The O.K. Trucking Co.

National Labor Relations Board - Board Decisions

Jun 18, 1990

298 N.L.R.B. 804 (N.L.R.B. 1990)

804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The O .K. Trucking Company and Local 299, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO. Cases 7-CA-29256 and 7-RC-18967
June 18, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAF F AND DEVANEY
On December 15, 1989, Administrative Law
Judge Marvin Roth 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 brief and has
decided to affirm the judge's rulings, findings," and
conclusions2 and to adopt the recommended
Order3 as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondent,
The O.K. Trucking Company, Dearborn, Michi-
gan, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
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 Respondent excepts to the judge's finding that "terminal manager
Summer had authority to and did hire and lay off or discharge terminal
employees ." The Respondent's district manager, Connelly , testified, how-
ever, that Summer hired Garza and possessed authority to lay off em-
ployees and to change their hours
We note that the three office clerical employees who received a 10-
percent wage cut in December 1987 did not include Garza , who was not
employed by the Respondent at that time
2 To the extent that the judge may have relied on the subjective re-
sponses of employees Alcoser and Garza to Connelly 's interrogations re-
garding their union activity, we note that the Board does not consider
such subjective reactions , but rather whether, under all the circum-
stances, the interrogation reasonably tended to restrain , coerce, or inter-
fere with rights guaranteed under the Act See generally American
Freightways, 124 NLRB 146 (1959) We find that under this standard
Connelly's interrogations of Alcoser and Garza were coercive
We correct the judge 's inadvertent statement at sec III,B, par 3 that
Garza was "lawfully" rather than unlawfully terminated
3 In his recommended Order, the judge inadvertently recommends that
the Regional Director be directed to open and count the challenged
ballot of Garza , issue a revised tally, and "certify the results of the elec-
tion" when he should have recommended that the Regional Director
"issue the appropriate certification "
298 NLRB No. 116
"(b) Remove from its files any reference to the
unlawful discharge and change of work schedule
and notify the employees in writing that this has
been done and that the discharge and changed
work schedule will not be used against them in any
way."
2. Substitute the attached notice for that of the
administrative law judge.
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 discourage membership in Local
299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO, or any other labor organization by
discriminatorily terminating , laying off, or chang-
ing the work schedules of employees, or in any
other manner disriminating against them with
regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT threaten employees with layoff,
loss of job security, or other reprisals because of
their union activity.
WE WILL NOT expressly or impliedly promise or
grant wage increases or other benefits in order to
discourage union activity, but this does not require
us to withdraw any wage increase or other benefit
that we have established.
WE WILL NOT interrogate employes about their
union attitude or activities or those of their fellow
employees.
WE WILL NOT tell employees to report on their
union activities and sympathies or those of their
fellow employees.
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 Frances Garza immediate and
full reinstatement to her former job or, if such job
no longer exists, to a substantially equivalent posi-
tion, and offer James Alcoser immediate and full
reinstatement to his former work schedule, all
without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them
whole for losses they may have suffered by reason
of the discrimination against them, with interest.
O.K. TRUCKING CO. 805
WE WILL notify each of them that we have re-
moved from our files any reference to Frances
Garza's discharge and the change of James Al-
coser's work schedule, and that the discharge and
changed work schedule will not be used against
them in any way.
THE O.K. TRUCKING COMPANY
John Ciaramitaro, Esq., for the General Counsel.
Raymond J. Buratto, Esq., of Rochester Hills, Michigan,
for the Respondent.
Mr. Don Smith, of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These
consolidated cases were heard at Detroit, Michigan, on
October 4, 1989. The charge was filed on May 10, 1989,
by Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO (Union).' The complaint, which issued on
June 16 and was amended at the hearing, alleges that
The O.K. Trucking Company (Respondent or the Com-
pany) violated Section 8(a)(3) and (1) of the National
Labor Relations Act. The gravamen of the complaint is
that the Company allegedly engaged in unlawful interro-
gation, solicitation, threats, and promises, and grants of
benefit, and terminated employee Frances Garza and
changed the work schedule of employee James Alcoser
because of their support for the Union. The Company's
answer denies the commission of the alleged unfair labor
practices.
