Pacemaker Driver Service

National Labor Relations Board - Board Decisions

Apr 13, 1984

269 N.L.R.B. 971 (N.L.R.B. 1984)

PACEMAKER DRIVER SERVICE
Pacemaker Driver Service, Inc., Carrier Corporation
Carrier Trucking Service and Robert C. Barnes,
Teamsters Local Union No. 519. Case 10-CA-
16850
13 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 12 October 1982 Administrative Law Judge
William N. Cates issued the attached decision. The
Respondents filed exceptions and supporting briefs.
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
conclusions2 and to adopt the recommended Order
as modified herein.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Pacemaker Driver Service, Inc. and
Carrier Corporation Carrier Trucking Service,
Knoxville, Tennessee, their officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraphs l(c)
and (d).
"(c) Threatening employees with closure of the
Knoxville, Tennessee facility if they join or engage
I Both Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
Respondent Carrier also filed a "Motion for Leave to File Supplemen-
tal Citation of Authority" concerning the Seventh Circuit's opinion in
Sioux Products v. NLRB, 684 F.2d 1251 (1982). The motion is hereby
denied because the Board takes judicial notice of all relevant Board and
court decisions.
2 In adopting the judge's conclusion that Respondents Carrier and
Pacemaker constitute a "joint employer" for purposes of the Act, we rely
on his application of the standard for determining "joint employer" status
set forth in C. R. Adams Trucking, 262 NLRB 563 (1982), and Manpower
Inc., of Shelby County, 164 NLRB 287 (1967), i.e.. whether two or more
employers share or co-determine those matters governing the essential
terms and conditions of employment. See NLRB v. Browning-Ferris Indus-
tries, 691 F.2d 1117 (3d Cir. 1982). We also find it unnecessary to pass on
the judge's reliance on the January 1980 settlement agreement executed
by both Respondents in settlement of an unfair labor practice charge filed
by one of the alleged discriminatees herein.
Ws e shall modify pars. I(c) and (d) and 2(a) of the judge's recom-
mended Order to more appropriately remedy the violations found and to
conform to the judge's notice.
269 NLRB No. 169
in activities on behalf of Teamsters Local Union
No. 519 or any other labor organization.
"(d) Discharging and thereafter failing and refus-
ing to reinstate employees because they join or
engage in activities on behalf of Teamsters Local
Union No. 519 or any other labor organization."
2. Substitute the following for paragraph 2(a).
"(a) Reestablish the Knoxville, Tennessee domi-
cile and offer immediate and full reinstatement to
its employees Jonah C. Gates, Donnie Bales, David
Donaldson, and Hickman S. Ridley, Jr., to their
former jobs or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss
of earnings they may have suffered by reason of
their unlawful discharges, with interest, as set forth
in the section of this decision entitled 'The
Remedy."'
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This
matter was tried before me at Knoxville, Tennessee, on
April 21 and 22, 1982. The hearing was conducted pur-
suant to a complaint and notice of hearing issued by the
Acting Regional Director for Region 10 of the National
Labor Relations Board, hereinafter the Board, on June 4,
1981, and was based on a charge which was filed by
Robert C. Barnes, Teamsters Local Union No. 519, here-
inafter the Union, on April 2, 1981. The complaint al-
leges that Pacemaker Driver Service, Inc., hereinafter
Pacemaker, and Carrier Corporation Carrier Trucking
Service, hereinafter Carrier (Pacemaker and Carrier
hereinafter shall be jointly referred to as the Respondent)
violated Section 8(aXl) and (3) of the National Labor
Relations Act, hereinafter the Act.
The complaint was amended on April 21, 1982, at the
hearing. The answers of the parties as amended at the
hearing placed in issue the following.
1. Whether Pacemaker and Carrier constituted a joint
employer of the drivers herein.
2. If the issue in issue 1 above is resolved finding that
Pacemaker and Carrier constituted a joint employer, was
dispatcher David Hagaman, at material times herein, an
agent acting on behalf of the Respondent and was he a
supervisor within the meaning of Section 2(11) of the
Act.
3. If the issue in issue I above is resolved finding that
Pacemaker and Carrier constituted a joint employer, did
the Respondent violate Section 8(aXl) of the Act by the
following alleged conduct.
(a) Whether Carrier Manager C. S. Henninger Jr.
about January 29, 1981, interrogated the Respondent's
employees concerning their union membership, activities,
and desires, and the union membership, activities, and de-
sires of other employees.
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Whether Carrier Manager Henninger about March
13, 1981, threatened the Respondent's employees with
discharge if they joined or engaged in activities on behalf
of the Union.
(c) If the issue in issue 2 above is resolved finding dis-
patcher Hagaman to be a supervisor within the meaning
of Section 2(11) of the Act did the Respondent violate
Section 8(a)(1) of the Act by the following conduct:
(1) Whether dispatcher Hagaman, about February 5,
1981, threatened the Respondent's employees with the
closure of the Knoxville, Tennessee terminal if they
joined or engaged in activities on behalf of the Union.
(2) Whether dispatcher Hagaman on or about Febru-
ary 26, 1981, in a telephone conversation threatened the
Respondent's employees that it would discharge all its
employees and close its Knoxville, Tennessee terminal if
the employees joined or engaged in activities on behalf
of the Union.
(d) Whether Pacemaker Manager of Industrial Rela-
tions Joseph R. Weissenberger, about February 22, 1981,
solicited grievances from the Respondent's employees
and promised to adjust said grievances with knowledge
that the employees had engaged in union activity.
4. Whether the Respondent violated Section 8(a)(l)
and (3) of the Act, when about March 30, 1981, it dis-
charged and thereafter, failed and refused to reinstate its
employees Jonah C. Gates, Donnie Bales, David Donald-
son, and Hickman S. Ridley Jr. because of their member-
ship in and activities on behalf of the Union and because
they engaged in activities with other employees for the
purposes of collective bargaining and other mutual aid
and protection.
On the entire record, including my observation of the
demeanor of the witnesses, and after full consideration of
the briefs filed by counsel for the General Counsel, coun-
sel for Pacemaker, and counsel for Carrier, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Pacemaker is an Indiana corporation with an office
and place of business located at Knoxville, Tennessee,
where it is engaged in the service of providing driver
personnel to private, common, and contract carriers as
an essential link in the interstate transportation of com-
modities. During the 12 months immediately preceding
issuance of the complaint, which is a period representa-
tive of all times material herein, Pacemaker in the course
and conduct of providing the services outlined above re-
ceived gross revenues in excess of $50,000.
Carrier is a Delaware corporation with an office and
place of business located in Knoxville, Tennessee, where
it is engaged in the manufacture and sale of air-condi-
tioners. During the 12 months immediately preceding is-
suance of the complaint, which is a period representative
of all times material herein, Carrier sold and shipped
from its Knoxville, Tennessee facility, finished products
valued in excess of $50,000 directly to customers located
outside the State of Tennessee.
Pacemaker and Carrier admit and I find they are em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges it is admitted and I find that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Carrier is primarily engaged in the manufacture of air-
conditioning equipment; however, it either wholly owns
or has as subsidiaries various other corporation such as
Allied Products, Athens Products, and the Inmont Cor-
poration. Carrier itself is wholly owned by United Tech-
nologies Corporation. That portion of Carrier directly in-
volved in the instant case is the portion that handles its
in-house truck transportation services. The in-house
trucking service handles approximately 10 percent of the
freight needs of Carrier and its affiliated companies. Car-
rier leases the trucks it operates as well as the drivers it
utilizes. Carrier domiciles its drivers at various locations
throughout the United States including Knoxville, Ten-
nessee, the location in question in the instant case. Carri-
er's transportation operation is also based in Knoxville,
Tennessee.
Pacemaker operates a professional driving service that
leases tractor-trailer operators to various corporations,
including Carrier. The drivers leased to Carrier are uti-
lized at certain of Carrier's domiciliary locations. Pace-
maker and Carrier operate pursuant to a written agree-
ment. Pacemaker began providing drivers to Carrier in
1977. Prior to 1977 Carrier utilized its own drivers to
fulfill its transportation needs. In 1977 when Pacemaker
assumed the responsibility of providing Carrier with the
drivers it needed it required the Carrier drivers to file
applications for employment with it. Three of the four
drivers at the Knoxville, Tennessee location continued to
drive for Pacemaker, without a break in service, after
Pacemaker assumed the responsibility of providing driv-
ers for Carrier at certain of its domiciliary locations. The
drivers of Carrier that were employed by Pacemaker re-
tained their Carrier seniority when they commenced to
operate as Pacemaker drivers. The drivers at the Knox-
ville, Tennessee domicile continued to have the same dis-
patchers as they had when they were Carrier drivers.
In 1979 there was a Board-conducted election involv-
ing Pacemaker and the Union at Pacemaker's Knoxville,
as well as its Nashville and Memphis, Tennessee facili-
ties. The election was held on December 7, 1979, with a
majority voting against the Union. A Certification of
Result of Election in Case 10-RC-11934 issued on De-
cember 20, 1979.
B. The Joint Employer Issue
The Board reaffirmed in Holiday Inn of Benton, 237
NLRB 1042, 1044 (1978), that it considers four principal
factors in determining whether two arguably separate
employers will be treated as a joint employer. These fac-
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PACEMAKER DRIVER SERVICE
tors are: (1) interrelationship of operations, (2) central-
ized control of labor relations, (3) common management,
and (4) common ownership or financial control. The
Board noted further in Holiday Inn of Benton, that no in-
dividual factor is controlling in making a determination
as to joint employer status; however, emphasis is placed
on the first three factors set forth above particularly the
critical factor of centralized control of labor relations.
See also Daka, 257 NLRB 325 (1981).
In applying the pertinent principles outlined above to
the facts of the instant case it is important to note the
agreement between Pacemaker and Carrier. The agree-
ment dated April 7, 1980, called for Pacemaker to fur-
nish driver personnel to Carrier. The agreement stated
that no driver, agent or employee of Pacemaker would
be considered an agent, driver, or employee of Carrier,
and that Pacemaker would direct and control its employ-
ees to include the selection, hiring, firing, training, set-
ting of and paying wages, benefits, workmen compensa-
tion, FICA, unemployment taxes, and adjusting any com-
plaints of its employees.' The agreement further stated
that the drivers would be subject to discharge and disci-
pline by Pacemaker only-with exceptions as outlined in
the agreement. The agreement stated Carrier would
assume control of the drivers through dispatching or
necessary compliance with Interstate Commerce Com-
mission requirements only to effectuate the results to be
accomplished.
The agreement states that drivers supplied by Pace-
maker must meet all qualifications of the Interstate Com-
merce Commission, the United States Department of
Transportation, and other requirements imposed by law,
and that the drivers must comply with the safety regula-
tions and rules of the Interstate Commerce Commission
and/or United States Department of Transportation. The
agreement provides that all drivers are to participate in a
safety program based on the American Trucking Asso-
ciation, Incs.' safety program. The agreement states,
"Carrier shall have the right to examine and pass upon
the qualifications of each Driver, supplied by the Con-
tractor [Pacemaker], and the right to initially reject any
Driver who, in its judgment, fails to meet any of such
qualifications or requirements."
Pacemaker maintains records and reports pertaining to
the drivers and makes them available to Carrier for ex-
amination and inspection upon a reasonable notice from
Carrier. The agreement provides in part:
Carrier shall obtain and maintain all reports, records
and other data necessary to comply with applicable
safety regulations of the Federal Highway Commis-
sion, Department of Transportation, Interstate Com-
merce Commission, Federal and State Governmen-
tal regulatory agencies in connection with the oper-
I More specifically the agreement requires Pacemaker to provide an
employee pension benefit plan; to collect and pay all Federal Insurance
Contribution Act (FICA) and federal unemployment taxes; to deduct and
withhold federal and state income taxes; to comply with all applicable
state workmen compensation laws; to pay all taxes due Federal, state or
municipal agencies; to comply with the Fair Labor Standards Act of
1938, as amended; and, to comply with applicable state unemployment
taxes.
ation of vehicles; and will make copies of such re-
ports, records or other data available to Contractor
[Pacemaker], upon its request.
Carrier shall assume full responsibility to check pe-
riodically Driver's log and other reports, records
and other data pertaining solely to and required by
the Interstate Commerce Commission or other gov-
ernmental regulatory agencies in the operation of
the vehicles and Driver's use thereof.
The agreement requires Carrier to maintain insurance
on each of the vehicles driven by Pacemaker drivers.
The agreement further states: "Where necessary and
upon request by Carrier, Contractor [Pacemaker] will
advance money to its Drivers for ordinary and necessary
expenses (including tolls, lodging and other miscellane-
ous road expenses) in furtherance of Carrier's trade and
business."
The agreement between Pacemaker and Carrier fur-
ther provides, in part, that upon receipt of a written
complaint from Carrier specifying a driver's reckless or
abusive handling of a vehicle or violation of any govern-
mental rule, regulation, statute or ordinance, use of a ve-
hicle for any illegal purposes or for purposes not within
the scope of Carrier's business or other misconduct,
Pacemaker would immediately take proper corrective
action to see that such conduct was forthwith eliminated.
The agreement at article XI titled, "Discharge of
Drivers," provides as follows:
Upon Contractor's [Pacemaker] receipt of a written
complaint from Carrier specifying ground for dis-
qualification of any Driver under the U. S. Depart-
ment of Transportation's Motor Carrier Safety Reg-
ulations, as amended from time to time, or reckless,
careless or abusive handling of any vehicle, or other
incompetence by or of any Driver or conduct
which in Carrier's sole judgment deems inimical to
its best interest, Contractor [Pacemaker] shall
remove such individual as a Driver of such vehicle
as soon as possible.
The events, at the time of the change by Carrier from
utilizing its own drivers to utilizing Pacemaker's drivers,
reflect that three of the four Carrier drivers domiciled at
Knoxville, Tennessee, were acquired by Pacemaker and
were given their full Carrier seniority. The drivers con-
tinued to be directed on a daily basis, with respect to
their job assignments, by Carrier dispatchers. 2 Carrier
dispatchers assigned Pacemaker drivers routes to be fol-
lowed and rerouted them. The drivers telephoned Carri-
er dispatchers on a daily basis and usually several times
during a day. In addition to being required to call in
daily the drivers were required to call the Carrier dis-
patchers when they had unloaded on outbound freight
and whenever they were loaded on inbound freight.
Driver Gates credibly testified that he only called Pace-
maker approximately every 3 months but that he daily
' As is set forth in detail elsewhere in this decision, the evidence war-
rants and I have determined that Carrier Dispatcher Hagaman was a su-
pervisor within the meaning of Sec. 2(11) of the Act.
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contacted Carrier dispatchers regarding work assign-
ments.
Pacemaker, in a written communication (Pacemaker
Exh. 3) to each of its drivers dated March 18, 1981, dis-
cused its relationship with Carrier. The correspondence
stated in part at various paragraphs:
Hazardous materials, loading and unloading, routes
to be used, destinations of loads, schedule of time at
work, and running legal, all fall into the category of
working conditions.
These and the other items mentioned are manage-
ment decisions made by the supervisory personnel
at Carrier Trucking Service in order that they get
their freight delivered.
Some of the decisions which the Carrier Trucking
Service personnel have to make occasionally are
very unpopular with the drivers-they are not nec-
essarily popular with the dispatchers-however,
they are management decisions which are made in
the best interest of the Carrier Private Fleet oper-
ation and must be adhered to. Beyond the fact that
your jobs directly depend on this, the fleet's exist-
ence as a whole also depends on it.
Pacemaker Manager of Industrial Relations Weissen-
berger forwarded to Carrier Manager C. S. Henninger
on July 25, 1980, a copy of a wage and fringe benefit
comparison between the Carrier account and three other
clients of Pacemaker along with a current union scale for
drivers. In his cover letter accompanying the wage and
fringe benefit comparison, Weissenberger stated, I hope
this information is useful to you in your analysis of a
new increase for the drivers. Weissenberger advised
Henninger in his letter that he would be in Knoxville,
Tennessee, to discuss with him the coming wage and
fringe benefit package.
Other indications of the relationship between Pace-
maker and Carrier are contained in the disposition of a
1979 charge filed against Pacemaker by driver Jonah C.
Gates in Case 10-CA-15157. That portion of the charge
which was not dismissed by the Board was settled by a
written settlement agreement. The agreement, which was
approved by the Regional Director for Region 10 on
January 18, 1980, was jointly signed by Pacemaker and
Carrier and Pacemaker and Carrier agreed to jointly post
a jointly signed "Notice to Employees."
Pacemaker contends unequivocally that it is the em-
ployer of the drivers in the instant case, and that there is
no substantial evidence to support any conclusion that
Carrier is also an employer of the drivers. Pacemaker
contends that Carrier is only one of its many clients in-
volving only one terminal and that the record is void of
any evidence of any interrelationship between Carrier
and Pacemaker other than the assignment of drivers to
Carrier's fleet. Pacemaker acknowledges that Carrier has
certain day-to-day control over Pacemaker drivers with
respect to dispatching, collecting of logs, daily telephone
contacts, location of equipment, and scheduling of return
loads. However, Pacemaker contends that this day-to-
day activity represents the minimum participation needed
by Carrier to achieve their intended result, i.e., the deliv-
ery of freight. Pacemaker further contends that any ship-
per in a similar situation would have to monitor the flow
of its freight in the same manner and as such does not
constitute an employer relationship between the drivers
and Carrier. Pacemaker contends that on those occasions
when Carrier informed it of any failure on the part of
Pacemaker drivers to accomplish the delivery or pickup
of freight such was necessary to avoid disruption of Car-
rier's achievement of having freight arrive on time with-
out damage and as such does not demonstrate centralized
control of labor relations. Pacemaker contends that other
than the monitoring of the work product and an occa-
sional communication with it when this work product
was unsatisfactory, Carrier did not exercise any control
over labor relations. Pacemaker also contends that there
is no evidence in the record to indicate common owner-
ship or financial control of either Carrier or Pacemaker
over the other. Pacemaker contends all the record dem-
onstrates is that there was a contractual relationship be-
tween Carrier and Pacemaker which necessarily required
interaction between the parties but not beyond the extent
necessary to accomplish the performance of their basic
contractual duties, and accordingly, Pacemaker and Car-
rier were not joint employers.
Carrier advances many of the same contentions that
Pacemaker does. Additionally, Carrier contends there is
no record evidence to indicate that it had ever exercised
that portion of the agreement between itself and Pace-
maker whereby it could in its sole judgment have a
driver removed where it deemed it would be in its best
interest. Carrier contends that it is not involved in deci-
sions concerning discipline of drivers. Carrier also con-
tends that Pacemaker is responsible for holding drivers'
meetings at which time wage and benefit packages are
discussed and the drivers have a chance to air their com-
plaints. Carrier contends the drivers were Pacemaker's
employees, initially employed by Pacemaker, and that
Pacemaker was responsible for all incidents of employ-
ment related to the drivers. Finally, Carrier contends
that the agreement with Pacemaker did not create a joint
employer relationship and that the only testimony on this
point was that the parties did not deviate from the terms
of the agreement.
