PJAX

National Labor Relations Board - Board Decisions

Jul 9, 1992

307 N.L.R.B. 1201 (N.L.R.B. 1992)

1201
307 NLRB No. 173
PJAX
1 The name of the Charging Party Union has been changed to re-
flect the new official name of the International Union.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondents challenge, inter alia, the judge’s finding that the
testimony of employee Robert Briggs was more credible than that
of Terminal Manager Jeffrey Hammel. We agree with the Respond-
ents that the judge made what appear to be contradictory statements
in fn. 4 concerning whether Hammel denied certain testimony by
Briggs. We nevertheless find a sufficient basis for affirming the
judge’s crediting of Briggs’ testimony, because the judge also relied
on his observation of the witnesses while they testified. Thus, the
judge found that Hammel ‘‘seemed tentative as he testified,’’ while
Briggs ‘‘testified with genuine certainty.’’ In view of his demeanor
findings, we affirm the judge’s credibility resolution. See NLRB v.
Walton Mfg. Co., 369 U.S. 404, 408 (1962). (‘‘[T]he demeanor of
a witness may satisfy the tribunal . . . that the witness’ testimony
is not true,’’ while ‘‘the Board and the reviewing court look only
at cold records.’’)
The Respondents also contend that the judge’s findings and con-
clusions reflect bias. After a careful review of the entire record, we
find the allegations are without merit. There is no basis for finding
that bias and partiality existed merely because the judge resolved im-
portant factual conflicts in favor of the General Counsel’s witnesses.
As the Supreme Court stated in NLRB v. Pittsburgh Steamship Co.,
337 U.S. 656, 659 (1949), ‘‘[T]otal rejection of an opposed view
cannot of itself impugn the integrity or competence of a trier of
fact.’’
3 In his recommended remedy, the judge erroneously stated that
the backpay period for purposes of making Robert Briggs whole for
the unlawfully withheld raise began in May 1990. The record, as
well as the judge’s findings, establishes that this backpay period
starts in October 1990. 1 All dates are in 1990, unless otherwise stated.
PJAX and MGR Management Services, Inc. and
Teamsters Local Union No. 107, a/w Inter-
national Brotherhood of Teamsters, AFL–CIO1
and Robert Briggs. Cases 4–CA–19271 and 4–
CA–19519
July 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 26, 1991, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondents filed exceptions and a supporting brief,
and the General Counsel filed a brief in response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, PJAX, Bristol, Pennsyl-
vania, and MGR Management Services, Inc., Pitts-
burgh, Pennsylvania, their officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Margaret M. McGovern, Esq., for the General Counsel.
William A. Gray, Esq. (Vuono, Lavelle & Gray), of Pitts-
burgh, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried at Philadelphia, Pennsylvania, on May 28,
1991.1 On an unfair labor practice charge, and an amended
charge filed on October 4 and November 21, respectively, by
the Union, Teamsters Local Union No. 107, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO, in Case 4–CA–19271, the
Regional Director for Region 4, referred to below as the Re-
gional Director, issued a complaint and notice of hearing
against the Respondents, PJAX and MGR Management Serv-
ices, Inc. on November 29, alleging that the Respondents
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (29 U.S.C. § 151, et seq.), by promising to rehire
or reinstate an employee if Respondents’ employees rejected
the Union as their collective-bargaining representative, and
by discharging employee Larry Briggs because he engaged in
union activity.
On a further charge filed on January 23, 1991, by Robert
Briggs, an individual, in Case 4–CA–19519, the Regional Di-
rector issued another complaint and notice of hearing against
the Respondents on March 8, 1991, alleging that the Re-
spondents violated Section 8(a)(1) and (3) of the Act by
withholding a wage increase from Robert Briggs and sus-
pending him for 3 days because of Respondents’ employees’
union activity. By his order of April 8, 1991, the Regional
Director consolidated Cases 4–CA–19271 and 4–CA–19519.
Thereafter, on May 8, 1991, the Regional Director amended
the complaint in Case 4–CA–19519 to include allegations
that Respondents violated Section 8(a)(1) of the Act by tell-
ing an employee that they could not grant a wage increase
to their employees because of the Union.
The Respondents have denied committing the alleged un-
fair labor practices. The General Counsel and the Respond-
ents timely filed posthearing briefs.
On the entire record, including my observation of the wit-
nesses and their demeanor, and after considering the
posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent PJAX, a Pennsylvania corporation, provides
trucking services from its Bristol, Pennsylvania, facility. Dur-
ing the year preceding issuance of each of the complaints,
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
PJAX provided trucking services valued in excess of $50,000
directly to customers located outside the Commonwealth of
Pennsylvania.
Respondent MGR Management Services, Inc. (MGR), a
Pennsylvania corporation, with its main office at Pittsburgh,
Pennsylvania, provides management services to trucking
companies, including PJAX. The Respondents deny that
MGR’s business operations satisfy the Board’s jurisdictional
standards. The record does not show any commerce data for
MGR. However, in the Stipulated Election Agreement, in
Case 4–RC–17408, approved by the Regional Director on
September 5, which involved PJAX’s Bristol, Pennsylvania
facility, the Respondents conceded that they were joint em-
ployers of the employees at that facility. In the same agree-
ment, the Respondents also conceded that they were employ-
ers engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
In the instant proceedings, the parties have stipulated as
follows:
At all times material, MGR has employed drivers and
dock workers who perform work for PJAX and has ad-
ministered a common labor policy with PJAX for the
employees of MGR.
I find from the Respondents’ concessions in Case 4–RC–
17408, and the stipulation, which I have accepted in the in-
stant cases, that PJAX and MGR are, and have been at all
times material to these cases, joint employers, and that they
are engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Floyd Epperson & United Dairy
Farmers, 202 NLRB 23 (1973).
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the parties have stipulated, and I
find that Teamsters Local Union No. 107, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO is, and has been at all times
material in these cases, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
On September 5, the Regional Director approved the Stip-
ulated Election Agreement between the Respondents and the
Union in Case 4–RC–17408. Pursuant to that agreement, on
October 5, the Regional Director conducted an election in a
unit of drivers and dock workers employed at PJAX’s Bris-
tol, Pennsylvania facility. Of the 11 ballots cast, 6 were for
the Union, 4 were against the Union, and 1 was challenged.
On January 23, 1991, the Board certified the Union as the
collective-bargaining representative for all full-time and reg-
ular part-time drivers and dock workers employed at PJAX’s
Bristol, Pennsylvania facility.
The issues presented here include whether, in response to
union activity at PJAX’s Bristol facility, the Respondents
violated Section 8(a)(1) and (3) of the Act by discharging
employee Larry Briggs, suspending employee Robert Briggs,
and by withholding a wage increase from Robert Briggs.
Further issues presented are whether the Respondents vio-
lated Section 8(a)(1) of the Act by telling employees Larry
Briggs that his reinstatement might depend on the result of
the pending representation election at PJAX’s Bristol facility
and by telling employee Robert Briggs that he would not re-
ceive a wage increase because of the Union.
B. Larry Briggs’ Discharge
1. The facts
The Respondents employed Larry Briggs (Larry) as a full-
time tractor-trailer driver at PJAX’s Bristol facility, from
mid- or late June until Labor Day. MGR carried Larry on
its payroll as its employee. However, PJAX management su-
pervised his work. Larry’s work consisted of making freight
deliveries from the PJAX facility and picking up freight for
return to the same facility, within an approximately 50-mile
radius of Philadelphia, for 10 to 12 hours per working day.
At all times material to these cases, PJAX’s Bristol facility
operated under the immediate supervision of Terminal Man-
ager Jeffrey Hammel. Jeffrey Hammel reports to his brother,
Donald Hammel, who is PJAX’s president. Donald
Hammel’s office and PJAX’s corporate headquarters are in
Pittsburgh, Pennsylvania. I find from Donald Hammel’s testi-
mony that in the course of PJAX’s business, the brothers
have frequent telephone conversations.
The Union began its organizing effort at the Bristol facility
in August. However, there was no showing that Larry en-
gaged in union activity or supported the Union.
Prior to Labor Day, Larry, who had been a substitute bus-
driver for a local school district, from February until June,
accepted full-time employment driving a schoolbus for the
same district. Approximately 1 week before Labor Day,
Larry informed PJAX’s Terminal Manager Jeffrey Hammel
that he would quit at the end of the week, and take up his
new job as a schoolbus driver.
However, on the next day, at the suggestion of Supervisor
Chuck Homer, Larry approached Terminal Manager Hammel
and offered to work part time at PJAX. Larry wanted to
work for PJAX during the day, between his schoolbus runs,
and in the evening, after he had completed his schoolbus
driving for the day.
Larry said he would go to work at PJAX for a whole day,
when he was off from driving for the school district. Larry
also warned that there would be days when the school dis-
trict’s demands would prevent him doing any work for
PJAX. Hammel readily accepted Larry’s proposition without
reservation.
Larry, remained an MGR employee, and began his part-
time employment at PJAX, on Tuesday, September 4. Be-
cause of an accident, Larry did not work for PJAX on Sep-
tember 7, 8, and 11. Following this first week, PJAX em-
ployed Larry an average of 40 hours weekly. Larry worked
at PJAX before and after his twice daily schoolbus runs.
Thus, he would work at PJAX, for 2 hours, early in the
morning, return to PJAX at 9 or 9:30 a.m., work until 1 or
1:30 p.m., and then return to PJAX late in the afternoon, and
work there until 8 or 9 p.m.. During this employment at
PJAX, Larry did some driving. For the most part, however,
he performed dock work.
On Tuesday, October 2, Larry came to work at PJAX at
approximately 4:30 p.m., and began working on the termi-
nal’s dock. Terminal Manager Jeffrey Hammel approached
Larry, and began talking. The two moved away from the
1203PJAX
2 Conflicts between the testimony of Jeffrey Hammel and Larry
Briggs raised important issues of credibility. Jeffrey Hammel testi-
fied that when he hired Larry as a part-time driver, he, Jeffrey said
he was doing so on a trial basis. According to Larry’s testimony,
Jeffrey hired him on a part-time basis, without reservation. In his
testimony, Jeffrey also denied telling Larry, on October 2, that he
was being terminated because of his brother’s involvement with the
Union. However, unlike Larry, who was allowed to testify fully and
forthrightly on direct examination, Jeffrey was, for the most part,
carefully led by Respondent’s counsel regarding these two incidents.
At times, Jeffrey Hammel’s demeanor evidenced uncertainty about
what he had said, as he qualified his answers with ‘‘to the best of
my knowledge’’ or ‘‘ I think my answer to him was . . . .’’ Thus,
of the two, Larry impressed me as being the more reliable witness.
Accordingly, I have credited Larry Briggs’ testimony where it con-
flicts with Jeffrey Hammel’s.
other employees on the dock. Hammel stated that he had just
ended a telephone conversation with his father, who was
pretty sure that Larry’s brother, Robert, had started the
Union. Jeffrey Hammel added, in substance, that because of
Robert’s role in the effort to bring in a union, PJAX could
not employ Larry ‘‘until this thing blew over.’’ Larry’s im-
mediate response to Hammel’s remarks was: ‘‘[D]oes this
mean I have to go home?’’ Hammel answered yes.2 I find
from Donald Hammel’s testimony that, as of October 2,
PJAX employed his and Jeffrey Hammel’s father as a con-
sultant.
Larry punched out, went to Jeffrey Hammel’s office, and
asked Hammel if ‘‘until this thing blows over’’ meant ‘‘the
union thing.’’ Hammel answered yes. Larry responded, ask-
ing: ‘‘ If the union loses, will you get me my job back?’’
Hammel replied, in substance, that in that event, he would
look into it.
On the same evening, Western Union telephoned the fol-
lowing mailgram message to Larry at his home:
Dear Mr. Briggs,
On or about September 4, 1990 you informed the
terminal manager of PJAX’s Bristol facility that you
had taken a position as a bus driver and would only be
available between the hours of 9:30 AM and 1:30 PM.
As I am sure you are aware the companies business is
extremely service oriented to accomodate the schedules
of their customers needs, not our own. In order to sat-
isfy these needs we must have full time employees and
have no provisions for part time drivers for this facility.
We must also consider the compliance requirements
regarding hours of service regulations as set forth by
the Department of Transportation which would virtually
be impossible to maintain properly.
Weighing these factors, we have no recourse but to
terminate your services as an employee with MGR
Management Services, Inc., effective immediately. Your
file is being closed and your final check will be mailed
to you.
Sincerely,
M G R Management Services Inc., Max G Rein
President 2987 Babcock Blvd.
Pittsburgh PA 15237
Three or four weeks after Jeffrey Hammel had terminated
him, Larry received a letter, dated October 2, from MGR
Management Services, Inc. with the same message set out in
the quoted mailgram.
On the evening of October 2, Larry notified the Union of
his termination, in a conversation with its head organizer and
business agent, William Hamilton. On the following day,
Hamilton telephoned Jeffrey Hammel and asked him if he
had fired Larry. Hammel said no, adding that Larry had quit.
