March 1988 , Berg had called in sick about 2 a.m one morning and, the
next day or so, he telephoned the dispatcher that Berg was not coming in
"if ,it wasn 't busy ... So the car was out in the morning." However,
Respondent 's records show that before the first unfair labor practice
hearing beginning on March 30 , 1988, Berg worked every weekday in
March except one-March 3
24 Mehr testified that as to the company records which first made him
aware of exactly how many days Berg was off , Mehr first became aware
of some when preparing to give his affidavit to a Board agent who was
investigating Berg 's charge complaining of Respondent's refusal to re-
store him to an "all-day shift," and of the rest of them when they were
subpoenaed by the General Counsel for production at the hearing on the
complaint based on that charge As previously found , as to that com-
plaint Respondent 's claim of absenteeism was partly or entirely a pretext.
I need not and do not consider whether Respondent could lawfully have
discharged Berg because of information obtained by Respondent during
such investigations . See cases cited supra fn. 22.
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
surance against reprisal ; and on the fact that Parker
began such questioning after stating , in effect, that most
companies would have discharged Berg for his $3000 ac-
cident where he damaged a brand new company car by
colliding with and damaging the car of Parker's best
friend. NLRB v. Berger Transfer & Storage Co., 678 F.2d
679, 689-690 (7th Cir. 1982); Rikal West, Inc., 266 NLRB
551, 568 (1983), enfd. 721 F.2d. 402 (1st Cir. 1983); Moe
Warehouse & Accessory, 275 NLRB 1132, 1140 ( 1985).
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 mean-
ing of Section 2(5) of the Act.
3. At all material times, Kenneth E. Berg Sr. has been
an employee within the meaning of Section 2(3) of the
Act.
4. Respondent has violated Section 8(a)(1) and (3) of
the Act by refusing to return Berg to an "all-day shift."
5. Respondent has violated Section 8(a)(1), (3), and (4)
of the Act by discharging Berg.
6. Respondent has violated Section 8(a)(1) of the Act
by interrogating Berg about union activity.
7. The unfair labor practices summarized in Conclu-
sions of Law 4 through 6 affect commerce within the
meaning of 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist from such conduct, and like
or related conduct, and take certain affirmative action to
effectuate the policies of the Act.
Respondent does not contend that Berg should not re-
ceive an affirmative remedy should I find (as I have) that
he was unlawfully denied employment. I agree with the
General Counsel that Berg is entitled to an order of rein-
statement with backpay . As to Berg's failure to refer to
the DUI ticket when asked on his application (filled out
on March 7, 1985) to "List all traffic violations [within]
the last three years," this omission does not constitute a
willful falsification. Berg credibly testified to the reasona-
ble belief that the judicial disposition of this ticket meant
"that I was to have a year without any tickets, and an
understanding that once that year was completed, that
... the violation would not be on my driving record.
I went a year without . . . having any violations;
and I thought it would be off my driving record, which
it was."25 Further, Berg honestly testified to the not un-
as The relevant Illinois statutes state (I11. Rev. Stat . 1986, c . 39, par.
1005-6- 3 . 1 (e)):
(e) At the conclusion of the period of supervision , if the court de-
termines that the defendant has successfully complied with all of the
conditions of supervision , the court shall discharge the defendant and
enter a judgement dismissing the charges.
(f) Discharge and dismissal upon successful conclusion of a dispo-
sition of supervision shall be deemed without adjudication of guilt
and shall not be termed a conviction for purposes of disqualification
or disabilities imposed by law upon conviction of a crime
However, as to a DUI defendant , his record of arrest cannot be ex-
punged until 5 years after discharge of supervision. Ill. Rev Stat ., c. 38,
reasonable (although erroneous) belief that his period of
supervision had ended 1 year after his receipt on Febru-
ary 14, 1984, of his traffic ticket (that is, 3 weeks before
he filled out his application for Respondent), rather than
(as was in fact the case) 1 year after his April 2, 1984,
court plea (that is , 3 weeks after his application and 2
weeks after he resumed driving for Respondent). Fur-
thermore, the record affirmatively shows that Respond-
ent did not automatically terminate drivers if it learned
that they had failed to list on their applications all traffic
violations within the preceding 3 years . Thus, no later
than January 1988, Respondent learned that Berg had a
speeding ticket (for speeding 11 to 15 miles above the
limit) which he had received in September 1983, about 1-
1/2 years before he filled out his application for Re-
spondent;26 but Berg continued to drive for Respondent
until he testified before me during the hearing held on
March 30 and 31, 1988 . Indeed , the application filled out
by Berg merely contains the printed statement that false
or misleading information from the applicant "may"
result in discharge . Moreover , although Respondent has
at all times contended that Berg was discharged at least
partly for the DUI incident, Respondent has never con-
tended (by way of either brief or testimony) that he
would not have been taken on if Respondent had known
about it; nor has Respondent ever produced any evi-
dence of its hiring or discharge policy under such cir-
cumstances ; even though Operations Manager Mehr's ad-
mission that Berg was discharged at least partly because
of his testimony at the first hearing imposed under well-
settled law the burden on Respondent , in order to obtain
dismissal of the second complaint, to show that in any
event he would have been discharged at that time be-
cause of what Respondent already knew about the DUI
incident (see supra fn. 21). Indeed , Respondent has never
at any time contended that Berg should be denied affirm-
ative relief in the event that the complaints were sus-
tained.
