Sherwood Trucking Co.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 445 (N.L.R.B. 1984)

SHERWOOD TRUCKING CO.
Sherwood Trucking Company and Teamsters Local
Union No. 957, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 9-CA-
16258
30 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 12 April 1983 Administrative Law Judge
Richard L. Denison issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, l and
conclusions and to adopt the recommended
Order. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Sherwood
Trucking Company, Vandalia, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The judge made a number of apparently inadvertent errors in sec. II of
his decision. In the first paragraph he stated that the Union entered into a
3-year collective-bargaining agreement with Foreman Express Company
in June 1980, whereas the record indicates that this basic agreement was
entered into in or around June 1977. In subsequent paragraphs the judge
stated that Foreman's supervisor, Joe Phillips, remained at the terminal
on Saturday afternoon, 25 October 1980. to inform Foreman employees
of Foreman's cessation of operations, and that later that same day Phillips
was hired by the Respondent, whereas the record establishes that these
events took place on Friday, 24 October 1980. Finally, the judge stated
that Phillips needed a letter to show that he was no longer employed by
Foreman, whereas the record establishes that the letter in question was
needed by former Foreman employee Darrell Presley.
2 Member Hunter agrees with adopting the recommended Order of the
judge, except that he would allow the Respondent to show at a compli-
ance hearing that fewer than 12 jobs would have been available irrespec-
tive of the Respondent's unfair labor practices. If the Respondent shows
that jobs were not available for all 12, Member Hunter would not order
the Respondent to reinstate all of the discriminatees, rather the Respond-
ent should place on a preferential hiring list all remaining discriminatees
who, under nondiscriminatory criteria, would have been hired but for the
lack of available jobs. Spencer Foods, 268 NLRB 1483 (1984).
270 NLRB No. 82
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge.
This case was heard at Dayton, Ohio, on October 28 and
29, 1981, based on an original charge in Case 9-CA-
16258, filed by the Union on January 2, 1981. The com-
plaint, issued February 13, 1981, as amended, alleges that
the Respondent violated Section 8(a)(X1) and (3) of the
Act in that, as alleged successor to Foreman Express
Company, Emery Air Freight Corporation's pickup and
delivery agent at the Dayton, Ohio, area airport, the Re-
spondent at all times since on or about October 24, 1980,
failed and refused to hire or retain the former employees
of Foreman because of their representation by and affili-
ation with the Union, as evidenced by statements alleg-
edly made to employees by Respondent's Sales and Serv-
ice Manager Joe B. Phillips, an alleged supervisor.
The Respondent's answer denies the allegations of
unfair labor practices alleged in the complaint. On the
entire record in the case, including my consideration of
the briefs and observation of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Based on the allegations of paragraphs 2, 3, and 5 of
the complaint admitted by the Respondent's answer, and
the stipulation of jurisdictional facts by the parties at the
outset of the hearing, I find that the Respondent is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II1. THE UNFAIR LABOR PRACTICES
For an unspecified period of time prior to the events
which comprised this case, Emery Air Freight Corpora-
tion has engaged in the air freight business at a facility
located at the Dayton, Ohio, airport in Vandalia, Ohio.
Emery contracts its pickup and delivery service and
over-the-road or line haul operations to agents which
perform this work in trucks with Emery markings.
Sometime before June 1, 1977, Emery's drayage contrac-
tor had been Foreman Express, Inc. of Columbus, Ohio.
Foreman's only supervisor in charge of its Vandalia op-
erations, with hiring and firing authority, was its Manag-
er-Dispatcher Joe Phillips. In June 1980 Foreman signed
a 3-year collective-bargaining agreement with Local 957
governing the wages, hours, and working conditions of
the drivers and combination driver-dockman at the Van-
dalia terminal. The contract contains union-security
clauses, requiring employees to become and remain mem-
bers of the Union, and providing for checkoff dues de-
duction. On June 27, 1980, Foreman and Local 957
signed a "contract addendum" increasing the drivers'
wage rates and health insurance, but otherwise extending
the contract until March 30, 1981. Foreman then asked
i The pickup and delivery service is also referred to in the record as
drayage.
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emery for a 10-percent rate increase. Thus, in July or
August 1980, at the request of his superiors, Emery's
Vandalia Manager Gary O'Dell began talking with pro-
spective contractors to replace Foreman.
Jim Irwin, president of Sherwood Trucking Company,
and O'Dell met in Akron, Ohio, about July 10. Accord-
ing to O'Dell they talked about the type of vehicles
Emery desired, and what he expected in the way of
rates. At that time O'Dell specified that of Foreman's
Vandalia employees, only Phillips was to be retained as
manager, since he had ". . . not been satisfied with Fore-
man and wanted to just start completely over, complete-
ly new." O'Dell did not elaborate in his testimony con-
cerning the specific causes of his purported dissatisfac-
tion, but repeatedly couched such expressions only in
general terms, e.g., that Foreman ". . . was not in good
order." In his testimony Irwin said O'Dell feared that
Foreman would go bankrupt, but also expressed minor
concerns over the age and appearance of Foreman's
equipment, as exemplified by its failure to repair one
truck which had been involved in an accident. Irwin
agreed that O'Dell wanted a new driver work force to
increase efficiency, and bring productivity to a satisfac-
tory level.
Sherwood submitted a written bid, dated October 17,
which proposed, inter alia, to use nine drivers furnished
by a personnel leasing service and paid a percentage of
the revenue as their sole compensation. The document
also contains the observation that ". . . this should allow
us to attract good drivers who are satisfied. If, however,
the driver should become dissatisfied, we could always
switch to another personnel leasing service."2 Sher-
wood's bid also signified its intention to utilize its own
manager.
The unstable situation described above escalated to the
crisis stage on Friday, October 24. On that day Emery
refused the 10-percent rate increase Foreman had re-
quested, and Foreman notified O'Dell that they would
discontinue service at the end of the day. Shortly there-
after, about 1 p.m., O'Dell telephoned William Blodgett,
the owner of Sherwood, whom he located in Indianapo-
lis. O'Dell asked Blodgett to begin pickup and delivery
service for Emery on a temporary basis at 8 a.m. on
Monday, October 27, utilizing 10 trucks and 10 new
drivers. Blodgett completed his Indianapolis business,
called Irwin and assigned him the task of securing the
trucks through a rental agency and the drivers through a
personnel service, and drove to Dayton. He arrived at
Emery's Vandalia terminal at about 5 p.m. for a prear-
ranged conference with O'Dell and his superior, Mike
Gunkel, Emery's Vandalia manager.3 During the course
of this meeting, which according to O'Dell's and Blod-
gett's testimony took place somewhere between 5 and 6
p.m., the participants discussed the details of the condi-
tions under which Sherwood would begin the proposed
I O'Dell also talked with representatives of Quick Air Freight, Inc.,
and PBF Industries, both of whom submitted written bids dated Novem-
ber 6 and October 24, 1980, respectively.
s O'Dell and Blodgett agree that their meeting took place at this time.
I therefore find that Irwin was mistaken when he testified that Blodgett
telephoned him from Indianapolis about 4:45 p.m. on October 24. Gunkel
did not testify.
operations. 4 Neither O'Dell nor Blodgett attempted to
relate everything that was said during the course of this
conference. It seems certain, however, from what they
did recall, that the focal point of the discussion was cen-
tered on Gunkel's expressed desire ". . . that the [Fore-
man] drivers were expendable, in order to get another
operation-better operation," but that Emery desired
that Blodgett employ Phillips as its Vandalia operations
manager. O'Dell denied making any mention of Fore-
man's unit contract during these final negotiations,
except in reference to the economics of what Emery had
paid and had been asked to pay for Foreman's services,
which was directly related to Foreman's new agreement
with the Union.
Immediately following his reaching an understanding
with O'Dell and Gunkel, Blodgett interviewed and hired
Joe Phillips to run Sherwood's new operation.5 Phillips
had been winding down Foreman's operations at his
work area in another part of the terminal. The discussion
between Phillips and Blodgett lasted for about 15 or 20
minutes. During that time Blodgett questioned Phillips
about how much he had been making with Foreman, in-
cluding the nature of his fringe benefits. Blodgett told
Phillips that Sherwood was lining up drivers and trucks
and that he would have to give each driver a road test
that weekend.6
Phillips usually left the terminal at 5 p.m. but remained
that Saturday evening until each of the drivers had re-
ported in, to inform them of Foreman's cessation of busi-
ness. One of the first drivers to return was Union Stew-
ard Lawrence W. Coomer Jr., who entered the terminal
about 4:30 or 4:45 p.m. After talking to Phillips about the
shutdown, Coomer phoned Union Representative Dick
Loy at Local 957. Loy promised to send the drivers
withdrawal cards. Terry Hutton and Bernard Noble re-
ceived the news from Phillips upon their return shortly
thereafter. Noble's conversation with Phillips was inter-
rupted when Phillips was summoned to O'Dell's office
for his interview. Darrell Presley, who had one of the
longest runs and usually returned last, talked with Phil-
lips at about 7 to 7:15 p.m.
Meanwhile, pursuant to his instructions from Blodgett,
Irwin was frantically attempting to secure trucks and
drivers. Through numerous phone calls from his office in
Akron, he obtained 10 trucks from rental agencies, and
drivers through the weekend cooperation of Thomas J.
Gloady, the manager of Crown Services Company, a
personnel agency. 7
Blodgett was not at all unknown to the Emery people, since he had
previously served as Emery's corporate treasurer, and subsequent to his
departure from Emery was cartage agent for Emery in the Akron-Canton
area.
5 Although Sherwood began operations on a temporary or trial status,
Respondent became Emery's permanent agent at Vandalia shortly there-
after.
I In addition Phillips testified that O'Dell had previously told him that
he was not satisfied with the attitude of the Foreman drivers.
7 Irwin obtained three drivers through his own efforts. At that time
Sherwood was already supplying Emery with over-the-road or line haul
service from the Dayton terminal to various other cities, utilizing these
nmen whom Irwin now drafted for use in the new operation.
446
SHERWOOD TRUCKING CO.
On Sunday, October 26, 11 driver candidates were
sent by Gloady to Sherwood for road testing by Phillips.
Those approved by Phillips were hired. Two or three
were rejected by Phillips, and were not hired. Phillips
agreed that beginning Monday, October 27, he alone di-
rected operations for Sherwood at Vandalia, where he
possessed discharge authority. I find that from the time
of his hiring, on Saturday evening, October 25, Phillips
was a supervisor of the Respondent and an agent acting
on Respondent's behalf, within the meaning of Section
2(11) and (13) of the Act, respectively.
On the night of October 26, pursuant to instructions
given him by Phillips on October 24, Terry Hutton went
to Phillips' residence seeking information concerning
whether or not he would still be employed by the new
operation beginning Monday. Phillips told Hutton that
the new company was Sherwood Trucking Company
and that the Foreman Express drivers would not be
hired because they were union affiliated ". . . and that
was it." Phillips stated that he was to report for work on
Monday to run the Sherwood operation. Because of the
finality of Phillips' explanation, Hutton never bothered to
formally apply for employment through Crown.
Following some weekend discussion among Darrell
Presley and former Foreman drivers Verl Smith, Ted
Williams, and Bill Woosley, these men met at a prear-
ranged location in Vandalia at 7 a.m. on October 27, and
proceeded to the terminal seeking employment. There,
according to Presley, they found Joe Phillips giving di-
rections to the new drivers with the aid of a wall map of
the Dayton area. While the other men who had accom-
panied Presley engaged in conversation near the entrance
to the building, Presley approached Phillips and asked to
fill out an application, inquiring concerning his chances
of obtaining employment. Phillips responded, "To tell
you the truth, there is no chance. Mr. Blodgett doesn't
want anything to do with the Union. And I don't think
there's no use of you putting an application in." About 2
weeks later Presley talked to Phillips again at the termi-
nal. The occasion was Phillips' need for a letter, to the
effect that he was no longer employed by Foreman Ex-
press, in order to apply for food stamps. Presley com-
mented that he heard that Phillips was having a problem
keeping a driver on the route to Springfield, Presley's
former route. Presley asked for the job. Phillips an-
swered that they had new men, and a whole new oper-
ation, and that there was no chance of his getting on
with the Company.
At the time of his termination on October 24, Law-
rence Coomer Jr. had been scheduled for a month's va-
cation. Undaunted by the events of the day he left the
area, returning on November 25. On Sunday evening,
November 30, he had a conversation with Joe Phillips at
Coomer's parents' home. Coomer and Phillips are dis-
tantly related. Coomer asked about his chances of being
reinstated. Phillips replied that the Union was the reason
that no one had been called back and that the Company
did not want any of the Foreman drivers because of the
Union. Coomer asked who was performing the work,
and Phillips answered that they had obtained the drivers
from Crown. When Coomer asked if he could apply,
Phillips responded that he could "go down," but that it
would not do him any good. Phillips also remarked that
his job had been "hectic" because he was trying to break
in the new men. Thereafter, Coomer saw no point in fur-
ther efforts to obtain employment with Sherwood. As
former steward, he contacted the remainder of the
former Foreman drivers and told them that there was no
sense wasting their time applying for a job at Sherwood.
About 3 weeks after Foreman ceased operating, Ber-
nard Noble procured the final paychecks from owner
Ron Foreman for distribution to the terminated drivers.
Since Joe Phillips' paycheck was also included, he called
Phillips, who came to Noble's home to secure his check.
A lengthy conversation ensued during the course of
which Phillips openly discussed the new situation. He
said that Blodgett had big money, and was running a
first-class type operation. Phillips stated that it was a
shame that the drivers who had been used to going
second class with Foreman could have gone first class
with Blodgett. He said that it was a pain to try to open a
business on the first day with all new employees when
no one knew anything, and he was not even sure that
they knew how to drive a truck. He said he had already
found it necessary to terminate the new driver on the
Springfield run, who had departed with 20 deliveries to
make and returned 4 hours later without having made
any deliveries. Phillips said he was having quite a few
problems that way, and that it was a shame that the old
drivers were not retained because the transition would
have been a lot smoother because everyone knew what
was going on. Then it would have just been a matter of
changing up-front companies. Phillips concluded by stat-
ing that if they had not been union they would still be
working, but that there was no way the Union would
ever get in there.
Phillips denied telling any of the former Foreman driv-
ers that their union affiliation was the reason they were
not employed by Sherwood. The credulity of this denial
is destroyed by the mutually corroborative testimony of
Coomer, Hutton, Presley, and Noble, as related above.
In addition, Noble had one further conversation with
Phillips on January 6, 1981, in which Phillips again ac-
knowledged that the rejection of the Foreman employees
was precipitated by their union representation. This con-
versation was tape recorded by Noble. The authenticated
recording, plus a stipulated transcription, is in evidence. I
therefore credit the testimony of Coomer, Hutton, Pres-
ley, and Noble over that of Phillips concerning these
conversations.
I also find the testimony of O'Dell, to the effect that
his dissatisfaction with the Foreman drivers stemmed
from work-related incidents, to be incredible. O'Dell was
unable to relate the specifics of a single incident involv-
ing driver misconduct or poor work. On the other hand,
the Charging Party introduced evidence of instances
where drivers Noble and Coomer had been commended
by O'Dell and other members of Emery management for
their good performance. I am, therefore, persuaded that
the only reason the Foreman drivers were not hired by
Sherwood was that Emery and Sherwood feared that
such a course of action would lead to the unionization of
their operation. I therefore find that the Respondent vio-
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated Section 8(a)(l) and (3) of the Act in refusing to hire
the Foreman drivers. The fact that many of these drivers
made no formal application for employment under the
circumstances presented is no impediment, in my view,
since the evidence shows that the futility of such an
effort had been communicated to them, including Phil-
lips' explicit remarks. As the Board has often held under
similar circumstances, they were not required to perform
a useless act in order to protect their rights under the
statute. Macomb Block & Supply, Inc., 223 NLRB 1285,
1286 (1976).
There remains for consideration the issue of whether
the Respondent has acquired the legal status of a succes-
sor to Foreman, and is thereby obligated to bargain with
the Union. In Burns Security Services, 406 U.S. 272
(1972), the United States Supreme Court held that the
Board could not order a successor employer to honor its
predecessor's collective-bargaining agreement to which
the successor had never been bound. However, the
Court also held that "where the bargaining unit remains
unchanged and a majority of the employees hired by the
new employer are represented by a recently certified
bargaining agent there is little basis for faulting the
Board's implementation of the expressed mandates of
Section 8(a)(5) and Section 9(a) by ordering the employ-
er to bargain with the incumbent union." 406 U.S. at 281.
The Burns ruling has been made applicable to bargaining
units which are not based upon a Board certification, but
arise from lawful recognition. In considering whether or
not an employer is a successor, the Board examines the
total circumstances in each case with special scrutiny
given to four major considerations. The chief among
these is the continuity of the work force, i.e., the majori-
ty question. The other factors are the degrees of continu-
ity in the employing industry, continuity with respect to
the appropriate bargaining unit, and the impact of any
hiatus in operations which may have occurred.
Applying these principles to the instant case the fol-
lowing becomes readily apparent. Since Foreman ceased
operations on Friday, October 24, and Sherwood imme-
diately began securing trucks and drivers in order to
commence serving Emery on Monday morning, October
27, no hiatus in operations existed. Both Foreman and
Sherwood performed pickup and delivery service, or
drayage, for Emery, operating from Emery's Vandalia
terminal and serving the same customers on the same
routes. The size of the work force and the job functions
performed by the employees are virtually the same.
Since Joe Phillips, who formerly managed Foreman's
Vandalia operation, also performs the identical function
for Sherwood, supervisory continuity also exists. It is
therefore clear that the scope and composition of the
collective-bargaining unit has remained unchanged, and
that the unit specified in the collective-bargaining agree-
ment between Foreman and Local 957 remains an appro-
priate unit.8 Thus, the only difference between Fore-
8 The collective-bargaining agreement found to be appropriate is:
All drivers and combination driver-dockmen employed by Sherwood
Trucking Company at the Vandalia, Ohio terminal of Emery Air
Freight, excluding all office clerical employees, management train-
ees, garage employees, dispatchers, watchmen, janitors, truck drivers
man's and Sherwood's operations having a significant
effect on Sherwood's status as a successor is the lack of
continuity of the work force, or, simply put, the fact that
Sherwood did not hire any, let alone a majority, of Fore-
man's unit employees. This consideration, which might
well preclude a finding of successorship in the context of
other dissimilar cases, represents only an illusory obstacle
to such a finding in the instant proceeding. I have found
that the Respondent failed and refused to hire or retain
the 12 Foreman drivers solely because of their union af-
filiation and the fear that the new operation would
become unionized. In both the Burns case and in Howard
Johnson Co., 417 U.S. 249 (1974), while acknowledging
that a successor employer is not required to hire the em-
ployees of its predecessor, the Court likewise noted that
it was a violation of Section 8(a)(3) of the Act to refuse
to hire or retain the predecessor's employees solely be-
cause they were union members or to avoid having to
recognize the Union. This is exactly what happened in
the present case. The record shows that at the time of
their termination Foreman's drivers were dues-paying
members of Local 957, in accordance with the union-se-
curity provisions of the collective-bargaining agreement.
It is therefore plain that except for Respondent's unlaw-
ful refusal to hire or retain them, the Union would have
been the collective-bargaining representative of a majori-
ty of Sherwood's employees in the appropriate collec-
tive-bargaining unit, and that Sherwood is legally the
successor to Foreman. I so find.
CONCLUSIONS OF LAW
I. The Respondent, Sherwood Trucking Company, is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters Local Union No. 957, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. All drivers and combination driver-dockmen em-
ployed by Sherwood Trucking Company at the Vanda-
lia, Ohio terminal of Emery Air Freight, excluding all
office clerical employees, management trainees, garage
employees, dispatchers, watchmen, janitors, truck drivers
categorized as independent contractors, guards and su-
pervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material herein the Union was the ex-
clusive collective-bargaining representative of the em-
ployees of Foreman Express, and by virtue of Sherwood
Trucking Company's status as the successor employer to
Foreman Express continues to be and is the exclusive
collective-bargaining representative of the employees in
said unit at Sherwood Trucking Company.
5. By telling employees, through its Manager and Su-
pervisor Joe B. Phillips, that they were not hired or re-
tained by Sherwood because of their past and current
categorized as independent contractors, guards and supervisors as
defined in the Act.
448
SHERWOOD TRUCKING CO.
union affiliation, the Respondent violated Section 8(a)(l)
of the Act.
6. By refusing to hire or retain Don Angel, William
Caripides, Larry Coomer, Terry Hutton, Mike Jeckering,
Hugh Jordan, Bernard Noble, Darrell Presley, Mark
Rosso, Verl Smith, Ted Williams, and Bill Woosley, be-
cause of their union affiliation and because it feared the
unionization of its operations, the Respondent violated
Section 8(a)(1) and (3) of the Act.
7. The unfair labor practices described above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated the Act as
specified in the section of this Decision entitled "Conclu-
sions of Law," I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent effectively de-
stroyed the collective-bargaining unit by unlawfully re-
fusing to hire or retain the Foreman drivers, I find it
necessary, in order to effectuate the remedial policy of
attempting, as near as possible, to restore the status quo
ante, to order the Respondent, upon request, to bargain
with the Union. The record evidence clearly shows that
the Respondent followed a course of action deliberately
designed to eliminate the collective-bargaining process.
Under these circumstances, anything short of a bargain-
ing order would permit the Respondent to profit from its
unlawful conduct. This conclusion is reached in full real-
ization of the fact that there is no allegation that the Re-
spondent violated Section 8(a)(l) and (5) of the Act.
However, in my view, this portion of the remedy is war-
ranted by the devastating result achieved by the Re-
spondent's unfair labor practices, and by my assessment
of the policy followed by the Board in light of the
United States Supreme Court's decision in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). In addition, I
shall order the Respondent to offer Don Angel, William
Caripides, Larry Coomer, Terry Hutton, Mike Jeckering,
Hugh Jordan, Bernard Noble, Darrell Presley, Mark
Rosso, Verl Smith, Ted Williams, and Bill Woosley, im-
mediate employment to the positions to which they
would have been entitled had they not been discriminat-
ed against, 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 the discrimination against
them, by paying them backpay computed on a quarterly
basis, plus interest, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).9 The Respondent will also be ordered to post
an appropriate notice.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' o
9 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
'o 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
ORDER
The Respondent, Sherwood Trucking Company, Van-
dalia, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discouraging membership in Teamsters Local
Union No. 957, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by refusing to
consider for employment or by refusing to employ or
retain employees because of their union membership or
activities, by threatening employees that the reason they
have not been hired or retained is their union affiliation,
or in any like or related manner discriminating against
employees in regard to hire and tenure of employment or
any terms or conditions of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join or assist Teamsters Local Union No. 957,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Don Angel, William Caripides, Larry
Coomer, Terry Hutton, Mike Jeckering, Hugh Jordan,
Bernard Noble, Darrell Presley, Mark Rosso, Verl
Smith, Ted Williams, and Bill Woosley, immediate em-
ployment in the positions to which they would have
been entitled had they not been discriminated against, 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 suf-
fered in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Recognize and, on request, bargain with Teamsters
Local Union No. 957, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive collective-bargain-
ing representative of all the employees in the appropriate
unit and, if an understanding is reached, embody it in a
signed agreement.
(c) Post in the portion of the Vandalia, Ohio terminal
from which it conducts its operations at that location,
copies of the attached notice marked "Appendix."t 1
Board and all objections to them shall be deemed waived for all pur-
poses.
iI 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."
449
DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
Copies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Teamsters
Local Union No. 957, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, by
refusing to hire or retain employees because of their
union membership or activities, nor will we threaten
them by telling them that the reason they have not been
retained or considered for employment is their union af-
filiation, nor will we in any like or related manner dis-
criminate against employees in regard to hire and tenure
of employment or any terms or conditions of employ-
ment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights to self-organization, to form labor organiza-
tions, to join or assist Teamsters Local Union 957, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, to bargain collectively with
representatives of their own choosing, and to engage in
any other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3) of
the Act.
WE WILL offer former employees of Foreman Express
named below immediate employment in the positions to
which they would have been entitled had they not been
discriminated against, or substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings they may have suffered as the result of our dis-
crimination against them, with interest.
Don Angel
William Caripides
Larry Coomer
Terry Hutton
Mike Jeckering
Hugh Jordan
Bernard Noble
Darrell Presley
Mark Rosso
Verl Smith
Ted Williams
Bill Woosley
WE WILL recognize and, upon request, bargain with
Teamsters Local Union No. 957, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive col-
lective-bargaining representative of all our employees in
the appropriate unit and, if an understanding is reached,
embody it in a signed agreement. The appropriate unit is:
All drivers and combination driver-dockmen em-
ployed by Sherwood Trucking Company at the
Vandalia, Ohio terminal of Emery Air Freight, ex-
cluding all office clerical employees, management
trainees, garage employees, dispatchers, watchmen,
janitors, truck drivers categorized as independent
contractors, guards and supervisors as defined in the
Act.
SHERWOOD TRUCKING COMPANY
450