Superior Forwarding Co., Inc., And Debtor-In-Possession, And Central Transport, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1987

282 N.L.R.B. 806 (N.L.R.B. 1987)

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior Forwarding Company, Inc., Debtor-in-Pos-
session, and Central Transport , Inc. and Do-
menick Carlini
Superior Forwarding Company, Inc. and Bill Ray-
mond. Cases 26-CA-11196 and 26-CA-11240
22 January 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 24 July 1986 Administrative Law Judge
Robert T. Wallace issued the attached decision.
The Respondents filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and an answering brief and brief in support of
the cross-exceptions.
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, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings,' fmdings,2 and conclusions3 and to adopt the
recommended Order as modified.4
i At the hearing, the Respondents renewed their motion to dismiss the
second amended complaint on the ground that the case should be de-
ferred to the grievance-arbitration procedure under Collyer Insulated
lI ire, 192 NLRB 837 (1971). In their brief in support of their exceptions,
the Respondents cite United Technologies Corp., 268 NLRB 557 (1984), in
arguing that deferral is appropriate. The judge denied the motion at the
hearing, inter alia , because there is an allegation in the second amended
complaint that the Respondents violated Sec. 8(a)(4) and (1) of the Act,
and under International Harvester Co., 271 NLRB 647 (1984), deferral is
inappropriate in 8(a)(4) cases. The judge found that because the other al-
legations in this case are so intertwined with the 8(a)(4) allegation, they
also should not be deferred to the grievance-arbitration procedure. We
agree with the judge that deferral is inappropriate under the circum-
stances of this case.
2 The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
In his discussion of Carlini's loss of the St. Louis run (par. 15 of his
decision), the judge inadvertently stated that it was Raymond, not Car-
lini, who lost the run We correct the error.
S The General Counsel has excepted to the judge's inadvertent failure
to find that the Respondents violated Sec. 8(a)(3) and (1) of the Act by
requiring employees to return their grievance money in order to receive
diesel fuel. The judge ordered the Respondents to "cease and desist from
requiring employees to return checks in payment of grievances in order
to receive diesel fuel at discount." We agree with the General Counsel
and find that the Respondents violated Sec. 8(a)(3) and (1) of the Act by
requiring the employees to return the grievance payments in order to
purchase fuel.
4 We agree with the judge's conclusion that a finding that employee
Raymond was constructively discharged is not precluded by the fact that
prior to the fuel dispute Raymond planned to retire on 31 July 1985. We
further adopt the judge's Order that requires, inter alia, that the Respond-
ents offer Raymond immediate and full reinstatement and make him
whole for any loss of earnings suffered as a result of his unlawful dis-
charge. In so doing, however, we leave the matter of Raymond's planned
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Superior Forwarding Company, Inc.,
Debtor-In-Possession, Sterling Heights, Michigan,
and Little Rock, Arkansas, and Central Transport,
Inc., Sterling Heights, Michigan, their officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(h).
"(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply."
2. Substitute the attached notice for that of the
administrative law judge.
retirement, to the extent that it may affect the remedy herein, to the com-
pliance stage of this proceeding. `
In his Order, the judge recommended that the Respondents cease and
desist from "in any like or related manner" interfering with, restraining,
or coercing employees in the exercise of their Sec 7 rights. However, in
his notice to employees the judge used broad "in any other manner" lan-
guage. In her cross-exceptions, the General Counsel requests that the
Board modify the Order to conform to the broader language in the
notice.
Contrary to the General Counsel, we believe that a narrow order is
appropriate here because in our view the Respondents have not been
shown to have a proclivity to violate the Act or a general disregard for
employees' fundamental statutory rights. See Hickmott Foods, 242 NLRB
1357 (1979). Accordingly, we shall issue a new notice to employees utiliz-
ing narrow cease-and-desist language to conform to the Order.
In his Order, the judge recommended the inclusion of a visitatorial
clause, authorizing the Board, for compliance purposes, to obtain discov-
ery from the Respondents under the Federal Rules of Civil Procedure
subject to the supervision of the United States court of appeals enforcing
the Order. Under the circumstances of this case, we find it unnecessary
to include such a clause. Accordingly, we shall modify the judge's Order
to delete this clause.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge you because of your ac-
tivity on behalf of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union No. 667, or any other
labor organization.
WE WILL NOT reduce your work assignments or
otherwise discriminate against you because of your
union activities and/or because you file charges
under the Act.
282 NLRB No. 121
SUPERIOR FORWARDING CO.