Pursuant to a petition filed on April 25 by the Union,
and a Stipulated Election Agreement approved on May
9, an election was conducted on June 8 among the em-
ployees of the Company in the following appropriate
unit:
All full-time and regular part-time office clerical
employees employed by the Employer at its facility
located at 26600 Van Born, Dearborn, Michigan;
but excluding truck drivers, managerial employees,
salesmen
,
confidential employees, guards, and super-
visors as defined in the Act.
The payroll period for eligibility purposes was the
weekly period ending May 5. The tally of ballots showed
that of three eligible voters, one voted for and one
against the Union. The Company challenged the ballot of
Frances Garza on the ground that she had been perma-
nently laid off prior to the election, and was therefore in-
eligible to vote. Her ballot was sufficient to affect the
result of the election. Neither party filed objections to
the election. As Garza's eligibility relates directly to
issues in the unfair labor practice proceeding, the Re-
gional Director, on June 16, ordered that the unfair labor
practice and representation cases be consolidated for the
purposes of hearing, ruling, and decision by an adminis-
trative law judge.
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to argue orally, and to
file briefs. Only the Company filed a brief. On the entire
record in this case2 and from my observation of the de-
meanor of the witnesses, and having considered the
Company's brief, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, an Ohio corporation with its principal
office and place of business in Cincinnati, Ohio, main-
tains a terminal in Dearborn, Michigan, usually called
the Detroit terminal,, which is the only facility involved
in this proceeding. The' Company is engaged in business
as a common carrier of general commodities. In the op-
eration of its business, the Company annually derives
gross revenues in excess of $1 million and annually de-
rives gross revenues in excess of $100,000 for the trans-
portation of freight and commodities in interstate com-
merce, thereby acting as an essential link in interstate
commerce. I find, as the Company admits, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND
THE CHALLENGED BALLOT
A. The Facts
The Company has long had a collective-bargaining re-
lationship with the Teamsters' Union, and is signatory to
the National Master Freight Agreement and Central
States Cartage Supplement (NMFA). On August 15,
1987, the Company took over the operation of its present
Detroit terminal from another firm, Duff Truck Lines.
The drivers and dock workers (some 15 to 20) were and
continued to be represented by the Union and covered
by the NMFA. The office clerical employees were not
represented by any union, although the NMFA provides
for coverage of office clerical emplpyees, including wage
rates. The balance of the Detroit terminal staff consisted
of Terminal Manager Bob Summer, two foremen, and
two salesmen. Since August 1987, the Detroit terminal
has had two full-time office clerical employees: Bonnie
Summer, who is terminal manager Summer's wife, and
James Alcoser. In September 1987 the Company added a
part-time office clerical employee, Karen Barker, who
worked until she quit her job in December 1988. On Jan-
uary 23 the Company hired another part-time employee,
Frances Garza, to replace Barker. Bonnie Summer, who
worked from 8 a.m. to 4:30 p.m., primarily handled ac-
r All dates are for the period from July 1, 1988, through June 30, 1989
unless otherwise indicated 2 Certain errors in the transcript are noted and corrected
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
counts payable and receivable and customer service calls.
Alcoser, who worked from 8:30 a.m. to 5 p.m., primarily
handled overage, shortages, and damages in freight
(known as 0, S, and D). Garza, like her predecessor
Barker, worked from 4:30 p.m. until she finished her
work, which was usually about 9:30 p.m. She primarily
handled billing. In the trucking industry, billing is usual-
ly performed in the late afternoon and evening, after
freight deliveries have been received.
Alcoser and Garza testified in sum as follows: In Feb-
ruary they talked about joining the Union. Alcoser ob-
tained two authorization cards from Business Representa-
tive Don Smith. They signed the cards and mailed them
to the Union, but heard nothing further. (Alcoser's card
was dated March 1.) They later learned that the Union
received only Alcoser's card. They obtained replacement
cards, which they signed on March 15, and Alcoser
brought the cards to the union hall.
