Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 638 (N.L.R.B. 1990)

638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Overmte Transportation Company and Teamsters
Local Union No. 651, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO. Case 9-CA-24803
January 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 30, 1989, Administrative Law Judge
Karl H Buschmann issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answenng
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,' and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
'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
The judge incorrectly stated that the record did not support the Re-
spondent's argument that a truck loaded with ice cream would customari-
ly take priority over other trucks Richard (Rick) Bentley, the Respond-
ent s terminal manager, testified that King's Foods had an arrangement
with the Respondent whereby a truck loaded with ice cream is unloaded
as soon as possible upon its arnval at King's This error does not affect
our decision however, because, by the Respondent s own admission, em-
ployee Stevens was unaware of the arrangement
The judge credited Steven s testimony that he was questioned by
'Rick" Bentley several days before the August 5, 1987 hearing about his
testimony, and that he told Bentley he was going to testify that Rick
sent me to the Union meeting Bentley then threatened Stevens with dis-
charge The judge found that Bentley s statement violated Sec 8(a)(1)
The Respondent excepts, contending, inter cilia, that because It was Su-
pervisor Rex Moomeham and not Rick Bentley who sent Stevens to the
meeting, Bentley's threat was lawful in view of Stevens Intent to commit
perjury We reject the Respondent's argument on two grounds First, It is
clear from Stevens other testimony that it was Rex Moorneham who sent
him to the union meeting Therefore, we find it conceivable that during
this portion of Stevens' testimony that he either misspoke or that the
court reporter confused the names Rick and Rex" especially as It
would be awkward and unusual for Stevens to say to Rick Bentley 'that
Rick sent me to the meeting" rather than 'that you sent me to the meet-
ing Second, even assuming that Stevens did say Rick, we still find
Bentley s threat to discharge him to be a violation of Sec 8(a)(1) Threat-
ening an employee with discharge for testifying at a Board hearing vio-
lates Sec 8(a)(1) of the Act regardless of the anticipated nature of the
employee's Intended testimony See American International Aluminum
Corp, 149 NLRB 1205, 1210 (1964)
In finding union animus in this case, Member Cracraft does not rely on
the Respondent s comment in its March 30, 1987 letter to employees,
committing Itself to maintaining a union-free environment
judge as modified below and orders that the Re-
spondent, Overnite Transportation Company, Lex-
ington, Kentucky, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified .
Insert the following as paragraph 1(a)
"(a) Discharging any employees because of their
union activities or because they gave testimony
under this Act or discriminating in any other
manner with respect to their hire or tenure of em-
ployment or any term or condition of employment,
in violation of Section 8(a)(4), (3), and (1) of the
Act"
Donald A Becher, Esq , for the General Counsel
John 0 Pollard, Esq (Blakeney, Alexander & Machen), of
Charlotte, North Carolina, for the Respondent
DECISION
STATEMENT OF THE CASE
KARL H BUSCHMANN, Administrative ,Law Judge
This case was tried at Lexington, Kentucky, on February
10, 1988 The charge was filed by Teamsters Local
Union No 651, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union) on November 2, 1987
The complaint was issued on December 9, 1987, and al-
leged that the Respondent, Overnite Transportation
Company, violated Section 8(a)(1), (3), and (4) of the
National Labor Relations Act (the Act) The Respondent
filed its answer on December 17, 1987, admitting the ju-
risdictional allegations of the complaint, but denying the
commission of any unfair labor practices The issues in
this case are (a) whether on two occasions the Respond-
ent threatened to discharge an employee if he testified at
a proceeding before the National Labor Relations Board,
in violation of Section 8(a)(1) of the Act, and (b) wheth-
er the Respondent terminated its employee Danny Ste-
vens because of his union support and because he gave
testimony at a trial before an administrative law judge in
Case 9-CA-24243
On the entire record, including my observation of the
demeanor of the witnesses and after consideration of the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent, Overmte Transportation Company, is
a Virginia corporation with an office and place of busi-
ness in Lexington, Kentucky, where it is engaged in the
interstate transportation of freight With gross revenues
of over $50,000 for the transportation of freight from the
State of Kentucky to points outside the State, it is admit-
tedly engaged in interstate commerce within the meaning
of Section 2(2), (6), and (7) of the Act
The Union is admittedly a labor organization within
the meaning of Section 2(5) of the Act
297 NLRB No 99
OVERNITE TRANSPORTATION 639
The parties stipulated that Richard Bentley, Rex
Moomeham (or Mooneyham), and Charles Blankenship
were supervisors within the meaning of the Act (Tr 6)
II BACKGROUND
In April 1987, the Union commenced an organizational
campaign at the Respondent's terminal in Lexington,
Kentucky Paul Tuggle, assistant to the president of
Teamsters Local 651, selected three employees to assist
him in this effort They were David May, John Stone,
and Danny Stevens Stevens, the alleged discriminatee
herein, signed a union authorization card at his home on
April 14, 1987 At the behest of Tuggle, he passed out
union authorization cards to other employees, including
his friend Steve Moorneham, the son of the Respondent's
assistant terminal manager, Rex Moomeham Soon there-
after, Stevens discontinued this activity because Tuggle
informed him that the Company had discovered his
union activity and might fire him for it (Tr 18)
At some point during the union campaign, the Union
scheduled a meeting with the employees Approximately
1 day before the meeting, Stevens discovered a note on
his timecard, suggesting that he meet Rex Moomeham
During the meeting in his office, Moonteham urged Ste-
vens to attend the union meeting and to report back Ste-
vens expressed his reluctance and refused to reveal any
of the names of those attending, but Moomeham suggest-
ed that he merely report on what was going on Stevens
agreed and stated that he hoped that he would not get
fired for attending one union meeting Moomeham re-
plied "Well, as you know, we can follow anybody in a
day's time and find a reason for it" (Tr 28) On one
other occasion, Moomeham requested Stevens to obtain
additional information relating to the union campaign
Stevens had contact with another member of manage-
ment about the union campaign Terminal Manager
Richard Bentley called him into his office and asked him
how many drivers had signed union cards
Some of these statements were alleged as unfair labor
practices against the , same, Respondent in Case 9-CA-
24243 that was set for a hearing on August 5, 1987 That
case, which also alleged that the discharges of David
May and John Stone were unlawful, was ultimately set-
tled by all parties, The settlement occurred after the
hearing had opened and after considerable testimony had
been given, including the testimony of Danny Stevens
(G C Exh 12) Stevens was a reluctant witness because
he had noticed that management followed him on his
routes as it had done with the two discharged employ-
ees, May and Stone
III FACTS
Prompted by his apprehensions about being followed
on his routes by the Respondent's terminal manager and
about the possibility of losing his job, Stevens ap-
proached Richard Bentley, the terminal manager, 3 or 4
days before the hearing scheduled for August 5, 1987
He testified as follows about the ensuing conversation
(Tr 40)
-
So I seen Rick Bentley come in one morning, and I
was getting ready to leave in my Company truck,
and so I got out and walked over, and I met him in
front of the terminal, and I just asked him, I said,
"Rick, there's talk that the people that testifies is
going to get fired" I said, "Is there going to be any
retaliation towards us if we do testify ?" And, he
said, "Well, what are you going to testify to?" And
I just told him that "I seen you all follow David
May out that morning and lock is as good as a
seal," and I said that they want me to testify that
Rick sent me to the Union meeting And, he said,
"Well," he said, "if you testify to this, that you will
be dismissed" And, so, I said, "Well, what am I
going to do You know, I don't want to lose my
job I won't testify," and he said, "Well, I don't
care what you do" He said, "Tell them you
dreamed it" And he Just turned and walked off
Bentley conceded that he had a conversation with Ste-
vens about has impending testimony, but Bentley's recol-
lection of that conversation' was as follows (Tr 255)
My recollection of that incident is, on my arrival at
work on a particular morning, I don't remember
when, Danny met me as I was walking from my car
to the front door, and asked me, and I do not re-
member word for word, but something to the—to
the effect that, what would of if anything would
happen to people that testified?
And I told Danny that, you know, he would
have to go in there and tell the truth And that was
the end of the conversation
Stevens informed Union Agent Tuggle and General
Counsel's attorney James Murphy that he did not want
to testify for fear of losing his job However, Murphy
was able to persuade Stevens to testify about certain
matters, for example, management's practice of following
one of the employees who was later discharged Stevens
accordingly appeared for the hearing in the prior case on
September 9, 1987 He waited for his appearance along
with other potential witnesses, when Rex Moomeham,
assistant terminal manager, motioned Stevens to follow
him Stevens followed Moomeham to the stairwell
where, according to Stevens, the following conversa-
tion2 ensued (Tr 44)
Well, he asked me was I going to testify against
Overnight, and I told him, I said, "No, sir, I'm not
going to testify that, you know, that you sent me to
the Union meeting" And he said, "Well, you've got
to make your decision now Either you're for the
'if Bentley s account of that conversation were true, Stevens fear of
testifying would be groundless In any case, I credit Stevens' version of
the conversation, because Stevens appeared straightforward and direct in
his responses Based on Bentley's demeanor as a witness—he appeared
hesitant and unsure of his responses—and his obvious evasiveness dunng
cross-examination, I find his testimony unconvincing
2 Moomeham conceded that he talked to Stevens on that day near the
stairwell, but he characterized the conversation as general chit chat'
and denied that he had threatened him with the loss of his Job (Tr 290-
291) Moonieham did not Impress me as an honest and sincere witness
He was evasive in response to counsel's questions and inconsistent in his
responses
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union or for Overnight And, he said If you testi
fy for the Union he said There won t be any
way that Rick can keep your job So I told him
that I wasn t going to testify
Stevens gave brief testimony during the hearing how
ever he refused to testify about certain allegations in the
complaint This prompted the General Counsel to state
to the judge that his witness is too scared to testify
about it (G C Exh 12 at Tr 219)
On October 27, 1987 Stevens was discharged by Bent
ley under the following circumstances As the Compa
fly s city driver Stevens was assigned on that day to de
liver a load of ice cream to Kings Foods in a refngerated
truck When he arrived at the delivery platform at ap
proximately 9 a m, five or six trucks were ahead of him
waiting to be unloaded Stevens attempted to check in
with the receiving official Bradley Dean Redman but,
according to Stevens, he appeared too busy to pay atten
tion while filling out forms In answer to Stevens in
quiry whether it would take a long time for his turn
Redman said probably 'Stevens made another attempt
to get a more definite response, but was unsuccessful
Stevens then looked for a telephone and called the Re
spondent s dispatcher Charles Blankenship shortly after
9 a m and reported that five or six trucks were ahead of
him and that it might take 2 to 4 hours to unload his
truck Blankenship acknowledged the call and said (Tr
131-132) Well there s nothing we can do We can t
leave it There is nothing else on the trailer that we can
deliver, and it s stuff they ve got to have, so just han[g]
around there and make sure the ice cream doesn t melt
All we can do is wait Blankenship also instructed him
to call him if they haven t got [him] off by 12 00 noon
(Fr 63)
Stevens lingered for a few more minutes in the receiv
mg area while talking to another driver and was told by
the receiving official to wait outside Instead of waiting
in the cab of his truck because the diesel fumes and the
vibrations from the reefer (the air conditioning unit)
made him ill, he sat on a concrete block approximately
200 feet away from his truck From there he could still
observe the platform and his truck After some time had
elapsed he checked the fuel in his truck to make sure the
unit was controlling the temperature He remembered
checking the clock on his truck about 10 20 a m Notic
mg that half of the units had not yet been unloaded he
went to the C & P Market to buy lunch
After approximately 20 minutes he returned to his
truck He noticed standing next to his truck Ovenute s
assistant dispatcher Brad Turpm and a mechanic who
had cut the lock off the truck door They told him to
back his truck into the dock to be unloaded When he
got out of his truck he also saw Frank Barber, the Re
spondent s assistant terminal manager Barber asked Ste
yens where he had been Stevens replied that he had
walked across the street to get a pop (Fr 75) Barber
told him that Richard Bentley wanted to see him back at
the terminal The men drove to the Respondent s termi
nal in Barber s car Stevens, confronted by Bentley,
Barber, and Blankenship in Bentley s office, attempted to
explain the sequence of events at Kings Foods termmal
He was permitted only a brief explanation and was then
abruptly discharged Stevens testified as follows about
the conversation (Fr 75)
A He asked me he said What s your story on
this? And I just said, Well there was going to be
a wait, and I walked across the street to get a pop
and a cake And he said Well, he said you
wasn t even in the area He said, We ve talked to
everybody there He said You didn t go in the
Kings Food Nobody there has seen you We ve
talked to everybody And he said, I m going to
have to do my duty and terminate you
Q Did you say anything else to him?
A Yes sir I said, I think you re discharging me
unjustly I said you ought to give me a chance
to talk to somebody I said, Ill show you—let
Frank go back over with me and Ill show you
who I talked to and who seen me there And he
said No it don t make any difference I ve fooled
with you long enough He said You re fired It s
time for you to get out of here [A]nd he said,
Leave
On his way out Stevens asked Blankenship for a
reason for his discharge Blankenship replied I can t see
any there must be something else There must be some
thing else to it (Fr 76) Blankenship indicated to Ste
yens that he would make an attempt to contact Bentley
on his behalf
Stevens in the meantime went to Kings Foods and
persuaded Redman, the receiver foreman to call Bentley
and to confirm Stevens version of the delivery problem
earlier that day Redman spoke to Bentley and confirmed
that he had seen Stevens in the shipping area and ob
served his use of the telephone but that he had been
unable to locate Stevens sometime later Nevertheless
Bentley told Stevens that because Redman had been
unable to find Stevens he was still fired (Fr 78)
Parenthetically the record is clear that Stevens had
been unaware of his Employer s contact with Kings
Foods shortly after Stevens had notified Blankenship by
telephone of the delay encountered at the terminal Ste
yens had been instructed to wait there but did not know
that Blankenship on receiving Stevens telephone call,
had notified Barber the operations manager who in turn
contacted Kings Foods to make arrangements to give
Overnite s ice cream truck pnonty at its delivery plat
form After Stevens could not immediately be located,
Barber, accompanied by Turpm, a dnver and a mechanic
went to Kings Foods about 10 20 a m to take charge of
the delivery As already stated, Stevens arrived at the
scene shortly thereafter to move his truck to the plat
form The Respondent s purported reasons for Stevens
discharge were knowingly giving false information to
City Dispatch, and disobeying the latter s instructions
(G C Exh 3 R Br 9) The General Counsel on the
other hand argues that Stevens discharge was unlawful
and discrunmatory and based on his union activity or his
testimony in the prior case
OVERNITE TRANSPORTATION 641
IV ANALYSIS
Threats Resolution of the two allegations of 8(a)(1)
misconduct turns on the credibility of the relevant testi-
mony as well as a finding as to whether certain state-
ments made by management interfered with the employ-
ees' Section 7 rights As already stated, I have credited
the testimony of Danny Stevens who testified that sever-
al days prior to the hearing on August 5, 1987, Richard
Bentley, an admitted supervisor, told him that if he were
to testify about a certain incident, he would be dismissed
Bentley's statement was a direct threat that Stevens
would lose his job if he exercised his right and his duty
to testify in an administrative proceeding Such an un-
equivocal threat is a clear interference with the employ-
ee's Section 7 rights in violation of Section 8(a)(1) of the
Act
Similarly violative of Section 8(a)(1) of the Act is the
statement made by Rex Moomeham, also an admitted su-
pervisor, on the day of the hearing to the effect that Ste-
vens would lose his job if he were to testify for the
Union Although both Moomeham and Bentley denied
making the specific statements attributed to them, they
conceded talking to Stevens about his impending testimo-
ny Yet Moomeham testified that his conversation with
Stevens amounted only to "general chit chat" (Tr 289),
and Bentley recalled that he merely advised Stevens sev-
eral days before the hearing to "go in there and tell the
truth" (Tr 255) Neither Moomeham nor Bentley im-
pressed me as being forthright and truthful during their
testimony Indeed, it is clear that Stevens was so intimi-
dated by his supervisors that he refused to testify about
certain matters in the prior case, prompting the General
Counsel to withdraw an allegation and explain to the ad-
ministrative law judge in the prior case (G C Exh 12 at
Tr 219) "My witness is too scared to testify about it,
Your Honor and there is not a thing I can do
about it
The discharge Both parties argue that an analysis of
the allegation of unlawful discharge is governed by the
Board's decision in Wnght Line, 251 NLRB 1083 (1980),
and a finding of the Company's true motive for the dis-
charge The General Counsel has demonstrated that Ste-
vens, who had been in the Respondent's employ for
more than 9 years, engaged in protected union activity in
giving testimony under the Act Stevens' conspicuous
role as one of three union campaign activists still em-
ployed by the Respondent and the substance of his testi-
mony in the prior case were fully known by the Re-
spondent The General Counsel has also shown the Re-
spondent's union animus, as exemplified by Bentley's tes-
timony equating union support by its employees with dis-
loyalty to the Company and a management letter com-
mitting the Company to a "union-free environment" (Tr
269-272, G C Exh 2) Significantly, it was firmly estab-
lished that the Respondent repeatedly threatened Stevens
with the loss of his job if he gave testimony considered
adverse to the Company
And the timing of the discharge, approximately 1
month following his testimony, because a termination in
close proximity to the protected activities raises an infer-
ence of discriminatory motivation Bill Fox Chevrolet, 270
NLRB 568 (1984)
The General Counsel has also shown that the Re-
spondent's action in discharging Stevens was not in
accord with its past practice under similar circumstances
and that Stevens was the victim of the Respondent's dis-
parate treatment For example, the record shows that the
Respondent's employee Charles Markwell once left his
truck unattended and had his truck keys stolen, yet his
employment was unaffected by the incident (Tr 82-88,
146-148) Other examples are Larry Hammons, a driver
who received only a written warning for reporting for
work nearly 1 day late on July 15, 1986, without calling
the dispatcher to advise that he would be late (G C Exh
6), John Badget who failed to make a delivery on time,
because "he [had] pulled over and slept" and consequent-
ly caused the Company to lose a customer (G C Exh 7),
drivers David and Jessie Cushard who failed to follow
dispatch instructions and drove from Boston to Lexing-
ton instead of Boston to Chicago (G C Exh 8), and em-
ployee Mark Riddle who received several warnings for
inefficiency and other serious infractions but was merely
suspended for conduct far worse than that of Stevens
(GC Exh 9)
Finally, a fair evaluation of Stevens' alleged miscon-
duct would reveal that Stevens acted entirely appropri-
ately, even if viewed from the Company's perspective
Significant is the uncontroverted testimony showing that
Stevens arrived at the terminal shortly after 9 a m, that
five or six trucks were already waiting to be unloaded,
that Stevens' estimate of 2 to 4 hours was perfectly rea-
sonable (Tr 135), and that he conscientiously called dis-
patcher Blankenship who by his own testimony told him
to wait because there was nothing else to do (Tr 131-
132)
The record also shows that, after only about 1 hour, at
10 20 a m, the Respondent had arrived on the scene with
a force of three led by Operations Manager Barber—
Barber himself, a mechanic to cut the lock off the truck's
door, and an assistant dispatcher, Turpm, to drive the
truck They claim to have conducted an exhaustive
search for Stevens with their combined efforts assisted
by those of Redman 3 Indeed, Redman, who earlier
could not spare the time to acknowledge Stevens, claims
to have diligently searched for Stevens on as many as
five or six trips and assisted by his two deputies, Howard
Coleman and Price Rasnell It is of course difficult to
imagine that as many as six officials would have gone to
such lengths to unload a truck whose freight was kept
under temperature control, and that all of them could
have gone through such efforts within less than 1 hour's
time the Respondent incredulously asks "Where did he
[Stevens] go9" (R Br 12) After all, he was on foot It
seems certainly plausible that Stevens, who was unaware
that his telephone call had set into motion the arrange-
ments for a quicker unloading, had simply gone to a
nearby market to use the bathroom and to eat lunch
This, according to the Respondent, constituted his mis-
conduct, characterized by the Respondent as "knowingly
3 I find Redman s testimony in this regard incredible and biased The
testimony was inconsistent with his earlier statement, and he readily testi-
fied for the Respondent, but refused his cooperation with the General
Counsel
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
giving false information and disobeying the dispatcher s
instructions (G C Exh 3, R Br 9)
The record suggests just the opposite namely that
Stevens meticulously complied with the dispatcher s in
structions and the customs of the trade Like a responsi
ble employee Stevens promptly notified his Employer of
the delay as soon as he had arrived at Kings Foods he
waited as his own dispatcher instructed him to do and to
call back only if unloading had not been accomplished
by 12 noon As was customary in the trade when dnvers
had to wait, Stevens ate lunch and used a bathroom
This was particularly reasonable if the waiting time had
extended to a full 4 hours but Stevens returned after
only about 20 minutes Moreover, the record does not
support the Respondent s argument that a load of ice
cream customarily had priority for purposes of unloading
over other trucks most of which also carry perishable
loads Indeed had Stevens been less responsible and not
called his Employer it would have been unable to con
tnve the entire episode, and it might not have occurred
at all In any case the Respondent used this incident as a
pretext to rid itself of a responsible employee whose only
indiscretions consisted of his union involvement and
his willingness to do his duty as a witness I accordingly
find that the General Counsel s prima facie case was un
rebutted and that the Respondent clearly violated Sec
tion 8(a)(1), (3) and (4) of the Act
CONCLUSIONS OF LAW
1 The Respondent Overmte Transportation Comps
fly is an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
2 By repeatedly threatening to discharge an employee
if he testified at a hearing (in Case 9-CA-24243) before
an administrative law judge of the National Labor Rela
tions Board the Respondent violated Section 8(a)(1) of
the Act
3 By discharging Danny Stevens because of his union
activities and because he gave testimony to the Board at
a hearing before an administrative law judge (in Case 9-
CA-24243) the Respondent violated Section 8(a)(1) (3),
and (4) of the Act
THE REMEDY
On concluding that the Respondent has engaged in
certain unfair labor practices I find it necessary to rec
ommend that it cease and desist and take certain affirma
tive action designed to effectuate the policies of the Act
Having found that the Respondent Overnite Trans
portation Company unlawfully discharged Danny Ste
yens it will be ordered to offer him reinstatement and
make him whole for lost earnings and other benefits on a
quarterly basis from the date of discharge to the date of
a proper offer of reinstatement less net interim earnings
in accordance with F W Woolworth Co 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded 283 NLRB 1173 (1987)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed4
ORDER
The Respondent Overnite Transportation Company
Lexington Kentucky its officers agents successors and
assigns shall
1 Cease and desist from
(a) Discharging any employees because of their union
activities or because they gave testimony under this Act
or discriminating in any other manner with respect to
their hire or tenure of employment or any term or condi
tion of employment in violation of Section 8(a)(3) and
(1) of the Act
(b) Threatening employees with discharge if they testi
fy at a hearing before the National Labor Relations
Board
(c) 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 Danny Stevens immediate and full reinstate
ment to his former job or if that job no longer exists to
a substantially equivalent position, without prejudice to
his seniority or other rights or privileges previously en
joyed and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy sec
tion of the decision
(b) Remove from its files any reference to the dis
charge of Danny Stevens and notify him in writing that
this has been done and that evidence of the discharge
will not be used against him in future personnel actions
(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 its place of business in Lexington, Ken
tucky copies of the attached notice marked Appen
dix 5 Copies of the notice on forms provided by the
Regional Director for Region 9 after being signed by
the Respondent 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 cus
tomanly posted Reasonable steps shall be taken by the
Respondent to ensure the the notices are not altered de
faced or covered by any other material
4 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 an objections to them shall be deemed waived for all pur
poses
5 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
OVERNITE TRANSPORTATION 643
(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
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 discharge any employees because of
their union activities or because they give testimony
before the National Labor Relations Board or discnmi
nate in any other manner with respect to their hire or
tenure of employment or any term or condition of em
ployment, in violation of Section 8(a)(4) (3) and (1) of
the Act
WE WILL NOT threaten any employees because of the
union activities or because they testify in a proceeding
before the National Labor Relations Board
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the nghts
guaranteed you by Section 7 of the Act
WE WILL offer Danny Stevens immediate and full re
instatement to his former job or if that job no longer
exists to a substantially equivalent position without prej
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge less any net interim earnings, plus interest
WE WILL remove from our files any reference to the
discharge of Danny Stevens and notify him in writing
that this has been done and that evidence of the dis
charge wll not be used against him in future personnel
actions
OVERNITE TRANSPORTATION COMPANY