Hamilton suggested that Hammel reinstate Larry. Hammel
disclaimed authority to honor Hamilton’s suggestion, and
said that he would have to consult his father in Pittsburgh.
The Regional Director conducted the representation elec-
tion in Case 4–RC–17408, at PJAX’s Bristol terminal, on
October 5. The Union won. During the election, Jeffrey
Hammel saw Larry acting as an observer for the Union, and
objected to his presence. A Board agent overruled this objec-
tion.
In her posthearing brief, dated July 10, 1991, counsel for
the General Counsel asserted that Larry Briggs had declined
an offer of reinstatement.
2. Analysis and conclusions
Section 8(a)(3) of the Act prohibits an employer from dis-
criminating ‘‘in regard to . . . tenure of employment or any
term or condition of employment to . . . discourage mem-
bership in any labor organization.’’ Where the record shows
that an employer’s opposition to union activity was a moti-
vating factor in a decision to discharge an employee, the em-
ployer will be found to have violated the Act unless the em-
ployer shows that the discharge would have occurred even in
the absence of the protected activity. NLRB v. Transportation
Management Corp., 462 U.S. 393, 400, 403 (1983). Accord:
D & D Distribution Co. v. NLRB, 801 F.2d 636, 641–642
(3d Cir. 1986). Where the employer’s explanation for its ac-
tion are pretextual—that is, if the reasons either did not exist
or were not in fact relied on—the employer has not met its
burden, and the inquiry is logically at an end. Limestone Ap-
parel Corp., 255 NLRB 722 (1981), enfd., 705 F.2d 799 (6th
Cir. 1982); Wright Line, 251 NLRB 1083, 1084 (1980), enfd.
on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
The required unlawful motivation may be shown not only
where the employer has discharged an employee in retalia-
tion for his or her union activity, but also where the em-
ployer has discharged an employee because he or she was re-
lated to an employee engaged in union activity. Carrizo Mfg.
Co., 214 NLRB 171, 181 (1974). For by firing an employee
because of his or her relative’s union activity in support of
a union’s organizing campaign, an employer’s apparent pur-
pose is to discourage the union activist and other employees,
who might be union supporters, from assisting the union.
NLRB v. Advertiser’s Mfg. Co., 823 F.2d 1086, 1088 (7th
Cir. 1987). As the Court of Appeals for the Seventh Circuit
stated: ‘‘To retaliate against a man by hurting a member of
his family is an ancient method of revenge, and is not un-
known in the field of labor relations.’’ 823 F.2d at 1088.
Cited with approval in Kenrich Petrochemicals v. NLRB, 893
F.2d 1468, 1478 (3d Cir. 1990).
The General Counsel contends that the Respondents vio-
lated Section 8(a)(3) and (1) of the Act by discharging Larry
Briggs because they believed that his brother, Robert, was re-
sponsible for bringing on the Union’s organizing campaign
at PJAX’s Bristol facility. Respondents urge rejection of the
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel’s position, arguing that the record does not
show the required unlawful motive. Instead, Respondents as-
sert that the record shows that business reasons caused them
to discharge Larry. Guided by the doctrine which the Board
has expressed in Wright Line, supra, 251 NLRB 1083, 1084,
and for the reasons recited below, I find merit in the General
Counsel’s contention.
Terminal Manager Jeffrey Hammel’s remarks to Larry on
October 2, 3 days before the scheduled representation elec-
tion at PJAX’s Bristol terminal, made clear that Respondents
were firing Larry with that event in mind. Hammel an-
nounced that he was getting rid of Larry because of Larry’s
brother’s leading role in bringing on the Union’s organizing
campaign among PJAX’s Bristol employees. Then, when
Larry asked if he would be reinstated if the Union lost the
representation election, Hammel’s response again reflected
the Respondents’ hostility toward the Union. Hammel an-
swered, in substance, that if the Union lost the election, he
would refer the question to the Respondents. I also find that
Hammel’s answer was calculated to discourage the listening
employee from supporting the Union, and thus violated Sec-
tion 8(a)(1) of the Act.
That the record does not show that Larry’s brother, Robert,
was in fact a leading union activist or advocate at PJAX’s
Bristol facility did not impact adversely on the General
Counsel’s effort to prove the Respondent’s unlawful motive.
For, the Board has held that a discharge violated Section
8(a)(1), and (3) of the Act, where the employer was moti-
vated by the belief that the discriminatee was a union sup-
porter. Armstrong Rubber Co., 283 NLRB 625, 635–637
(1987).
Here, I find from Jeffrey Hammel’s remarks to Larry on
October 2, and Jeffrey’s close ties to PJAX’s president, Don-
ald Hammel, that PJAX’s management believed that Larry’s
brother, Robert Briggs, was responsible for the inception of
the Union’s organizing effort at the Bristol terminal. I also
find from Donald Hammel’s testimony that he, Donald, de-
cided that Larry was to be discharged. Jeffrey carried out
that decision.
I also find from Donald Hammel’s testimony and the rel-
evant exhibits in evidence that on PJAX’s instructions, and
in accordance with its arrangement with PJAX, MGR fol-
lowed up with confirmatory telegram and letter. In light of
the close business relationship between PJAX and MGR, and
their participation in the representation proceeding in Case
4–RC–17408, I find that PJAX shared with MGR the infor-
mation regarding Robert Briggs’ perceived union activity,
and Donald Hammel’s decision to fire Larry, prior to the
preparation of the confirmatory telegram and letter.
From the foregoing, I find that the General Counsel has
made a prima facie showing that their belief that Robert
Briggs was a union activist provoked the Respondents to dis-
charge his brother, Larry. I base my finding on the sudden-
ness and timing of Larry Briggs’ discharge, without any
warning, only 3 days before a scheduled representation elec-
tion at the Bristol facility, and on Jeffrey Hammel’s remarks
on October 2, which revealed the Respondents’ motive and
their hostility toward union activity.
The Respondents insist that union activity played no part
in Larry’s discharge. In support of this defense, the Respond-
ents offer business reasons. However, Jeffrey Hammel’s re-
marks to Larry on October 2 showed that Robert Briggs’ per-
ceived leadership in the Union’s organizing effort at the Bris-
tol terminal motivated PJAX’s decision to get rid of Larry.
Thus, there is ample ground for finding that the Respond-
ents’ explanations are pretextual. However, analysis of the
Respondents’ attempts to justify Larry’s discharge provides
further support for that finding.
Respondents assert that they discharged Larry because his
employment violated Federal Highway Administration regu-
lations which limit hours of driving and, further, because he
could not perform his job efficiently on a part-time basis.
Before analyzing these reasons, I note factors which suggest
that they were advanced to camouflage the real reason. First,
there was no showing that Jeffrey Hammel or any other of
Respondents’ management ever warned Larry that he was
driving too much or that his performance was impairing the
Bristol terminal’s service to customers. Neither Jeffrey nor
any other official of Respondents’ management raised either
of these matters, when Respondents readily hired Larry as a
part-time employee. More important, Jeffrey said nothing
about either of these asserted problems on October 2, when
he terminated Larry.
One day after he terminated Larry’s employment, Jeffrey
Hammel attempted to conceal the deed. For, when the
Union’s business agent asked if he had fired Larry, Hammel
denied doing so and asserted that Larry had quit. By this un-
truth, Jeffrey Hammel provided further evidence of the Re-
spondents’ intent to prevent detection of the reason for
Larry’s departure from his job at PJAX.
According to Donald Hammel, he directed Jeffrey Hammel
to discharge Larry to protect PJAX from violating Depart-
ment of Transportation regulations limiting employees’ driv-
ing time, and because Larry’s dock work and driving were
not cost effective. In arriving at these conclusions, Donald
relied on Larry’s timecards for the week ending September
24. However, Larry’s timecards only showed when Larry
punched in and punched out. They do not explain how Larry,
who worked mostly on the dock, but did some driving, spent
his hours at PJAX’s terminal. The timecards did not tell
Donald whether Larry was loading, unloading, driving,
sweeping, or even standing around. Jeffrey Hammel might
have provided some information on the topic, but Donald
was content to rest his decision on these cards and PJAX’s
safety department’s review of their content. No one from that
department testified before me. However, according to Don-
ald, the safety department agreed with him that Larry’s 50
hours of work at PJAX that week would violate DOT regula-
tions. How either Donald or PJAX’s safety department was
able to conclude that Larry was driving even 1 hour for
PJAX is left to speculation. Nor am I pursuaded that Donald
could determine whether Larry’s work was cost effective or
not from those cards.
Donald admits that he did not consult Larry’s daily driving
logs for the same week. Nor did Donald offer any expla-
nation for his neglect to consult these records, which the De-
partment of Transportation requires PJAX to maintain for 6
months. Nor did he explain why PJAX did not keep Larry’s
log available for the hearing regarding his discharge. Counsel
for the General Counsel provided copies of Larry’s daily logs
for September 17 through 22, which showed that he did no
driving for PJAX on those dates. There was no log for Sun-
day, September 23. Donald testified that he did not know
whether Larry drove on that date for PJAX. Donald’s unex-
1205PJAX
3 My findings regarding Robert Briggs’ employment history at
PJAX, his wage rate, and the salesman’s remarks are based on Rob-
ert’s credible and uncontradicted testimony.
4 My findings of fact regarding Robert’s requests for a wage in-
crease and Jeffrey Hammel’s responses to them are based on Rob-
ert’s testimony. Jeffrey denied that Robert came to him before the
representation election and asked about a raise. Jeffrey also admitted
that after the representation election, Robert asked him about a wage
increase, and that he, Jeffrey rejected the request and explained that
‘‘it was part of the collective bargaining.’’ However, Jeffrey did not
dispute Robert’s testimony regarding a conversation at the end of
September, in which Jeffrey had raised the topic of Robert’s wage
increase. I also noted that Jeffrey seemed tentative as he testified
about his explanation to Robert. In contrast, Robert testified with
genuine certainty, as he gave his recollection of conversations with
Jeffrey about a wage increase. This contrast, and Robert’s unchal-
lenged, plausable testimony regarding Jeffrey’s remarks to him at the
end of September, convinced me to accept Robert’s testimony re-
garding his quest for a wage increase.
plained failure to check the daily logs before deciding that
Larry’s 50 hours of work included an excessive amount of
driving suggests that Donald acted hastily to come up with
a lawful reason for firing him.
Donald Hammel’s unfounded accusations against Larry,
and Donald’s demeanor, as he testified before me, provided
further grounds for rejecting his explanation for his decision
to discharge Larry. When Donald testfied about his claimed
perception that Larry’s driving exceeded Federal limits, he
became agitated, and embellished his testimony with expres-
sions of fear that this excess had threatened PJAX’s exist-
ence. At another point, Donald depicted Larry as having said
that driving a schoolbus was more important to him than de-
livering PJAX’s freight. But, Donald admitted that Larry
never said that to him. Nor was there any showing that Larry
Briggs ever said it to anyone. Donald became particularly
animated as he asserted that he had received complaints
about undelivered freight, and that Larry had not delivered
assigned loads. Yet, neither Donald nor his brother, Jeffrey,
presented any record of such failure. Jeffrey’s testimony was
bare of any assertion that he criticized Larry or disciplined
him for poor performance. On cross-examination, Donald
frequently showed reluctance to answer, as he was unrespon-
sive. In sum, Donald Hammel testified in a biased manner
and thus cast serious doubt on the reliability of his testimony
regarding Larry’s discharge.
Donald Hammel’s testimony did not substantiate the Re-
spondents’ stated reasons for discharging Larry. Indeed, scru-
tiny of Donald Hammel’s assertions revealed the pretextual
nature of the Respondents’ defense, thus suggesting that
there was another explanation for the discharge. Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). Accordingly, I find that the Respondents have failed
to rebut the General Counsel’s showing that Larry suffered
discharge because the Respondents believed that his brother,
Robert, had encouraged the Union to organize PJAX’s Bris-
tol terminal. I also find that the Respondents discharged
Larry Briggs to discourage his brother, Robert, and other em-
ployees from engaging in union activity or otherwise assist-
ing the Union. I find that by this conduct, the Respondents
violated Section 8(a)(3) and (1) of the Act.
C. The Withholding of Robert Briggs’ Wage Increase
1. The facts
As of May 28, 1991, the date of the hearing in these
cases, Robert Briggs had been on MGR’s payroll, and had
worked at PJAX’s Bristol terminal as a truckdriver for about
14 months. Soon after PJAX hired Robert Briggs, a salesman
told him to expect a wage increase after 3 months, and a sec-
ond increase after 6 months’ employment. Briggs signed an
authorization card for the Union on July 25. Roberts hourly
wage since he began working for the Respondents has been
$10.50.3
The record shows that PJAX granted a $.25 hourly wage
increase to Bristol driver Jerry O’Reilly, effective September
14. PJAX hired O’Reilly somewhat earlier than it hired Rob-
ert Briggs.
In August, Robert asked his supervisor, Jeffrey Hammel,
for a wage increase. Hammel replied that Robert would qual-
ify for a wage increase after working at the terminal at least
2 months without missing a day. Robert pointed out that he
had worked at PJAX for almost 3 months and had missed
only 1 day, when his son was born. Hammel replied that this
1 day’s absence had been excused. When Robert repeated his
request for a wage increase, Hammel broke off the discus-
sion without answering further.
At the end of September, Robert went to Jeffrey Hammel
and said: ‘‘ I’m going to be here six months come next Fri-
day.’’ Hammel answered: ‘‘ Don’t worry about it, Bob, I’ll
get you a raise, just don’t smack up my trucks no more.’’
In October, Robert approached Jeffrey Hammel and asked
about a raise. Hammel answered that he could not do any-
thing about it. Continuing, Hammel said: ‘‘ I can’t give out
any raises because of the union.’’
Robert made a final unsuccessful attempt to obtain a wage
increase in December. Again, Jeffrey Hammel answered, in
substance, that he could not give a wage increase to Robert
because of the Union. Hammel also told Robert not to worry
about a wage increase ‘‘because come February, everybody
is going to get a raise, and you’ll be voting on a contract.’’4
2. Analysis and conclusions
The amended consolidated complaint alleges that the Re-
spondents violated Section 8(a)(1) of the Act in October, and
again, in December, when Terminal Manager Jeffrey
Hammel told an employee that the Respondents could not
grant wage increases to employees because of the Union. I
have found above, that Jeffrey Hammel told employee Rob-
ert Briggs in October, and again in December, that he, Jef-
frey, could not seek a wage increase for Briggs because of
the Union. Hammel’s remarks occurred against a backdrop of
the Union’s organizing effort, and the representation election
which occurred at PJAX’s Bristol facility on October 5. I
find that by Hammel’s remarks, in October, and again in De-
cember, implying that union activity and the Union’s orga-
nizing effort had caused the withholding of Robert Briggs’
wage increase, the Respondents violated Section 8(a)(1) of
the Act. Otis Hospital, 222 NLRB 402, 404 (1976), enfd.
545 F.2d 252 (1st Cir. 1976).
Applying the Board’s doctrine set out in Wright Line,
supra, 1084, I find ample ground for the General Counsel’s
contention that the Respondents withheld a wage increase
from Robert Briggs, because they believed that he was re-
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Donald Hammel’s curt tone and annoyed attitude when I ques-
tioned him on this topic suggested a considerable lack of respect for
the forum. A further infirmity in Donald’s testimony regarding the
withholding of Robert’s wage increase, was the self-contradiction
discussed earlier in my analysis. This flaw and his demeanor irrep-
arably damaged the credibility of his testimony regarding the Re-
spondents’ reasons for not giving Robert a wage increase.
sponsible for the Union’s organizing effort at the Bristol fa-
cility. At the end of September, Jeffrey Hammel said that he
would obtain a wage increase for Robert. On October 2, 3
days before the Board-held representation election at the
Bristol terminal, Jeffrey learned that PJAX believed that
Robert was responsible for the Union’s presence among the
Bristol terminal’s employees. That same day, Jeffrey, acting
on behalf of the Respondents, fired Robert’s brother as a re-
prisal. Thus did the Respondents show their strong union ani-
mus and their hostility toward Robert.
Respondents showed their preoccupation with the Union in
October, and again in December, when Jeffrey Hammel, in
rejecting Robert’s requests for a wage increase, raised the
Union as an excuse for not granting it. Hammel’s remarks
suggested that the Union’s organizing effort, and employee
support for the Union at the Bristol terminal were to blame
for the withholding of Robert’s wage increase. Thus, the
General Counsel has made a prima facie showing that the
Respondents’ decisions to withhold a wage increase from
Robert Briggs in October, and again in December, were mo-
tivated by hostility toward the Union and its supporters and
a desire to discourage union activity among the Bristol termi-
nal’s employees.
The Respondents argue that the record showed that busi-
ness reasons motivated their decision to withhold a wage in-
crease from Robert Briggs. The Respondents offer two rea-
sons. The first is based on Jeffrey Hammel’s testimony that
he told Robert that ‘‘it was part of the collective bargaining,
and that, no, he couldn’t receive one.’’ The second reason,
offered through Donald Hammel’s testimony, is that Robert
did not deserve it. I find the Respondents’ reasons fatally
lacking in substance.
At the outset, I note two infirmities in the Respondents’
proffered reasons. First, Jeffrey mentioned neither of them in
his remarks to Robert in October and December. Instead, I
have found that Jeffrey blamed the Union on both occasions.
Second, Donald Hammel’s testimony is inconsistent with
what Jeffrey told Robert and suffers from internal contradic-
tion. Thus, early in his testimony, Donald Hammel testified
that the only reason Robert Briggs did not receive a wage
increase was that Robert did not deserve one. Later in his
testimony, Donald asserted that in October, he refused Jef-
frey’s request for a wage increase for Robert Briggs saying,
‘‘this is part of what we’re bargaining with the union on,
wages are a bargaining issue.’’ However, according to the
Respondents’ brief, there were two reasons. Respondents’
failure to give these reasons to Robert, the inconsistencies
between Jeffrey’s remarks to Robert, Donald Hammel’s testi-
mony and Respondents’ brief, and the internal conflict in
Donald’s testimony, imply that the Respondent’s defense
consists of hastily contrived excuses offered to mask the real
reason for denying a wage increase.
These excuses do not withstand analysis. Having credited
Robert’s testimony, I have found, contrary to Respondents’
assertion, that in October and December, Jeffrey Hammel did
not mention the obligation to bargain with the Union as a bar
to their granting a wage increase to Robert. Instead, I found
that Jeffrey unlawfully blamed the Union for blocking Rob-
ert’s wage increase.
Nor was there explanation for Respondents’ asserted belief
that Robert did not deserve a wage increase. Donald
Hammel, whose testimony contains that assertion, did not
elaborate.5 Respondents did not provide any other evidence
to show why they believed that Robert did not merit a wage
increase in October and in December. Thus, the Respondents
have failed to rebut the General Counsel’s prima facie show-
ing of unlawful motivation.
In sum, I find that Respondents refused to grant a wage
increase to Robert Briggs, in October, 6 months after he
began his employment at PJAX, and again in December, be-
cause they believed that he was responsible for the Union’s
organizing campaign at PJAX’s Bristol terminal and to dis-
courage him from supporting the Union. I also find that by
this discriminatory conduct the Respondents violated Section
8(a)(3) and (1) of the Act.
D. Robert Briggs’ 3-Day Suspension
1. The facts
On January 16, 1991, Robert Briggs made an overdelivery
to Lower Bucks Hospital. He delivered a shrink wrapped pal-
let of a boxed product which had originated at PJAX’s cus-
tomer, Ross Abbott Laboratories. I find from Larry Briggs’
uncontradicted testimony, that PJAX uses shrink wrapping to
keep a palletized order together. On January 16, 1991, all the
cases in the upper half of the shrink wrapped load, which
Robert Briggs delivered to Lower Bucks Hospital, were
marked for delivery to the hospital. Thirty cases, lower down
in the load, were destined for Thrift Drug. Robert had
checked his trucking manifest before embarking on the day’s
deliveries, and had noted a delivery for Thrift. However, he
had not checked the contents of his truck, to match the
freight to the manifest.
When Robert arrived at Thrift Drug, he had nothing to de-
liver. He telephoned Jeffrey Hammel, who said the hospital
had called to report the overdelivery. Robert protested that
because all the Abbott Laboratories’ product had been on a
single, shrink wrapped pallet, he had assumed that the entire
pallet load was for Lower Bucks Hospital.
Jeffrey did not respond to Robert’s explanation of the mis-
delivery. Nor did Jeffrey raise the possibility of disciplinary
action or mention anything about an investigation. He in-
structed Robert to proceed with his deliveries. When Robert
called later in the day, to report that his truck was empty,
Jeffrey directed him to make pickups, and did not refer to
either the misdelivery or to any discipline for it.
Robert worked on Thursday. He saw Jeffrey Hammel dur-
ing the day. Jeffrey said nothing about the previous day’s in-
cident or about any possible repercussions. On the evening
of Friday, January 18, 1991, Robert found a suspension letter
stapled to his timecard, after he had punched out for the day.
The letter announced Robert’s 3-day suspension.
On learning of his suspension, Robert Briggs immediately
sought an explanation from Jeffrey Hammel. Robert com-
plained, asking why he had been suspended, when the inci-
dent involved was not his fault, ‘‘since it was all on a stretch
wrapped pallet.’’ Jeffrey answered, in substance, that Robert
1207PJAX
should have counted the load. Robert asked why he should
have counted the load, if it was ‘‘all on a stretch wrapped
pallet, and all the top boxes . . . say Lower Bucks Hos-
pital.’’
Robert Briggs went on to ask Jeffrey Hammel if the dock
worker, who had loaded the truck with the stretch wrapped
pallet, would suffer suspension. Hammel answered that
‘‘MGR asked me that, also. I told MGR, no, not to suspend
the dock worker, because he did his job, he loaded the
truck.’’
Prior to the incident of January 16, 1991, Respondents had
not disciplined Robert Briggs. Nor had Robert made any
misdeliveries prior to that date. However, in the previous
year, Robert was involved in two vehicle accidents, while
driving for PJAX. The record does not contain any docu-
mentation or testimony showing that Respondents inves-
tigated the first accident, or otherwise exhibited concern
about it, either in writing, or orally.
However, the record showed that PJAX reacted to the sec-
ond accident. In a letter to Robert, dated November 6, PJAX
stated that its investigation of an accident which had oc-
curred on October 18 showed that he had pushed a dumpster
into a building with his truck. The letter ended with: ‘‘You
will be advised of your status through your employer, MGR
Management Services, Inc.’’ The record did not disclose any
further communication from either PJAX or MGR Manage-
ment Services, Inc. to Robert.
The record shows that Respondents have treated other
Bristol drivers with remarkably less punishment than suspen-
sion for errors in handling shipments. Respondents issued a
warning to driver Thomas Austin on November 19 for deliv-
ering only one pallet, when the freight bill called for delivery
of two pallets. The disciplinary notice warned that: ‘‘Any fu-
ture incidents of failing to properly follow procedure will be
dealt with in a more severe manner.’’
Respondents issued a second warning to Austin in March
1991, when he picked up only 7 pieces of a 12-piece ship-
ment, signed for the 12 and left 5 pieces on the shippers
dock. This second warning was not designated as a ‘‘warn-
ing’’ and did not caution Austin that Respondents would deal
more harshly with him if he made another error in handling
shipments.
In April 1991, Respondents issued a third warning to Aus-
tin, for delivering 31 cartons, when the shipment’s docu-
mentation called for a delivery of 29 cartons. The notice
complained that Austin’s error ‘‘will cost [PJAX] well over
one or two hundred dollars . . . .’’ However, this third
warning did not accompany a suspension. Nor did it contain
the threat of harsher discipline included in the first warning
issued to Austin in November.
In May 1991, PJAX driver Franklin Cain received the fol-
lowing letter, dated May 10, 1991, from MGR Management
Services, Inc.:
It has been brought to out [sic] attention that you re-
cently picked up a shipment at Abbott Labs that was
identified to be transported by another carrier, not
PJAX, Inc. The order called for 355 cartons of freight
consisting of sensitive medicines.
The order, you picked up in error, was returned
today, May 10, 1991, with 354 cartons. Due to the ad-
ditional unnecessary handling, one carton of this very
sensitive freight, was initially missing from the return
delivery. Fortunately, for everyone concerned, the one
missing carton was discovered at the drivers next stop
and was taken back to complete the order. A rather
concerning situation that would never have occurred if
the freight would have gone the way it was originally
routed. Not to mention all of the added expenses also
involved as a result of your mistake.
I’m sure that you are aware that Abbott Labs is a
major account for PJAX, Inc. Negligent actions of this
nature jeopardizes [sic] and could result in loosing [sic]
this valued customer. If that would occur, you, and pos-
sibly several others would become unemployed, as the
jobs currently held would no longer exist!
It is a drivers [sic] responsibility, not only to prop-
erly count all orders they are assigned to pick up, or
deliver, but to also be curtain [sic] the freight is to be
shipped by the carrier they represent.
We further understand errors regarding this critical
and time sensitive freight, have occurred a number of
times before, and that you have been verbally warned.
Any future negligent incidents of this nature, will re-
sult in more severe disciplinary action.
On December 5, PJAX driver Peter Pastore delivered 30
cartons of intravenous solutions from Abbott Labs to a con-
signee and neglected to obtain a signature at the destination.
This violation of PJAX policy resulted in damage to the con-
tents of 27 of the 30 cartons. The consignee refused to ac-
cept the damaged merchandise. PJAX issued a written warn-
ing, dated December 19, to Pastore, but did not suspend him
for this error.
The warning dated December 19 came in the wake of an
earlier written warning, dated October 26, for an over deliv-
ery on October 22. The earlier warning had also reminded
Pastore that PJAX had verbally reproached him for similar
errors in the past. Both warnings threatened ‘‘more severe
disciplinary action’’ for ‘‘future incidents of this nature.’’
Notwithstanding the two warnings he had received in
1990, Pastore erred three times in January and once in March
1991. However, in disciplining him, the Respondents did not
suspend him or impose any other economic penalty on him.
On January 14, 1991, he made a delivery which was four
cartons short. On January 15, he made a delivery which was
one piece short. On both occasions, Pastore violated PJAX’s
policy by not calling PJAX to report the shortage. On Janu-
ary 23, 1991, PJAX issued a warning notice to him for both
infractions.
On January 25, 1991, Pastore delivered 62 cartons of milk
food to a consignee, instead of the 63 indicated on the
freight bill. In response to this short delivery, PJAX issued
a warning notice to him, dated January 30, 1991.
On March 14, 1991, PJAX issued to Pastore a warning no-
tice stating that he had erred 2 days earlier, by delivering 40
pieces of merchandise on 2 skids, instead of 70 pieces on 3
skids, as required by the freight bill. The notice also attrib-
uted this shortage to Pastore’s negligence in loading his truck
with only two skids. Finally, the notice complained that:
‘‘This error now delays our service and cost the Company
for a redelivery.’’
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 On cross-examination, Donald Hammel conceded that he did not
know whether the Abbott shipment, which Robert Briggs misdeliv-
ered on January 16, 1991, contained narcotics.
2. Analysis and conclusions
Applying the Wright Line test, I find, contrary to the Re-
spondents’ contention, that Robert Briggs’ 3-day suspension
was in retaliation for his perceived role in the Union’s orga-
nizing effort at PJAX’s Bristol terminal. In reaching this
finding, I have rejected the overdelivery to the Lower Bucks
Hospital as the real reason for Donald Hammel’s decision to
suspend Briggs. The circumstances leading up to the suspen-
sion, the disparity between the punishment the Respondents
inflicted on Robert Briggs for one error, and that which the
Respondents imposed on other employees for repeated errors,
and the lack of merit in the Respondents’ explanation for the
difference in treatment, compelled me to find a violation
here.
Donald Hammel’s decision to suspend Robert Briggs came
in the wake of Respondents’ discharge of Robert’s brother,
and its refusal to give a wage increase to Robert. I have
found that antiunion sentiment motivated both of these ad-
verse actions, which, therefore, violated Section 8(a)(3) and
(1) of the Act. The decision to punish Robert came against
a background of the same union organizing effort which sur-
rounded the discharge and the refusal to grant a wage in-
crease. Indeed, Robert’s suspension came only 3-1/2 months
after the Board-held representation election at PJAX’s Bristol
terminal, and 5 days before the Board certified the Union as
the bargaining representative of a unit of employees at that
facility.
The timing of Robert’s suspension, during the pendency of
the representation election results, the earlier manifestations
of Respondents’ hostility toward him because of his per-
ceived union activity, and the Respondents’ inclination to re-
sort to economic reprisals suggest that this punishment was
unlawful. The disparity between Robert’s 3-day suspension,
and the lighter discipline which the Respondents imposed on
other drivers for errors in delivering or picking up merchan-
dise, completed the General Counsel’s prima facie showing
of unlawful motive.
At the outset, I find that Donald Hammel’s testimony and
the Respondents’ posthearing brief disagree about why he de-
cided to suspend Robert Briggs. According to the brief,
‘‘Robert Briggs was suspended for three days on January 17,
1991, due to his misdelivery of ‘high risk’ freight.’’ Accord-
ing to Donald Hammel’s testimony, on direct examination,
and on cross-examination, he decided to suspend Robert
Briggs because of the misdelivery and two driving accidents.
I also find from Robert Briggs’ and Jeffrey Hammel’s con-
versation on January 18, 1991, that neither of them raised ei-
ther the ‘‘high risk’’ or the driving accidents as a factor in
Briggs’ suspension. The inconsistencies between Donald
Hammel’s testimony, Jeffrey’s remarks to Robert Briggs, and
the brief, cast serious doubt on the Respondents defense.
This disarray suggests that the Respondents were grasping,
seeking an acceptable excuse to mask the real reason for
Briggs’ suspension.
Donald Hammel’s asserted reliance on Robert Briggs’ two
1990 driving accidents adds to my impression that the Re-
spondents were attempting to shore up a hastily contrived fa-
cade for the real motive behind the suspension. For, when
the Respondents learned of these accidents in 1990, they in-
flicted no discipline on Briggs. There was no warning in
1990 that, if Briggs committed some other infraction against
PJAX’s work policies, the Respondents would punish him
more severely. Nor was there any testimony that Respond-
ents orally disciplined Robert Briggs for the driving acci-
dents. The first time the accidents became a disciplinary mat-
ter was when Donald Hammel raised them in his testimony
before me. Thus, it appears that Donald seized on them as
ground for punishing Robert only after the suspension had
been inflicted.
The Respondents’ attempts to show that Robert Briggs’
single misdelivery merited disparate punishment were uncon-
vincing. Donald Hammel appeared agitated and outraged, as
he testified to being ‘‘totally appalled’’ when he heard of
Robert Briggs’ overdelivery to the Lower Bucks Hospital
and inability to make a delivery to Thrift Drug, in Langhorn.
Outrage again set in, when Respondents’ counsel asked Don-
ald: ‘‘ Did you make the decision to give Robert Briggs a
three day suspension for this problem?’’ Donald answered,
vigorously:
Absolutely. I mean, I am totally appalled. I drove a
truck for a lot of years, and never in my life did I ever
go to a place without the freight on the truck. That’s
insane. I mean, that really is.
That is utter stupidity that you cannot look at your
truck and say, ‘‘I’ve got Thrift in Langhorn, 30 cases,
here’s my 30 cases. I’d rather drive all the way to
Langhorn, PA,’’ which I have no idea how far it is
from Bristol, PA, ‘‘but I’d rather drive all the way to
Langhorn, get registered at Thrift in Langhorn, go
through the security gate, back into their dock, and
open my truck,’’ and say, ‘‘oh, oh, I don’t have this on
it.’’ ‘‘I’m going to call Jeffrey. I mean, I don’t know
what my job is. It isn’t on the truck, Jeff.’’ No kidding.
Donald’s histrionics as he described Robert Briggs’ error on
January 16, 1991, cast a shadow on his credibility, but did
not explain why the Respondents suspended Briggs for 3
days for 1 error, in delivering a shipment for Abbott Labs,
and only warned Franklin Cain for erroneously picking up
355 cartons at the same shipper in the spring of 1991. This
disparity grows, when one notes that in the warning to Cain,
Respondents stated that Cain had made other errors ‘‘regard-
ing this critical and time sensitive freight . . . a number of
times before’’ and that Respondents had ‘‘verbally warned’’
him before.
Respondents’ affirmative attempt to justify the disparity
between Robert Briggs’ 3-day suspension and the warnings
issued to other drivers for misdeliveries or pickup errors fell
wide of the mark. In his testimony on direct examination,
Donald Hammel asserted that PJAX does not know the con-
tents of Abbott Laboratory’s shipments. Yet, when Respond-
ents’ counsel asked if the other drivers’ misdeeds were as se-
rious as Robert Briggs’ misdelivery of drugs,6 Donald
Hammel answered: ‘‘No, they were not.’’ Counsel’s question
was referring to Briggs’ delivery of January 16, 1991, which
was an Abbott Laboratory shipment. Further, the record does
not reveal the content of either Cain’s Abbott shipment or of
the Abbott shipment which Briggs misdelivered on January
16.
1209PJAX
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Nor was there any showing that Robert Briggs knew the
contents of that shipment, any more than Cain knew what
was in the 355 cartons, which he mistakenly picked up from
Abbott in the spring of 1991. Moreover, I fail to see the rel-
evance of the shipments’ contents in comparing Cain’s warn-
ings to Briggs’ suspension. In any event, I note that in their
letter to Cain, the Respondents showed concern by referring
to the Abbott shipment as ‘‘very sensitive freight.’’ Despite
that concern, and his other errors ‘‘regarding this critical and
time sensitive freight,’’ Respondents did not suspend Cain.
As I see it, the Respondents have not shown that Briggs’
misdelivery justified the disparity between his punishment
and the warnings issued to Cain or the other erring PJAX
drivers mentioned in this decision.
In sum, I find that Donald Hammel seized on Robert
Briggs’ misdelivery on January 16 as a pretext for sus-
pending Briggs for 3 days. I also find that the record leaves
little doubt that the real reason for Hammel’s action was his
belief that Robert Briggs had encouraged the Union to orga-
nize the employees at PJAX’s Bristol terminal. Accordingly,
I find that by punishing Briggs with this suspension, the Re-
spondents violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. PJAX and MGR Management Services, Inc. are em-
ployers engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Local Union No. 107, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. By telling a discharged employee that they would con-
sider him for reinstatement if Respondents’ Bristol terminal
employees rejected the Union as their collective-bargaining
representative, and by telling an employee that they could
not grant a wage increase to him because of the Union, the
Respondents violated Section 8(a)(1) of the Act.
4. By discharging employee Larry Briggs because they be-
lieved that his brother, Robert Briggs, assisted the Union’s
organizing campaign among their employees at PJAX’s Bris-
tol, Pennsylvania terminal, the Respondents violated Section
8(a)(3) and (1) of the Act.
5. By withholding a wage increase from employee Robert
Briggs, and suspending him for 3 days, because they be-
lieved that he assisted the Union’s organizing campaign
among their employees at PJAX’s Bristol, Pennsylvania ter-
minal, the Respondents violated Section 8(a)(3) and (1) of
the Act.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I find that they must be ordered
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As the Respondents discriminatorily discharged Larry
Briggs on October 2, 1990, but have offered him reinstate-
ment, which he has declined, they must make him whole for
any loss of earnings and other benefits he may have suffered
as a result of the discrimination against him, computed on
a quarterly basis, from the date of the discharge to the date
of the offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
As the Respondents discriminatorily suspended Robert
Briggs on January 18, 1991, for 3 days, and discriminatorily
withheld a wage increase from him in May 1990, and again
in December 1990, I shall recommend that they be required
to make him whole for any loss of earnings and other bene-
fits he may have suffered as a result of this discrimination
against him, in accordance with F. W. Woolworth Co., supra,
plus interest as computed in New Horizons for the Retarded,
supra.
I shall also recommend that the Respondents be required
to remove from their respective files any references to the ei-
ther the discharge of employee Larry Briggs or to the 3-day
suspension of employee Robert Briggs, both of which I have
found violative of the Act, and notify each of them, in writ-
ing, that they have done so, and that they will not use either
the discharge against Larry Briggs, or the suspension against
Robert Briggs, in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondents, PJAX, Pittsburgh, Pennsylvania, and
MGR Management Services, Inc., Pittsburgh, Pennsylvania,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in, or support for, or activi-
ties on behalf of Teamsters Local Union No. 107, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, or any other labor
organization, by discriminating in any manner against any of
their employees in regard to their hire and tenure of employ-
ment, wages, or any other terms or condition of employment,
because of their union membership, sympathies, or activities.
(b) Telling discharged employees that their reinstatement
might be conditioned on the rejection, by the Respondents’
Bristol terminal employees, of Teamsters Local Union No.
107, a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO, or any
other labor organization, as their collective-bargaining agent.
(c) Telling employees that Respondents cannot grant a
wage increase because of Teamsters Local Union No. 107,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO or any
other labor organization.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole employees Larry and Robert Briggs for
any loss of pay or other benefits they may have suffered as
a result of the descrimination against them, in the manner set
forth in the remedy section of this decision, plus interest.
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Remove from their respective files all references to
Larry Briggs’ discharge and to Robert Briggs’ 3-1/2-day sus-
pension, and notify each of them in writing that this has been
done, that the discharge will not be used against Larry
Briggs in any way, and that the suspension will not be used
against Robert Briggs in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(d) Post at Respondent PJAX’s terminal at Bristol, Penn-
sylvania, copies of the attached notice marked ‘‘Appendix.’’8
Copies of the notice, on forms provided by the Regional Di-
rector for Region 4, after being signed by the Respondents’
authorized representatives, shall be posted by the Respond-
ents immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to the employees at Respondent PJAX’s Bris-
tol, Pennsylvania facility are customarily posted. Reasonable
steps shall be taken by the Respondents to ensure that the
notices are not altered, defaced, or covered by any other ma-
terial.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge, suspend, withhold wage increases
from, or otherwise discriminate against any of you for sup-
porting Teamsters Local Union No. 107, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL NOT tell discharged employees that their rein-
statement may be conditioned on your rejection of Teamsters
Local Union No. 107, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO or any other labor organization as your collec-
tive-bargaining representative.
WE WILL NOT tell you that we cannot grant a wage in-
crease to any of you because of Teamsters Local Union No.
107, a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO or any
other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE HAVE offered reinstatement to Larry Briggs, but he
has declined.
WE WILL make employees Larry and Robert Briggs whole
for any loss of pay or other benefits they may have suffered
as a result of the discrimination against them, plus interest.
WE WILL remove from our files all references to Larry
Briggs’ discharge and to Robert Briggs’ 3-day suspension,
and notify each of them in writing that this has been done,
that the discharge will not be used against Larry Briggs in
any way, and that the suspension will not be used against
Robert Briggs in any way.
PJAX
MGR MANAGEMENT SERVICES, INC.