Phillip Connelly, who is based in Chicago, is a compa-
ny district manager, with overall responsibility for five
terminals. Connelly testified that until 1989 he was not
responsible for the Detroit terminal, but beginning the
first week of January the Detroit terminal was assigned
to his district. In July 1988 Connelly served for 4 days as
acting Detroit terminal manager while Bob Summer was
on vacation. Connelly did not return to the Detroit ter-
minal until at least March 29, 1989. Alcoser testified in
sum as follows: Some 2 or 3 weeks after he and Garza
signed the replacement cards, i.e., about the beginning of
April, Connelly called him out to the loading dock. Con-
nelly said he heard a rumor that Alcoser joined the
Union, and that if the Union came in, there would be
drastic cutbacks, because there would not be enough
work if the Union came in. Connelly offered Alcoser
union scale if he did not join the Union (at the time, Al-
coser was making $10.80 per hour. Union scale for office
clericals was about $14.75 per hour). Connelly said he
could not understand why Garza would want the Union,
because she had low seniority and would be the first to
go. He asked Alcoser if he signed a union card. Alcoser,
fearing possible adverse action, answered that he did not.
Connelly said Alcoser should tell him if he did. Alcoser
answered that Connelly would be the first to know.
They also talked about Alcoser's complaints. Alcoser
said there was a lack of communication between himself
and the supervisors. Connelly gave Alcoser his telephone
number, and told Alcoser to call if there was any prob-
lem. After Connelly left, Alcoser saw him go into Bob
Summer's office with Garza. During the second or third
week of April Connelly telephoned Alcoser at work. He
said he was giving Alcoser a 35-cent-an-hour increase to
show that his heart was in the right place. He again told
Alcoser to tell him if he signed a union card. On the fol-
lowing Friday (apparently April 28, as indicated by Al-
coser's chronology), Connelly telephoned Alcoser about
4:50 p.m. and again asked Alcoser if he signed a union
card (in the meantime, on April 25, the Union filed its
election petition). This time Alcoser answered that he
did. Connelly replied that this was too bad, and he
hoped it would not sever their relationship. The follow-
ing week, on the loading dock, Connelly told Alcoser
that he was making drastic cutbacks, and Garza would
be let go, because there would not be enough work if the
Union came in. Connelly said something about tonnage
and revenue. Connelly asked how the changes would
affect Alcoser's family situation. Alcoser indicated there
would be no problem. Alcoser correctly assumed, with-
out being told, that he would now be working later
hours, because someone would have to handle the bill-
ing, and he had less seniority than Bonnie Summer. Con-
nelly then summoned Garza. It is undisputed that the
three office clerical employees each received increases of
35 cents per hour in their paychecks that week, and that
the increases were made effective beginning the week of
April 17. Alcoser and Garza had never before received a
pay increase (Bonnie Summer received a pay increase
when the Company took over the terminal). All three re-
ceived a 10-percent wage cut in December 1987. The
Company had no periodic review or other system of
granting wage increases to its nonunion office clericals.
Garza was laid off on Friday, May 5, and the following
Monday Alcoser commenced his new hours, working
from 1 to 9:30 p.m. Garza testified in sum as follows: On
April 6 or 7 Connelly introduced himself to her. He said
that Detroit was not in his district, but he was visiting
the terminal because union employees had received a
wage increase on April 1 under the NMFA, and he was
concerned the nonunion office employees might go
union. Connelly said that Detroit did not have enough
work for three people if the Union came in, but that if
the Union did not come in, he could talk to the home
office and make arrangements. He said he hoped the
office clericals would "stay with the management team"
instead of going union, because then the Company could
keep three people. Connelly asked Garza if she signed a
union card, and she answered that she did not. He said
that if they decided to go union they should contact him
so he could make a counteroffer. Garza said they would
tell him if they decided to join the Union. About a week
later Connelly again approached Garza. He said he heard
from a road driver in Cincinnati that the Detroit employ-
ees signed union cards, and asked if this was true. Garza
avoided the question, suggesting that truckdrivers tended
to gossip. Connelly responded that his information came
from a very reliable source. He said that he would ap-
preciate that if they decided to pursue the Union they
should let him know so he could make a counteroffer.
Connelly said that if the Union came in he would prob-
ably have to let Garza go because she had low seniority
and the Company could not afford a union shop. On
May 4 Connelly said he would see her the next day. On
May 5, the same day that Garza received a pay increase
in her paycheck, Connelly told her she was laid off. He
said he would try to find work for her. Garza asked if
she would be called back if business picked up. Connelly
did not answer her. At Garza's request, Connelly provid-
ed her with a letter for the unemployment office. The
letter indicated that Garza was laid off due to a decline
in business.
District Manager Connelly testified in sum as follows:
In July 1988, when he temporarily replaced Terminal
Manager Summer, Company Director of Operations
Groscost, Connelly's immediate superior, instructed him
O.K. TRUCKING CO. 807
to evaluate the operations and administration of the De-
troit terminal. Connelly made an evaluation, and report-
ed to Groscost that the Detroit office was overstaffed in
comparison to the Chicago terminal office. He made this
comparison on the basis of the number of bills processed,
tonnage and revenue compiled on a daily, weekly, and
monthly basis. However, Connelly subsequently testified
that he relied primarily on the number of bills processed,
and tonnage and revenue were not important in deter-
mining office staffing. Connelly recommended that the
Detroit office staff be reduced by one-half or one person.
For staffing purposes, a part-time employee was regard-
ed as one-half person. Therefore, for staffing purposes
the Detroit terminal had at this time 2-1/2 office cleri-
cals. Groscost concurred in the recommendation and in-
structed Connelly to carry it out as soon as possible.
Connelly said he would. Nevertheless Connelly did noth-
ing about the matter, and did not return to the Detroit
terminal until March 29, 1989, over 8 months later. In
the meantime, as indicated, part-time office clerical
Karen Barker quit in December, and the following
month the Company hired Garza to replace her, thereby
increasing the Detroit staff by one-half. Connelly testi-
fied that Terminal Manager Summer hired Garza, and he
professed inability to explain why Summer did so, al-
though by this time the Detroit terminal was in Connel-
ly's district. Summer was not called as a witness in this
proceeding. Therefore, the Company's argument (Br. 29,
37) that Garza was hired because of an alleged substan-
tial increase in the number of bills processed is unsup-
ported by any record testimony. As will be discussed,
there was in fact no 'significant change in the Detroit ter-
minal bill count during the period from January 1988
through August 1989. Moreover, Terminal Manager
Summer had authority to and did hire and lay off or dis-
charge terminal employees. If the Company wanted to
lay off a terminal employee, then all that had to be done
was for Connelly to telephone Summer and instruct him
to make the layoff. After Barker quit, Connelly could
have achieved the same result by instructing Summer not
to replace Barker. Furthermore, it is unlikely that the
Company would make a determination to reduce the De-
troit office staff for economic reasons, without first con-
sulting with Summer and obtaining his opinion. Howev-
er, Connelly did not claim in his testimony that he con-
sulted with Summer prior to March 29.
Connelly testified that at Groscost's instruction he re-
turned' to the Detroit terminal on March 29 with the in-
tention of reducing the work force and changing work
hours. Again, Connelly failed to explain why it was nec-
essary for him to do this in person. Connelly remained at
Detroit for 3 days (March 29, 30, and 31). He testified in
sum as follows: He talked to Terminal Manager Summer
and other personnel, including Alcoser and Garza. Con-
nelly testified on direct examination that he discussed
planned cutbacks with Alcoser, but on cross-examination
testified that he said nothing to the employees about re-
ducing' the staff. Alcoser told him that there was a lack
of communication and bad attitude between himself and
Summer and other supervisors. Connelly suggested that
they meet with Summer, but Alcoser said it would do no
good. Connelly gave Alcoser his telephone number, and
asked him to call if anything unusual popped up. Connel-
ly offered to come to Detroit and resolve any problems.
Alcoser agreed to the request. Connelly did not explain
to Alcoser what he meant by "anything unusual." Con-
nelly asked Alcoser how Garza felt about office morale,
and Alcoser told him to ask her. Connelly introduced
himself to Garza, and said that if there were any prob-
lems he was available to talk to her. If Connelly intended
to lay off Garza, then it is difficult to see why Connelly
was concerned as to whether she had any problems.
Connelly testified that he spoke to Terminal Manager
Summer, who said there was no problem. Connelly re-
turned to Detroit, again without effectuating any layoff.
Connelly testified that on April 3 he met with Gros-
cost and Company Vice President Hal Franke, who is
primarily responsible for personnel and labor relations
matters. According to Connelly, he told them that reso-
lution of the morale problem at Detroit should take prec-
edence over reduction of the work force. In view of
what Connelly was allegedly told at Detroit, i.e., that
Summer said there was no problem, that Garza indicated
no, problems, and that Alcoser refused to meet with
Summer, it is difficult to see what Connelly expected to
do to resolve the morale problems. Connelly testified
that Groscost told him for the third time to go to De-
troit and reduce the work force and change the work
hours. Connelly testified that Groscost did not ask him
why he had not already done this. Connelly testified that
on April 4 he heard from some Chicago road drivers
that the office people in Detroit had gone or were going
to the Union about their problems with Summer. On
April 5 Connelly again met with Groscost and Franke,
and reported this information. According to Connelly,
Groscost told him for the fourth time to go to Detroit
and effectuate the layoff, and also told him "to find out
what was going on, resolve the problems and remain out
of the Union." Groscost was not presented as a witness
in this proceeding. Franke, the Company's only other
witness, contradicted Connelly's testimony. Franke testi-
fied that on April 28, upon receiving the Union's election
petition, he told Groscost to instruct Connelly not to dis-
cuss the union situation with the 'Detroit employees.
Union matters fell within Franke's bailiwick rather than
that of Groscost. I find that prior to April 28 Groscost
did not instruct Connelly to stay out of the union matter,
but that by telling Connelly to find out what was going
on, he anticipated that Connelly would get very much
involved.
Connelly testified that he returned to Detroit on April
12 and remained until April 14. He testified that he did
not go earlier because he was involved in closing the
Company's Kankakee terminal. Connelly testified in sum
as follows: He told Alcoser that he was going to reduce
the force and change working hours, and asked Alcoser
about his family problems. He assured Alcoser that his
job would be protected. He told Alcoser that he heard
through the grapevine that some people had visited the
Union about the problems in the Detroit office, and
asked Alcoser if he was involved. He may have asked
Alcoser if he signed a union card. He reminded Alcoser
that he could call Connelly at home and told him to call
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"before he did anything of an unusual nature." Again
Connelly failed to explain to Alcoser what he meant.
Connelly testified that he felt Alcoser would not do any-
thing unusual, and by "unusual," he was referring to Al-
coser's relations with Terminal Manager Summer. How-
ever, as will be discussed, Connelly's testimony in con-
nection with subsequent developments, indicates a differ-
ent meaning. Connelly testified that he hoped that the
problems with Alcoser could be resolved in the future. If
so, then his actions following filing of the election peti-
tion were inconsistent with his assertions that the morale
problems should be resolved before any layoff.
Connelly further testified in sum as follows: On April
14 he returned to Chicago and reported his findings to
Groscost. For the fourth time he had failed to carry out
his superior's instructions. Connelly again said that he
wanted to resolve the lack of communication problem
before the "restructuring." For the fifth time Groscost
told him to go to Detroit and effectuate the changes. On
Monday, April 17, Connelly returned to Detroit and told
Alcoser that he and all other company nonunion, non-
management personnel were getting a 35-cent-an-hour
pay raise. However, the Company stated in its answer to
the complaint that nothing was said on or about April 22
about any wage increase, but that the wage increase was
instituted more than 3 weeks later. Connelly testified that
he said nothing in this conversation about Alcoser sign-
ing a union card.
Connelly further testified in sum as follows: On April
28 Terminal Manager Summer informed him that the
Union filed an election petition. Connelly immediately
telephoned Alcoser, but was not able to talk to Alcoser
until Monday, May 1. Connelly said he thought Alcoser
had promised to let him know "prior to any unusual cir-
cumstances," so that they could "discuss it at that par-
ticular time." Connelly felt they had an agreement. If so,
then it is evident that by "unusual circumstances," Con-
nelly was referring to union activity. On May 4 Connelly
returned to Detroit. He informed Summer, Alcoser, and
Garza of Garza's layoff, which he described to Garza as
permanent. He offered to assist Garza to obtain employ-
ment with a unionized firm. He suggested that Garza
would be eligible for severance pay if she quit. However,
Garza said she would take the layoff. Connelly testified
that the layoff of Garza and change in Alcoser's sched-
ule was unrelated to the union activity.
With regard to the pay increases, Connelly testified
that the Company had a policy of giving pay raises to its
nonunion employees at the same time the bargaining unit
employees received their raises. Connelly professed to be
unable to explain why the Detroit office clericals did not
receive their raises effective as of April 1, when all union
employees received a general pay increase, except to
suggest that it had something to do with the Company's
profit-sharing plan. The Union and signatory employers
are parties to an agreement whereby under certain condi-
tions, including approval of the employer's employees,
an employer could institute a profit-sharing plan. In 1987
the Company's bargaining unit employees voted to
accept such a plan. Under the plan the unit employees
took a 15-percent wage cut, and nonunit employees were
required to take a 10-percent wage reduction. As indicat-
ed, the Detroit office clericals took that reduction in De-
cember 1987. Effective as of April 1, 1989, bargaining
unit employees received a 35-cent-an-hour wage increase,
pursuant to their collective-bargaining contract. Compa-
ny Vice President Franke initially testified that the
profit-sharing plan required the Company to give a com-
mensurate increase to its nonunion employees. However,
Franke subsequently admitted that the plan simply per-
mitted the Company to give such an increase. Franke
testified that the Detroit office clericals received a 35-
cent-an hour increase as part of a systemwide increase to
all nonunit employees. However like Connelly, Franke
failed to explain why the Detroit office clericals failed to
receive this increase until several weeks after April 1.
B. Analysis and Concluding Findings
I credit Alcoser and Garza. Connelly's narrative of the
events leading to the layoff of Garza and change in in
Alcoser's work schedule is incredible. If, as testified by
Connelly, he failed to carry out the instructions of his
immediate superior on five successive occasions over a
period of some 9 months (instructions which could have
been effectuated by one phone call) then it is probable
that Connelly would have been terminated, or at least
demoted. Instead, according to his narrative, he was not
even reprimanded or questioned about his repeated fail-
ure to carry out Groscost's alleged instruction. As indi-
cated, Connelly's narrative is also incredible in other re-
spects, and at other points corroborated the testimony of
Alcoser and Garza in significant respects. Thus, Connel-
ly at least impliedly admitted that the Company sent him
to Detroit to deal with the union organizing campaign,
that he questioned Alcoser as to whether he signed a
union card, told Alcoser to keep him informed about any
union activity, and regarded Alcoser's failure to do so as
a violation of Connelly's instruction. In a signed state-
ment attached to the Company's answer, Connelly stated
that he decided to lay off Garza pursuant to "instructions
to restructure and eliminate office personnel, if at all pos-
sible, due to the steady decline of tonnage and revenue
within our system which also affects the Detroit termi-
nal." However, as indicated, Connelly testified that he
relied on the number of bills processed, tonnage, and
revenue at Detroit. Connelly then admitted that only the
number of bills processed was important in determining
office staffing. The Company's own records demonstrate
that there was no "steady decline" in the bill count
during the period in question. During the period of Janu-
ary 1988 through August 1989, the number of'bills proc-
essed at Detroit fluctuated on a monthly basis from a
high of 3901 (March 1988) to a low of 2987 in July 1988
(the only month in which the bill count was less than
3000). The records indicate that July and December
were usually slow months. During the first 6 months of
1989 the monthly bill count ranged from 3480 to 3794,
with the exception of April when the count was 3269.
During the first 6 months 'of 1988 the total bill count, was
21,688. During the first six months of 1989 the total bill
O K. TRUCKING CO. 809
count was 21,487.3 In sum, the office volume of work re-
mained stable .throughout the 20-month period.
The Company never planned to lay off Garza for eco-
nomic reasons. When the Company learned about union
activity among the Detroit office clericals, Connelly im-
mediately swung into action. He confronted Alcoser and
Garza, and proceeded to extend "a fist inside the velvet
glove" (NLRB v. Exchange Parts Co., 375 U.S. 405, 409
(1964)). Connelly offered them' union scale and job secu-
rity if they abandoned the Union, but threatened that if
they went union Garza would be terminated. Connelly
did not make a "reasonable prediction .. . carefully
phrased on the basis of objective . . . economic necessi-
ties" beyond the Company's control. NLRB v. Gissel
Packing Co., 395 U.S. 575, 618-619 (1969). Rather, he
equated unionization with loss of Garza's job, i.e., that if
the Union came in Garza would go. The Company vio-
lated Section 8(a)(1) by promising its employees wage in-
creases and job security if they abandoned their support
for the Union, and by threatening them with loss of job
security and termination of Garza if the Union came in.
The Company, by Connelly, also violated Section 8(a)(1)
by interrogating Alcoser and Garza about whether each
and both of them signed union cards, and by telling them
to report to him on union activities, specifically, whether
they signed union cards or otherwise pursued their sup-
port for unionization. The conduct was coercive. Con-
nelly, a high company official, questioned and solicited
information from the employees in the context of threats
of reprisal and promises of benefit. Subsequently, the
Company carried out those threats. Until the Union filed
its representation petition, the employees refused to
admit to Connelly that they signed union cards. Their re-
sponses tend to corroborate Alcoser's testimony to the
effect that the employees had good reason to believe the
questioning was coercive. Bourne v. NLRB, 332 F.2d 47
(2d Cir. 1964). Connelly's professed reason for soliciting
information from the employees, namely, to enable him
to make a counteroffer, was itself unlawful. Ace Hard-
ware Corp., 271 NLRB 1174 (1984). I further find that
the Company violated Section 8(a)(1) by announcing and
granting a wage increase to the Detroit office clerical
employees in order to discourage them from supporting
the Union. Connelly told Alcoser, in the context of ap-
peals, threats, and promises to discourage union support,
that he was giving the raise to show that his heart was in
the right place. The Company' s argument that it gave a
general increase to its nonunion employees because the
unit employees received a general increase ' on April 1,
fails to explain why the Detroit office clericals received
3In crediting the testimony of Alcoser and Garza, I have credited
their testimony as to the dates or approximate dates of their conversa-
tions with Connelly As indicated, there are conflicts between the testi-
mony of Connelly and that of the employees concerning those dates.
Connelly's assertion that he was present in Detroit on March 29, 30, and
31, but not during the period from April 1 through 11 was uncorroborat-
ed, although if true corroboration presumably would be available, e g., in
the form of travel vouchers or hotel bills Even if Connelly first talked to
the employees in late March rather than early April, this would not im-
peach the substance of the employees' testimony. Alcoser and Garza
signed union cards on March 1 and 15 Therefore it is possible that Con-
nelly learned about the union activity in late March, and not as he
claimed, on April 4.
their increases several weeks later, and why there was no
general announcement of the increase. The Company
failed to produce evidence to indicate when nonunion
employees outside of Detroit received increases. Even if
the wage increase were not unlawful, Connelly's admis-
sion to Alcoser that he was giving the raise to discour-
age union support was itself an unlawful statement.
I find that the Company terminated Garza because of
the employee's continuing support for the Union, as
demonstrated by the Union's action in filing an election
petition. The Company thereby violated Section 8(a)(l)
and (3). When the Company initially learned that the em-
ployees contacted the Union, Connelly applied intensive
pressure on Alcoser and Garza in the form of threats of
reprisal, promises of benefit, interrogation, and solicita-
tion of information, in order to discourage them from
supporting the Union. When these efforts failed, Connel-
ly carried out his threats by terminating Garza and
changing Alcoser's work schedule. Connelly hoped
thereby to break the Union's majority support (Connelly
was well aware that the Union could not maintain major-
ity status without Garza). In light of the credited testi-
mony of Alcoser and Garza, and the timing of the Com-
pany's actions, General Counsel presented a prima facie
case that the Company terminated Garza because of the
employee's union activity. As the Company's professed
reason for terminating Garza was pretextual, it follows
that the Company failed to meet its burden of establish-
ing that it would have terminated her in the absence of
such activity. As the change in Alcoser's work schedule
was a direct consequence of the unlawful termination of
Garza, and part of the same unlawful plan to prevent
unionization of the Detroit office clerical employees, it
follows that the change in work schedule also violated
Section 8(a)(1) and (3). See L. C. Cassidy & Son, 272
NLRB 123, 131 (1984). As Garza was lawfully terminat-
ed, she remained an employee of the Company and was
entitled to vote in the election.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, the Company has engaged, and is en-
gaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminating in regard to the tenure of employ-
ment of Frances Garza and the terms and conditions of
employment of James Alcoser, thereby discouraging
membership in the Union, the Company has engaged,
and is engaging, in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
5. Frances Garza was and is at all times material an
employee of the Company, and the challenge to her
ballot should be overruled.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) and (3) of the Act, I shall recom-
mend that it be required to cease and desist therefrom,
post appropriate notices, and take certain other affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Company discriminatorily ter-
minated Frances Garza and discriminatorily changed the
work schedule of James Alcoser, I am recommending
that the Company be ordered to offer Garza immediate
and full reinstatement to her former job or, if it no
longer exists, to a substantially equivalent position, and
to offer Alcoser immediate and full reinstatement to his
former work schedule, all without prejudice to their se-
niority and other rights and privileges previously en-
joyed, and make them whole for any loss of earnings and
benefits they may have suffered from the time of Garza's
termination and Alcoser's change in schedule to the date
of the Company's offer of reinstatement. Backpay shall
be computed in accordance with the formula in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).4 It will also be recommended that the Com-
pany be required to preserve and make available to the
Board, or its agents, on request, payroll and other
records to facilitate the computation of backpay due.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, The O.K. Trucking Company, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Local 299, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, AFL-CIO, or any other
labor organization, by discriminatorily terminating,
laying off, or changing the work schedules of employees,
or in any other manner discriminating against them with
regard to their hire or tenure of employment or any
other term or condition of employment.
(b) Threatening employees with layoff, loss of job se-
curity, or other reprisal because of their union activity.
4 Under New Horizons, interest on and after January 1, 1987, is comput-
ed at the "short-term Federal rate" for the underpayment of taxes as set
out in the 1986 amendment to 26 U S C § 6621.
5 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) Expressly or impliedly promising or granting wage
increases or other benefits in order to discourage union
activity; provided, however, that nothing herein shall be
construed as requiring Respondent to withdraw any
wage increase or other benefit which it has established.
(d) Interrogating employees about their union attitude
or activities or those of their fellow employees.
(e) Telling employees to report on their union activi-
ties and sympathies or those of their fellow employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Frances Garza immediate and full reinstate-
ment to her former job or, if such job no longer exists, to
a substantially equivalent position, and offer James Al-
coser immediate and full reinstatement to his former
work schedule, all without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for losses they suffered by reason of the dis-
crimination against them as set forth in the remedy sec-
tion of this decision.
(b) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due.
(c) Post at its Dearborn, Michigan office and place of
business, copies of the attached notice marked "Appen-
dix."s Copies of the notice on forms provided by the Re-
gional Director for Region 7, after being duly signed by
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, includ-
ing all places where notices to employees are customari-
ly posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the challenged ballot of
Frances Garza be opened and counted, that a revised
tally be furnished the parties, and that the Regional Di-
rector shall certify the results of the election.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "