Transystems Services

National Labor Relations Board - Board Decisions

Sep 21, 1990

299 N.L.R.B. 765 (N.L.R.B. 1990)

TRANSYSTEMS SERVICES 765
Transystems Services, a General Partnership and
Robert Jones, Kevin C. Wittmayer, and Frank
Lewis. Cases 18-CA-11031, 18-CA-11031-2,
and 18-CA-11086
September 21, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIAIT
On May 30, 1990, Admimstrative Law Judge
Richard A Scully issued the attached decision
Charging Parties Robert Jones and Kevin C Witt-
mayer filed exceptions
The National Labor Relations Board has delegat-
ed its authonty in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge's rulings, findings,' and conclu-
sions and to adopt the recommended Order
ORDER
The complaint is dismissed
Charging Parties Jones and Wittmayer have excepted to certain
credibility findings made by the judge It Is the Board's established policy
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 Cm 1951) We have carefully examined the record
and find no basis for reversing the findings
The Charging Parties further contend that the adnumstrative law
judge's credituhty resolutions, findings of fact, and conclusions of law
stem from bias and prejudice against the Charging Parties We disagree
There is no basis for finding that bias and prejudice existed merely be-
cause the judge resolved Important factual conflicts in favor of the Re-
spondent's witnesses As the Supreme Court stated in NLRB v Pittsburgh
Steamship Co, 337 U S 656, 659 (1949), "Motal rejection of an opposed
view cannot of Itself impugn the mtegnty or competence of a tner of
fact" Moreover, our review of the record reveals no evidence that the
judge prejudged the case, made prejudicial rulings, or demonstrated any
bias
Everett Rotenberiy, Esq , for the General Counsel
Richard S Mandelson, Esq , of Denver, Colorado, for the
Respondent
DECISION
RICHARD A SCULLY, Adimmstrative Law Judge On
charges filed by Robert Jones, Kevin C Wittmayer, and
Frank Lewis on September 18, September 28, and No-
vember 3, 1989, respectively, the Regional Director for
Region 18, National Labor Relations Board (the Board),
issued a consolidated complaint on December 22, 1989,
alleging that Transystems Services (the Respondent) vio-
lated Section 8(a)(1) and (3) of the of the National Labor
Relations Act (the Act), by failing to recall for employ-
ment Charging Parties Wittmayer and Lewis, and violat-
ed Section 8(a)(1), (3), and (4) by failing to recall for em-
ployment Charging Party Jones The Respondent filed a
timely answer denying that it had committed any viola-
tion of the Act
A hearing was held in Grand Forks, North Dakota, on
February 20 and 21, 1990, at which all parties were
given a full opportunity to participate, to examine and
cross-examine witnesses and to present other evidence
and argument Briefs submitted on behalf of the General
Counsel and the Respondent have been given due con-
sideration On the entire record' and from my observa-
tion of the demeanor of the witnessess, I make the fol-
lowing
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a general
partnership with an office and place of business in Grand
Forks, North Dakota, and facilities at other locations in
North Dakota and Minnesota and has been engaged in
the business of providing interstate transportation of
freight and commodities During the calendar year
ending December 31, 1989, the Respondent, in the
course and conduct of its business, derived gross reve-
nues in excess of $50,000 from the interstate transporta-
tion of freight and commodities from the State of Mmne-
sota directly to points withm the State of North Dakota
and from the State of North Dakota directly to points
within the State of Minnesota The Respondent admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
II THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times
material, the International Umon of Operating Engineers,
Local 49, AFL-CIO (Operating Engineers), and the
General Drivers and Helpers, Local 581 affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Teamsters),
were labor organizations within the meaning of Section
2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The Respondent had its headquarters m Great Falls,
Montana Its Eastern Division consists of its operations
in the Red River Valley, which includes parts of North
Dakota and Minnesota, where since 1983, pursuant to
contracts with American Crystal Sugar (American), it
has hauled sugar beets from stock piles at which the
beets are deposited by farmers to American's processing
plants The business is seasonal with each "campaign"
beginning about mid-September and extending to the fol-
lowing February on early March During the campaign,
beets are hauled from the piles to the plants 24 hours a
day, 7 days a week, in tractor-trailers driven by employ-
ees known as line drivers, who work 12-hour shifts 4
'Counsel for the General Counsel's unopposed motion to correct the
hearing transcript LS hereby granted
299 NLRB No 118
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
days a week, alternating a week of days and a week of
nights The Respondent also employs mechanics who
service and repair its equipment, loader operators who
operate front-end loaders, which load the beets in the
piles onto the trucks, and yard drivers who drive trucks
hauling beets that have been deposited at the plants to
the processing areas, but do not drive on the road
During the 1988-1989 beet campaign, the Respondent
had approximately 225 employees in the Red River
Valley
At some point prior to the 1988-1989 beet campaign,
the loader operators had been represented by the Operat-
ing Engineers, but were not so represented at that time
In October 1988, the Teamsters began an organizing
drive among the Respondent's line dnvers and filed a
representation petition with the Board on December 21,
1988 On the same date, the Operating Engineers filed a
repreentation petition seeking to represent the Respond-
ent's equipment operators After a Board heanng on Jan-
uary 11, 1989, the Regional Director issued a Decision
and Direction of Election on January 30, 1989, in which
he concluded that there should be a single bargaining
unit made up of all line drivers, yard drivers, and loader
operators Thereafter, the Teamsters withdrew its peti-
tion and an election was held on November 17, 1989, in
which the employees voted 131 to 64 against representa-
tion by the Operating Engineers No objections to the
election were filed and the result was certified by the
Regional Director on November 24, 1989
B Frank Lewis
Frank Lewis was one of the first drivers hired by the
Respondent prior to the 1983-1984 campaign, its first
pursuant to 5-year contract with America Lewis worked
as a line driver each year through the 1988-1989 cam-
paign He signed an authorization card for the Teamsters
in October 1988 and later signed one for the Operating
Engineers m February 1989 Lewis testified that while he
talked in favor of unionization with the people on his
shift, he did not "actually get out and do any campaign-
ing" However, in late December or early January, when
he felt that the union activities were bearing fruit and
that an election would be held, he became "quite vocal,"
encouraging people on his shift to sign cards and vote in
favor of the Union He spoke in favor of the Union to
other drivers over the CB radio with which his truck
was equipped until his last day of work on the beet cam-
paign, February 6, 1989 Lewis testified that on two oc-
casions after January 1, 1989, he spoke in favor of the
Union in conversations with his supervisor, Mike Bilben,
and in a conversation with company vice president, Ray
Cloward, at which Bilben and supervisor Dennis Greany
may also have been present
Lewis testified that a week or 10 days after the end of
the beet campaign, when he went in to pick up his last
paycheck, he spoke to Bilben about switching to a posi-
tion as a yard driver in the next campaign as they
worked only 8-hour shifts compared to the 12-hour shifts
worked by line drivers Bilben responded that he saw no
problem and that Lewis should let him know a month
before the next campaign started so they could make the
change in their schedule Sometime later Lewis received
a letter from Francis Rick, the Respondent's director of
operations for the Red River Valley, which informed
him that he was not eligible for rehire for the 1989-1990
beet campaign Lewis telephoned Rick after receiving
the letter and asked why he was not eligible for hire
Rick responded that he did not have the file in front of
him but it was his recollection that the reason was that
Lewis was always "hardassmg" people Rick said he did
not have the time to meet with Lewis right, then and
that he wanted Bilben present He told Lewis to call him
back in 2 weeks and they would talk it over, Lewis did
not call back and no meeting was held After Lewis filed
a charge with the Board m November 1989, he received
a letter from Rick offering him the opportunity to return
to work if he so desired Lewis did not respond to the
letter and has not been reemployed by the Respondent
Lewis testified that during the 1988-1989 beet cam-
paign he was never spoken to by any supervisor about
"hardassmg" people, accused of doing so or given any
warning for doing so
Francis Rick testified that at the end of each cam-
paign, supervisors fill out a termination report for each
employee and indicate whether they are eligible for
rehire for the next cEunpgign With respect to those that
the supervisor determines to be ineligible, Rick reviews
those determinations with the supervisor and a final deci-
sion about rehire is made Rick agreed to sign off on a
no-hire letter to Lewis after discussing the matter with
his supervisor, Bilben, who said that Lewis was never
satisfied with what was happening, that he was hard to
get along with, that he was distracting and bringing
down the morale of other employees, and that Bilben
had no success in getting Lewis' attitude corrected Rick
was also aware from spealung with Lewis that he was
dissatisfied about a wage cut imposed at the beginning of
the 1988-1989 campaign After Lewis received the letter
and contacted him, Rick told him the reason was that he
was hard to get along with and suggested that he, Lewis,
and Bilben meet to work things out Rick then spoke to
Bilben and they agreed that if, after meeting with Lewis
he agreed to improve his "general working attitude," he
would be allowed to return for the 1989-1990 campaign
Michael Bilben testified that he decided not to rehire
Lewis after the end of the 1988-1989 campaign of his
complaining during that campaign Lewis complained
about the cut in wages and constantly gave the mechan-
ics who serviced his truck a bad time which resulted in
friction between the mechanics and the drivers Mechan-
ics repeatedly complained to Bilben about Lewis and he
spoke to Lewis about the problem a couple of times
during the first half of the campaign, but did not consid-
er suspending him or threatening him with termination
He also advised Rick that Lewis was adversely affecting
morale during the campaign and conferred with him
before the no-rehire letter was sent Thereafter, he
agreed to meet with Lewis and Rick, but the meeting
was never arranged After Lewis filed a charge with the
Board, he did not oppose Rick's decision to offer Lewis
employment since he figured that if Rick, who had
known Lewis a long time, spoke with him "that would
do the job"
TRANSYSTEMS SERVICES 767
C Robert Jones
Robert Jones began working for the Respondent as a
line driver during the 1984-1985 campaign in the Red
River Valley and worked in each campaign through