Counsel for the General Counsel contends that a joint
employer status has been demonstrated in that the Carri-
er drivers retained their jobs as well as their seniority
when they were placed under the Carrie-Pacemaker con-
tract and were provided with written work rules cover-
ing operations, pay, and benefits under the title "Carrier
Trucking Service," and that their supervision did not
change. Counsel for the General Counsel contends that
Carrier dispatchers substantially controlled the day-to-
day activity of the Pacemaker drivers and that the driv-
ers only immediate supervision was provided by Carrier.
The General Counsel contends that further indications of
a joint employer status are demonstrated by the fact that
Carrier and Pacemaker jointly agreed on driver wage
rates and benefits and that they jointly settled a National
Labor Relations Board charge by jointly posting a
notice. Finally, the General Counsel contends that Carri-
974
PACEMAKER DRIVER SERVICE
er possesses a high degree of control over the discipline
and discharge of the drivers employed by Pacemaker.
In agreement with counsel for the General Counsel, I
find that all the factors weighed in their totality warrant
a finding that Pacemaker and Carrier function as a joint
employer with respect to the drivers supplied by Pace-
maker and utilized by Carrier. I am persuaded that the
facts demonstrate that Carrier exercises sufficient control
over the drivers whom it leases from Pacemaker to con-
stitute an employer of those employees. See CPG Prod-
ucts Corp., 249 NLRB 1164 (1980).
I am persuaded that Carrier and Pacemaker share or
co-determine those matters governing the essential terms
and conditions of employment of the drivers that Pace-
maker provides to Carrier. The record evidence clearly
establishes that Carrier maintained the right to unilateral-
ly reject any driver who, in its judgment, did not meet
the necessary qualifications or requirements that it had
outlined. Carrier maintained the right to examine all
records and other data kept by Pacemaker that related to
or had any bearing on the drivers operations that would
be of benefit to Carrier. Carrier maintained all safety
records and retained the right to periodically check all
driver logs and other reports for or pertaining to Inter-
state Commerce Commission requirements. Carrier also
reserved the right to cause the discharge of any Pace-
maker driver that it (Carrier) in its "sole judgment deems
inimical to its best interest." Pacemaker advanced money
to its drivers for ordinary expenses in furtherance of Car-
rier's business. Likewise, the day-to-day control of the
drivers was through Carrier with the drivers only check-
ing with Pacemaker on an infrequent and sporadic basis.
The daily routes to be followed by the drivers as well as
their alternate routes were directed and controlled by
Carrier. Further, with respect to controlling jointly the
essential terms and conditions of employment, the record
clearly indicates that working conditions were consid-
ered management decisions made by the supervisory per-
sonnel of Carrier and it was in the best interest of Pace-
maker drivers to adhere to those management decisions
made by Carrier. In fact Pacemaker notified its drivers in
writing that their jobs depended on their adherence to
those management decisions of Carrier. Further, the
record establishes that prior to any wage or benefit in-
creases being given to the Pacemaker drivers wage com-
parison charts were provided to Carrier by Pacemaker
and those charts were discussed by them before any ben-
efit package was presented to the drivers. I am therefore
persuaded that the essential terms and conditions of em-
ployment for the drivers were jointly determined by
Carrier and Pacemaker. The Board has held where two
employers share or co-determine matters governing the
essential terms and conditions of employment, they are
to be considered joint employers for purposes of the Act.
See C. R. Adams Trucking, 262 NLRB 563, 564 (1982).
See also Manpower Inc., of Shelby County, 164 NLRB
287, 288 (1967).
It is clear from the record herein that there is no
common ownership or common financial control be-
tween Carrier and Pacemaker. However, these facts are
insufficient to offset the cumulative effect of the evi-
dence regarding the other factors here in consideration
which indicate a joint employer status. On the above
premises I find that Pacemaker and Carrier constitute a
joint employer for purposes of the Act.
C. Supervisory Status of Hagaman
The General Counsel alleges and Pacemaker and Car-
rier deny that at all times material herein Carrier dis-
patcher David Hagaman was an agent of the Respond-
ent, acting on its behalf, and that he was a supervisor
within the meaning of Section 2(11) of the Act.
Driver Jonah Gates testified, and I credit his testimony
in this respect, that Carrier dispatcher Hagaman (or Car-
rier dispatcher David Johnson) dispatched all of the
Pacemaker drivers, determined their routes, and rerouted
them while they were making a delivery if necessary.
The drivers were required to telephonically report to
dispatcher Hagaman on a daily basis at 9 a.m., according
to Gates, and notify Hagaman when they had unloaded
their outbound freight or when they had loaded freight
for the return back haul. Gates testified he contacted Ha-
gaman on some occasions several times per day. Haga-
man was to be kept fully informed of the times that the
drivers were out of service for any purpose while on the
road.
The record reflects that it was dispatcher Hagaman
who notified the drivers that they were laid off when
Carrier decided to discontinue utilizing a Knoxville, Ten-
nessee domicile point for certain of its trucks.
Driver Hickman S. Ridley Jr. testified that he was told
by dispatcher Hagaman as well as dispatcher Johnson to
make a particular delivery run in a manner that Ridley
stated he could not complete legally. As a result of the
instructions from Hagaman and Johnson, Ridley falsified
his log books in order to make the run as instructed be-
cause he was told if he did not make the run as directed
they (Hagaman and Johnson) would get someone else
who would get the run where it needed to be.
The record reflects that driver Gates was notified in
writing on March 11, 1981, by Pacemaker Manager of
Industrial Relations Weissenberger that he (Gates) had
followed the dispatcher's (Hagaman) instructions to the
letter in an incident on February 23, 1981. The letter ap-
prises Gates that common sense dictated that the dis-
patcher (Hagaman) meant for Gates to call in when he
was ready to leave a particular stop rather than call in to
Hagaman every 30 minutes as Gates did. The letter to
Gates from Weissenberger continued: "Don't let the atti-
tude of a few rub off on you. Let the dispatchers know
when you are going to be delayed."
Further written communication between Weissen-
berger and Gates is enlightening with respect to whether
the Carrier dispatchers-Hagaman in particular-were
supervisors within the meaning of the Act. In a letter
dated March 18, 1981, addressed to Gates from Weissen-
berger (G.C. Exh. 3). Weissenberger points out to Gates
that such matters as loading and unloading of trucks,
routes to be used, destination of loads, scheduling of time
at home, running legal, and the hauling of hazardous ma-
terials all fell into the category of working conditions.
Weissenberger continued in his letter to Gates that such
items were management decisions made by the superviso-
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ry personnel at Carrier, and that the drivers' jobs de-
pended on their adherence to those management deci-
sions of Carrier. Weissenberger informed Gates that the
complaints of the Pacemaker drivers about the dispatch-
ers had been discussed with Carrier Manager C. S. Hen-
ninger Jr. and dispatchers Hagaman and Johnson. Weis-
senberger then, in the very next sentence of his letter to
Gates, stated that the Carrier supervisory personnel felt
that the driver/dispatcher concerns were a double-edged
sword and that both the drivers and dispatchers needed
to cooperate with each other.
Carrier presented as a witness its Director of Logistics
Sanford Abrahams, who testified that the term dispatch-
er when used by Carrier was not used in the traditional
sense of the word. Abrahams stated that the dispatchers
of Carrier operated in "almost a predigested environ-
ment." Abrahams also testified that he established the
dispatcher program at Carrier so that as the transporta-
tion portion grew; ". . . we designed this system of dis-
patching that pretty much tells a fellow the rules of the
game, how to do it, it gives him quite a series of guide-
lines about priorities...." Abrahams testified that the
program was set up so that whatever number of dis-
patchers Carrier might employ, they would all perform
their jobs in essentially the same manner.
Abrahams further testified:
We have a responsibility of the dispatchers to write
on a clipboard that says when someone calls you on
the phone, be it a customer, or be it a driver, you
have a little board that you write down the infor-
mation on, and what you're committed to as far as
customer service or, in fact, what you have told the
driver, and what he was supposed to do.
We have rules that say-you mentioned before, we
only handle 10 percent of the total available; well,
very often we have more calls than we have trucks,
so, we have determined for them a priority, how do
you handle more calls than you have trucks; we
have a listing of priorities that have been assigned
people top priority, and some people lower priority,
or some customers, we handle all their business,
some customers we might handle 10 percent.
He's [the dispatchers] really not supposed to change
the priority listing, now, not to say that, you know,
any given day-it's not the Bible, frankly; but, he
should adhere to that list, and if he really has a
problem he should go to his superior, and not exer-
cise his own judgment.
Considering all of the foregoing, I am persuaded and
conclude that Hagaman possessed supervisory authority
requiring the independent exercise of judgment relating
to the responsibility of directing the work of the drivers
on a day-to-day basis. Unless Hagaman and Johnson
were supervisors of the drivers within the meaning of
the Act, the drivers would be virtually without supervi-
sion. The record facts establish that the dispatchers se-
lected the routes for the drivers to follow, rerouted them
when necessary, and even informed at least one driver if
he could not make a particular run in the manner the dis-
patchers directed that the run be made, the dispatchers
would get someone who would so do. No other individ-
ual on a management level had day-to-day contact with
the drivers except the dispatchers. The written communi-
cations of Weissenberger to the drivers clearly indicated
that Pacemaker considered Carrier dispatchers to be su-
pervisors and instructed its drivers that their continued
employment depended on their adherence to the dictates
of the Carrier dispatchers. It is likewise apparent from
Weissenberger's letter of reprimand to driver Gates re-
garding a Gates and Hagaman incident in Syracuse, New
York, that Hagaman was a supervisor within the mean-
ing of the Act. The letter of reprimand to Gates ac-
knowledged that he followed the dispatcher's instruc-
tions to the letter, which to me indicates that Pacemaker
expected its drivers to obey the instructions of the Carri-
er dispatchers.
I do not find Abrahams' testimony that the dispatchers
operated in an "almost predigested environment" to de-
tract from my conclusion based on a consideration of all
the facts that the dispatchers were and are supervisors
within the meaning of Section 2(11) of the Act. I there-
fore conclude and find that dispatcher Hagaman was a
supervisor within the meaning of the Act. Cf. Connecti-
cut Distributors, 255 NLRB 1255, 1257 (1981).
Even if I did not find Hagaman to be a supervisor
within the meaning of the Act, I would find that in his
position as virtually the only person to communicate to
the drivers Carrier's policies and instructions, he had
been placed by Carrier in a position of apparent author-
ity where the drivers would reasonably believe that Ha-
gaman's instructions reflected Carrier's company policy
and that he spoke for management in his dealings with
Pacemaker drivers and, as such, was an apparent super-
visor and agent of Carrier such as to make his conduct
attributable to Carrier. Cf. Union Oil Co. of California,
258 NLRB 1373 fn. 2 (1981), and Jules V Lane, DDS,
PC, 262 NLRB 118 (1982).
D. The 8(a)(1) Allegations Attributed to Hagaman
Paragraph 12 of the complaint alleges that about Feb-
ruary 5, 1981, the Respondent, by its agent and supervi-
sor dispatcher David Hagaman, in and about the vicinity
of its Knoxville, Tennessee terminal, threatened its em-
ployees with closure of the terminal if they joined or en-
gaged in activity on behalf of the Union. Paragraph 13 of
the complaint alleges that the Respondent by dispatcher
Hagaman about February 26, 1981, in a telephone con-
versation, threatened employees that it would discharge
all its employees and close the Knoxville, Tennessee ter-
minal if its employees joined or engaged in activities on
behalf of the Union.
Driver Gates testified he had a telephone conversation
with dispatcher Hagaman around February 5, 1981.
Gates testified he had a breakdown in Syracuse, New
York, which resulted in his taking the tractor-trailer he
was driving to Lease-Way to be repaired. Gates testified
he called dispatcher Hagaman and told him the truck
was in the shop being repaired. Gates testified the repairs
for the truck took some time so he again called dispatch-
er Hagaman. Hagaman told Gates he thought the truck
was being taken in for fuel only and not to have any
976
PACEMAKER DRIVER SERVICE
safety work done on it at that time, because to have
work done at that time would cause delivery of the
freight to be late the next morning. Gates testified that
dispatcher Hagaman started cursing and that he (Gates)
hung up the telephone at that time. Gates thereafter
called dispatcher Hagaman back approximately every 30
minutes until the truck was repaired. Gates testified that
up until approximately 5 p.m. Hagaman or dispatcher
Johnson called the Lease-Way personnel trying to get
them to get the truck repaired and get it out of their
shop. Gates left Syracuse after the repairs were made
and proceeded on his trip to Pennsylvania and along the
way stopped and called dispatcher Hagaman at Haga-
man's home. Gates testified, "I told Mr. Hagaman that I
didn't think I could carry on any longer with his dis-
patch and him a cussing and a carrying on, raising hell at
the driver, because we didn't have time enough to have
the trucks fixed to drive them safely, and that we were
just goitfg to have to go Union, that we had no guaran-
tee over nothing, and that we would go Union on them."
Gates stated, "Mr. Hagaman said that if we did, they
would shut Carrier Trucking Service down at Knoxville;
the drivers would lose their jobs, he would lose his job;
and he said-his last comment was, I'll have to hang up
because Mr. Henninger will end up getting the phone bill
off of this and will want to know what it's all about; so,
he hung up."
Dispatcher Hagaman was not called as a witness in
this proceeding. Driver Gates was, at times in his testi-
mony, evasive and unresponsive to questions, while at
other times he would concede to the truth only when
confronted with overwhelming proof such as the inci-
dent where he denied having received a copy of a dis-
missal letter from the Regional Director for Region 10 of
the Board until confronted with a return receipt signed
by him for the letter. Nevertheless, I am persuaded that
although Gates was not a beacon of truth in a world of
falsehoods, portions of his testimony were truthful. Ac-
cordingly, I credit that portion of Gates' testimony re-
garding his February 5, 1981 conversation with dispatch-
er Hagaman as outlined above. I do so, for among other
reasons, it was uncontradicted and undenied and state-
ments of a similar nature were made by dispatcher Haga-
man to driver Ridley.
The remarks made by dispatcher Hagaman to driver
Gates constitute a threat to employees of a closure of the
Knoxville, Tennessee terminal if the employees joined or
engaged in activities on behalf of the Union, in violation
of Section 8(a)(1) of the Act. Inasmuch as I have found
Carrier and Pacemaker to be a joint employer of the
drivers and have found dispatcher Hagaman to be a su-
pervisor within the meaning of the Act, the Respondent 3
is responsible for the acts of its supervisor and agent Ha-
gaman.
Driver Hickman S. Ridley testified that around Febru-
ary 26, 1981, he called dispatcher Hagaman from either
Warsaw or Kendallville, Indiana, to inform Hagaman
that the freight from that particular location had been
loaded. Hagaman wanted to know what time the load
would get to Syracuse, New York. Ridley informed him
s Carrier and Pacemaker jointly.
(Hagaman) that he did not know because they were
doing what they were told to do. Ridley testified Haga-
man stated, "aw, come on, stop this stuff." Ridley told
Hagaman he was just doing what he was told to do and
stated that if they did not stop the harassment, it was
going to end up in a union vote again. Ridley testified,
"Mr. Hagaman told me, if you go to a Union vote, he
said, they will close this place down, they'll fire you, and
fire me, and they'll move the trucks out." Ridley told
Hagaman that the drivers did not have much choice
unless everyone stayed off their backs. According to
Ridley that was the extent of the conversation. As just
previously noted, dispatcher Hagaman did not testify.
Based on my observation of Ridley as he testified I am
persuaded he did so truthfully and, as such, I credit his
testimony with respect to his conversation with dispatch-
er Hagaman. I am not persuaded in the least that Ridley
should be discredited because he indicated in his testimo-
ny that he would falsify log book entries. Ridley ex-
plained that the false entries were made in order to
comply with requests of dispatchers Hagaman and John-
son in order to have deliveries made within a certain
time frame.
I therefore conclude and find that the Respondent,
through its agent and supervisor Hagaman in his conver-
sation with Ridley, threatened its employees with dis-
charge and closure of the Knoxville terminal if the em-
ployees joined or engaged in activities on behalf of the
Union.
E. The 8(a)(1) Allegations Attributed to Henninger
Paragraph 11 of the complaint alleges that the Re-
spondent, by its supervisor and agent Manager C. S.
Henninger Jr. about January 29, 1981, in the vicinity of
its Knoxville terminal, interrogated its employees con-
cerning their union membership, activities, and desires
and the union membership, activities, and desires of
other employees. Paragraph 14 of the complaint alleges
that Henninger about March 13, 1981, in the vicinity of
the Knoxville, Tennessee terminal, threatened its employ-
ees with discharge if they joined or engaged in activities
on behalf of the Union.
Driver Gates testified that in February 1981 he had
unloaded his truck at Phoenix, Arizona, loaded it back,
and called dispatcher Hagaman to tell Hagaman that he
was ready to come back East with the return load. Ha-
gaman informed Gates that Manager Henninger wished
to speak with him. Gates testified that Henninger came
on the telephone and wanted to know what was wrong
with Carrier driver Calvin Cooper who was domiciled at
Nashville, Tennessee. Henninger stated to Gates that
Cooper had some kind of problem or was mad about
something, and Henninger wanted to know if Gates
knew anything about it. Gates told Henninger that he
did not know exactly what was wrong with Cooper, but
Cooper had been upset about having to unload a trailer
that had seals on it when he believed he should not have
been required to unload it. Gates testified that Henninger
then wanted to know if there was any union activity,
that he had heard from a driver through the grapevine
that Cooper had been talking about a union. Gates told
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henninger that he did not know anything about it. Hen-
ninger told Gates that he would "pull Calvin Cooper
into Knoxville and have a little fireside chat with him."
Gates placed the time of the telephone call at approxi-
mately 4 p.m., Phoenix time.
Manager Henninger testified that he did not have a
telephone conversation with Gates on January 29, 1981,
because he was not in his office on that date, but rather
was in Nashville, Tennessee. Henninger's office is locat-
ed in Knoxville, Tennessee. A disposition of this allega-
tion requires resolving the credibility conflict between
Gates and Henninger.
While portions of driver Gates' testimony was unre-
sponsive and less than candid, I am persuaded in this par-
ticular instance Gates was telling the truth. Gates' testi-
mony with respect to the January 29, 1981 conversation
with Henninger is of a like nature to a conversation that
Gates testified Henninger had with him in August 1979. I
shall briefly set forth the 1979 conversation although of
course no finding of a violation of the Act is made with
respect to that conversation. Gates testified that Hen-
ninger told him in 1979 that Carrier was trying to get
new equipment that would be in service after the first of
the year (1980) and that Carrier was going to realign the
safety department at Lease-Way to where the trucks
would be safe on the road and in the same conversation
Henninger inquired of Gates what it would take to keep
the Union out at Carrier. Henninger did not deny the
1979 conversation about the Union that he was alleged
to have made to Gates. I am persuaded that Gates told
the truth with respect to the 1979 as well as the 1981
conversations. The fact that the dispatch log of driver
Gates did not correspond to the time that Gates testified
he called Henninger from Phoenix, Arizona, does not de-
tract, in my opinion, from Gates' credibility with respect
to this conversation because Gates, as well as one other
driver, testified that it was sometimes necessary to falsify
or place inaccurate information on their log sheets in
order to meet dispatch requirements. Counsel for the
General Counsel requested that the drivers daily log for
January 29, 1981 (G.C. Exh. 11), be utilized to corrobo-
rate driver Gates contention that he spoke with Manager
Henninger on that date inasmuch as counsel for the Gen-
eral Counsel contends that Gates made a notation on his
log that Henninger had asked him about Calvin Cooper
and the Union. The Respondent's counsel contends in
brief that the notation regarding the conversation of
Henninger about the Union appears to have been done
by a different person than the one preparing the rest of
the daily drivers log. Driver Gates testified that he
placed all written material on General Counsel Exhibit
11 that appears thereon. As a nonhandwriting expert, I
am unable to determine if all of the material on General
Counsel Exhibit II was placed there by Gates, as testi-
fied to by him or not. There are certain similarities be-
tween the letters "s" in the material that was written
later in time on the drivers daily log in issue. However, I
note there are dissimilarities between the "a's," for exam-
ple. Neither the General Counsel nor the Respondent
Carrier sought to avail the court with a handwriting
expert. I therefore decline to find that General Counsel
Exhibit 11 either corroborates or detracts from the testi-
mony of driver Gates.
Having concluded that Henninger inquired of Gates
about the Union during the 1979 union campaign that
culminated in a December 7, 1979 Board-conducted elec-
tion, I find it is very probable that 2 months after the
election year had passed that Henninger would again in-
quire with respect to the union activities of the drivers. I
therefore credit the testimony of Gates that Manager
Henninger asked him about the union activities of his
fellow drivers, and that as such the Respondent violated
Section 8(a)(l) of the Act as alleged in the complaint.
Driver Hickman S. Ridley Jr. testified that he called
Carrier dispatch on March 13, 1981, and spoke with
Manager Henninger. Henninger inquired of Ridley if the
truck he was driving had run a car off the road. Ridley
told Henninger that he had not caused any car to leave
the road while he was driving the truck. Henninger
wanted to know if his codriver, Gates, had run anyone
off the road. Ridley informed Henninger that he did not
know, that he (Henninger) would have to ask Gates; and
Ridley then inquired if Henninger knew whether Carrier
was still going to get new trucks. Henninger told Ridley
that the new trucks were still on order. Ridley testified:
Well, he asked if dispatch was doing better, and I
said, Yeah, I said, they are real nice now, they talk
real nice to us; but, I told him, I said, the transport
associate driver had approached us, plus other driv
ers, wanting to go Union; and he said, if you try to
go Union, he said, Carrier will fire me, they'll fire
you, and they'll move this place out of Knoxville.
Ridley testified he made no response to Manager Hen-
ninger except to state to him that the drivers were not
trying to hassle them or anything; that they just wanted
to be left alone.
Manager Henninger recalled having a conversation
with driver Ridley on March 13, 1981, wherein he asked
Ridley if he (Ridley) had caused any car to run off the
road. Henninger testified he had the conversation with
Ridley pursuant to a telephone call he had received from
a woman in Knoxville, Tennessee, that her automobile
had been run off the John Sevier Highway by one of
Carier's vehicles of which she was able to provide Hen-
ninger with the trailer number and time of the incident
and with that information Henninger stated he had deter-
mined that the vehicle in question at that time had been
driven by Ridley and Gates. Henninger testified he did
not ask Ridley about anything else to his knowledge in
the conversation.
I credit the testimony of Ridley with respect to the
March 13 conversation with Manager Henninger because
Ridley's testimony with respect to this incident was clear
and convincing, whereas Henninger's testimony was not
so much a denial of any such conversation as it was a
lack of memory with respect to anything being discussed
other than the incident of the automobile being run off
the road.
I therefore conclude and find that the Respondent,
through its manager, Henninger, threatened its employ-
978
PACEMAKER DRIVER SERVICE
ees with discharge as alleged in the complaint if they
joined or engaged in activities on behalf of the Union.
F. The 8(a)(1) Allegations Attributed to Manager of
Industrial Relations Weissenberger
Paragraph Il(b) of the complaint, as amended at the
hearing herein, alleges that about February 22, 1981, the
Respondent, through its supervisor and agent Joseph
Weissenberger solicited grievances from its employees
and promised to adjust the grievances with knowledge
that the employees had engaged in union activities.
It is undisputed that there was a meeting on February
22, 1981, at which Pacemaker Manager of Industrial Re-
lations Weissenberger spoke to drivers Gates, Ridley,
David Donaldson, and Donnie Bales. Some of the items
discussed at the February 22 meeting were dispatching
and equipment, as well as Carrier's commitment to run-
ning legal and having accurate and neat logs. It was also
announced at the meeting that a mileage increase, a re-
vised vacation schedule, additional dental insurance for
drivers and dependents, and a credit union had been es-
tablished for the drivers' benefit, as well as the addition
of a utility driver position. Complaints were discussed
such as the complaint from the drivers that dispatchers
had less than a desirable attitude toward the drivers.
Working conditions were discussed such as loading, un-
loading, routes to be used, designation of loads, hazard-
ous materials and the like, as well as the equipment to be
utilized by the drivers.
Manager of Industrial Relations Weissenberger testi-
fied that he received complaints from various drivers
throughout the year. Some of the complaints he received
were transmitted to him by telephone; others came to
him by way of drivers' meetings that he conducted-usu-
ally on an annual basis but sometimes more or less often
than annually. The drivers' meetings were held for the
purpose of making management announcements, changes
in any wage or fringe benefits, and safety concerns; then
the meetings were opened up for a general discussion of
problems that the drivers had. Weissenberger's general
practice was to follow up each meeting with written
comments on the matters raised and/or discussed by the
drivers at the meetings. Weissenberger testified the meet-
ing immediately preceding the February 22, 1981 meet-
ing was held he thought near the end of the 1979.
Driver Ridley testified that it was very common for
complaints to be discussed at driver meetings such as,
and of the nature, that were discussed at the February
22, 1981 meeting. Driver Donaldson who commenced
work for Pacemaker as a Carrier driver in February 1980
testified he had never attended a meeting such as the
February 22, 1981 meeting. Driver Gates testified there
had been a like meeting in 1979.
The question then becomes whether the February 22,
1981 meeting represented a departure from the prior con-
duct of Pacemaker, whether Pacemaker had any knowl-
edge of any union activity on the part of the drivers as-
signed to Carrier and whether Pacemaker solicited com-
plaints from the drivers assigned to Carrier with any
promises that the complaints would be resolved.
I do not credit Weissenberger's testimony that he had
no knowledge of any union activity at the Knoxville,
Tennessee facility at the time he conducted the February
22, 1981 meeting with the drivers assigned to Carrier. In
light of the findings set forth above, the Respondent
(Carrier and Pacemaker jointly), knew of the union ac-
tivity of its employees as early as January 29, 1981. I am
persuaded however, that the record evidence fails to es-
tablish that the Respondent deviated from its prior prac-
tice of conducting employee meetings of this nature. As
driver Ridley readily admitted, it was very common for
meetings of this nature to be held where matters such as
those discussed at the February meeting were discussed
with the drivers. This testimony supports Weissen-
berger's testimony that such meetings had been held
from time to time since the beginning of Pacemaker's as-
signing drivers to Carrier. General Counsel Exhibit 9
clearly indicates that the practice of meeting with drivers
to announce wage changes and/or seek driver comments
or concerns was not a new one. Further, the pay in-
crease announced at the February 22, 1981 meeting had
been in the active planning stages for an extended period
of time. (Pacemaker Exh. 4.) I therefore conclude and
find that the Respondent acting through its supervisor
and agent Weissenberger, did not unlawfully solicit
grievances from its employees and promise to adjust
them as alleged in the complaints. I shall therefore rec-
ommend dismissal of paragraph 11(b) of the complaint in
its entirety. In dismissing that portion of the complaint, it
is my opinion that counsel for the General Counsel failed
to establish that the only time the Respondent responded
to driver complaints and/or concerns was when there
was union activity on the scene. The overall record evi-
dence indicates contrary to the General Counsel's con-
tentions.
G. The Discharge of the Drivers Domiciled at
Knoxville, Tennessee
Paragraphs 15 and 16 of the complaint alleges that
about March 30, 1981, Respondent discharged and there-
after failed and refused to reinstate its drivers Jonah C.
Gates, Donnie Bales, David Donaldson, and Hickman S.
Ridley Jr. because of their membership in and activities
on behalf of the Union and because they engaged in pro-
tected concerted activity with other employees for the
purposes of collective bargaining and other mutual aid
and protection.
Each of the drivers named in the complaint testified to
signing a card for the Union on February 22, 1981, a few
hours after their meeting with Manager of Industrial Re-
lations Weissenberger. The cards were turned into the
Union by David Donaldson. Donaldson credibly testified
that union official Barnes gave him approximately 50
cards to obtain signatures on. Donaldson got the four
drivers in Knoxville to sign the union authorization cards
and gave some cards to James Tedrow one of the Nash-
ville, Tennessee drivers.
Each of the drivers named in the complaint testified,
and I credit their testimony, that they called dispatcher
Hagaman on March 30, 1981, to inquire about further
dispatches and each was told by Hagaman, either in the
first call or in a return call, that the Respondent did not
have any work for them and no longer needed their
979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
services and that they were moving the trucks out of
Knoxville, Tennessee. Hagaman informed each of the
drivers that if they had any questions they should call
Manager of Industrial Relations Weissenberger. Some of
the drivers called Weissenberger and were informed by
him that the Respondent did not have anything available
in the Knoxville, Tennessee area for them. Weissen-
berger told those he spoke with that he had known about
their layoff since Friday, March 27, 1981, but had not
told them because he did not wish to ruin their weekend.
Weissenberger told the drivers that called him that he
knew of the layoffs on Friday, March 27, 1981, because
letters were mailed at that time advising the drivers they
had been permanently laid off (G.C. Exh. 13).
Manager of Industrial Relations Weissenberger testi-
fied that conversations had been going on between him-
self and Manager Henninger about a possible change of
domicile for the vehicles in question from Knoxville,
Tennessee, to some other location for approximately a
year before the actual change took place. Weissenberger
testified he had no knowledge of any union activity at
the Knoxville, Tennessee facility at the time of the domi-
cile change.
Manager Henninger testified with respect to the move
of the two units from Knoxville, Tennessee, to Cincin-
nati, Ohio, that the move came about primarily because
of two factors that were occurring at the time of the
move. One of the factors was that freight expense was
higher in the Cincinnati, Ohio area and as such offered a
greater savings for Carrier to provide freight at less than
the current prevailing rate in the Cincinnati, Ohio area.
Henninger testified that current freight expenses in the
Knoxville, Tennessee area were in a deteriorating situa-
tion at the time. Henninger testified that the current
freight rate as considered by Carrier was what it would
cost Carrier to have the freight moved if it were not for
Carrier Trucking Service. Henninger testified he learned
of current freight rates because the rates were filed with
the Interstate Commerce Commission and that even after
deregulation a motor carrier had 30 days' notice with re-
spect to any reduction or increase in freight rates.
With the Motor Carrier Act of 1980, which resulted in
the deregulation of the trucking industry, Henninger tes-
tified it was easier to enter the trucking business so much
so that practically anyone who wanted to get into the
business could do so and that as a result competition was
much greater with a free market system and that freight
leaving the Knoxville, Tennessee area had encountered
significantly reduced rates by other carriers and that it
appeared, after an analysis by Carrier, that it would be
more profitable for them to operate the two units in
question from Cincinnati, Ohio, rather than Knoxville,
Tennessee.
Henninger testified that Knoxville would have been "a
marginal place" to continue to operate a domicile. Hen-
ninger testified that several factors entered into making
Knoxville a marginal place to maintain a domicile. In ad-
dition to freight rates being reduced by other freight
haulers there was a decrease in the volumn of outbound
and inbound freight shipments from the Knoxville, Ten-
nessee area. Henninger testified that when Carrier sold
Dempsey Dumpster Corporation, which sale completely
eliminated Dempsey Dumpster as a user of Carrier
freight moving services, it brought about a reduction in
the amount of inbound and outbound freight into Knox-
ville, Tennessee, where Dempsey Dumpster was based.
Henninger testified that the relative tonnage in Cincin-
nati, Ohio, was much greater than the relative tonnage in
Knoxville, Tennessee. Henninger testified that dead head
miles (driving without freight) were greater in the Knox-
ville, Tennessee area. Henninger testified he had no
knowledge of any union activity in the Knoxville, Ten-
nessee area at the time of the elimination of the Knox-
ville domicile.
Director for Logistics for Carrier Sanford Abrahams
testified that Carrier Trucking Service existed solely as a
means to save money for Carrier, its parent corporation
and its subsidiaries. Abrahams testified that the purpose
of Carrier Trucking Service was to take the freight ex-
penses of any particular portion of the corporation and
determine if Carrier could move the freight at a savings
to that company. Abrahams stated in their effort to save
the greatest amount of money for the various corpora-
tions of Carrier that it had to maintain maximum flexibil-
ity and that as a result it did not buy trucks or employ
drivers but rather leased its trucks, leased its drivers, and
leased its equipment along with the maintenance for its
equipment. Abrahams testified that the addition or dele-
tion of domicile points for trucks was necessary as op-
portunities presented themselves for greater savings in
one area and lesser savings in another. The Motor Carri-
er Deregulation Act of 1980 had a tremendous impact on
the transportation service of Carrier, according to Abra-
hams, in that it allowed freedom of entry into the busi-
ness creating more competition and as a result pricing
fluctuated dramatically with the entry of the new busi-
nesses into the transportation service.
Abrahams testified he was very familiar with the deci-
sion process that lead to the movement of the two units
from a Knoxville, Tennessee domicile to a Cincinnati,
Ohio domicile. Abrahams testified that the decision was
purely an econimical one based on facts relating to the
amount of inbound and outbound freight in the Knox-
ville, Tennessee area. The movement of freight in and
out of Knoxville was affected, according to Abrahams,
by the sale by Carrier of the Dempsey Dumpster Corpo-
ration.
Abrahams testified that after the advent of the Motor
Carrier Deregulation Act of 1980, Carrier could provide
transportation services to certain of United Technologies
wholly owned subsidiaries such as the Inmont Corpora-
tion. United Technologies owns Carrier and United
Technologies also owns the Inmont Corporation. Abra-
hams testified that Carrier first looked for savings oppor-
tunities with respect to the Inmont Corporation in Belve-
dere, New Jersey, and then secondly looked for such po-
tentials in the Cincinnati, Ohio area. Abrahams testified
Cincinnati was examined because products of Carrier
such as air-conditioners could be shipped from the Cin-
cinnati area to the Houston area and in turn a back haul
of chemicals from the Houston, Texas area could be
made to the Inmont Corporation in Cincinnati, Ohio.
Large shipments of freight were available into the Hous-
980
PACEMAKER DRIVER SERVICE
ton area because Houston was progressing well economi-
cally and there was a demand for air-conditioners in the
Houston, Texas area. Also, a return freight of chemicals
from Shell Chemical in Houston could be utilized by
Inmont Corporation in the manufacture of printing ink
and automobile paint according to Abrahams. Abrahams
testified that since there was a potential for large savings
for Carrier related corporations, particularly Inmont, in
and around the Cincinnati, Ohio area it was decided to
take the trucks out of Knoxville, Tennessee, and move
then to Cincinnati. Abrahams testified that yet another
factor that went into the decision to move the trucks
from Knoxville to Cincinnati was the fact that the trucks
domiciled in Knoxville had to be maintained by Pre-
ferred Leasing of Morristown, Tennessee, which accord-
ing to Abrahams was 46 miles from Knoxville.
Abrahams testified that he had no knowledge of any
union activity at the Knoxville, Tennessee facility among
the drivers during the end of 1980 or the early part of
1981. Abrahams testified that Carrier still provided trans-
portation service to certain of its corporations located in
eastern Tennessee, namely, Allied Products and Athens
Products, which are located in Knoxville and Athens,
Tennessee, respectively. Abrahams further stated there
was no meaningful inhaul of freight into Knoxville, Ten-
nessee, after the loss of the Dempsey Dumpster account.
Carrier distribution analyst David Phillips testified his
main function was to reduce transportation expenses for
Carrier and its operational divisions and subsidiaries.
Phillips testified he functioned as an inhouse transporta-
tion consultant for Carrier and that in mid-1980 he start-
ed studying a process aimed at a reduction of Inmont
Corporation's freight expenses. He testified that from the
40 or more Inmont Corporation locations in the United
States he determined there were three potential transpor-
tation cost savings areas. The three areas were Belve-
dere, New Jersey; Cincinnati, Ohio; and Detroit, Michi-
gan. Phillips testified that Carrier first did a detailed
analysis at the Belvedere, New Jersey location and then
commenced doing a detailed analysis at the Cincinnati,
Ohio location. Phillips testified that there were substan-
tial outbound and inbound freight movements from the
Cincinnati, Ohio area which his analysis showed was at a
cost such that Carrier could perform the same services at
substantial reductions in freight costs. Phillips testified he
had no knowledge of any union activities in the Knox-
ville, Tennessee area in 1981. Phillips acknowledged that
he did not do a cost analysis on the Knoxville terminal at
the time he did his analysis on the potential for a Cincin-
nati, Ohio domicile. Phillips stated that in making an
analysis of a location he did not normally consider week-
end nonfreight moving deadhead miles as a factor.
Driver Donaldson and Ridley were called as rebuttal
witnesses by counsel for the General Counsel and testi-
fied with respect to freight movement and deadhead
miles involved at the Knoxville, Tennessee domicile.
Donaldson in his rebuttal testimony stated that he had
never made any deliveries from the Dempsey Dumpster
Corporation to anywhere in the United States. Further,
Donaldson testified that during the last month of his em-
ployment he never traveled deadhead from Knoxville,
Tennessee, to Carrier's maintenance location in Morris-
town, Tennessee, some 46 miles east of knoxville. Don-
aldson testified he normally acquired his load from
Athens Products in Athens, Tennessee, and left out on a
Monday morning for Syracuse, New York. Donaldson
testified that in leaving knoxville, Tennessee, with freight
enroute to Syracuse, New York, he went through Mor-
ristown, Tennessee, where maintenance was performed
and he did not have to double back to knoxville but
rather proceeded north on Interstate Highway 81 which
was east of Morristown and continued into Syracuse,
New York. Donaldson testified that on his return from
Syracuse, New York, he normally went into Morristown,
Tennessee, and deadheaded from there either into
Athens or Knoxville, Tennessee, for a load. Donaldson
testified this particular trip was a frequent run for him.
Donaldson estimated that it was approximately 100 miles
from Moristown to Athens, Tennessee.
Driver Ridley testified he averaged traveling deadhead
from Knoxville, Tennessee, to the maintenance facility in
Morristown, Tennessee, approximately once a month.
Ridley testified that on a Friday afternoon the drivers
would be dispatched for the following Monday morning
and on a normal dispatch there would be a load for them
at the Knoxville terminal or they would pick up a loaded
trailer and proceed to the Morristown, Tennessee main-
tenance facility and be ready to depart from the mainte-
nance facility and on a Sunday evening. Ridley testified
that on some occasions the drivers would have to run
empty from Knoxville to Athens Products in Athens,
Tennessee, some 60 miles from Knoxville, to obtain their
load. According to Ridley, he might on occasion have
had to proceed from Knoxville to Kentucky to pick up a
load. He estimated it was 100 miles from Knoxville to
the pickup point in Kentucky where he obtained his
load.
Pacemaker contends it acted with no prior knowledge
of any union activity in notifying the drivers in their
letter of March 27, 1981, that they were being perma-
nently laid off. Pacemaker contends no dual motive was
involved from its standpoint that there was no balancing
between a good cause and a bad cause with respect to
the layoffs that it was simply notified by Carrier that
they no longer had any business at Knoxville, Tennessee.
Pacemaker contends the evidence demonstrates that it
was confronted with an accomplished fact with respect
to the decision and that it was powerless to affect the sit-
uation one way or another. Pacemaker contends that if
any unfair labor practice is found with respect to the
drivers' layoff that it must be totally derivative from a
finding of a joint employer status.
Carrier contends inasmuch as it only handles 10 per-
cent of the transportation needs of its overall corporate
family, and considering that its mission is saving freight
expenses rather than earning profits it is necessary that it
have a very flexible freight system whereby it can identi-
fy and take advantage of saving opportunities and dis-
card those situations which are no longer viable as po-
tential savings areas. Carrier contends the record demon-
strates that the process that eventually culminated in the
move of the two trucks from Knoxville, Tennessee, to
Cincinnati, Ohio, had its roots in the passage of the
981
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motor Carrier Act of 1980. Carrier contends that the
Motor Carrier Act of 1980 essentially deregulated the
trucking industry and as such impacted on Carrier's op-
erations in three ways. First it increased the number of
competitors. Secondly it caused the price of competitive
services to fall, reducing the number of runs that Carrier
could operate in certain areas. Thirdly it allowed Carrier
to haul freight for more customers through the intercor-
porate hauling provisions of the Motor Carrier Act of
1980. Carrier contends that due to the Motor Carrier Act
of 1980, Cincinnati, Ohio, in early 1981 became a more
ideal location to maintain an equipment domicile than
did Knoxville, Tennesee. Carrier contends that because
of a lack of inbound and outbound freight and because of
an inefficiently located maintenance facility, Knoxville
was no longer considered by Carrier to be an appropri-
ate place to maintain an equipment domicile.
Carrier contends that counsel for the General Counsel
failed to demonstrate there was any union activity
among the Knoxville drivers. Carrier further contends
that the individuals involved in the decision to transfer
the domicile from Knoxville to Cincinnati, namely Man-
ager Henninger, Director of Logistics Abrahams, and
distribution analyst Phillips, each testified they had no
knowledge of any union activity by the Knoxville driv-
ers at the time they made and implemented their decision
to move the domicile from Knoxville, Tennessee, to Cin-
cinnati, Ohio. Carrier contends that economic consider-
ations were the only factors weighed by it in its decision
to move the two units domiciled in Knoxville, Tennes-
see, to Cincinnati, Ohio.
Counsel for the General Counsel contends that the
drivers were told if they continued their union activities
that the Knoxville, Tennessee domicile would be closed
and they would lose their jobs. The General Counsel
contends in view of the concurrent threats to discharge
the drivers and move the facility from Knoxville, it had
clearly established a prima facie violation of Section
8(a)(1) and (3) of the Act with respect to the termination
of drivers Gates, Bales, Donaldson, and Ridley on
March 30, 1981. Counsel for the General Counsel con-
tends that the Respondent's economic defenses fail be-
cause the Respondent acknowledges it had had opportu-
nities for savings in the Cincinnati, Ohio area since
August 1980 but did not take advantage of such opportu-
nities until 1981. Further, counsel for the General Coun-
sel contends that even if the Respondent could justify a
Cincinnati, Ohio domicile it could not justify shutting
down its facility in Knoxville, Tennessee. In support of
that contention, the General Counsel refers to distribu-
tion analyst Phippips testimony that no comparison was
available to the Respondent between Knoxville and Cin-
cinnati as no cost analysis of the Knoxville, Tennessee
location was done at the time of the movement of the
domicile out of Knoxville. The General Counsel points
out that Manager Henninger did not testify that the
Knoxville facility was losing money but rather testified it
was a marginal place to continue a domicile. Further, the
General Counsel contends that the actions of Henninger
and others prior to the implementation of the decision to
transfer the domicile from Knoxville to Cincinnati was
not in keeping with its comments to driver Ridley some
few weeks prior to the layoff that the future looked
bright with respect to the Knoxville location and that
new equipment was going to be introduced into the area.
Counsel for the General Counsel contends that Carrier's
assertion that it lost inbound and outbound freight as a
result of the sale of Dempsey Dumpster by Carrier was
not borne out by the record as a whole. The General
Counsel contends the Respondent did not present any
evidence concerning the amount of any losses and calls
attention to driver Donaldson's testimony that he never
hauled from the Dempsey Dumpster facility and Ridley's
testimony that he had at most made very few (four) trips
to or from the Dempsey Dumpster facility in the 2 years
he worked for the Respondent. The General Counsel
contends that the deadhead miles, even assuming there
were any, between Knoxville and Morristown, Tennes-
see, for repairs constituted conditions that had existed for
an extended period of time and as such could not justify
the timing of the shutdown of the Knoxville facility
when viewed in light of the other factors surrounding
the transfer of the domicile base from Knoxville to Cin-
cinnati. Finally, the General Counsel contends that Car-
rier dispatchers and managers are still based in Knox-
ville, Tennessee, and that it would not stand to reason
that the Respondent would close its Knoxville domicile
and retain its management at that location if it were for
valid economic reasons.
I am persuaded that counsel for the General Counsel
established a strong prima facie case that the drivers'
union activities constituted a "motivating factor" in the
Respondent's decision to lay them off. See Wright Line,
251 NLRB 1083 (1980). I have concluded that counsel
for the General Counsel established a prima facie case in
that it is clear from the very nature of the threats and
interrogation engaged in by agents and supervisors of the
Respondent that it was concerned with and hostile to
any union activity on the part of its employees. It is clear
that Manager Henninger inquired about the union activi-
ties of Pacemaker drivers assigned to it in either late Jan-
uary or early February 1981. Further, based on the cred-
ited testimony of Gates, dispatcher Hagaman was told
that the drivers were going to have to go union if harass-
ment of them did not stop at which time Hagaman in-
formed Gates that the Respondent would shut down the
Knoxville facility and the drivers would lose their jobs.
Driver Ridley also informed dispatcher Hagaman in the
latter part of February 1981 that if the harassment did
not stop it would end up in a union vote and at that time
he was told the facility would close, the drivers would
be fired, and the trucks would be moved out. It is clear
from the unlawful conduct highlighted above and as set
forth more fully under the 8(a)(1) section of the decision,
the Respondent knew of the union activity of its drivers
and it was hostile to their union activities. Therefore, I
conclude and find counsel for the General Counsel estab-
lished a prima facie showing sufficient to support an in-
ference that union activity was a motivating factor in the
Employer's decision to relocate its domicile from Knox-
ville, Tennessee, to Cincinnati, Ohio.
Having found that counsel for the General Counsel es-
tablished a prima facie showing sufficient to support an
982
PACEMAKER DRIVER SERVICE
inference that protected conduct was a motivating factor
in the Respondent's decision, the burden then shifted to
the Respondent to demonstrate that the same action
would have taken place even in the absence of the pro-
tected conduct. I conclude and find that the Respondent
failed to meet its burden of showing that the action of
relocating its domicile for trucks from Knoxville, Ten-
nessee, to Cincinnati, Ohio, would have taken place even
in the absence of protected conduct. I have so concluded
for a number of reasons which I shall discuss in detail.
The Respondent as late as March 18, 1981 informed its
drivers in writing that it thought the overall operation
was a good one and that from time to time they would
be required to follow certain instructions with respect to
loading and unloading of trucks and the like, however,
no mention was made of any cessation of operation in
the Knoxville area some 12 days later. In the same
March 18, 1981, written correspondence, the Respondent
announced to its drivers a mileage increase, a revised va-
cation schedule, and the addition of certain other bene-
fits. Such factors do not point toward the closing of a
facility. The opportunity for the Respondent to utilize
Cincinnati as opposed to Knoxville as a domicile existed
since August 1980, however, the opportunity was not ex-
ercised until the advent of union activity by the drivers.
Distribution analyst Phillips testified that his computa-
tions with respect to Cincinnati as a point for the move-
ment of freight out of and into the area were not made
with a domicile factor in mind. Phillips also stated that in
making his detailed analysis of a location he did not con-
sider weekend, nonfreight moving, deadhead miles. Phil-
lips acknowledged that he did not conduct a cost analy-
sis of the Knoxville, Tennesee location at the time of the
decision to move the domicile to Cincinnati. It would
appear that the Respondent did not make a clear com-
parison between the two locations based on amounts of
inbound and outbound freight such as to justify the move
as being one solely done for economic considerations. I
consider this failure to make a comparison study to have
significant weight when viewed in light of; the fact that
Manager Henninger, the individual probably most famil-
iar with the freight movements of Carrier, only stated
with respect to the savings potential in Knoxville, Ten-
nessee, for Carrier that Knoxville was a "marginal" loca-
tion to continue as a domicile. The Respondent's conten-
tion that deadhead miles was a factor it took into consid-
eration in moving the domicile from Knoxville to Cincin-
nati is somewhat diminished by the fact that the domicile
in Knoxville had operated for an extended period of time
with the maintenance area in Morristown, Tennessee,
which is approximately some 40 plus miles from Knox-
ville. This continued operation under those circum-
stances raises a clear suspicion that the timing of the
shutdown was for other than economic considerations. It
is undenied on this record, and I credit driver Ridley's
testimony that he was told by Manager Henninger that
his job looked secure at Carrier's Knoxville, Tennessee
domicile because Carrier was going to add more trips,
obtain new trucks, and that overall business looked good
and they expected a record year and that Ridley had
nothing to worry about. Driver Ridley testified he had
the conversation with Henninger because he (Ridley)
was getting married and wanted to know about the
future security of his employment in Knoxville, Tennes-
see. The record does not support the Respondent's con-
tention that it lost a great deal of its Knoxville freight
hauling business when it sold Dempsey Dumpster to an
unrelated corporation. Drivers Donaldson and Ridley
testified that the amount of freight moved by Dempsey
Dumpster was very limited, in fact, Donaldson testified
he never hauled any freight from that facility and Ridley
testified that he may have hauled two loads into and two
loads out of the Dempsey Dumpster facility. The Re-
spondent produced no documentation that would have
demonstrated the amount of freight moved for Dempsey
Dumpster prior to its sale nor did it attempt to refute or
contradict the testimony that Dempsey Dumpster being
sold had no impact upon the amount of freight moved
into and out of the Knoxville, Tennessee area.
I find unpersuasive and unbelievable the testimony of
Henninger and Weissenberger that the close of the
Knoxville domicile had been the subject of ongoing con-
versations between them for several months. I find this
testimony unbelievable in light of the testimony that
Henninger had informed driver Ridley that the Knox-
ville domicile was doing well and that new trucks were
going to be obtained for the drivers' use at that location.
Based on the record evidence as a whole and for the
reasons outlined above I find that the Respondent failed
to meet its burden of showing that the action it took
with respect to the Knoxville domicile would have taken
place even in the absence of protected conduct.
I therefore conclude and find that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act as alleged in
paragraphs 15 and 16 of the complaint when, about
March 30, 1981, it discharged and thereafter failed and
refused to reinstate its drivers Jonah C. Gates, Donnie
Bales, David Donaldson, and Hickman S. Ridley Jr.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent, described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
CONCLUSIONS OF LAW
1. The Respondent, Pacemaker Driver Service, Inc.,
and Carrier Corporation Carrier Trucking Service are
employers engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Respondent, Pacemaker Driver Service, Inc.,
and Carrier Corporation Carrier Trucking Service are
the joint employers of the employee drivers domiciled by
Carrier Corporation Carrier Trucking Service at Knox-
ville, Tennessee.
3. Teamsters Local Union No. 519 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Dispatcher David Hagaman, at all times material
herein, was an agent of the Respondent and was a super-
visor within the meaning of Section 2(11) of the Act.
5. By coercively interrogating its employees concern-
ing their union sentiments and activities; by threatening
its employees with discharge if they joined or engaged in
activities on behalf of the Union; by threatening employ-
ees it would close its terminal in Knoxville, Tennessee, if
they joined or engaged in activities on behalf of the
Union, the Respondent violated Section 8(a)(1) of the
Act.
6. By discharging employees Jonah C. Gates, Donnie
Bales, David Donaldson, and Hickman S. Ridley Jr. on
March 30, 1981, and thereafter failing and refusing to re-
instate them because of their union and protected con-
certed activities, the Respondent had engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(I) of the Act.
7. The violations of the Act noted above constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
8. The Respondent has engaged in no other unfair
labor practices not specifically noted above.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Inasmuch as the Respondent unlawfully discharged its
employee drivers Jonah C. Gates, Donnie Bales, David
Donaldson, and Hickman S. Ridley Jr. on March 30,
1981, I shall recommend that the Respondent be ordered
to reestablish a domicile at Knoxville, Tennessee, and
offer to the four named drivers full and immediate rein-
statement to their former jobs or substantially equivalent
positions without prejudice to their seniority or other
rights and privileges and make them whole for any loss
of earnings they may have suffered as a result of their
discharge. Backpay for the foregoing individuals and in-
terest thereon shall be computed in the manner described
in F. W. Woolworth Co., 90 NLRB 289 (1950), and Flori-
da Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). Further, it is rec-
ommended that the Respondent expunge from its files
any reference to its discharge of Jonah C. Gates, Donnie
Bales, David Donaldson, Hickman S. Ridley Jr. and
notify each in writing that this has been done and that
evidence of their unlawful discharge will not be used as
a basis for further personnel actions against them. See
Sterling Sugars, 261 NLRB 472 (1982). I have recom-
mended that the Respondent reestablish a domicile loca-
tion in Knoxville, Tennessee, because the record evi-
dence herein clearly indicates the move out of Knoxville
was unlawfully motivated and there was insufficient evi-
dence to establish that the Knoxville, Tennessee location
was economically unfeasible. Further, it is noted that the
Respondent does not maintain terminals in the traditional
sense but merely domiciles trucks in a particular area and
as such would incur limited if any expense in reestablish-
ing a Knoxville, Tennessee domicile. Finally, it is recom-
mended that the Respondent post the attached notice.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended4
ORDER
The Respondent, Pacemaker Driver Service, Inc., Car-
rier Corporation Carrier Trucking Service, Knoxville,
Tennessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating its employees concerning their union
sentiments and activities.
(b) Threatening its employees with discharge if they
join or engage in activities on behalf of Teamsters Local
Union No. 519 or any other labor organization.
(c) Threatening its employes that it would close its
Knoxville, Tennessee facility if they join or engage in ac-
tivities on behalf of Teamsters Local Union No. 519.
(d) Discharging and thereafter failing and refusing to
reinstate its employees because they engaged in union or
protected concerted activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act.
(a) Reestablish its Knoxville, Tennessee domicile and
offer immediate and full reinstatement to its employees
Jonah C. Gates, Donnie Bales, David Donaldson, and
Hickman S. Ridley Jr. to their former positions of em-
ployment or, if those positions are no longer available, to
substantially equivalent positions, without loss of seniori-
ty or other employee benefits and to make them whole
for any losses they may have sustained by reason of their
unlawful discharge with interest thereon as set forth in
the section of this Decision entitled "The Remedy."
(b) 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 reports and records, and all other records nec-
essary to analyze the amounts of backpay due under the
terms of this Order.
(c) Expunge from its files any references to the March
1981 discharge of employees Jonah C. Gates, Donnie
Bales, David Donaldson, and Hickman S. Ridley Jr. and
notify them in writing that this has been done and that
evidence of their unlawful discharges will not be used as
the basis for future personnel actions against them.
(d) Post at its Knoxville, Tennessee place of business
copies of the attached notice marked "Appendix." 5
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 all objections to them shall be deemed waived for all purposes.
' 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation.
al Labor Relations Board."
984
PACEMAKER DRIVER SERVICE
Copies of said notice on forms provided by the Regional
Director for Region 10 shall, after being signed by the
Respondent's authorized representative, be posted by the
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found are
hereby dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity
to present their evidence it has been decided that we vio-
lated the law in certain ways. We have been ordered to
post this notice. We intend to carry out the order of the
Board and abide by the following.
WE WILL NOT coercively interrogate our employees
concerning their union activities or the union activities
and sentiments of their fellow employees.
WE WILL NOT threaten our employees with discharge
if they join or engage in activities on behalf of Teamsters
Local Union No. 519 or any other labor organization.
WE WILL NOT threaten our employees to close our
Knoxville, Tennessee facility if they join or engage in ac-
tivities on behalf of Teamsters Local Union No. 519 or
any other labor organization.
WE WILL NOT discharge our employees because they
join or engage in activities on behalf of Teamsters Local
Union No. 519 or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other protected concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
WE WILL immediately reestablish a domicile in Knox-
ville, Tennessee.
WE WILL offer to Jonah C. Gates, Donnie Bales,
David Donaldson, and Hickman S. Ridley Jr. immediate
and full reinstatement to their former jobs or, if their
former jobs no longer exist, to substantially equivalent
positions of employment without prejudice to their se-
niority or other rights and WE WILL make them whole
for any loss of pay they may have suffered by reason of
our discrimination against them with interest.
WE WILL expunge from our files any references to the
March 30, 1981 unlawful discharges of employees Jonah
C. Gates, Donnie Bales, David Donaldson, and Hickman
S. Ridley Jr., and WE WILL notify them that this has
been done and that evidence of their unlawful layoff will
not be used as a basis for future personnel actions against
them.
PACEMAKER DRIVER SERVICE, INC., CAR-
RIER CORPORATION CARRIER TRUCKING
SERVICE
985