Neither party has suggested that in view of the DUI
incident, to require an offer of reinstatement to Berg as a
driver for hire might be contrary to public policy. As to
any such policy , the appropriate source would appear to
be the State of Illinois, whose "supervision" statutes as
to DUI allegations contemplate that if the drivers refrain
from further violations during the period in question,
they retain their drivers' licenses without any statutory
limitations on any right those licenses would ordinarily
confer to drive for hire27 Moreover, the very strong
para . 1005-6-3. 1 (f). An order terminating supervision and dismissing the
charge is considered akin to a judgement of acquittal for some purposes
but not others . Wright Y. Stokes, 522 N.E. 2d 308, 311, 167 III. App. 3d
887, 118 Ill . Dec. 853 (1988), People v. Oswald, 435 N E. 2d. 1369, 1371,
106 Ill. App. 3d 645, 62 Ill. Dec. 397 (1982), People v. Williams, 468 N E.
2d 807, 810, 127 Ill App. 3d 231, 82 Ill. Dec . 260 (1984).
26 Berg credibly testified that when filling out his application, he had
forgotten about this ticket.
87 Thus, under Ill Rev . Stat ., c. 38, para. 1005-6- 1, the court may
order supervision when the court is of the opinion that , inter alia, the de-
fendant and the public would be best served if the defendant were not to
receive a criminal record Moreover, a treatise (some of which is at-
tached to Respondent's brief ) by the Illinois Institute for Continuing
Legal Education, namely , Defending DUI and Traffic Cases ( 1987-states
Continued
O'HARE-MIDWAY LIMOUSINE SERVICE 471
policy considerations pointing to reinstatement and back-
pay for employees discharged for union activity, and/or
for filing charges and giving testimony under the Act,28
assume particular force where (as here) any allegedly
disqualifying conduct is closely related to the very rea-
sons which the respondent employer's witness falsely tes-
tified to as the reasons for the discharge and which first
came to the respondent 's attention because, in response
to the respondent's false testimony as to its reasons for
prior discrimination , the wronged employee testified
truthfully during a proceeding brought to vindicate his
and other employees' statutory rights. The effect of with-
holding such relief on employees unaccustomed to such
nice distinctions would likely be much the same as dis-
missing the complaint outright. See Martin-Brower Co.,
263 NLRB 194, 229 (1982), enfd. 711 F.2d 420 (D.C. Cit.
1983). Accordingly , I shall issue the normal recommen-
dation that Respondent be required to offer Berg rein-
statement as a driver, rather than offering him a nondriv-
ing job.
Accordingly, Respondent will be required to offer to
reinstate Berg to the job which he held as of his unlaw-
ful discharge on March 31, 1988, or, if that job no longer
exist, to a substantially equivalent job, without prejudice
to his seniority and other rights and privileges previously
enjoyed; to offer him the shift schedule he was unlawful-
ly refused on October 13, 1987; and to make him whole
for any loss of pay (including tips), less net interim earn-
ings, he may have suffered on and after October 13,
1987, in consequence of the unlawful discrimination
against him. All payments are to be made with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 ( 1987). Backpay in consequence of Berg's discharge
is to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950). Also, Respondent
will be required to remove from its files any reference to
the unlawful refusal to afford an "all-day shift" to Berg,
and to his unlawful discharge, and to notify him that this
has been done and that this personnel action will not be
held against him in any way . Sterling Sugars, 261 NLRB
472 (1982). 29 In addition, Respondent will be required to
post appropriate notices.
In the absence of any specific showing of need for a
visitorial clause in the circumstances of this case, the
General Counsel 's request for such a clause is denied.
Cherokee Marine Terminal, 287 NLRB 1080 ( 1988).
at 1-182 , "An order of supervision is not an uncommon disposition for a
first offender in the stituation where factors in aggravation are not
present . . and particularly where the defendant is required to operate
an automobile to earn a living "
General Manager Eggan testified at the representation case proceeding
that a regular Illinois driver 's license is the only lincense required of Re-
spondent's drivers , except that a special Chicago chauffeur's license is re-
quired of a driver who drives a "city car." Because Berg was not as-
signed a "city car" after mid-1987, I have made no effort to ascertain the
effect if any) of his DUI conviction on any Chicago chauffeur's license
he may have or apply for
28 See NLRB v. Scrivener, 405 U.S 117, 121-125 (1972), Ford Motor
Ca, 31 NLRB 994, 1099-1100 (1941)
29 Because such action by Respondent violated the Act, this much of
the Order would be appropriate regardless of Berg 's rights to other af-
firmative relief.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edao
ORDER
The Respondent , O'Hare-Midway Limousine Service,
Inc., Wheeling , Illinois, its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees about a labor organization
in a manner constituting interference , restraint, or coer-
cion.
(b) Discouraging membership in Auto Livery Chauf-
feurs, Embalmers, Funeral Directors , Apprentices, Am-
bulance Drivers and Helpers , Taxicab Drivers , Miscella-
neous Garage Employees , Car Washers , Greasers, Pol-
ishers, and Wash Rack Attendants Union, Local 727, an
affiliate of International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
AFL-CIO, or any other labor organization , by refusing
employees ' request for changes in their shifts , discharg-
ing employees , or otherwise discriminating in regard to
hire or tenure of employment or any term or condition
of employment.
(c) Discharging or otherwise discriminating against
employees because they have filed charges or given testi-
mony under the Act.
(d) In any like or related manner interfering with, re-
straining , or coecring 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 Kenneth E . Berg Sr. reinstatement to the job
which he held before March 31, 1988 , or, if such a job
no longer exists , to a substantially equivalent job, with-
out prejudice to his seniority or other rights and privi-
leges previously enjoyed.
(b) Offer Berg the shift change which he was unlaw-
fully denied on October 13, 1987.
(c) Make Berg whole for any loss of earnings suffered
as a result of the unlawful discrimination against him, in
the manner set forth in the remedy section of this deci-
sion.
(d) Remove from its files any references to Berg's un-
lawful failure to receive a shift transfer and his unlawful
discharge , and notify him in writing that this has been
done and that such personnel action will not be held
agaisnt him in any way.
(e) Preserve and, on request , make available to the
Board or its agents, for examination adn copying, all
payroll records, trip envelope, social payment records,
timecards, personnel records and reports, and all other
records necessary or useful for analyzing the amount of
backpay due under the terms of this Order.
90 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.
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Post at Respondent 's offices copies of the attached
notice marked "Appendix ."31 copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent 's authorized repre-
sentative , 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 Respondent to ensure that the notices are
not altered , defaced , or covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply.
31 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 "
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 Relation Act and 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 representative of
their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT discourage membership in Auto Livery
Chauffeurs, Embalmers , Funeral Directors , Apprentices,
Ambulance Drivers and Helpers, Taxicab Drivers, Mis-
cellaneous Garage Employees , Car Washers, Greaser,
Polishers , and Wash Rack Attendants Union, Local 727,
an affiliate of International Brotherhood of Teamsters
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO, or any other union , by denying you changes
in your shift, discharging you, or otherwise discriminat-
ing against you in regard to your hire or tenure or em-
ployment or any term or condition of employment.
WE WILL NOT discharge you or otherwise discriminate
against you because you have filed charges or given tes-
timony under the Act.
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 Kenneth E. Berg, Sr., immediate and
full reinstatement to the job from which he was unlaw-
fully discharged on March 31, 1988, or, if that job no
longer exist, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges proviously enjoyed.
WE WILL offer to change Berg to the shift to which
we unlawfully refused to change him on October 13,
1987, and from his discharge , less any net interim earn-
ings, plus interest.
WE WILL remove from our files any reference to the
unlawful refusal to change Berg's shift and to his unlaw-
ful discharge , and notify him that this has been done and
that the refusal to change his shift and his discharge will
not be used against him in any way.
O'HARE-MIDWAY LIMOUSINE SERVICE,
INC.