1988-1989 Jones also work for the Respondent at one of
its Western Division jobsites in Riverton, Wyoming,
during 1988 and 1989, which involved hauling uranium
tailings
In October 1988, Jones signed an authorized card for
the Teamsters and later signed one for the Operating En-
gineers After he signed the Teamsters' card, Jones
called a meeting of drivers at a restaurant and had a
umon official come in to give advice and explain things
Jones contacted other employees about the meeting
either by speaking to them personally or over his CB
radio He solicited authorization cards from about 15
people at the meeting and at the Board hearing m Janu-
ary, he was the only rank-and-file employee to appear as
a witness During the organizing drive, he often spoke in
favor of untomzation on the job both at the shop and
over the CB radio and when off work by telephoning
employees on a few occasions
After the end of the 1988-1989 beet campaign, Jones
received a letter from the Respondent, dated May 9,
1989, Informing him that he was eligible for rehire for
the 1989-1990 beet campaign, Jones received a letter
from the Respondent, dated May 9, 1989, informing him
that he was eligible for rehire for the 1989-1990 beet
campaign Jones returned the letter indicating that he
would be working in that campaign However, by letter
dated August 31, 1989, the Respondent informed Jones
that because he had voluntarily quit his last job with the
company at the Riverton project, the supervisors there
had determined that he was not eligible for rehire at Riv-
erton and that this ineligibility extended to all divisions
of the company, consequently, he would not be eligible
for rehire in the upcoming Red River Valley beet cam-
paign Jones was not rehired for the 1989-1990 cam-
paign
Jones testified that he had worked at the Riverton
project during the summer of 1988 for 6 or 7 weeks
starting about the first of August and continuing until he
returned to North Dakota for the start of the beet cam-
paign He worked approximately 50 hours a week at
Riverton in 1988 He returned to Riverton in May 1989
with the understanding that he would receive the same
number of hours of work as in 1988 At an orientation
meeting, Supervisor George Littlefield said that they
would attempt to give the drivers from out of town as
many extra bonus hours as they could However, in the 3
weeks he was there he worked only 6 days On May 17,
Jones spoke with Littlefield and asked if he would be
given the hours of work promised He said Littlefield re-
ponded that "the company couldn't see it was clear to
give me the extra hours" Jones then asked for a layoff
so he could return home and Littlefield asked when he
wanted the layoff to take effect Jones said on May 19,
the end of the pay period, and on the date he picked up
his paycheck and left for home According to Jones,
Littlefield said nothing about his leaving disqualifying
him from future work or that he was leaving the compa-
ny shorthanded
On cross-examination, Jones testified about an incident
at Riverton during 1988 when he became so upset with
an inspector, who verbally "jumped all over" 1nm and
cussed him out for not properly decontaminating his
truck, that he got out of his truck and walked off Jones
encountered Bilben, then a supervisor at Riveton, who
laughed about the incident, told Jones to get back in his
truck and go back to work and said, "you know if you
leave here, if you quit, you won't be eligible for rehire in
the Red River Valley again" Jones returned to his truck
and finished out his job at Riverton
George Littlefield testified that during May 1989 Jones
worked a few more hours than the average driver as
they tried to give the out-of-state drivers more hours, if
possible, but that he had not made an announcement to
that effect at the orientation meeting On May 19, he had
a conversation with Jones wherein Jones asked to be
given more hours because, otherwise, he could not
afford to stay there and he would have to quit and go
home Littlefield said that they had no control over the
weather which had caused there to be several days when
there was no work 2, When Jones said he was quitting
and heading home Littlefield said, "Bob if that's what
you've got to do, that's what you've got to do"
D Kevin Wittmayer
Kevin Wittmayer was employed by the Respondent
beginning in January 1986, when he worked as a line
driver hauling coal to Falkirk, North Dakota After the
end of that project, he went to Salt Lake City where he
hauled gravel for a highway project After 2 months on
that job, he told his supervisor Bill Schulenberg that he
was too far from his home and family and was going to
quit Schulenberg said he was sorry to see him go and
agreed to Wittmayer's request to term his leaving a
layoff for unemployment compensation purposes In the
fall of 1986, Wittmayer was lured as a line driver for the
beet campaign after putting in an application and being
given a driving test He also worked during the 1987-
1988 beet campaign After the end of that campaign, he
sought a job at the Riverton project and worked there as
a line driver and doing other odd jobs from the end of
July until September Wittmayer testified that he and line
driver Donald LaCoursiere, who had gone with him to
Riverton, asked Ray Cloward if they could leave a week
early to go back to North Dakota to take care of some
business and to work in the 1988-1989 beet campaign
Cloward contacted Rick in North Dakota and told them
that Rick had said they could return to North Dakota
and he would put them to work They left immediately
and returned home by way of Great Falls, Montana,
where they dropped off a truck for the Respondent at its
headquarters and picked up another truck which they
drove to North Dakota They started work on the beet
campaign a week or 10 days after leaving Riverton
2 According to Littlefield's credible and uncontradicted testimony, due
to the fact that the Riverton project involved hauling contaminated mate-
rial, there could be no hauling if It rained because the resulting mud on
the trucks' tires would contaminate public highways If It rained, the de-
termination as to whether or not there would be any hauling was made
by the prune contractor, M K Ferguson, not by the Respondent
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In October 1988, after discussing the possibility of
seeking union representation with other drivers, Witt-
mayer went to the Teamsters office in Grand Forks and
spoke with Truman Sorenson, an official of the local
union While there, Watmayer signed a union authoriza-
tion card and obtained other cards which he proceeded
to get drivers to sign He solicited signatures on these
cards from line drivers on and off the job and over his
CB radio He obtained between 20 and 29 signatures on
cards which he turned over to Sorenson Once it was de-
termined that the Operating Engineers would be the po-
tential bargaining representative of all employees, Witt-
mayer signed an authorization card for it and urged
others to sign and support the Union, in person and on
the CB radio He testified that during the 1988-1989 beet
campaign he wore a jacket to work which had the name
and logo of laborers Union, Local 580, on it One on oc-
casion, Supervisor Bill Schulenberg told him he "better
get that damn thing out of here," referring to Witt-
mayer's jacket Wittmayer told Schulenberg it was his
work jacket and he continued to wear the jacket until
the end of the beet campaign
Wittmayer testified that in January 1989, he received a
letter from the Respondent informing him that he was el-
igible for rehire at Riverton in 1989, which he returned
indicating his willingness to work there in 1989 He was
not contacted about returning to Riverton and, when he
telephoned the Respondent about a job there, George
Littlefield told him no drivers were needed at that time
Thereafter, here received a letter from the Respondent
dated May 9, 1989, telling him he was not eligible for
rehire for the 1989-1990 beet campaign After receiving
that letter, Watmayer wrote to Rick in June 1989, asking
for the reasons why he was not being rehired and for a
recommendation to use in securing other employment
He has received no reply to his letter to Rick
Michael Bilben testified that he made the decision not
to rehire Wittmayer for the 1989-1990 beet campaign
According to Bilben, who had been Wittmayer's supervi-
sor since the 1986-1987 beet campaign, he had originally
decided not to rehire him after the 1987-1988 campaign
because of various problems dunng the campaign Bilben
said he felt that Wittmayer had a bad attitude and was
unhappy with his wages and with the company's policies
and regulations and that when he tried to speak to him
about his deficiencies Watmayer got defensive or ig-
nored him During that campaign Bilben had talked to
Wittmayer on numerous occasions and had given him a
verbal warning on October 5, 1987, for failing to proper-
ly check over his truck and two additional verbal warn-
ings on January 25, 1988, for speeding and failing to
clean the top rail of his truck 3 On the same date Witt-
mayer was given a 2-day suspension, 1 day for failure to
clean the top rail and 1 day for his "attitude" to the su-
pervisor who reprimanded him about speeding and not
cleaning the rail Although designated as "verbal," the
warnings were in writing and copies were given to Witt-
3 Company rules require drivers to check and see that the rail which
goes around the top of the trailer is clear of beets or other material
before going out on the road because of the possibility that they could
fall off and cause damage to other vehicles
mayer The warning given in connection with Witt-
mayer's suspension also informed him that if his "attitude
does not improve it could result in termination"
testified that, after these warnings and ths suspension,
Wittmayer's job performance and attitude improved to
the point that he felt Wittmayer "would do things the
way the company wanted" and that it would be worth
"taking him back for another chance" Consequently,
Bilben changed his recommendation so that Wittmayer
was eligible for rehire for the 1988-1989 campaign
Bilben testified that during the 1988-1989 campaign,
after about a month, Watmayer "got right back into the
same thing and it was the same stuff all over again" He
complained about the speed limit, about his wages which
had been reduced at the beginning of the campaign
under the new contract, and about company rules such a
cleaning top rails Bilben said he felt that Wittmayer had
a bad attitude toward the Company and, after talking
with Wittmayer, he became convinced that he was not
going to change his ways He had decided about 1-1/2 to
2 months into the campaign that he was not going to
bring Watmayer back for the next campaign He had au-
thority to terminate Watmayer, but did not do so be-
cause it would have been difficult for him to find an-
other job at that time and he felt he could tolerate him
until the end of the campaign He did not give Witt-
mayer any written warnings during the 1988-1989 cam-
paign although he did talk to him about speeding Bilben
said he did not consider further official warnings or an-
other suspension becuase he did not believe it would do
any good and because he had already decided that he
would not bring Wittmayer back
E Analysis and Conclusions
The complaint alleges that the Respondent did not
rehire Lewis, Jones, and Watmayer for the 1989-1990
beet campaign because of their support for and activity
on behalf of the Teamsters and the Operating Engineers
during the 1988-1989 campaign The Respondent denies
this and contends that each was not rehired for reasons
unrelated to protected activity on his part
In cases where the alleged violations of the Act turn
on the employer's motivation, the Board requires an
analysis pursuant to Wright Line, 251 NLRB 1083 (1980),
enfd 662 F 2d 800 (1st Ca 1981), cert denied 455 U S
989 (1982), approved in NLRB v Transportation Manage-
ment Corp, 462 U S 393 (1983) Under Wright Line, the
General Counsel must make a prima fame showing suffi-
cient to support the inference that protected conduct was
a motivating factor in the Respondent's decisions not to
rehire the Charging Parties for the 1989-1990 beet cam-
paign Once this has been done, the burden shifts to the
Respondent to demonstrate that it would have taken the
same action even in the absence of protected activity
It must first be established that the Charging Parties
engaged in protected activity and that the Respondent
had knowledge of that activity In the cases of Jones and
Wittmayer, the evidence is clear that they were two of
the leading organizers for the Teamsters during the
1988-1989 beet campaign among the line drivers Each
solicited signatures on union authorization cards both on
TRANSYSTEMS SERVICES 769
and oft' the job and used their CB radios while working
to enlist the support of other drivers for the Union
There was evidence that the Respondent's supervisors
closely watched the drivers and trucks while they were
operating and that supervisors also monitored the driv-
ers' CB radio transmissions Supervisor Michael Bilben
testified that throughout the entire 1988-1989 beet cam-
paign he had a CB radio in his company truck and that
he monitored the channel used by the line drivers "all
the time" Jones was also the only rank-and-file employ-
ees to testify at the Board's representation hearing in Jan-
uary 1989
According to the testimony of Lewis, he was not ac-
tively involved in organizing activity and did not speak
out in favor of unionization until late December or early
January 1989, once he felt that the union activities were
bearing fruit and he was sure that there was going to be
an election 4 From that point until the end of the beet
campaign, he spoke in favor of the Umon on his CB
radio while working at least once a night
Given the evidence that Jones testified on behalf of
the Teamsters at the Board hearing, that all of the
Charging Parties spoke in favor of the Union on the CB
radio, that the Respondent's supervisors, particularly
Bilben, regularly monitored the drivers' CB communica-
tions and, more important the lack of any denial by
Bilben that he heard their proumon comments, 5 I infer
that the Respondent had knowledge of the support for
and activity on behalf of the Union by Wittmayer and
Jones While Lewis' activity was limited to verbal sup-
port for the Umon, I find that the Respondent was aware
of his support
In addition to knowledge of protected activity, the
General Counsel must establish union animus on the part
of the Respodent and that "the hostility or opposition to
the union manifested is strong enough to support a con-
clusion that the Respondent was willing to violate the
law, by discriminating against employees, in order to
keep the Union out 6 The attempts to organize the Re-
spondent's Red River Valley employees by the Team-
sters and Operating Engineers began in October 1988
and extended through the election, which was held on
November 17, 1989, albeit there was no work being per-
formed by rank-and-file employees between early Febru-
ary and September 1989 There were no objections filed
in connection with the election and apart from the alle-
gations of 8(a)(1) and (3) violations concerning the three
Charging Parties, there are no allegations of any inde-
pendent violations of Section 8(a)(1) However, there
was evidence offered at the hearing which, if credited,
could support a finding of animus on the Respondent's
4 Lewis' testimony is unclear as to what convinced him that there was
going to be an election The Regional Director did not Issue his Decision
and Direction of Election until January 30, 1989, only about a week
before the campaign ended Since I believed Lewis' testimony about
speaking out in favor of the Union, I presume he was referring to the
filing of the representation petition by the Teamsters on December 21,
1988, about the time he said he began to speak out
6 In this regard, Bdben said only that he did not know that any of the
three Charging Parties had signed cards on behalf of the Teamsters or
Operating Engineers
6 Raysel-IDE, Inc , 284 NLRB 879, 880 (1987)
part even though not alleged as violations in the com-
plaint
Robert Jones testified that in December 1988, right
before Christmas, Bilben called him into the office and
gave him "hell" for what he had been saying over the
CB radio, telling him, "Bob, you either shut the hell up
about the union and the company or we are going to get
rid of your ass" Jones also testified that at the end of
January 1989, Supervisor Bill Schulenberg rode in his
truck from the Reynolds stockpile to Grand Forks
During the course of this trip, Schulenberg asked Jones
what was going on with different employees with re-
spect to the Union and, specifically, about the activities
of Larry Olson and Kevin Wittmayer, asking what Jones
knew about them, if and how they were involved with
the Union Jones responded that he did not know as the
guys were kind of close-mouthed about the Union
On cross-examination, when confronted with an affida-
vit he had given the Board in which he stated that
Bilben did not use the word "union" during the Decem-
ber 1988 conversation, Jones admitted that this was the
case Bilben credibly testified that he had a conversation
with Jones about his CB transmissions in December
1988, in which he told Jones, who "had a tendency to
curse over the radio a lot," not to do it, as he had on
numerous occasions before Bilben also testified that he
did not threaten Jones with loss of employment during
the conversation After observing his demeanor while
testifying, I found Jones to be a hostile, contentions, and
argumentative witness and I do not credit his testimony
about this and other incidents discussed below I credit
the testimony of Bilben that this conversation mvolved a
routine reprimand concerning Jones' tendency to curse
over the CB radio, a tendency that was amply demon-
strated during the course of Jones' hearing testimony
Although Schulenberg was not called as a witness and
Jones' testimony about their alleged conversation on a
trip from Reynolds to Grand Forks is uncontradicted, I
did not believe it According to Jones, the conversattion
took place in late January 1989, which would have been
shortly after Jones testified on behalf of the Teamsters at
a Board hearing on January 11 I find it incredible that a
supervisor would seek out Jones, who at that point was
the most prominent and only openly acknowledged
union supporter in the Respondent's employ, and seek to
extensively interrogate him about the union activities of
other employees Given my conclusions as to Jones' gen-
eral lack of veracity, I fmd that he fabricated this alleged
incident
Jones also testified to an alleged plot on the Respond-
ent's part whereby he was lured to the Riverton job site
in the spnng of 1989 with the promise of 50 to 55 hours
of employment per week, but given fewer hours than
other drivers Because of this he was forced to quit,
which the Respondent used as the basis for denying him
further employment with it in the Red River Valley, all
because of his union activity In addition to finding the
theory far fetched, I found much of Jones' testimony
about the whole matter to be incorrect or deliberately
false Although he initially testified that Rick called his
home and asked him to go to Riverton, on cross-exami-
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nation, after being shown the affidavit he gave the
Board, he said it was he who had asked for the opportu-
nity to go to Riverton in 1989 He testified that at an on-
entation meeting at Riverton, Littlefield promised that
they would try to give the drivers from out of town that
came a long way to work there all the extra hours they
could Littlefield credibly denied making such a state-
ment, remarking that he would have had a not on his
hands if he did
Jones testified that on May 14, 15, and 16, 1989, al-
though he was scheduled to work, he was not allowed
to While admitting that it rained one or two of those
days, he claimed that drivers were being called m to
work and that trucks were hauling The Respondent's
records for May 14 through 16 show that there was no
production on any of those days because of rain Little-
field's testimony established that the decision not to
work on those days was made by the prime contractor
on the project, not the Respondent Considering all of
the evidence, I find there is nothing to indicate that
Jones was the victim of discriminatory treatment while
at the Riverton project or that would suggest the Re-
spondent intentionally reduced his hours so that he
would quit and thereby disqualify himself for future em-
ployment There is nothing in the Respondent's conduct
with respect to Jones' employment at Riverton that dem-
onstrates any animus on its part toward Jones or the
umons
Frank Lewis testified that during the 1988-1989 cam-
paign he had conversations with Supervisors Bilben and
Cloward about the Union He could not specify the dates
of his conversations with Bilben but said it was after Jan-
uary 1, 1989, and the "gist of it" was Bilben would ask
what Lewis thought he would get out of bringing the
Union in Lewis replied that it would provide job securi-
ty and that they had been taking a beating on wages
Bilben told him the only thing a union would do was
cost Lewis money Lewis also testified that he was asked
by Cloward what the Respondent could do to discour-
age the men from voting for the Union Cloward also
told him that since an election was assured he could not
promise anything, but "we'll do what we can to make
concessions for the dnvers " According to Lewis,
Cloward also said that Federal law prohibited him from
making any offers to sway votes, but that if the vote was
in favor of the Union, "he would see to it that there was
one hell of a long drawn out fight before there is any
contract settled" Kevin Wittmayer testified to hearing a
similar statement by Cloward Lewis also testified that at
the drivers' banquet at the end of the 1988-1989 beet
campaign, Cloward told the drivers he hoped there
wouldn't be a union to fight with
Bilben testified that he talked to everyone who
worked under him and expressed his views about the
Unions He said he did not single anyone out to talk to
and did not have a one-on-one conversation about the
Union with Lewis Cloward testified that he spoke to
employees on several occasions dunng the union cam-
paign, that he usually spoke to small groups of employ-
ees and argued against union representation which he did
not feel would do the people any good Cloward said he
did make comments about negotiating a contract in
which he attempted to explain the process whereby after
an election the parties would have to sit down and bar-
gain for a contract
Although the argument can be made that Lewis' testi-
mony establishes that the Respondent engaged in unlaw-
ful interrogation, solicitation of grievances, promises of
benefits and suggested that the employees' union support
would be futile, all of which would demonstrate union
animus on its part, I do not find this to be the case
Lewis' testimony as to the "gist" of what Bilben said to
him does not purport to relate any specific statement or
comment by Bilben or to place it in context His testimo-
ny appears to be in interpretation of what Bilben said in
the course of one or more conversations about the merits
of unionization The same is true of Lewis' testimony
abut Cloward's remarks which was quite vague and
somewhat contradictory Considering all of the testimo-
ny, I cannot conclude that in context, Cloward's remarks
about negotiation of the contract in the event of a union
victory amount to anything more than a lawful statement
of what may result from the negobatmg process
There was one indication of union animus established
on the Respondent's part through the uncontradicted tes-
timony of Wittmayer that Supervisor Schulenberg saw
him wearing a jacket with a laborers union logo on it
during the period the Unions were attempting to orga-
nize the Respondent's employees and told him to "get
that damn thing out of here"
The General Counsel argues there is also evidence of
unlawful motivation on the Respondent's part in the
weakness of the reasons given for its refusal to rehire the
Charging Parties The Board recognized that the weak-
ness of an employer's explanation for an adverse person-
nel action is "a factor raising a suspicion of unlawful mo-
tivation," but also that suspicion alone is not enough,
there must be a positive finding that protected activity
was a contributing factor in the employer's decision 7
In the case of Frank Lewis, he was a long time em-
ployee who had had no problems prior to the 1988-1989
beet campaign Accordmg to Bilben, who made the deci-
sion that Lewis would not be eligible for rehire, Lewis'
unhappiness with his job and the wage cut instituted at
the start of that campaign resulted in constant complain-
ing and friction with company's mechanics and that he
had spoken to Lewis about the problems more than
once Lewis didn't deny this, he said only that he had
never been accused of "hardassing," the term Lewis said
was used by Rick when Lewis asked him why he was
ineligible for rehire
I find that the evidence indicates that there was not
much to support the Respondent's decision not to rehire
Lewis, but that it also indicates that its decision concern-
ing Lewis, whose protected activity was limited to ex-
pressing his support for unionization, was not unlawfully
motivated The credited testimony of Rick and Bilben
convinces me that Lewis' union support played no role
in the Respondent's decision and that had he followed up
on his telephone request for a meeting after he received
the no-rehire letter and agreed to stop his complaining,
7 Raysel-IDE Inc , supra at 880, Bnanvood Hilton, 22 NLRB 986 (1976)
TRANSYSTEMS SERVICES 771
he would have been eligible for rehire Rick testified that
no-rehire decisions had been reversed after meetings be-
tween himself, the employee and the supervisor on four
or five occasions during his tenure He described a situa-
tion mvolvmg Donald LaCoursiere, who was given a no-
rehire letter at the end of the 1988-1989 campaign, met
with Rick and the supervisor, and after they discussed
the specific problems, the decision not to rehire him was
reversed
In summary, considering Lewis' limited role in the
union campaign, Bilben's credited testimony that he was
fed up with Lewis' complaining and that of Bilben and
Rick and that had Lewis agreed to mend his ways he
would have been rehired, I conclude that Lewis' union
support was not a motivating factor in the Respondent's
decision not to rehire him
In the case of Kevin Wittmayer, it appears that he was
a marginal employee whom Bilben considered to have an
"attitude" problem long before the 1988-1989 beet cam-
paign, during which his union activity began 8 After
being warned and suspended, Wittmayer, by his own ad-
mission, "cleaned up [his] act a little bit" Bilben said he
observed some improvement m Wittmayer's attitude and
work during the last month of the 1987-1988 campaign,
enough so that he changed his decision not to rehire him
for the 1988-1989 campaign Within a month or two
after the start of the 1988-1989 beet campaign, Bilben
had determined that Wittmayer was "back into the same
thing" and that he "wasn't going to change his ways"
Bilben spoke with Wittmayer at least three times during
the 1988-1989 campaign and told him he wasn't happy
with his attitude and the things he was doing He did not
give Wittmayer any further warnings or suspensions be-
cause he felt they would do no good and he tolerated
Wittmayer until the end of the beet campaign because he
knew he would not be coming back Contrary to the ar-
gument of the General Counsel, Bilben did not testify
that Wittmayer's speeding violations were limited to the
1987-1988 campaign, he testified that, while he did not
write Wittmayer up, he did on occasions catch him
speeding during the 1988-1989 campaign, confronted him
about it and listened to Wittmayer complain about the
company's 55-mile-per-hour speed limit
Based on Bilben's credited testimony, I find that the
Respondent's reasons for not rehiring Wittmayer were
not pretextual It appears that Wittmayer, who was
nearly terminated after the 1987-1988 campaign, contin-
ued during the 1988-1989 beet campaign to display the
same attitude and disregard for the rules that had
brought him to that point Notwithstanding the fact that
Wittmayer was one of the most active participants in the
Teamsters attempt to organize the line drivers during the
1988-1989 campaign, I find the evidence does not estab-
° The term "attitude" has sometimes been used as an indirect reference
to umon activities or sympathies See Virginia Meralcrafters, 158 NLRB
958, 961-962 (1966), Winn-Dixie Greenville, Inc , 157 NLRB 657, 662
(1966) That is not the case here The evidence indicates that Wittmayer
was warned about his bad attitude toward his job during the 1987-1988
beet campaign and told that if it did not improve he faced termination
This was long before his umon activity commenced I find that Bilben's
reference to Wittmayer's "attitude" connotes his disposition or feelmg
toward his job and does not refer to his union activities
lish or support the inference that his union activity was a
factor in the Respondent's decision not to rehire him
In the case of Robert Jones, the evidence establishes
that he was disqualified from further employment with
the Respondent because he voluntarily qua his employ-
ment with it at the Riverton project in May 1989 While
there was evidence that, in several instances, employees
who had left the Respondent's jobsites before a project
was completed had been rehired, none involved a cir-
cumstance similar to that of Jones Two instances were
described by Wittmayer where he left before a job was
completed and was not disqualified In each case he spe-
cifically sought and obtained permission from his super-
visor before leaving the job In one instance he prevailed
on the supervisor to consider it a layoff and in the other
he assisted the Respondent by transporting trucks for it
while at the same time returning to work in the Red
River Valley beet campaign The evidence convinces me
that the Respondent had a policy not to rehire employ-
ees who voluntarily quit before a job was fimshed and
that the policy was quite flexible and exceptions to it
were often made, but it does not establish that it was ap-
plied to Jones in a disparate manner Not only did Jones
not seek an exception to the policy, of which he was ad-
mittedly aware, before he left Riverton, 9 but from all
that appears, he never sought one once he learned he
was not eligible for rehire in the 1989-1990 beet cam-
paign, as did Lewis and LaCoursiere
As discussed above, I find no basis for concluding that
the Respondent had a scheme whereby Jones was lured
to Riverton and then denied work in order to cause him
to quit and disqualify himself from future employment,
which Jones urges The circumstances surrounding
Jones' employment at Riverton, many of which were
beyond the control of the Respondent, simply do not
support what is, at best, a questionable theory The Gen-
eral Counsel, however, has a different theory, based
upon an employment document concerning Jones, enti-
tled "Request for Payroll Change," which was prepared
at the end of 1988-1989 beet campaign and bears the no-
tation "not eligible for rehire" on it The source of this
entry on the document has not been established The
document was one of several put into evidence by the
Respondent, but there was no testimony or other expla-
nation concerning the documents except that they were
termination reports and request for payroll changes relat-
ing to employees who had quit their employment and
were ineligible for rehire in the 1989-1990 beet cam-
paign
Counsel for the General Counsel contends that since
the document relating to Jones was prepared at the end
of the 1988-1989 campaign and says he was not eligible
for rehire, the events at Riverton had no bearing on the
Respondent's decision not to rehire him for the 1989-
1990 beet campaign, thus, establishing that the Respond-
ent's stated reason was a pretext The problem with this
theory is that it is pure speculation Not only is there no
° I do not credit Jones' testimony winch suggests that Littlefield
agreed that Jones' leaving Riverton would be considered a layoff Ac-
cording to Littlefield's credible testimony, nothing was said about a
layoff when Jones voluntarily quit
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence that the "not eligible for rehire" notation was
put on the document before Jones went to Riverton in
May 1989, there is substantial direct and circumstantial
evidence to the contrary Most significant is the credible
testimony of Bilben that he had recommended Jones for
rehire at the end of the 1988-1989 campaign This testi-
mony is consistent with and supported by an "Employee
Termination Report" form concernmg Jones, which
Bilben filled out, dated February 5, 1989 (the same date
as the "Request for Payroll Change" form in question)
on which after the question, "would you rehire this
person?," Bilben has checked "Yes" Also consistent
with and supporting Bilben's testimony is the fact that
Jones was sent a letter, dated May 9, 1989 (before he
quit a Riverton) informing him that he was eligible for
rehire for the 1989-1990 beet campaign Considering this
evidence, I find no reason to beheve that the "not eligi-
ble for rehire" entry was made on the form prior to
Jones' leaving the Riverton job or that the Respondent
had decided not to rehire Jones in the Red River Valley
before he quit at Riverton
Based on the foregoing, I find the evidence fails to es-
tablish that the Respondent entertained hostility or oppo-
sition to the Unions which was strong enough to support
the conclusion that it was willing to violate the law by
refusing to rehire the three Charging Parties in order to
keep a union out Inasmuch as the evidence fails to sup-
port the inference of discriminatory motivation under
Wright Line, supra, I find that the General Counsel has
not made out a prima facie case and I shall recommend
that the consolidated complaint be dismissed
CONCLUSIONS OF LAW
1 The Respondent, Transystems Services, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act
2 International Union of Operating Engineers, Local
49, AFL-CIO, and General Drivers and Helpers, Local
581, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, are labor organizations within the meaning of
Section 2(5) of the Act
3 The Respondent did not engage in the unfair labor
practices alleged in the consolidated complaint
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed10
ORDER
The consolidated complaint is dismissed in its entirety
'° 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