WE WILL NOT terminate the practice of selling __
diesel fuel at a discount to you because of your
union activities.
WE WILL NOT threaten to cease selling fuel at a
discount to you if you insist on payment of moneys
awarded you in settlement of grievances.
WE WILL NOT promise benefits to you (e.g.,
good recommendations for jobs, resuming sales of
diesel fuel to you at discount prices) if you return
moneys received in settlement of grievances.
WE WILL NOT promise continued sales of diesel
fuel at discount prices to you if you mislead the
Union into believing that you received full satisfac-
tion of grievances.
WE WILL NOT require you to return' checks in
payment of grievances in order to receive diesel
fuel at discount.
WE WILL NOT in any like or related -manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Bill Raymond immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his, seniority or any other
rights or privileges 'previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL make Domenick Carlini whole, with
interest, for any loss of earnings suffered as a result
of the unlawful reduction, in his work assignments.
WE WILL reimburse Bill Raymond, Domenick
Carlini, Kenneth Smith, James Perry, and Ronald
Haskins, with interest, for any additional expenses
incurred as a result of the unlawful refusal to sell
them diesel fuel at prices available to other em-
ployees.
WE WILL pay to Kenneth Smith, James Perry,
and Ronald Haskins, with interest, amounts with-
held by'reason of their compliance with the unlaw-
ful requirement that they return checks issued them
in settlement of grievances.
WE WILL remove from our' files any reference to
the unlawful discharge' of Raymond, the unlawful
reduction in work assignments to Carlini, the un-
lawful requirement of the return of the grievance
money by Perry, Smith, and Haskins, and the un-
lawful failure to sell diesel fuel to Raymond, Car-
lini,' Perry, Smith, and Haskins at prices available
to other employees, and WE WILL notify them in
writing that these things have been done and that
807
evidutic&I-Of,those actions will not be used against
them in any way.
SUPERIOR FORWARDING COMPANY,
INC., DEBTOR-IN-POSSESSION
CENTRAL TRANSPORT,, INC.
Bruce E. Buchanan, Esq., for the General Counsel.
Charles J. Lincoln, Esq., and Bob Lawson Jr., Esq. (Lin-
coln & Orsini, PA), of Little Rock, Arkansas, for Re-
spondents.
DECISION
ROBERT T. WALLACE, Administrative Law Judge.
This case was heard at Little Rock, Arkansas, on 17
through 19 December 1985 pursuant to charges filed by
the above-named individuals on 11 July and 9 August,
respectively.
The complaint, as amended both prior to and at the
hearing, alleges that Respondents Superior Forwarding
Company, Inc. (Superior) and Central Transport, Inc.
(Central) are joint employers or alter egos of each other
and together discriminated against, threatened, and
promised benefits to employees as an inducement not to
collect moneys found due them by a grievance panel in
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act.
On the entire record, and after due consideration of
briefs submitted by the General Counsel' and Respond-
ents, I make the following
FINDINGS OF FACT/ANALYSIS
Central and Superior are common motor carriers and
each derives annual gross revenues well in excess of
$50,000 from hauling freight in'interstate commerce; and
both are employers within the meaning of Section 2(2),
(6), and (7) of the National Labor Relations Act.
Superior has its headquarters and central dispatch
office in Sterling Heights, Michigan. Its operations, how-
ever, are conducted in an area comprising Tennessee,
Louisiana, Texas, and Arkansas; and it has terminals at
Memphis, Tennessee, and at various points in Arkansas
including Jonesboro and Searcy. At all pertinent times
collective-bargaining agreements were in effect between'
Superior and employees at the named terminals; and the
agreements provided for resolution of disputes through
recourse to grievance procedures specified therein.
Superior filed for bankruptcy on 26 November 1982,
and shortly thereafter it put into effect a new policy
whereby over-the-road operations would be performed
using tractor units leased' from owner/operators. To
assure their continued employment, drivers were given
an opportunity to buy tractors from the Company, and
many did so including alleged discriminatees Carlini,
Raymond,_ James Perry, Kenneth Smith, and Ronald
Haskins. In explaining the changeover, drivers were as-
' The brief of the General Counsel contains an unopposed request to
correct the official transcript in certain respects. The request is granted
because the changes sought, all editorial in nature, are warranted.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sured that they would- continue to receive benefits such
as vacations, sick leave, and holidays. In addition, they
were told that the Company would provide them with
diesel fuel at 72 cents per gallon, a price that was about
50 cents below the retail price at truckstops.
The new arrangements worked well for about 18
months during which period the road drivers were al-
lowed to fuel up at 72 cents per gallon at fuel dumps of
Central as well as those of Superior. However, in August
1984, both carriers began to charge them an additional
amount (6 cents per gallon) corresponding to an increase
in the Federal highway use tax on fuel. That action, as
well as other asserted discrepancies in driver pay,2 was
the subject of consolidated grievance No. 310 filed by
their Union (Teamsters Local 667) on 12 November
1984. The matter was considered on 8 April 19852 by a
panel (Southern Multi-State Grievance Committee) duly
constituted under the applicable collective-bargaining
agreement . No representative of Superior appeared, and
the grievance was determined in favor of the drivers.
On 15 April, L. D. Davis, Superior's "Director of
Labor" and terminal manager at Little Rock, had a tele-
phone conversation with Carlini as follows:
L.D: We got a notice from Local 667 that you
had won those grievances by default.
Nick: Yes sir.
L.D: And if you want to collect the money, we
will,pay you. The only catch to it, Nick, is that we
are not required under contract to even sell you
diesel fuel.
Nick: Yes sir.
L.D: And if you want the money we will get it
for you but no more diesel fuel, you can buy at the
truck stop .... I was just told there wouldn't be
any more diesel fuel sold to you unless you told the
Union folks those grievances settled that you won
by default.
Nick: Yes sir. Well you see those grievances .. .
affect all of us . . . all the drivers, not only me, it's
all the drivers.
L.D: So, like I say, they don't have to sell any of
them diesel fuel if they don't want to.
On the same day Carlini was denied access to the fuel
dump at his home station (the Memphis terminal of Su-
perior), and the ban was gradually extended so that by 5
June he was unable to buy fuel at any price from pumps
maintained by Superior or Central.4 On numerous occa-
a These included claimed undercompensation for mileage operated and
for "drop and hook" and delivery pay
a Unless otherwise indicated , all dates are in 1985.
4 On 5 June Carlini saw posted at the Memphis terminal a teletype
message as follows:
ATTN TERMINAL MANAGERS
REGARDING DOMENIC CARLINI JR. COMMENTS PER MR GARAVAGLIA,
MR. CARLINI IS NOT TO FUEL ANYWHERE IN THE SYSTEM UNTIL FUR-
THER NOTICE.
Charles Garavagha works for Central as its vice president for labor rela-
tions Appended to the message is a handwritten notation: "We also re-
ceived a verbal from Ann in Fuel-DJ." The initials are those of David
Justice, a dispatcher of Superior at Memphis "Ann" is stationed at Ster-
ling Heights and is in charge of Central 's fuel accounting system.
sions during that period and consistently thereafter, he
bought fuel from truckstops at prices well in excess of $1
a gallon.
On 8 July Superior, through Davis, agreed in writing
to settle in full all matters pertaining to, among other
things, grievance' No. 310;5 and pursuant to the agree-
ment Superior issued checks in the amount of $1101.99
payable to Carlini, $779.44 payable to Raymond, $664.10
payable to Perry, $814 payable to Smith, and, $823.93
payable to Haskins.6 On the next day, however, Davis
instructed other terminal managers that access to pumps
also should be denied to Raymond, Perry, Smith, and
Haskins (all Jonesboro-based drivers) because "these
people don't like the price of our diesel fuel ...."v At
the hearing he explained that he had
just got through .... a meeting ... where they
[the named drivers] extorted nine thousand and
something out of the company, so why should I sell
them fuel? I was not obligated to do so under the
contract.8
Not all drivers were cut off, only "those people who ap-
peared up there [at the meeting] and demanded that
money." Like Carlini, the named drivers also were
denied access to fuel pumps of Central at St. Louis and
other points.9
Davis' claim that neither Superior nor Central was
under any obligation to sell fuel to drivers is reiterated in
the joint brief filed on their behalf. Therein they argue,
citing among other cases Benchmark Industries, 270
NLRB 22 (1984), that the situation is analogous to a de-
cision unilaterally to discontinue a lagniappe, such as gift
hams at Christmastime, which an employer had no obli-
gation to provide. The comparison is inapposite. The
complaint herein does not allege any breach of contract
or bargaining obligation. Neither is an issue raised about
whether the practice of selling fuel to drivers at a dis-
count was in fact "compensation" and so part of their
terms and conditions of employment. Instead, the grava-
men of the complaint is that drivers were discriminated
against for engaging in a protected union activity, i.e.,
seeking payment of an award resulting from recourse to
an established grievance procedure. Compare Diversified
Industries, 208 NLRB 233 (1974); and Mrs Baird's Bak-
eries, 189 NLRB 606 (1971).10 And this is exactly what
5 There is no evidence that Superior exercised appeal rights under the
grievance procedure after 8 July with regard to that grievance.
6 The checks were received by the payees about 27 July.
7 The exclusion notice posted at the Jonesboro terminal bore the letter-
head of Central and the signature block of Davis as director of labor. It
began. "Effective immediately Central Transport will no longer sell fuel
to Superior brokers at the Jonesboro terminal [emphasis added]."
8 Although Davis testified that he signed the agreement to avert a
threatened strike, Respondent makes no claim that a strike would have
been unlawful in the circumstances . Indeed, its position (as stated by
counsel (Tr. 39)) is that no coercion was involved. I conclude that Davis'
use of words such as "extortion" and "robbery" represent hyberbole con-
veymg his view about the merits of the consolidated grievance.
Other road drivers continued to buy fuel at pumps of Superior and
Central for 78 cents per gallon at all pertinent times after the initial 6-
cent price increase in August 1984
10 Here, as in Diversified Industries at 238, the merits of the grievance
are not at issue.
SUPERIOR FORWARDING CO
Davis admits he did. Accordingly, I find that his tele-
phone conversation on 15 April entailed two violations
of Section 8(a)(1) of the Act, one a threat to cut off fuel
to Carlini if he pursued the grievance and the other a
promise to continue that benefit if he would forgo the
grievance. In addition, I find violations of Section 8(a)(3)
in the act of cutting off fuel to Carlini on and after 15
April and to the Jonesboro drivers on and after 9 July.
During the next 4 weeks the Jonesboro drivers made a
number of anxious calls to Davis at Little Rock. His
message to each of them was basically the same: that fuel
would not be sold to any driver who chose to be a party
to the "extortion" that had taken place, that "we" were
under no obligation to sell fuel to anybody, and that they
would be allowed to buy fuel at 78 cents per gallon if
and when they returned their grievance checks. Also, he
told them that people from Central were coming to
Jonesboro to hire drivers and if any of them were inter-
ested "for me to give him a good recommendation it cer-
tainly would help if he returned that check." i a Smith,
Perry, and Haskins opted to return their checks un-
cashed,12 and shortly thereafter they were hired by Cen-
tral.
Raymond, however, had tendered his written resigna-
tion to Davis on 12 July; and he cashed his grievance
check promptly on receiving it about 28 July.13 He
states that he quit because loss of his ability to buy dis-
counted fuel would so reduce his income as to make im-
practical continued driving at the mileage and/or per-
centage rates provided in his lease with Superior. I find
the termination on 12 July to be a constructive discharge
in violation of Section 8(a)(3) and (1). By being forced to
pay a retail puce of $1.24 a gallon rather than the 78-
cent rate available to other drivers operating under simi-
lar lease arrangements, Raymond would have had to
absorb a 60-percent increase in fuel costs, a situation that
so distorted his terms and conditions of employment as
to render them intolerable.'' Compare Holiday Inn of
Santa Maria, 259 NLRB 649 (1981), in which an employ-
ee was held constructively discharged when he quit on
having his hourly wage reduced from $4.33 to $3.60.
Carlini, unlike Raymond, chose to operate without a
fuel subsidy; and, as noted above, he filed an unfair labor
practice charge on 11 July.
By 12 August, Carlini had been operating for Central
approximately 3 months on a regular run (5 nights a
week) between Memphis and St. Louis. 15 On that date
11 Here, too, I find violative of Sec 8 (a)(1) the promises of resumed
fuel sales and good recommendations conditional on return of grievance
money.
1 a According to Davis, these drivers severally assured him that they
had nothing to do with the grievance and indeed never objected to
paying "the company price."
13 About 8 August Raymond received a letter from the personnel
office of Central at Sterling Heights acknowledging receipt of notice that
he had terminated his employment with Central as of 12 July
14 A finding of constructive discharge is not precluded by the fact that
prior to the fuel dispute Raymond planned to retire on 31 July because,
as found , the "moving factor " behind his departure was the discriminato-
ry action in cutting off his access to cheap fuel Compare Southern Flori-
da Hotel Assn , 245 NLRB 561 , 566-567 (1979)
15 Carlini stated that he so operated without ever having sub- or trip-
leased to Central I credit his testimony , especially as no document of
that type was produced by Central.
809
he attended a meeting at which he , Davis , and a union
representative attempted , unsuccessfully , to effect settle-
ment of the "Board case" (Tr. 188-189 and 200), as well
as a number of pending grievances filed by Carlini.
Before leaving , Carlini expressed interest in becoming a
driver for Central provided he could transfer with se-
niority , thereby to retain the Memphis-St . Louis run.
Davis replied : "Well, Nick, I don 't know how long your
St. Louis run will last you ." Three days later , Superior's
terminal manager at Memphis (Steve Bates) told Carlini
that his assignment to the run had been canceled . There-
after , his mileage-based earnings decreased substantially.
Up to that time he had driven an average of 2307. 1 miles
a week during 1985, whereas from 15 August to just
prior to hearing his average declined to 1411.2 miles a
week , or by approximately 38 percent.
Davis states that the reason why Carlini lost the St.
Louis run was because Central had determined it "no
longer needed to sublease Mr. Carlini or any other Supe-
rior driver . . . [for the] particular departure and arrival
time [involved]"; 16 and he offered no explanation at all
for the sharp and continuing decline in income experi-
enced by Raymond following loss of that run. In these
circumstances an inference is warranted and taken that
the decline was purposefully effected and meant to
punish Raymond for engaging in protected activities, i.e.,
pursuing grievances and filing the unfair labor practice
charge . Jolie Belts Co., 265 NLRB 1130 (1982); Petco,
Inc., Interstate, 238 NLRB 1297 (1978). Accordingly, I
find a violation of Section 8(a)(4) and ( 1) as well as an
independent violation of Section 8(a)(1).
I also find that Central and Superior constitute a
single-integrated enterprise and so are jointly liable for
the unfair labor practices here shown to have been com-
mitted . Compare Truck & Dock Services , 272 NLRB 592
( 1984); Schaller Trucking Corp., 269 NLRB 392 (1984).
Although their representatives at the hearing professed
lack of knowledge of any connection between the two
companies other than normal business relationships be-
tween independent carriers , 117 there is ample evidence
that Superior is but an operating arm of Central.
Both companies submitted annual reports to the Inter-
state Commerce Commission showing Superior as a
small regional carrier wholly owned and controlled by
Central , a carrier conducting extensive operations in the
United States and Canada . They share common officers
(Beryl L. Shroyer , vice president of finance , and R. W.
Lech , executive vice president); as well as a common
16 1 find the explanation totally inadequate, particulary in light of the
fact that Carlini was used without benefit of any sub- or trip-lease See fn
15 and the finding below that Central and Superior are joint employers
17 As noted, Davis testified for Superior He has been with that Com-
pany for 10 years, serving as terminal manager, regional manager , and di-
rector of labor Garavaglia appeared for Central He has served as its
vice president for labor relations for about 20 years Garavaglia asserted
that Central had no financial interest in Superior , and that the latter was
not within the corporate system of Central or in any way controlled by
it He "thinks" Superior has a general office somewhere in Sterling
Heights For his part, Davis also avers that Superior was not controlled
by Central As to Garavaglia, Davis was "not really " aware of who he
was and he claims never to have had occasion to seek Garavaglia's
advice on labor relations matters I decline to credit any of those asser-
tions.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
headquarters at Sterling Heights from which operations
of both carriers are coordinated on a daily basis through
a central dispatch board.
Other examples of integrated operations abound.
Among other things, the evidence shows that in a flier
used for Central advertising purposes lists Superior ter-
minals as its own; that at least two of those terminals
(Little Rock and Searcy) have prominent outdoor signs
bearing the legend "Central Transport"; that telephone
calls to the Little Rock terminal are answered with the
greeting "Central"; that the two carriers provide facili-
ties and services (including furnishing fuel at the same
discount price) for each other's lease operators; that Cen-
tral provides a host of administrative services for Superi-
or drivers, including matters dealing with fuel permits
and stickers, decals, , inspection notices, insurance person-
nel, and the fuel subsidy program; that freight bills cov-
ering rservices provided by use of Superior's operating
authority are issued solely in the name of Central; that
Superior drivers provide service under Central's operat-
ing authority without executing trip leases with Central
(fn.' 15); that the resignation of a Superior driver was ac-
cepted and processed by Central (fn. 13); that by memo
posted at Superior's terminal in Memphis, Garavaglia ad-
vised all terminal managers "in the system" not to sell
fuel to a Superior driver (fn. 4); and that by memo on
Central stationery posted at Superior's terminal in Jones-
boro, Davis advised drivers based there that Central
would no longer sell fuel to them at Jonesboro (fn. 7).
CONCLUSIONS OF LAW
I find that Respondents are joint employers and/or
constitute a single integrated enterprise ; that they violat-
ed Section 8(a)(1), (3), and (4) of the Act in the particu-
lars and for the reasons stated above ; that they are not
shown to -have violated the Act in any other respect; and
that the unfair labor practices here found to have been
committed have affected , are affecting , and unless perma-
nently enjoined will continue to affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the customary cease-and-desist order
and requirement for notice posting, my Order will re-
quire Respondents to offer unconditional reinstatement to
Bill Raymond and make him whole for all wages and
benefits lost as a result of his unlawful discharge, in ac-
cordance with the principles set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977);18 to make Domenick Carlini whole,
with interest, for any loss of earnings suffered as a result
of the unlawful reduction in his work assignments; to re-
imburse Raymond, Carlini, Kenneth Smith, James Perry,
and' Ronald Haskins, with interest, for any added ex-
penses incurred by them as a result of the unlawful refus-
al to sell them diesel fuel at prices available to other em-
ployees; and to pay to Smith, Perry, and Haskins, with
interest, amounts withheld by reason of their compliance
18 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
with an unlawful requirement that they return checks
given to them in settlement of grievances.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'9
ORDER
The Respondents, Superior Forwarding Company,
Inc., Debtor-in-Possession, Sterling Heights, Michigan,
and Little Rock, Arkansas, and Central Transport, Inc.,
Sterling Heights, Michigan, their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their activity on
behalf of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 667, or any other labor organization.
(b) Reducing work assignments to employees or other-
wise discriminating against them because of their union
activities and/or because they file charges under the Act.
(c) Terminating the, practice of selling diesel fuel at a
discount to employees because of their union activities.
(d) Threatening employees to cease selling diesel fuel
at a discount to employees if they insist on payment of
moneys awarded them in settlement grievances.
(e) Promising benefits to employees (e.g., good recom-
mendations for jobs, resuming sales of diesel fuel to them
at discount prices) if they return moneys received in set-
tlement of grievances.
(f) Promising continued sales of diesel fuel at discount
prices to employees if they mislead' their Union into be-
lieving that they received full satisfaction of grievances.
(g) Requiring employees to return checks in payment
of grievances in order to receive diesel fuel at discount.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Bill Raymond immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the decision.
(b) Make Domenick Carlini whole, with interest, for
any loss of earnings suffered as a result of the unlawful
reduction in his work assignments.
(c) Reimburse Bill Raymond, Dominick Carlini, Ken-
neth Smith, James Perry, and Ronald Haskins, with in-
terest, for any additional expenses incurred as a result of
the unlawful refusal to sell them diesel fuel at prices
available to other employees.
(d) Pay Kenneth Smith, James Perry, and Ronald Has-
kins, with interest, amounts withheld by reason of their
is If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections thereto shall be deemed waived for all purposes.
SUPERIOR FORWARDING CO.
compliance with the unlawful requirement that they
return checks issued them in settlement of grievances.
(e) Remove from all files any reference to the unlawful
discharge of Raymond, the unlawful reduction in work
assignments to Carlini, the unlawful requirement of the
return of the grievance money by Perry, Smith, and Has-
kins, and the unlawful failure to sell diesel fuel to Ray-
mond, Carlini, Perry, Smith, and Haskins at prices avail-
able to other employees, and notify them in writing these
things have been done and that evidence of those actions
will not be used as bases for future personnel actions
against them.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all records necessary
to analyze the amounts of backpay and benefits due
under the terms of this Order.
(g) Post at their facilities at Little Rock, Fort Smith,
Jonesboro, and Searcy, Arkansas; Memphis, Tennessee;
St. Louis, Missouri; Sterling Heights, Michigan; and In-
dianapolis, Indiana, copies of the attached notice marked
"Appendix."20 Copies of the notice, on forms provided
20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
811
by the Regional Director for Region 26, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order, what steps have been
taken to comply with this Order. For the purpose of de-
termining or securing compliance with this Order, the
Board, or any of its duly authorized representatives, may
obtain discovery from the Respondents, their officers,
agents, successors or assigns , or any other person having
knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil Proce-
dure. Such discovery shall be conducted under the su-
pervision of the United States Court of Appeals enforc-
ing this Order and may be had upon any matter reason-
ably related to compliance with this Order, as enforced
by the Court.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "