Treanor Moving & Storage Co.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 371 (N.L.R.B. 1993)

371
311 NLRB No. 39
TREANOR MOVING & STORAGE CO.
1 No exceptions were filed to the judge’s findings that the Re-
spondent violated Sec. 8(a)(5) by engaging in the following unilat-
eral conduct: shifting bargaining unit work to nonbargaining unit
employees; reducing the work hours of its unit employees; changing
its policies regarding the employees’ use of automobile parking and
telephone usage; restricting the employees’ access to the Respond-
ent’s administrative offices. No exceptions were filed to the judge’s
dismissal of allegations that the Respondent unreasonably delayed
meeting with the Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In this respect, the Respondent contends that in crediting the testi-
mony of employee Casey Stamps the judge relied on his mistaken
belief that Stamps was employed by the Respondent at the time of
the hearing. In fact, the judge’s crediting Stamps was not based on
any such incorrect finding. At one point, in discussing the Respond-
ent’s defense to allegations that it unlawfully reduced the work hours
of employee Ray Rodriguez, the judge inadvertently stated that Re-
spondent President Donald Treanor testified that Stamps was still
working for the Respondent. The record shows Stamps left the Re-
spondent’s employ in May 1992, 2 months before the hearing. None-
theless, we do not read the judge’s inadvertent error to be critical
or even significant in his decision to credit Stamps. Indeed, in dis-
cussing credibility, the judge relied on his observation of the wit-
nesses and found on that basis that Stamps and employee Gary
Gavette were more credible than Treanor. Further, Stamps’ testi-
mony was corroborated in significant respects by Gavette who was,
as the judge correctly noted, in the Respondent’s employ at the time
of the hearing.
The Respondent also claims that the judge’s finding that it an-
nounced an attendance policy crackdown in retaliation for the em-
ployees having voted for the Union is unsupported by credible testi-
mony. We disagree. In finding that Dispatcher Thomas Wyzgoski’s
announcement of the crackdown violated Sec. 8(a)(1) of the Act, the
judge impliedly credited the testimony of Ray Rodriguez that
Wyzgoski said: ‘‘We used to let you guys get away with this kind
of stuff. But now you are union and you guys are playing your game
and the company is going to have to play by their game.’’ The judge
explicitly credited this testimony in finding that Rodriguez’ dis-
cipline pursuant to the attendance policy violated Sec. 8(a)(3) and
(1) of the Act.
American Warehousing & Distribution Services,
Inc., d/b/a Treanor Moving & Storage Com-
pany, Inc. and Local No. 243, International
Brotherhood of Teamsters, AFL–CIO. Cases 7–
CA–32367, 7–CA–32598, and 7–CA–32869
May 28, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On October 30, 1992, Administrative Law Judge
Robert W. Leiner issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order.
The Respondent contends that the judge’s finding
that the Respondent decreased Ray Rodriguez’ hours
of work in violation of Section 8(a)(3) and (1) of the
Act is based on an erroneous finding that summerhire
Rich Masfern performed work that should have been
done by Rodriguez. In fact, the judge found that Dis-
patcher Thomas Wyzgoski, a statutory supervisor, dis-
placed Rodriguez. The record supports the judge’s con-
clusion.
The Respondent also asserts that in discussing the
Respondent’s discriminatory enforcement of its attend-
ance policy the judge incorrectly found that Dispatcher
Thomas Wyzgoski admitted that there is nothing in the
policy regarding call-in time. The judge’s statement—
‘‘Wyzgoski admitted that there is nothing in the policy
regarding the time when the late employee must call
him with regard to the employee’s scheduled starting
time’’—accurately reflects Wyzgoski’s testimony about
the written policy. We note that earlier in his decision
the judge summarized Wyzgoski’s testimony that in
practice employees were required to call in at or prior
to their reporting time; that Wyzgoski informed em-
ployees of the attendance policy by giving them a copy
of the written policy; and that he sometimes orally ad-
vised employees of the policy and sometimes did not.
We further note that the judge found that the Respond-
ent violated Section 8(a)(3) and (1) not by changing its
rules regarding attendance, but rather ‘‘by changing its
policy and practice regarding enforcement of its attend-
ance policy.’’
The Respondent also argues that the General Coun-
sel failed to show that the Respondent was aware of
union activity by Gary Gavette and Casey Stamps
when it disciplined them under the attendance policy.
In fact, the judge correctly found that this specificity
is not required where, as here, the General Counsel
shows that the Respondent’s conduct was
discriminatorily motivated against all its employees.
See Davis Supermarkets, 306 NLRB 426 (1992).
The Respondent further contends that its discipline
of Gary Gavette pursuant to the attendance policy was
not discriminatory because it occurred 12 months after
the election. Certainly timing is a critical factor in
finding discriminatory conduct. The passage of time
may weigh against such a finding but does not pre-
clude it. Here the Respondent misstates the time lapse.
The election occurred in July 1991. The judge relied
on statements made by Dispatcher Wyzgoski the fol-
lowing October and by President Donald Treanor the
following November in finding that the Respondent
discriminatorily enforced its attendance policy. Accord-
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The charge and amended charge in Case 7–CA–32367 were
served on September 25 and November 5, 1991; the charge in Case
7–CA–32598 was served on November 21, 1991; the charge and
amended charge in Case 7–CA–32869 were served on Respondent
on February 5 and March 14, 1992.
2 Respondent also admits that its president, Don Treanor, its vice
president, Rich Treanor, and its dispatcher, Tom Wyzgoski, are its
supervisors and agents within the meaning of Sec. 2(11) and (13)
of the Act.
ingly, the time lapse at issue is 8 months rather than
12. Moreover, the Respondent did not discipline new
employee Steve Greenwood for similar infractions of
the attendance policy at the very time the Respondent
disciplined Gavette who was employed at the time of
the election. Under these circumstances, we agree with
the judge that Gavette was disciplined pursuant to the
attendance policy in violation of Section 8(a)(3) and
(1) of the Act. See Carambola Beach Hotel & Golf
Club, 307 NLRB 915, 927–928 (1992) (Analysis and
Concluding Findings).
Finally, contrary to the Respondent, the judge also
correctly found that the employees’ preexisting right to
remain on the Respondent’s premises after punching-
out time was a term and condition of employment. See
Accurate Die Casting Co., 292 NLRB 989 (1989).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, American Warehousing &
Distribution Services, Inc., d/b/a Treanor Moving &
Storage Company, Inc., Pontiac, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Mary Beth Foy and Catherine L. DuBay, Esqs., for the Gen-
eral Counsel.
Shelley K. Coe, Esq., of Southfield, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard in Detroit, Michigan, on July 20–
22, 1992, on the General Counsel’s second consolidated
amended complaint dated March 18, 1992,1 which alleges, in
substance, that the above-captioned Respondent, American
Warehousing & Distribution Services, Inc., d/b/a Treanor
Moving & Storage Company, Inc. violated Section 8(a)(1),
(3), and (5) of the Act by statements of its supervisors; by
various acts of unlawful discrimination, and by various acts
constituting a refusal to bargain with the Union, all occurring
in the months of July, August, October, and November 1991;
and by various unlawful unilateral acts, contrary to its bar-
gaining obligation, in January 1992.
Respondent’s timely filed answer, dated January 16, 1992,
denied certain allegations of the consolidated complaint, ad-
mitted others, but denied the commission of unfair labor
practices.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to submit posthearing briefs
which have been received and carefully considered.
On the entire record, including the briefs, and on my most
particular observation of the demeanor of the witnesses as
they testified, comparing such testimony with the interest of
the witnesses, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges, Respondent admits, and I find that
at all material times Respondent, a Michigan corporation, has
maintained its principal office and place of business at 25
West Walton Boulevard, Pontiac, Michigan (with another fa-
cility located at 5321 Dixie Highway, Drayton Plains, Michi-
gan), where it has been and is engaged in the moving and
storage business. During the fiscal years ending September
30, 1990 and 1991, representative periods of Respondent’s
operations, Respondent, in the course and conduct of its
business operations had gross revenues in excess of $1 mil-
lion and purchased goods and materials valued in excess of
$50,000 from points located outside the State of Michigan,
and caused such goods and materials to be transported di-
rectly to its Michigan facilities. Respondent concedes and I
find that at all material times it has been and is an employer
engaged in commerce within the meaning of Sections 2(2),
(6), and (7) of the Act.2
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Charging Party (the Union), Local No. 243, International
Brotherhood of Teamsters, AFL–CIO, has been and is, at all
material times, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent commenced operations on February 10, 1990.
It is engaged in two distinct lines of business: (1) moving
and storage; and (2) commercial warehousing. Its moving
and storage business consists of moving and storage of resi-
dential and commercial materials in both interstate and intra-
state. Its commercial warehousing operation involves the
storage and distribution of materials principally owned by
large enterprises.
In May 1991, Respondent’s employees, led by employees
Rodriguez and Stamps, sought representation by Local No.
243, IBT (the Charging Party). On May 29, 1991, the Union
filed a petition for certification, having already conducted
meetings at the homes of employees Gary Gavette, Ray
Rodriguez, and Tony Brown.
On July 12, 1991, 15 of Respondent’s employees voted in
a Board-conducted election. Nine votes were cast for the
Union; six were cast against the Union. On July 22, 1991,
the Board certified the Union as the statutory representative
373TREANOR MOVING & STORAGE CO.
of employees in the following unit which Respondent admits
to be appropriate within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time drivers, helpers and
warehouse employees employed by the employer at or
out of its facility located at 25 West Walton Boulevard,
Pontiac, Michigan, and at or out of its facility located
at 5321 Dixie Highway, Drayton Plains, Michigan; but
excluding office clerical employees, managerial em-
ployees, guards and supervisors as defined in the Act.
Respondent concedes that since July 22, 1991, the Union
has been the exclusive representative of unit employees for
the purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
B. Respondent’s July 1 and 11, 1991 Meetings with
its Employees
The consolidated complaint, as amended at the hearing,
paragraph 8(a), alleges that on or about July 1 and 11 (as
well as September and October 1991), Respondent’s presi-
dent, Don Treanor, told employees that it would be futile for
them to select the Union as their collective-bargaining rep-
resentative and that they would never get a contract, all in
violation of Section 8(a)(1) of the Act.
As above noted, the Board-conducted election occurred on
July 12, 1991. On July 1, Respondent called a meeting of
its employees at the Holiday Inn in nearby Auburn Hills,
Michigan. Employee Rodriguez testified that, at the meeting,
President Don Treanor had only one thing to say and that
was that he was going to come to no agreement with the
Union (Tr. 173). Most of the employees were present when
he said this (Tr. 229–230). Don Treanor denied making the
statement. Indeed he testified that he made no comment on
a union contract at that time. In view of my findings, below,
with regard to a subsequent employer-sponsored meeting of
July 11, 1991, it is unnecessary to resolve this credibility
conflict between employee Rodriguez and President Treanor.
On July 11, 1991, Respondent called a meeting of its em-
ployees at about 7 a.m. in its Pontiac warehouse. Employees
Casey Stamps and Gary Gavette (presently employed by Re-
spondent) testified that at the July 11, 1991 meeting, 1 day
before the election, in the dispatch room, in the presence of
his brother, vice president Rich Treanor, Dispatcher Tom
Wysgoski, most of the employees (and representatives of Re-
spondent, not employees, who were apparently labor rela-
tions consultants) President Treanor told the employees, in an
angry voice, that if the employees turned ‘‘[our] back against
him by voting for the union, that he would get the roughest,
toughest negotiator and that we would not get a contract’’
(Tr. 81). Employee Gavette recalled that after the Respond-
ent’s agents (‘‘Connie’’ and others) told the employees that
the Union would not benefit them, how union dues would be
deducted each month, and that Respondent could work out
problems without the Union becoming involved (Tr. 136),
Don Treanor told the employees that there would be no
union contract and that he would bring in the worst nego-
tiators (Tr. 136–137).
While Treanor admits calling the meeting in the ware-
house, he denied telling the employees that they would never
get a contract and denied saying that he would get a rough,
tough negotiator. Rather, he testified that he told them that
he would get a ‘‘skilled’’ negotiator. He further testified that
he had received legal advice on what he should say in his
speech and that he knew that it was unlawful to say that the
Union would never get a contract.
Upon my observation of Treanor, on the one hand, and
employee Stamps and Gavette on the other hand, with
Gavette being presently employed by Respondent at the time
he gave his testimony, I credit employees Stamps and
Gavette and discredit the testimony of President Don
Treanor. I find that President Treanor told the employees, 1
day before the election, that if they turned their back against
him and voted for the Union, Respondent would get the
roughest, toughest negotiator and the employees would not
get a contract. Such statements, as alleged in the complaint,
demonstrate that it would be futile for the employees to se-
lect the Union because Respondent would never give them
a contract, which statements violates Section 8(a)(1) of the
Act. Outboard Marine Corp., 307 NLRB 1333 (1992).
C. Statements in August 1991 by Don Treanor
Regarding the Employees’ Selection of the Union
Employee Gary Gavette credibly testified, without con-
tradiction, that in August 1991 he was present in the dispatch
office with employee Bill Pitts, who had been recently de-
moted from his job as a driver to that of a helper. Pitts asked
President Treanor why his, and other employees’, hours were
being cut. Treanor answered: ‘‘I don’t have the work. You
stabbed me in the back by voting for the union’’ (Tr. 139).
Later in August, in the same dispatch office, in the pres-
ence of employees and Dispatcher Wysgoski, President
Treanor was wearing a sweatshirt bearing a logo from the
Grand Prix. The employees asked him if he had purchased
any extra shirts for them. Treanor told them that ‘‘when you
guys voted the union in, you voted out stuff like this [and]
free lunches. You guys stabbed me in the back, I am going
to stab you in the back. No more family atmosphere around
here, things are going to change’’ (Tr. 140). Before the union
election, when the employees were involved in big office
moves, requiring 20 employees and perhaps four or five
trucks, Don Treanor sometimes bought lunch for the crews
(Tr. 141). After the union election, he did not do so.
Don Treanor admitted being in the dispatch area when the
sweatshirt or T-shirt was discussed but denied saying that the
employees had stabbed him in the back; denied, with regard
to his allegedly purchasing ‘‘lunches,’’ that he told the em-
ployees that things were going to change and there would be
no more lunches; and could not recall if he said that there
was less work available. He testified that he told the employ-
ees that he did not purchase the shirts for them because it
could be said that he would thereby be ‘‘buying’’ the em-
ployees’ votes.
According to Gavette’s credited testimony, President
Treanor’s remarks to the employees concerning the Grand
Prix sweatshirt occurred in late August 1991. I did not un-
derstand Treanor’s testimony that he told them that he had
not purchased these shirts for them because it could be seen
as his ‘‘buying’’ their votes. The employees voted in the
union election a month before this. Treanor’s testimony
makes no sense.
I conclude that President Treanor told assembled employ-
ees, in the dispatch office, both in early and in late August
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 By September 1991, President Treanor knew that employee Dave
Thomason was named the Union’s employee bargaining representa-
tive (Tr. 20–21).
4 Rodriguez’ testimony concerning a fourth step of disciplinary
process for ‘‘no shows’’ (Tr. 184–185) differs from the actual writ-
ten policy. The written policy shows that the first no show is punish-
able by a week off without pay; the second punishable by 1 month
without pay and the third punishable by discharge. I find Rodriguez’
testimony to be incorrect and mistaken.
1991, that they had stabbed him in the back by voting for
the Union and that they thereby voted out the family atmos-
phere in the shop; and that things were going to change (Tr.
140–141).
Paragraph 8(b) alleges that in August 1991 President Don
Treanor threatened to accord employees less favorable treat-
ment as a consequence of their having selected union rep-
resentation. Crediting Gavette’s testimony and discrediting
President Treanor’s denials, I conclude that Treanor told the
employees that they had stabbed him in the back by voting
for the Union; that he was going to stab them in the back;
that there would be no family atmosphere thereafter; and that
things were going to change (Tr. 140). As alleged, Treanor’s
threats to stab the employees in the back and his statement
that their having voted the Union ‘‘in’’ necessarily ‘‘voted
out’’ the family atmosphere and Respondent’s providing free
lunches for employees (Tr. 140) constitute threats of less fa-
vorable treatment as a consequence of employees having se-
lected the Union. Such statements violated Section 8(a)(1) of
the Act.
D. President Treanor’s October Statement to
Employee Thomason
Sometime in September 1991, President Treanor, while
speaking to employees David Thomason, Ken Kunkle, and
others, was trying to discover who had voted for the Union.
Although he did not hear what Treanor said to cause Kunkle
to make a response, Thomason recalls that Kunkle said to
Treanor: ‘‘Don, hey, I didn’t vote for the Union. You know’’
(Tr. 27–28).
On October 1, while Thomason was speaking with Presi-
dent Treanor at the front dock, Treanor said that the employ-
ees should not have joined the Union; that they were stupid
for voting for the Union; and that the employees would never
get a contract (Tr. 22). As they were walking toward the of-
fice, they were joined by Dispatcher Tom Wyzgoski.
Wyzgoski told Thomason that he had ‘‘the most to lose by
going for the union’’ (Tr. 24). When Thomason asked
Wyzgoski what he meant, Wyzgoski said that it was ‘‘be-
cause you make the most money’’ (Tr. 25).
Dispatcher Tom Wyzgoski did not testify regarding this
matter. President Treanor denied that he ever told Thomason
that it was stupid to vote for the Union; that the employees
would never get a contract and that they should not have
joined the Union (Tr. 348). He also testified that he could
not recall being present at a conversation between Wyzgoski
and employee Thomason in which Wyzgoski told Thomason
that he had a ‘‘lot to lose by participating in the Union be-
cause [Thomason makes] the most money’’ (Tr. 348–349).
Paragraph 8(c) of the consolidated complaint alleges that
in October 1991 Treanor threatened an employee by telling
him that he had more to lose than other employees by sup-
porting the Union. Under the circumstances, with Wyzgoski
not testifying and Treanor either denying or having no recol-
lection, I credit Thomason and conclude, as alleged in the
complaint, that Respondent violated Section 8(a)(1) of the
Act when Dispatcher Wyzgoski, in President Treanor’s pres-
ence, on or about October 1, 1991, told Thomason that he
had more to lose than other employees in his support of the
Union because he made more money than other employees.3
E. The Alleged Announcement of an Attendance Policy
Crackdown on or About October 10, 1991
The complaint, paragraph 8(d), alleges that on or about
October 10, 1991, in violation of Section 8(a)(1) of the Act,
Dispatcher Wyzgoski announced an attendance policy crack-
down because the employees had formed a union.
Sometime in October 1991 (Tr. 439), warehouseman Ray
Rodriguez, on a Friday or Saturday, failed to arrive for work
at the starting time of 8 a.m. and arrived at the warehouse
at 3 p.m. (Tr. 188–189). He did not telephone the employer
to tell him he was going to be late and he did not punch
in for work at 3 p.m. Rather, he told Dispatcher Wyzgoski
that he would not work that day and said that he had not
telephoned Respondent because of personal problems (Tr.
189; 439). Wyzgoski told him that he would see him on the
next scheduled workday (Monday). On the next scheduled
workday, Rodriguez met with Wyzgoski and President Don
Treanor (Tr. 184). In that meeting, Wyzgoski explained Re-
spondent’s attendance policy (Tr. 184); told Rodriguez that
he had been marked down as a ‘‘no-show’’ for not showing
up for work (Tr. 441); that he had no choice in the matter
and was obliged to suspend him for a week. Wyzgoski also
said that the 1-week disciplinary suspension was merited,
under the policy, because this was only the first occurrence
of a Rodriguez ‘‘no-show.’’ For a second occurrence, there
would be a 2-week suspension and a third one would result
in a 30-day suspension. The fourth such occurrence would
result in discharge (Tr. 184).
Rodriguez had received a copy of Respondent’s policy
concerning attendance (G.C. Exh. 3) prior to this occurrence.
That company policy concerning attendance, dated Septem-
ber 29, 1988, contains the following admonitions:
(h) A phone call to the operations manager will be
required when an employee is unable to report to work
by the reporting hour.
(i) The words ‘‘No Show’’ shall appear under the
heading of job description when an employee neither
reports to work nor contacts the operations manager.
No Shows are considered highly irresponsible and shall
be penalized in the following manner:
(1) First occurrence—one week off without pay.
(2) Second occurrence (same year)—one month off
without pay.
(3) Third occurrence–termination from Treanor Mov-
ing and Storage Co.
No Shows shall remain on employee’s record for a
period of (1) year form the date of occurrence.4
375TREANOR MOVING & STORAGE CO.
5 Ordinarily, he would commence the container run at 5 a.m. and
arrive at the warehouse sometime at about 7:30 a.m. to commence
his warehouse workday. He would ordinarily leave for the afternoon
container run at about 5 p.m., after the warehouse workday, and re-
turn to the warehouse yard with the containers at about 8 p.m.
Dispatcher Wyzgoski testified that, after he told Rodriguez
that he had no choice but to give him a 1-week suspension,
he asked Rodriguez why Rodriguez had not telephoned
Wyzgoski to let him know of his problems. Wyzgogki ad-
mits that Rodriguez told him that he did not know that hehad
to call in (Tr. 441). In this same regard, Wyzgoski admitted
that there was nothing in the written policy concerning the
time the employee had to call in reference to a starting time
(Tr. 427). As a matter of practice, however, Wyzgoski testi-
fied that, under the attendance policy, an employee was re-
quired to telephone Wyzgoski at or prior to the reporting
time (Tr. 427–428). Wyzgoski also admitted that he is re-
sponsible for informing employees about Respondent’s at-
tendance policy (Tr. 430), and that the method by which he
inform employees is to give them a copy of the company
policy. Although he sometimes orally advises employees of
the policy, that is not a fixed procedure. Wyzgoski some-
times verbally advises them and sometimes does not (Tr. 43).
Rodriguez testified, however, that after Dispatcher
Wyzgoski informed him of the Respondent’s attendance pol-
icy, he told Rodriguez: ‘‘We used to let you guys get away
with this kind of stuff. But now you are union and you guys
are playing your game and the company is going to have to
play by their game’’ (Tr. 190–191).
The complaint, as above noted, alleges that this October
1991 Wyzgoski statement was the announcement of an at-
tendance policy crackdown because the employees had
formed a union. Although Wyzgoski testified at length con-
cerning this conversation with Rodriguez, he did not deny
Wyzgoski’s testimony. Wyzgoski told Rodriguez that Re-
spondent ‘‘used to let you guys get away with this kind of
stuff. He then said: ‘‘but now you are union’’ and ‘‘the com-
pany is going to have to play by their game’’ (Tr. 191). This
indicates a change in Respondent’s attendance policy en-
forcement so that Respondent was going to strictly apply its
attendance policy in retaliation against the employees having
brought in the Union. This is consistent with President
Treanor’s warning to the employees that the employees hav-
ing ‘‘stabbed him in the back,’’ he was going to ‘‘stab
back.’’
I conclude that, as alleged in paragraph 8(d) of the com-
plaint, Respondent in October 1991 announced an attendance
policy crackdown in retaliation for the employees having
joined and formed the Union, in violation of Section 8(a)(1)
of the Act.
F. Alleged Violations of Section 8(a)(3) of the Act
Regarding Particular Employees
In paragraph 9 of the consolidated complaint, the General
Counsel alleges that since on or about July 13, 1991, Re-
spondent reduced the work hours of certain unit employees
including, but not limited to, Ray Rodriguez, Gary Gavette,
and Casey Stamps because of their union activities and in re-
taliation for the Union’s victory in the July 12, 1991 election.
In measuring the legal consequences of events, as herein-
after enumerated, I am necessarily mindful of the credited
testimony of the General Counsel’s witnesses concerning
President Don Treanor’s explicit retaliatory motivation in
consequence of employees having chosen the Union in the
July 12 election. Not only is there President Treanor’s re-
peated threat to retaliate against employees because they
stabbed him in the back and he would now stab them in the
back; but there is the similar Wyzgoski retaliatory statement
that, because unit employees had chosen the Union, Re-
spondent was no longer going to permit them to get away
with rule violations and would more strictly enforce Re-
spondent’s work rules.
(1) David Thomason’s loss of the ‘‘container runs’’
As above noted, by September 1991, Respondent knew
that Thomason was named by the Union as the employee-
member of its contract bargaining committee.
Thomason, Respondent’s principal warehouseman, worked
in the warehouse from approximately 7:30 a.m. to 5 p.m.
each day and was carried on Respondent’s direct payroll for
such hours.
Sometime around July 1990, Thomason, believing that he
was earning too little from his job, spoke to President
Treanor about this situation. At a lunchtime meeting, he was
informed that he would be given the ‘‘container runs’’ (Tr.
67–68). In a ‘‘container run,’’ Thomason drove 30 miles to
a Detroit railyard junction to pick up overseas freight con-
tainers and return them on the truck to Respondent’s Pontiac,
Michigan yard.
Although his container runs were supposed to occur prior
to and after his normal warehouse work hours, especially
since his payment for container runs was by separate checks
with separate withholdings, in practice, he would occasion-
ally end the container runs arriving at the warehouse after
7:30 a.m., (Tr. 485–486), and also would leave the ware-
house at 2:30 p.m., thus starting the container run well prior
to the ordinary warehouse quitting time of 5 p.m. (Tr. 486).
In short, because of the container runs, Thomason would
sometimes arrive late for starting time and would leave early
prior to quitting time depending on the anticipated amount of
work at the warehouse (Tr. 485).5 Thomason’s workweek,
commencing July 1990, was between 70 and 80 hours per
week (Tr. 62–63) and did not fluctuate on a seasonal basis
(Tr. 63).
Respondent ceased giving him the container runs around
late September or early October 1981 (Tr. 64) reducing
Thomason’s hours to about 40 hours per week (Tr. 36; 62).
The container runs were given to employees Chuck
Nurburger and Ken Kunkle. One of them was a furniture
helper and the other a driver. Kunkle was outspokenly
against the Union and made this position known to President
Treanor in September 1991, when Treanor was trying to find
out who had voted for the Union (Tr. 26–28). Kunkle told
Treanor that he did not vote for the Union (Tr. 28).
Nurburger was not involved in the union organizing drive
(Tr. 39). Neither Nurburger’s nor Kunkle’s hours were cut
after the union election. They worked every day and their
timecards showed no cut in hours (Tr. 91).
President Treanor and Dispatcher Wyzgoski testified, in
substance, that they removed Thomason from the container
runs because of a change in business operations forced on
Respondent. They testified that the container runs are per-
formed solely for single customer, General Motors-Fanec.
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This organization produces robots in Japan and markets them
in the United States through General Motors. They further
testified that, historically, the railyard junctions, at which the
robots were originally picked up, operated either on a 24-
hour basis or were open for pickups and deliveries at least
as early as 6 or 7 a.m. and as late as 8 p.m. Such railroad
yard hours, they testified, permitted the use of David
Thomason, employed for almost 10 years by Respondent, to
enjoy the further income ($60 for each round trip) from the
container runs. Respondent could use Thomason on the con-
tainer runs because Thomason’s warehouse hours (7:30 a.m.
to 5 p.m.) would permit Thomason to leave his home as
early as 5 a.m. and, in the 2 or more hours necessary for
container pickup and transportation, to arrive at the ware-
house at or about 7:30 a.m. in time to commence his
warehousing duties. It also permitted him to leave the ware-
house after his warehousing duties at 5 p.m., travel to the
railyard, pick up the containerized robots, and return them to
the warehouse by about 8 p.m.
Treanor and Wyzgoski testified that a decision to change
railyards was made in Japan; that Respondent had no input
into the change of railyard pickup points; and that they now
use David Thomason on container runs only on special re-
quest from General Motors that a particular robot is needed
on an emergency basis. When there were no other drivers
available, Wyzgoski directs Thomason to make the container
run. The newly chosen railyard, they testified, operates only
from 8 a.m. to 5 p.m., thus foreclosing the regular assign-
ment to Thomason who works in the warehouse during such
hours.
While President Treanor testified that the yard change oc-
curred in October or November 1991 (Tr. 325) and Dis-
patcher Wyzgoski testified that the yard change occurred in
early October 1991 (Tr. 485), President Treanor testified that
Respondent transferred the container runs from Thomason to
its local drivers as soon as Respondent was notified of the
limited scope of the new railyard’s hours (Tr. 327). In this
regard, it should be noted that Thomason testified, on cross-
examination, that he no longer made the container runs in
late September or early October 1991 (Tr. 64) notwithstand-
ing that his original testimony on direct examination, in re-
sponse to the General Counsel’s leading question, was that
he ceased being assigned to the container runs ‘‘after the
union election’’ (Tr. 36–37).
Discussion and Conclusions
(a) The General Counsel’s prima facie case
The General Counsel proved a prima facie case (animus,
knowledge, timing) of Respondent unlawfully removing
Thomason from the lucrative container runs which he en-
joyed for the year prior to the union election. By September,
prior to removing Thomason, Respondent knew that
Thomason was the Union’s employee negotiator. Respond-
ent, throughout the pre and postelection period, repeatedly
told employees, in general, including Thomason, that Re-
spondent, in short, despised the Union, urging them not to
vote for the Union, warning them, unlawfully, that there
would never be a contract between the Union and Respond-
ent; unlawfully threatened them with less favorable treatment
as a consequence of their having selected the Union; told
them repeatedly that Respondent viewed the employees’ vote
for the Union as a ‘‘stab in the back’’ and that Respondent
would ‘‘stab them back’’; and that Respondent, after the
union election, would no longer permit the employees to get
away with Respondent’s lax enforcement of its policies, in-
cluding its attendance policy.
In particular, in or about early October 1991, Respondent
told Thomason (the conversation in which President Don
Treanor and Dispatcher Tom Wyzgoski participated) that the
employees were stupid for voting for the Union; and that
they would never get a contract from Respondent. Wyzgoski
added that Thomason had the most to lose by ‘‘going
through the Union’’ (Tr. 24). When Thomason asked him
what he meant by that remark, Wyzgoski said that Thomason
had the most to lose because Thomason made the most
money (Tr. 25). Finally, the container runs previously en-
joyed by a known union supporter were given to two em-
ployees, Kunkle and Nurburger. Kunkle was explicitly
antiunion and so informed President Treanor in September
1991, when President Treanor was ‘‘poking around, trying to
find out who voted for the Union’’ (Tr. 27–28). Nurburger
was not active in the support of the Union.
Thus, with respect to the elements comprising a prima
facie case of Respondent having unlawfully removed
Thomason from the container runs, there is credible, prepon-
derant testimony that Respondent harbored great animus
against the Union; and knew of Thomason’s support of the
Union and his unique selection as the union bargainer. Re-
spondent, subsequent to the election, not only threatened its
employees with reciprocating their ‘‘stab in the back,’ but
also, in or about early October, precisely when Respondent
removed him from the container runs, Wyzgoski told
Thomason he had the most to lose from his support of the
Union because he made the most money. In addition to this
element of simultaneous timing of such an ominous admoni-
tion directed to Thomason, there is the fact that Respondent
assigned the work to employee Kunkle, a known antiunion
employee and to Nurburger, an employee who was, on this
record, not active in the union drive, though there is no proof
of Nurburger’s attitude toward the Union.
In short, there are the elements of (1) union animus, (2)
Respondent’s knowledge of Thomason’s prounion position,
(3) the timing of the removal of container runs simultaneous
with (4) Respondent’s admonition and implied threat that
Thomason had the most to lose from his support of the
Union because he made the most money, and (5) its assign-
ment of Thomason’s container runs to antiunion Kunkle and
indifferent Nurburger.
The defense: In response to the General Counsel’s prima
facie case of the discriminatory removal of the container runs
from Thomason, Respondent may defend by rebutting the
General Counsel’s prima facie case, i.e., by showing the al-
leged discriminatee’s union activity played no part in Re-
spondent’s allegedly discriminatory action. I discredit both
President Treanor and Dispatcher Wyzgoski in their denials
of union animus, knowledge, timing, and the other elements
of the prima facie case. I credit the testimony of the General
Counsel’s witnesses on these points. I therefore conclude that
Respondent has failed to rebut the evidence that Thomason’s
union activity was ‘‘a motivating factor.’’ in its removal of
the container runs. NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); Southwest Merchandising Corp.
v. NLRB, 943 F.2d 1354 (D.C. Cir. 1991).
377TREANOR MOVING & STORAGE CO.
Under the Board’s Wright Line doctrine (251 NLRB 1083
(1980), enfd. on other grounds, 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982)), Respondent may also de-
fend on the alternate ground that it would have taken the
same action regardless of any protected activity engaged in
by Thomason. NKC of America, Inc., 291 NLRB 683 (1988),
citing NLRB v. Transportation Management Corp., 462 U.S.
393, 400–401 (1983). Addressing, therefore, the second wing
of Respondent’s defense under Wright Line, Respondent
bears the burden to prove, by a preponderance of the evi-
dence, that it would have taken the same action against
Thomason regardless of his known support of the Union,
Merillat Industries, 307 NLRB 197 (1992).
While I have specifically discredited the testimony of
President Treanor, particularly his denials of animns and of
his having told employees that they had stabbed him in the
back by their support of, and vote for, the Union, and of his
denial that he told them that the Union would never get a
contract from Respondent, I note that his testimony concern-
ing the removal of container runs from Thomason was cor-
roborated in greater detail by Dispatcher Wyzgoski. The es-
sence of the defense, that the change in business operations
of the Japanese producer of the robots, in turn, caused a
change in the railyard used for the pick up of the containers.
The new railyard had different, inappropriate operating
hours, which prevented Respondent from continuing to use
Thomason.
Wyzgoski nevertheless testified that in the period October
19 to December 1991 Thomason was allowed to leave work
around 2:30 to 3 p.m. to do a container run and, indeed, even
before that time, when Thomason was doing the container
runs on a regular basis, he was allowed to leave work at 2:30
to 3 p.m. in order to do the runs. Wyzgoski testified that the
timing of Thomason’s departure would depend on how busy
they were in the warehouse (Tr. 485). President Treanor’s
testimony, fairly read, demonstrates that the reason he no
longer used Thomason on the container runs was because the
new railyard junction was open only from 8 a.m. to 5 p.m.
which necessarily conflicted with Thomason’s warehouse
hours of 8 a.m. to 5 p.m.
Thomason himself testified that his noral container runs
occurred between 5 a.m. and 7:30 to 8 a.m. and 5 p.m. to
8 or 9 p.m. (Tr. 73). On the other hand, he credibly testified,
without contradiction, that he performed container runs in the
afternoon earlier than 4:30 p.m. and indeed performed con-
tainer runs as early as 2:30 to 3 p.m. (Tr. 72). These depar-
tures would necessitate his leaving his warehouse job (Tr.
72). Furthermore, he testified that, on occasion, he ran the
container runs ‘‘all day’’ (Tr. 72). In response to the question
of how often he would commence his afternoon container
run, not at warehouse quitting time or 5 p.m., but as early
as 2:30 or 3 p.m. (during his actual warehouse working
hours), Thomason testified that he did that ‘‘a lot’’ (Tr. 73).
On these occasions, when Thomason left the warehouse be-
fore 5 p.m. and there was warehouse work still to be done,
warehouseman Rodriguez regularly would perform
Thomason’s remaining work in the warehouse (Tr. 75).
Thomason testified, without contradiction, that Rodriguez
was an able warehouseman.
Weighing the evidence, I necessarily conclude that the
General Counsel has established, on the basis of the factors
listed above a strong prima facie case supporting a finding
of the discriminatory removal of the container runs from
Thomason: animus, retaliatory threats, the timing of his re-
moval, simultaneous with Wyzgoski particularizing
Thomason as having ‘‘the most to lose’’ because he save the
most money, and awarding the container runs to antiunion or
uncommitted employees. If it sought to ‘‘stab’’ Thomason,
the surest way to retaliate against him (Respondent had just
learned, that he had just been named as the Union’s em-
ployee negotiator) was to remove him from the highly profit-
able container runs (which I calculate, on Thomason’s testi-
mony, as $60 per round trip; based on two round trips a day,
equaling about $120 per day in addition to his wages as a
warehouseman).
Respondent’s defense, the mutually corroborative testi-
mony of President Treanor and Dispatcher Wyzgoski, is, es-
sentially, that Respondent had no control over the removal
of the container runs because the change in railyards dictated
that Thomason could no longer perform the job without sac-
rificing his work (8 a.m. to 5 p.m.) in the warehouse. Thus
Respondent assigned the work to other unit employees
(Kunkle and Nurburger). In support of this defense, there
was only the testimony of Wyzgoski and Treanor, both of
whom engaged in serious unfair labor practices, dem-
onstrated union animus and particularly retaliatory motiva-
tion. In view of their having denied making such unlawful
statements and my discrediting such denials, their testimony,
the sole evidence in support of the above defense, takes on
a questionable hue. In this respect, Respondent failed to sup-
port the Treanor and Wyzgoski testimony by corroboration in
business records, communications, or witnesses to show that
the railyard was indeed changed so that the container run
pickups and deliveries could not occur except during
Thomason’s working hours. Nor did they, for instance,
produce Nurburger and Runkle to describe the hours in
which they actually performed the pickups and deliveries of
the containers in the railyard. Nor did Respondent prove that
business conditions in the warehouse, or elsewhere, could not
continue to permit the deviations from the schedule it pre-
viously allowed: to have Thomason arrive late and leave
early. More important, however, is Respondent’s failure to
demonstrate when the change in railyards occurred. In short,
if Respondent removed the container runs from Thomason
before the change in railyards, the entire defense based upon
the change in railyard (and the change in railyard hours)
would be eliminated. Thus, even granting the existence of a
defense based upon a change in railyard and railyard hours,
in view of my finding against the credibility of Wyzgoski
and Treanor and their failure to corroborate the change in
hours, and particularly the timing of the change in hours, I
cannot regard the Wyzgoski and Treanor testimony as con-
vincing evidence. I do not accord such testimony, standing
alone, the weight I would have accorded it had it been cor-
roborated by business records, the testimony of other em-
ployees (Nurburger and Kunkle) other witnesses or other cor-
roboration.
Respondent, again, also failed to show why it did not con-
tinue to accommodate Thomason’s continued engaging in the
container runs with the change in railyard hours. It had pre-
viously continuously permitted the deviation. Indeed,
Thomason was away from the warehouse all day on occasion
and missed warehouse time ‘‘a lot’’ (Tr. 72–73). Although
Thomason was employed for 9 or more years by Respondent
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The complaint allegation dealing with violation of Sec. 8(a)(3)
and (1) of the Act, par. 9, names employees but fails to specifically
name David Thomason as an object of Respondent’s discriminatory
activity. Rather, the allegation is framed as a discriminatory reduc-
tion in work hours ‘‘of certain unit employees including, but not lim-
ited to Ray Rodriguez, Gary Gavette and Casey Stamps.’’ (Emphasis
added.) The pleading puts Respondent on notice that the the General
Counsel might well attempt to prove the unlawful reduction of work
hours of other than namd employees. Together with Respondent’s
failure to demand particularization of the pleading (i.e., a Bill of Par-
ticulars) or to object to testimony regarding the reduction of
Thomason’s container runs and, indeed, Respondent’s adducing con-
siderable testimony in defense, I have made the above findings and
conclusions on the theory that, without objection from Respondent,
the matter had been fairly presented and thoroughly litigated. Mine
Workers District 29, 308 NLRB 1155 (1992). In ultimately inferring
an unlawful motive, I have also noted on the testimony of employee
Gavette concerning the reduction of hours of employee Pitts, partly
motivated as President Treanor stated, by the employees having
stabbed Respondent in the back.
7 As above noted, Dispatcher Wyzgoski later testified at length as
a Respondent witness and was not questioned about his presence in
the dispatch office when President Treanor made this remark to em-
ployee Pitts in the presence of Gavette. Gavette also testified to a
further conversation between employees and President Treanor in
later August 1991. That conversation related to President Treanor
wearing a ‘‘Grand Prix’’ sweatshirt or T-shirt and the employees in-
quiring whether he had purchased such shirts for the employees. I
found that in that conversation Treanor again accused the employees
of having stabbed Respondent in the back by voting for the Union
thereby voting out Respondent’s sometime practice of purchasing
lunches for the employees and voting out the ‘‘family atmosphere’’
in Respondent’s work place. I have separately discredited President
Treanor’s denials of having used the expression ‘‘stabbed me in the
back’’ in this and the prior conversation with Gavette. In any event,
President Treanor, though testifying extensively with regard to this
second, later August conversation involving the Grand Prix
sweatshirt, did not deny the earlier August conversation with em-
ployee Pitts (in Gavette’s presence). Thus Gavette’s otherwise credi-
ble testimony on the earlier conversation, concerning the reduction
of hours because the employees ‘‘stabbed me in the back by bring-
ing in the union,’’ stands unrebutted.
and apparently a valuable employee whom Respondent pre-
ferred to use on container runs (according to Wyzgoski’s tes-
timony), I am not at all suggesting that he be accorded spe-
cial treatment in continuing the container runs at the expense
of his warehouse work. Rather, I observe that Respondent
appears to have departed from its established past practice of
permitting Thomason to ‘‘work around’’ the hours of his reg-
ular warehouse schedule. This departure from past practice,
I find, is explained by Respondent’s contemporaneous dis-
covery of Thomason having become a member of the
Union’s contract bargaining committee.
Under all the above circumstances, I am unable to give to
Respondent’s defense sufficient weight so that it qualifies for
the Board standard of proof under the Wright Line defense:
that it be established on proof of a preponderance of the
credible evidence. Merrillat Industries, 307 NLRB 1301
(1992). Again, in the presence of the General Counsel’s
strong prima facie proof of unlawful motive in the retaliatory
removal of Thomason’s container runs, I am unable to con-
clude that it was more likely than not that Respondent re-
moved the container runs because of the change in railyard
hours regardless of Thomason’s union activities. I therefore
conclude that Respondent withdrew the container runs from
Thomason, commencing late September or early October
1991, in violation of Section 8(a)(3) and (1) of the Act as
alleged.6
(2) The alleged discriminatory reduction in workhours
of Gary Gavette and Casey Stamps
(a) Gary Gavette
Gavette, employed for 3 years by Respondent and em-
ployed at the time he gave his testimony, has been at all ma-
terial times a furniture loader and helper. Although he at-
tended two or three union meetings, there is no evidence that
he ever solicited other employees to join the Union, distrib-
uted union materials among employees at or near the jobsite
or engaged in other union activities which might come to the
notice of Respondent’s supervisors. He never told any of Re-
spondent’s supervisors of his union sympathies. Apart from
Thomason’s testimony concerning President Treanor’s ‘‘pok-
ing around’’ to determine who had joined the Union (and
employee Ken Kunkle’s open disavowal to President Treanor
of having voted for the Union), there is no specific evidence
of Respondent’s knowledge of Gavette, or indeed Casey
Stamps, having engaged in union activities or being sympa-
thetic to or supporting the Union.
On the other hand, as above noted, Gavette testified, with-
out contradiction that in August 1991, he was present in the
dispatch office outisde the dispatch window which separated
he dispatch area from the office area. On the other side of
the dispatch window is the office area occupied principally
by Dispatcher Wyzgoski. On this occasion, in August 1991,
Gavette was standing immediately opposite the window sepa-
rating him from the office in which President Don Treanor
and Dispatcher Wyzgoski were present. Standing next to
Gavette was employee Bill Pitts, upset because he had been
recently demoted from driver to furniture helper. On this
morning, Pitts asked President Treanor ‘‘why his hours were
being cut and other employees’ hours were being cut?’’ (em-
phasis added). According to Gavette’s further uncontradicted
testimony, President Treanor’s response was: ‘‘I don’t have
the work. You stabbed me in the back by voting for the
union.’’ President Treanor then turned around and walked
out of the office (Tr. 139).7
Respondent defends generally on the assertion that Re-
spondent has ‘‘articulated a legitimate, non-discriminatory
business reason for any reduction in employee hours, to wit:
a marked decline in overall volume in business and a change
in customer requirements’’ (R. Br. 3). In support of this posi-
tion, Respondent points to President Treanor’s testimony
concerning Respondent’s down turn in business in 1992 rel-
ative to 1991 volume (Tr. 298). In particular, President
Treanor testified that apparently for the first 4 months of
1991, business was comparable to that in 1990. Starting in
June and going through October and November 1991, how-
ever, his long-distance moving business was down 31 percent
from 1990 and his local moving business revenues were
down 50 percent from 1990 (Tr. 298). In particular, he attrib-
uted the downturn in revenues to one of his four major cus-
tomers, General Motors Robotics, starting in March 1991,
demanding tbat Respondent bring down its cost and run the
warehouse more efficiently. President Treanor denied that
General Motors Robotics asked him to reduce his warehouse
379TREANOR MOVING & STORAGE CO.
8 Since neither party produced the payroll records of Masfern and
Renno, it is unknown whether they were hired before or after the
Union’s petition for certification was filed on May 29, 1991.
rates (including labor, inventory control, etc.) that he had
previously charged to that customer. As the General Counsel
points out, Treanor did not explain how Respondent’s in-
crease of efficiency could reduce expenses for General Mo-
tors. Respondent submitted no documentation to support this
testimony. The General Counsel did not object to its receipt.
In addition, although General Motors reduced ‘‘dead’’
(i.e., inactive) warehouse space in Respondent’s warehouses
by about 10,000 square feet, now occupying only 25,000
square feet of inactive space, there was no change in Re-
spondent’s billing for General Motors engaging active or
‘‘live’’ warehouse space. Respondent billed General Motors
for the same 18,500 to 20,000 square feet in both 1991 and
1992 (Tr. 310).
Treanor testified that the revenues generated in the moving
and storage business are cyclical, with 70 percent of reve-
nues generated from mid-May through September and the pe-
riod September through December being a slow period.
President Treanor testified, however, that during past slow-
downs, Respondent did not lay off employees or reduce em-
ployee hours (Tr. 387). Indeed, Wyzgoski testified that Re-
spondent was busy in the summer of 1991 in its warehousing
business (Tr. 486). Regardless of the seasonal September
downturns, there was always cleanup work in the ware-
houses. Gavette, who, before the union election, worked 40
to 60 hours per week and only 10 to 20 hours a week after
the election (Tr. 143), testified that Respondent, during slow
periods in the moving and storage business, would ask its
helpers, including Gavette, to work in Respondent’s ware-
houses in order to add to their paychecks when their moving
and storage earnings were low (Tr. 143–144). President
Treanor told Gavette, before the Union was voted in, when
Gavette’s wages were low because of insufficient work in the
moving end of the business, that there were ‘‘a million
things’’ that Gavette could do in order to increase his earn-
ings. In particular, he told Gavette to come into any of the
warehouses or trailers ‘‘any time you want’’ and do cleanup
work in the trailers and warehouses. Gavette testified without
contradiction that there were four warehouses which Re-
spondent owns and there was always work to be found in
one of the four warehouses (Tr. 144).
(b) Casey Stamps
Similarly, employee Casey Stamps testified that he worked
30 to 40 hours before the election and only 4 to 13-1/2 hours
after the election. Unlike the practice before the election, he
no longer was assigned out-of-state jobs. He also discovered
that subcontractor employees who, before the election, did
only packing and did not do the furniture helpers’ work of
moving unboxed furniture, after the election, were both pack-
ing and moving unboxed furniture. Corroborating Gavette’s
testimony concerning furniture helpers working in the ware-
house during slow periods, Stamps testified that before the
election, if moving work was slow, he would be put to work
in the warehouse uncrating robots, sweeping the floors, and
moving the robots around. He also testified that other helpers
would also be assigned to the warehouse, including Gavette,
Anthony Brown, Ken Kunkle, Larry Decosta, and Wilbert
Whiley. After the union election, this practice did not con-
tinue (Tr. 91–92). Rather, Respondent used the services of
two newly hired employees to do the warehouse work nor-
mally performed by helpers.
Dispatcher Wyzgoski testified that in May or June 1991
Respondent hired Jeff Renno and Rich Masfern in the ware-
houses to assist Rodriguez and Thomason, the regular ware-
housemen. Masfern was hired to work at the Dixie Highway
warehouse and Renno in the Walton Boulevard warehouse
(Tr. 388–389). President Treanor told Stamps that they were
hired as warehousemen (Tr. 92). They left Respondent’s em-
ploy in September 1991 (Tr. 93) after working ‘‘regular
hours’’ for the full period of their employment according to
their timecards: 8 hours per day 5 days a week. Stamps saw
the timecards (Tr. 96), and Respondent did not contradict his
testimony.8
Discussion and Conclusions
The complaint alleges that, in violation of Section 8(a)(3)
and (1) of the Act, Respondent unlawfully discriminated
against employees Stamps and Gavette by reducing their
hours because of their support of the Union and in retaliation
for the Union’s victory in the election (par. 9).
The General Counsel’s Prima Facie Case
At the hearing, denying, in part, Respondent’s motion to
dismiss the discrimination allegations, I noted that it was un-
disputed that Respondent had knowledge of the prounion
sympathies of Rodriguez and Thomason because Rodriguez
was the union observer at the election and the Union in-
formed Respondent that Thomason was its collective-bar-
gaining negotiator. With regard to the alleged discrimination
against Stamps and Gavette, however, I reserved decision,
observing that there was no testimony or other evidence
demonstrating Respondent’s knowledge of their prounion
sympathies or activities. I reserved decision as to them in
order to permit the General Counsel to argue, as best she
could, that an inference of knowledge existed under a ‘‘small
plant’’ theory or some other theory to impute to Respondent
knowledge of Stamps and Gavette’s union sympathies.
Consistent with the above discussion at the hearing, the
briefs of the parties refer to the ‘‘small plant’’ theory of im-
puting knowledge to Respondent; the General Counsel urging
its affirmative application; Respondent against.
A review of the record, however, demonstrates that proof
of knowledge is unnecessary in the circumstances in this
case. The undenied and credited testimony of Gary Gavette,
presently employed by Respondent at the time he gave his
testimony, was that in August 1991, in response to employee
Bill Pitts’ question concerning why Pitts’ and other employ-
ees’ hours (Tr. 139) were being cut, President Treanor an-
swered: ‘‘I don’t have the work. You stabbed me in the back
by voting for the union’’ (Tr. 139).
Proof of Respondent’s knowledge of an employee’s union
activities is necessary only to prove that a particular em-
ployer engaged in certain discriminatory action with knowl-
edge of the particular employee’s union activities. This per-
mits the inference that the subsequent employer discrimina-
tory action was in retaliation against the employee engaging
in union activities. Thus, ordinarily, proof of knowledge is
a requisite element in proof of a discriminatory motive. In
the instant case, the reason that proof of Respondent’s
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘knowledge’’ is unnecessary is that the actual motive for
Respondent’s cutting of Gavette’s and Stamps’ hours was
made explicit by President Treanor’s response to Pitts: ‘‘I
don’t have the work. You stabbed me in the back by voting
for the union.’’ Once the employer, here Respondent, explic-
itly reveals a discriminatory motive for his action (‘‘a . . .
motivating factor,’’ NLRB v. National Transportation Man-
agement Corp., 462 U.S. 393, 400–401 (1983)) against its
employees, generally, it is unnecessary for the General Coun-
sel, in proving a prima facie case, to prove the employer’s
knowledge of a specific employee’s union sympathies or ac-
tivities. Ballou Brick Co. v. NLRB, 798 F.2d 339, 340 (8th
Cir. 1986), and cases cited therein; Majestic Molded Prod-
ucts v. NLRB, 330 F.2d 603 (2d Cir. 1964); Rosen Sanitary
Wiping Cloth Co., 154 NLRB 1185, 1187 (1965), and cases
cited in footnote 2.
In short, President Treanor’s response to employee Pitts,
above, concerning the questioned reduction of hours of
‘‘other employees’’ creates a prima facie case: that at least
one of the two reasons for Respondent’s cutting the work
hours of employees like Stamps and Gavette was unit em-
ployees’ having stabbed Respondent in the back by voting in
the Union. At best, the other reason advanced by President
Treanor, that Respondent ‘‘didn’t have the work’’ presents a
‘‘dual motive’’ basis for Respondent’s discriminatory con-
duct in cutting its employees’ work hours. Under the Wright
Line doctrine, as interpreted by the Supreme Court in NLRB
v. Transportation Management Corp., supra, the burden of
proof is on Respondent to prove, by a preponderance of the
evidence, that it would have cut the hours because of a lack
of work regardless of the employees having stabbed Re-
spondent in the back by bringing in the Union. NKC of
America, 291 NLRB 683 fn. 4 (1988), citing NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 400–401 (1983);
Edward’s Restaurant, 305 NLRB 1097 (1991).
With regard to Respondent’s defense, that lack of work
caused the reduction in employee hours, the following facts
are pertinent: (1) Respondent offered no documentary evi-
dence to show that there was a lack of work for its furniture
mover-helpers or that business (volume) had actually slipped;
there is only the testimony of President Treanor; (2) in the
face of Respondent’s historical use of helpers to work in the
warehouse to augment their hours and thereby raise their
wages, Respondent, offering no explanation, commencing
after the union election, refused to permit its furniture
mover-helpers to follow this historical augmentation of
wages and, at the same time, substituted two newly hired
temporary employees (Renno and Wasfern) who worked 5
days per week, 8 hours per day in the warehouse; (3) at the
time they were working in the warehouse, Dispatcher
Wyzgoski testified that business was ‘‘up’’ (Tr. 486) and
these ‘‘summer help’’ employees did not leave until Septem-
ber 1991 when they returned to school; and (4) President
Treanor testified that in the course of Respondent’s business,
it has never laid off or cut the hours of employees during
periodic downturns of business (Tr. 387). In Kenosha Auto
Transport Corp., 302 NLRB 888 (1991), the Board found
unlawful the layoff of an employee, (1) as here, against a
background of unlawful threats, (2) where as here, the layoff
(reduction in hours) occurred in the month after the union
certification; (3) where, as here, regardless of a contention
that work was at a seasonal low, the employer had histori-
cally not laid off workers during seasonal slowdowns; and
(4) where, as here, the employer hired employees to perform
the work which the laid-off employees had performed. Thus,
where, as here, Respondent hires employees to perform ware-
house work and forbids its helpers to perform the erstwhile
warehouse work they ordinarily performed to augment their
incomes; where Wyzgoski testified that business was good in
the summer of 1991 or else he would not have hired the new
employees; and where Respondent historically has never laid
off or cut hours of employees due to a seasonal business
downturn, I am unable to conclude that Respondent, o con-
sistent with its Wright Line obligation, has proved by a pre-
ponderance of the evidence that it would have cut the hours
of Stamps and Gavette wholly apart from Treanor’s simulta-
neous statement that the August 1991 cut in hours was due
to the employees voting in the Union (July 12, 1991), and
‘‘stabbing’’ Respondent in the back. I therefore conclude
that, as alleged, Respondent reduced the work hours of its
employees Gary Gavette and Casey Stamps, commencing
after July 12, 1991, in violation of Section 8(a)(3) of the Act
because of, and following, the Union’s victory in the July 12,
1991 election.
(c) Ray Rodriguez
The same paragraph of the consolidated complaint (par. 9),
alleges that, along with employees Gavette and Stamps, Re-
spondent reduced employee Ray Rodriguez’ hours because of
his activities in behalf of the Union and because of the
Union’s election victory.
Rodriguez appeared at the July 12 Board-conducted elec-
tion as the Union’s observer. I conclude, on the basis of the
entire record, including Treanor’s statement to Rodriguez,
below, that Respondent perceived Rodriguez as a prounion
employee.
On September 16, 1991, Rodriguez entered the dispatch
office at about 8:15 a.m. to get a cup of coffee and there
found employees Wiley, Pitts, and Anthony Brown along
with President Treanor. Although the employees were appar-
ently in conversation with Treanor, Rodriguez heard nothing
of the substance of the conversation but, upon Rodriguez
turning to leave, President Treanor told him (Tr. 175–176):
‘‘that goes for you, too, Ray Rodriguez, fuck you and the
union because . . . I’m not coming to no agreement and no
contract . . . you guys stabbed me in the back and I’m going
to stab back.’’ Rodriguez returned to the warehouse.
In the warehouse, as the assistant to Dave Thomason, he
regularly reported for work at 7:30 a.m. and emptied trash
cans in the front offices; used the office copy machine to
make copies of paperwork; swept the floors; and uncrated ro-
bots from their metal crates. After the union election, there
is no dispute that Rodriguez was forbidden to enter the com-
pany offices to clean up; was restricted to the warehouse (Tr.
180), no longer used the copy machine to do paperwork but
submitted papers to Dispatcher Wyzgoski for copying (Tr.
181), and had his hours reduced from about 42-1/2 hours per
week to no more than 40 hours per week (Tr. 181). This re-
duction apparently coincided with President Treanor’s above
September 16 statement directly to Rodriguez since
Rodriguez places the reduction of workweek hours as com-
mencing about a month and a half after the July 12 election
(Tr. 181).
381TREANOR MOVING & STORAGE CO.
9 With regard to Rodriguez’ not working at the warehouse, for the
period November 18 through December 7, 1991, Thomason was out
of work because of an eye injury. During this period, the warehouse
work was performed by Vice President Rich Treanor and Dispatcher
Wyzgoski, both nonunit. This is the work that was normally per-
formed by Thomason and Rodriguez or other unit employees (Tr.
42–43, 59, 69). In the Christmas week, while Thomason was on va-
cation, Wyzgoski and not Rodriguez performed warehouse functions
(Tr. 43, 182). (See G.C. Exhs. 15 through 24). As will be seen here-
after, the period of Rodriguez’ 30-day suspension is immaterial since
the suspension itself was unlawful.
Like the testimony of employees Stamps and Gavette,
Rodriguez testified that after the union election the furniture
helper employees were no longer permitted to work in the
warehouse (Tr. 181–182). He also noticed that after the
union election Dispatcher Wyzgoski ran the warehouse rather
than Rodriguez in Thomason’s absence (Tr. 182). When
Thomason was absent from the warehouse, Wyzgoski
worked in the warehouse taking over Thomason’s duties.
Respondent’s Defense
Although President Treanor admitted that Rodriguez and
Stamps are still working for Respondent, he denied telling
Rodriguez that he accused the employees of having stabbed
him in the back and that he would stab them back in return
(Tr. 347). With regard to whether he told Rodriguez ‘‘fuck
you and the Union and that goes for you too, Ray
Rodriguez,’’ President Treanor testified that he could not re-
call having made such a statement (Tr. 347). I credit
Rodriguez with regard to both Treanor statements which (a)
appear to further identify Rodriguez with the Union; and (b)
tend to exhibit Respondent’s union animus against
Rodriguez.
With regard to why Rodriguez is not employed in the
warehouse on a regular basis and has been assigned to a fur-
niture moving crew, President Treanor testified that he’s not
in the warehouse because he’s not needed (Tr. 319). Treanor
testified that David Thomason, alone, is working in the ware-
house and he alone can handle the warehouse business which
has declined because the General Motors Fanec business is
down and the activity in the warehouse is down (Tr. 319).
It is essentially unnecessary to repeat the testimony of em-
ployees Stamps and Gavette, above. In short, Respondent
never cut the hours of employees during economic
downturns; and historically permitted Rodriguez to perform
janitorial, crate handling, photostating, and other custodial
functions in order to increase his hours from 40 to 42 hours
per week. There is no explanation on this record why he was
no longer permitted to enter the administrative offices or to
perform these supplementary functions. As in the case of the
furniture helper-movers, who were historically permitted to
work in the warehouses, I am not persuaded that Respondent
has proven an economic defense as to why Rodriguez, like
Stamps and Gavette, was not permitted to clean up ware-
houses in order to maintain or augment work hours. As the
proof, below, will show, Dispatcher Wyzgoski worked in the
warehouse on a number of occasions for considerable periods
of time doing ordinary warehouse work when Rodriguez
could have been employed.9 Although the exact contour of
how many hours of work Rodriguez missed may be left for
supplementary, compliance proceedings, it is enough here to
note that, after certification of the Union, Dispatcher
Wyzgoski, a nonunit employee, without notice to the Union,
was performing Rodriguez’ work in the warehouse in the ab-
sence of Thomason, or even in the presence of Thomason,
when Rodriguez could have been employed in doing so. In
short, I do not believe that Respondent, by a preponderance
of the evidence (it has failed to submit documentary evidence
to demonstrate not only that its General Motors business had
fallen but that the business of its three other principal cus-
tomers was sufficiently down as to preclude the need for
Rodriguez’ services) has successfully shouldered its burden
to prove that Respondent failed to use Rodriguez in the
warehouse, regardless of his union activities, because of a
downturn in business. In this regard, I am not referring to
Dispatcher Wyzgoski performing warehouse functions when
all employees are out to lunch and his warehouse functions
are limited to 10 or 15 minutes in the unloading of a truck.
I conclude that Respondent both reduced Rodriguez’ hours in
the warehouse and refused to permit him to perform supple-
mentary custodial functions commencing after the union
election, in violation of Section 8(a)(3) and (1) of the Act,
as alleged, in retaliation for Rodriguez identification as a
union supporter and the Union’s election’s victory on July
12, 1991, consistent with Respondent’s threat to ‘‘stab the
employees back’’ for their having brought the Union in.
G. Further Alleged Violations of Section 8(a)(3)
Retaliatory Changes in Company Policy Regarding
Employee Parking, Telephone Use, Access to the
Warehouse, and the Administrative Portion of
Respondent’s Office
The consolidated complaint further alleges that on or about
August 15, 1991, President Treanor changed Respondent’s
policies regarding employee parking, telephone use, and ac-
cess to the warehouse administrative portions of the office
because of unlawful motivation (par. 10).
It is undisputed that Respondent’s ‘‘Company Policies’’
(G.C. Exh. 2) have been in effect since September 1988. Al-
though Respondent began its operations in the present cor-
porate form on or about February 10, 1990, Respondent took
over from the predecessor employer the same employees and
their terms and conditions of employment. This included
‘‘Company Policies.’’
As above noted, the election was held on July 12 and the
Board certified the Union as the statutory representative of
Respondent’s unit employees on July 22, 1991.
In August 1991, President Treanor told employees Pitts
and Gavette that Respondent’s employees had stabbed him in
the back for voting for the Union (Tr. 139); and in a further
August conversation, relating to Grand Prix T-shirts, told as-
sembled employees that ‘‘when you guys voted the union in,
you voted out stuff like this [receiving Grand Prix sweat
shirts and free lunches]. You guys stabbed me in the back.
I am going to stab you in the back. No more family atmos-
phere around here, things are going to change’’ (Tr. 140).
Thus, August 15, 1991, around the time of the above bale-
ful statements, Respondent issued a memorandum to its hour-
ly [union] employees regarding changes in the enforcement
of company policy effective August 19, 1991 (G.C. Exh. 2):
TO: Hourly Employees
RE: Company Policy
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Please be notified of policy enforcement [sic] as of
August 19, 1991, they are as follow [sic].
1) Designated parking for hourly employees is along
east side of the building starting at the dispatch door
and proceeding to the back fence. When that area is
completely utilized, you may then and only then park
in the newly constructed area. When that area is com-
pletely utilized, you may then and only then park in the
parking spots near the sidewalk near the front dock
doors. Your cooperation is appreciated in using our
parking areas efficiently.
2) It has been brought to my attention that from time
to time hourly employees are wandering through the
administrative portion of the office for things like
change, copy’s, pens, etc. You are authorized to be in
the drivers dispatch areas only. If you need to meet
with the administrative staff, please make an appoint-
ment through Tom who will schedule a meeting. For
those of you who’s job function it is to meet with the
administrative and management staff regularly as part
of your daily job function, (Dave T. & Rick K.) I will
be discussing the procedure with you individually. driv-
ers needing to turn in paperwork to the administrative
staff can do so through Tom or leave with Jim. The ad-
ministrative portion of the office begins with the door
entering Sue and Jim’s area. Please use the side door
for entry and exit to the building.
3) If you are not suppose [sic] to be in the ware-
house—don’t be there. You are not authorized. This
policy will be strictly enforced by Management.
4) Telephones are for business use only. Employees
are encouraged to use public phones for all personal
calls. In emergency situations, please notify Tom, Rich,
Jim or myself for authorization to use company tele-
phones.
The suggestion box is open for any reasonable sug-
gestions on how to make the drivers area more com-
fortable and functional for you.
As always, if you would like to speak to me directly,
I will always make myself available.
Don Treanor
(1) Automobile parking
Prior to the election, employees were allowed to park their
cars anywhere on Respondent’s property (Tr. 30; 142). After
the issuance of the above August 5 memorandum (G.C. Exh.
2), President Treanor told employee David Thomason that
the employees no longer could park in front of Respondent’s
warehouse but had to park alongside the building. There are
only four parking spots alongside the building. If employees
are unable to secure one of the four spots, they are in prac-
tice required to park across the street in the Kentucky Fried
Chicken parking lot (Tr. 31). Employees avoid parking their
cars in other available Respondent areas because trailer
trucks delivering goods to the warehouse throw rocks, strik-
ing the cars and also get their automobiles dusty. The em-
ployees thus parked at the Kentucky Fried Chicken lot (Tr.
157).
Respondent, in President Treanor’s testimony, defended
the charge by explaining that his car had been damaged in
a collision with his sister’s car in Respondent’s parking lot
in late July 1991. He said he decided the change was needed
to avoid further such accidents (R. Br. 7; Tr. 411–415).
Discussion and Conclusions
The above August 15 memorandum, placing restrictions on
its employees’ ability to park near the warehouse, was issued
contemporaneously, if not simultaneously, with Respondent’s
admonition that it would stab the employees back for having
brought the Union in. That this constitutes a prima facie case
of retaliation needs no further explanation and I find that the
the General Counsel has proved, as a prima facie matter, that
Respondent has discriminated against its employees in viola-
tion of Section 8(a)(3) and (1) of the Act, as alleged, by a
retaliatory change in their parking privileges. Parking is now
more remote from the usual parking areas and, on the
uncontradicted evidence, may put employee vehicles in jeop-
ardy from rocks thrown up by visiting trailer trucks and by
the dust deposited on their cars.
Respondent’s defense is that it sought to avoid further ac-
cidents by changing and restricting employees’ parking privi-
leges because President Treanor’s sister’s car damaged his
car. The best that can be said of such a defense is that it
appears to be a significantly unconvincing non sequitur. It
was explained neither at the hearing nor in the brief why
damage caused by President Treanor’s sister’s car striking
his car should cause Respondent to restrict its employees
erstwhile parking privileges. In short, I conclude that the new
parking restriction was merely President Treanor’s ‘‘stab
back’’—an irritating retaliatory act contemporaneous with re-
peated August 1991 admonitions to his unit employees that
he would ‘‘stab them back’’ for bringing in the Union.
(2) Restrictions on the use of the telephone
Before the election, employees were allowed to use Re-
spondent’s dispatch room telephone any time they wanted
(Tr. 31; 142). After issuance of the above memorandum, the
employees, in practice, were forbidden to use the phone and
had to make their phone calls across the street in the Ken-
tucky Fried Chicken or from a nearby gas station (Tr. 143).
Previously, the employees would be paged for incoming calls
while they were working in the warehouse (Tr. 177–178);
but after the election, they were no longer paged; Respondent
merely placed their names up on the bulletin board notifying
them that there had been a telephone call for them. The em-
ployees would then be obliged to return the phone call at the
lunchbreak or after work, but not from the in-house phone.
As above noted, the Respondent’s August memorandum
notifies the employees that the telephones are ‘‘for business
use only.’’ The use of Respondent’s telephones, according to
memorandum, is ‘‘in emergency situations’’ (G.C. Exh. 2).
In defense, Dispatcher Wyzgoski testified that the practice
had not changed with the election. He testified he has never
denied a request to use the dispatch area phone. He gave as
an illustration the fact that in the week immediately prior to
the hearing he told Dave Thomason that his wife had called
and that he had relayed his wife’s message to Thomason in
order to have Thomason make a return phone call from the
dispatch office phone.
Respondent defends by asserting that its change in tele-
phone use policy was in response to a sudden increase in the
number of long-distance calls placed by unit employees from
383TREANOR MOVING & STORAGE CO.
10 Unlike the issue of ‘‘parking,’’ Respondent’s brief fails to com-
ment on the new, August restrictions on use of the telephone and
access to the warehouse and administrative offices.
company phones. Though advised that Respondent’s tele-
phone bills would be better evidence of the upsurge, Presi-
dent Treanor failed to produce the telephone bills (Tr. 353–
355).
Discussion and Conclusions
There can be no dispute that the General Counsel proved
a prima facie case in that the telephone in the dispatch office
was freely available and used without restriction before the
election and, with the August 15, 1991 memorandum, em-
ployees were told that the dispatch office phone was for
business use only and no longer for their personal calls. This
change in an existing employment practice, like the change
in car parking, was also contemporaneous with Respondent’s
admonition to employees that it would ‘‘stab them back’’ for
bringing in the Union.
The General Counsel’s witnesses testified that as a matter
of practice they were forbidden to use the dispatch office
phone and a new system of notes, rather than paging, had
been instituted. The fact that Wyzgoski, on one occasion,
after issuance of the General Counsel’s complaint, apparently
permitted Dave Thomason to use the phone for a personal
purpose, and even paged him, does not mitigate the new
unitwide practice of forbidding employees to use the dispatch
office phone for personal calls on a free and open basis.
To the extent Respondent defends on the assertion that
there was a sudden upsurge in unauthorized long-distance
calls by its hourly employees from company phones, that de-
fense necessarily is unpersuasive. (1) Respondent failed to
adduce the best evidence to support its assertion (its own
telephone bills); (2) President Treanor testified (Tr. 354–355)
that the ‘‘abuse’’ had been going on for a time predating the
Union’s organizational campaign; and (3) the timing of the
new rule simultaneous with statements of retaliatory intent.
I conclude, as with the change in the employees’ parking
privileges, that the institution of a new restrictive telephone
rule was retaliatory (get rid of the ‘‘family atmosphere’’) and
discriminatory within the meaning of Section 8(a)(1) and (3)
of the Act as alleged. Respondent advanced no persuasive
business reason or preponderantly proved that it took these
actions regardless of its union animus. See Outboard Marine
Corp., 307 NLRB 1333 (1992).
(3) Employee access to the warehouse and to the
administrative portion of the dispatch office
Paragraph 10 of the consolidated complaint also alleges, as
unlawful discrimination, under Respondent’s August 15
memorandum, the new restriction on employee access to the
warehouse and the administrative offices.10
In paragraph 2 of the August 15, 1991 memo describing
changes in enforcement of ‘‘company policy,’’ President
Treanor declares his opposition to hourly employees ‘‘wan-
dering through the administrative portion of the office’’ and
declares that the hourly employees are authorized to be in the
drivers dispatch area only. Hourly employees turning in
paper work in the office must give the papers to Wyzgoski
or to ‘‘Jim.’’ The hourly employees are now forbidden to be
in the offices and President Treanor reminds them, in the
memorandum, that the ‘‘administrative portion of the office
begins with a door entering Sue and Jim’s area. Please use
the side door for entry and exit to the building.’’
Prior to the issuance of this August 1991 memorandum,
warehouseman Thomason was responsible for the where-
abouts of merchandise entering or leaving the warehouse. In
executing this function he spent part of his workday in the
front office (the administrative office) using its telephone,
copying machine, fax machine, and computer. Similarly, be-
fore the election, assistant warehouseman Rodriguez was free
to enter the administrative office to process his paperwork,
using the copying machine. After the union election, with the
issuance of the memorandum, Rodriguez was neither per-
mitted to clean up the offices (thereby augmenting his hours
of work and gross pay) nor allowed into the office to process
his paperwork. Rather, he was required to turn in his paper
work to Wyzgoski in the dispatch office for processing (Tr.
181).
Similarly, apparently in support of paragraph 3 of the
memorandum (restricting employee presence in the ware-
house), Respondent no longer assigned furniture helpers to
the warehouse when extra warehouse help was needed. The
evidence is undenied that helpers would be assigned to the
warehouse prior to the union election in order to perform
warehouse functions and to increase their hours of work and
thus their gross pay (Tr. 34, 91–92). After issuance of the
memorandum, Respondent’s policy on the use of nonware-
house employees coming into the warehouse changed. Both
President Treanor and Dispatcher Wyzgoski told warehouse-
men Thomason that no one was allowed in the warehouse
unless he had been sent there by Wyzgoski or Treanor. Ap-
parently after the election, Respondent hired two summertime
employees, Jeff Renno and Rick Masfern to perform ware-
house work in place of the furniture movers who had pre-
viously performed the work prior to the election. These two
summer employees worked full 40-hour weeks until their
employment ceased in September 1991 when they returned
to school.
The change, forbidding nonwarehouse employees to work
in the warehouse to supplement their incomes, was also con-
temporaneous with the hiring of the two summer employees
and consistent with Respondent’s admonition that it would
‘‘stab’’ the employees’ back in retaliation for their having
brought in the Union. This retaliation cost the nonwarehouse
employees hours of work and changed their wages to their
detriment. This change, I conclude, was unlawful and dis-
criminatory and violated Section 8(a)(3) and (1) of the Act
as alleged with regard to both forbidding Rodriguez and
Thomason into the administrative office to perform their
work (and increase their hours, and forbidding nonwarehouse
employees into the warehouse to supplement their hours of
work and increase their income.
H. Further Violation of Section 8(a)(3)
The October 10, 1991 Change in Respondent’s Policy
and Practice Regarding Enforcement of its
Attendance Policy
(1) Background
Respondent’s policy with regard to employee lateness ap-
pears in its September 29, 1988 memorandum entitled
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 In pertinent part, the ‘‘company policies’’ relating to employee
lateness are:
(h) a phone call to the operations manager will be required
when an employee is unable to report to work by the reporting
hour.
(i) The words ‘‘no show’’ shall appear under the heading job
description when an employee neither reports to work nor con-
tacts the operations manager. No shows are considered highly ir-
responsible and shall be penalized in the following manner:
(1) First occurrence—one week off without pay.
(2) Second occurrence (same year—one month off without
pay).
(3) Third occurrence—termination from Treanor Moving and
Storage Co.
. . . .
No show shall remain on an employees’ record for a period
of one (1) year from the date of the occurrence.
‘‘Company Policies’’ (G.C. Exh. 3),11 Dispatcher Wyzgoski
testified that Respondent’s lateness policy requires that an
employee, anticipating lateness, must call the operations
manager (Wyzgoski) and declare the time that the employee
will arrive and how late the employee expects to be (Tr.
427). Wyzgoski admitted that there is nothing in the policy
regarding the time when the late employee must call him
with regard to the employee’s scheduled starting time (Tr.
427).
Warehouse employee David Thomason testified that before
the election employees would come to work late without dis-
cipline, but after the election the company’s attendance pol-
icy changed (Tr. 48–49). Indeed, more than a year before the
election, Thomason had a conversation with Dispatcher
Wyzgoski about the company attendance policy. According
to Thomason’s uncontradicted and credited testimony,
Wyzgoski told him that if he came in late, ‘‘it was not a big
deal as long as you came in. . . . The only thing that a no-
show means is if you did not call in or did not come to
work. If you don’t call or you don’t show’’ (Tr. 47).
Thomason further testified, without contradiction, that
Wyzgoski told them that he ‘‘didn’t care if I came in an hour
late or not; as long as I came to work, it wasn’t a no-show’’
(Tr. 47).
(2) Treatment of employees Stamps and Gavette
Employee Stamps testified that before the union election,
he called in late on a couple of occasions and was not dis-
ciplined (Tr. 99–100). On November 9, 1991, however, he
called in about a half hour late and told Wyzgoski that he
was on his way in. Wyzgoski told him to stay home; that
he did not need him and Stamps received discipline of a cou-
ple of days off for such late calling in (Tr. 99; 120–121).
Although employee Gavette arrived late for work 10 or 12
times prior to the union election and was never disciplined
for it, he was disciplined once for a ‘‘no-show’’ in 1990.
After the union election, Gavette telephoned in late at 9:30
a.m. and told Wyzgoski that he wanted the address of the
jobsite in order to come to work. Wyzgoski answered that
Respondent covered his job for the day and directed Gavette
to call him back. When he did so, Gavette received a 30-
day suspension.
(3) Treatment of new hire Steve Greenwood in 1992
On the other hand, Gavette testified concerning discipline,
or the lack of discipline, accorded to other employees after
the union election. These employees showed up late for work
and were not disciplined. With Ken Kunkle being the driver
on a June 29, 1992 job, starting at 4 a.m., a new employee,
Greenwood, was 3 hours late and received no discipline. On
another occasion, on July 3, 1992, again Greenwood was 1
hour late. Employees Gavette and Pitts waited for him.
Greenwood received no immediate discipline, went out on
the job, and worked without discipline during the entire fol-
lowing week (Tr. 148–149).
Dispatcher Wyzgoski testified that Greenwood was a new
hire and indeed was 3 hours late on June 29 for which he
received only an oral warning. Wyzgoski did not at that time
tell him of Respondent’s strict policy against no-shows and
the failure to call in (Tr. 459). With regard to this 3-hour
lateness on June 29, Wyzgoski testified that he could not re-
call if Greenwood merely called in late or just came in late
(Tr. 462), but Wyzgoski was very upset (Tr. 463). Wyzgoski,
however, could not explain why he failed to tell Greenwood,
at any time, that if he was a no-show on a third occasion,
he would be violating Respondent’s very strict no-show pol-
icy and would be fired. His explanation was that he ‘‘prob-
ably should have’’ but did not; and he finally testified that
he could not remember why he did not so inform Greenwood
but asserted that Respondent was very busy at the time (Tr.
463).
(4) Treatment of employee Ray Rodriguez 3 months
after the election
On October 9, 1991, at about 2 to 3 p.m., Rodriguez tele-
phoned Wyzgoski and told him only that he would be in to
see him later. Rodriguez thereafter appeared and spoke with
Wyzgoski and President Treanor. Although he had been
scheduled to work that day, Rodriguez did not work that day
but, at the meeting, told Treanor and Wyzgoski that he was
on his way out of town because of personal problems.
Rodriguez told Wyzgoski that he did not call him earlier in
the day because he did not care about anything (Tr. 441).
Rodriguez said that Wyzgoski told him that he would see
Rodriguez on the next workday.
On the next workday, Wyzgoski told Rodriguez of Re-
spondent’s attendance policy against no-shows culminating in
termination, that Rodriguez was a ‘‘no-show’’ for failing to
show up, and that he had no choice but to give him the week
off as discipline. According to Rodriguez’ uncontradicted and
credited testimony, Wyzgoski then told him: ‘‘we used to let
you guys get away with this kind of stuff. But now you are
union and you guys are playing your game and the company
is going to have to play by their game . . . you play by your
rules, we play by ours’’ (Tr. 190–191).
Thereafter, Rodriguez was scheduled to work at 7:30 a.m.,
Saturday, November 16, 1991. Having worked 17-1/2 hours
on Friday, November 15, Rodriguez failed to report for work
as scheduled on Saturday, November 16, but instead, tele-
phoned Respondent at 8:15 a.m. on that day, almost an hour
after starting time.
On this Saturday morning, employee Chuck Nurburger an-
swered the phone (Tr. 194), and Rodriguez told him that he
had only awakened 15 minutes prior to the call and was on
385TREANOR MOVING & STORAGE CO.
12 Respondent cites Postal Service, 275 NLRB 360 (1985), as a
defense. That case is distinguishable since there the employer repeat-
edly enforced its time limits on ‘‘rest breaks’’—a lawful rule—in a
‘‘uniform, manner.’’ In the instant case, the rule was enforced for
discriminatory purposes, with expressly disparate treatment, based on
Respondent’s retaliatory desires.
his way to work. Nurburger told him that the truck had al-
ready left and that somebody had taken his place (Tr. 195).
When Rodriguez said that he was going to drive straight to
the jobsite because he knew where it was, Nurburger told
him not to do that because he had been already replaced for
that day’s work (Tr. 195).
Rodriguez reported for work on the following Monday,
November 18, and found employee Chuck Nurburger in the
dispatch office. Nurburger told him not to punch in because
President Treanor wanted to talk to him. Rodriguez waited
in the dispatch office for about 1-1/2 to 2 hours before
Treanor asked him into his office (Tr. 195). While Rodriguez
was waiting in the dispatch office, Nurburger told him (Tr.
211) that President Treanor had been standing along side of
Nurburger when Rodriguez had telephoned on the previous
Saturday morning and Treanor was telling Nurburger what to
say on the phone concerning the fact that the truck had al-
ready left. (Tr. 197.) When Rodriguez thereafter told this to
Treanor in the office, Treanor denied being at Nurburger’s
elbow during the phone call (Tr. 198).
In any event, when Rodriguez entered, he found both
President Treanor and his brother, Vice President Rich
Treanor (who did not testify in this proceeding), in the of-
fice. President Treanor handed Rodriguez a reprimand (G.C.
Exh. 6) and told him that this was already his third or fourth
lateness. Rodriguez denied that it was and said it was only
his second lateness (Tr. 196). President Treanor reaffirmed
that it was not merely a second lateness; told Rodriguez that
he was supposed to have been ready for work at 7:30 a.m.
on Saturday morning (November 16) and that he had not
showed up until 8:15 a.m. President Treanor said that this
was a ‘‘no-show’’ (Tr. 197). At this point, Rodriguez told
the Treanors that Dispatcher Wyzgoski told him, at the time
Rodriguez previously received a week off discipline for
being late, that Respondent would no longer permit the em-
ployees to get away with stuff that they had gotten away
with before (Tr. 198). President Treanor answered (Tr. 198–
199) that: ‘‘you guys are union, we can’t help you no more.
We use to let you get away with stuff like this, not no
more’’ (Tr. 198–199).
As above noted, Rodriguez testified that before the elec-
tion he had called in late about a dozen times and had never
been reprimanded or disciplined. Neither President Don
Treanor nor Dispatcher Wyzgoski, both appearing later as
Respondent’s witnesses, denied Rodriguez’ testimony that
both of them told him that because of the advent of the
Union, Respondent could no longer help them and would not
let them get away with ‘‘stuff like this . . . not no more’’
(Tr. 199). Again, Vice President Treanor, though present at
the conversation, was not called by Respondent.
Discussion and Conclusions
Against the background of President Treanor’s uninhibited
union animus (‘‘stab you in the back’’; never get a union
contract, etc.) I may not simply discredit Rodriguez’ some-
what repetitious but uncontradicted and otherwise credible
testimony that both Dispatcher Wyzgoski and President
Treanor explicitly told him, both in October and November
1991, that Respondent would no longer let the employees,
because of the unit support of the Union, get away with call-
ing in late without discipline. These statements, also made in
the presence of Vice President Rich Treanor, who was not
called to testify or to contradict this testimony, is an explicit
statement of unlawful, generalized, retaliatory motivation in
the enforcement of Respondent’s work rule against calling in
late and the ensuing discipline. It should be noted that the
complaint does not allege, nor does the General Counsel urge
a finding, that Respondent changed its work rules concerning
no-shows or calling in late; rather, that Respondent, unlaw-
fully and with a discriminatory motive, changed enforcement
of the rule because of the advent of the Union. The disparate
harsh treatment accorded union supporters (Gavette and
Stamps) compared to new hire Greenwood, a repeat—viola-
tor, is glaring. Wyzgoski’s inability to explain his leniency
to Greenwood requires no comment. I conclude that Re-
spondent, as alleged, violated Section 8(a)(3) and (1) of the
Act by changing its policy and practice12 regarding enforce-
ment of its attendance policy, all because of, and in retalia-
tion against the Union’s being certified as the collective-bar-
gaining agent of Respondent’s hourly employees. Employees
Rodriguez (November 18 for 30 days), Stamps (November 9,
2 or more days), and Gavette (30 days’ suspension after elec-
tion) suffered disciplinary layoffs pursuant thereto and must
be made whole. See generally Mid-South Bottling Co., 287
NLRB 1333 (1988), enfd. 876 F.2d 458 (5th Cir. 1989).
I. Alleged Violation of Section 8(a)(5)
(1) Change of company policy regarding employees
remaining on the premises after punching out
Prior to the election, employees remained on premises
after punching out. Respondent never advised employees that
it was against company policy to remain on Respondent’s
premises after punching out.
On or about January 3, 1992, Respondent issued a further
memorandum entitled ‘‘Company Policy’’ (G.C. Exh. 4).
This memorandum refers to an existing company policy di-
recting the immediate termination of any employee involved
in the unauthorized sale or theft of property belonging to or
in the possession of Respondent. The memorandum advises
employees of other violations or company policy: (1) drink-
ing on the job; (2) remaining on the premises after punching
out. After the election, the employees were told that as soon
as they punched out, they were required to leave Respond-
ent’s property (Tr. 46).
President Treanor, in defense of this Respondent action,
testified that the memorandum was issued because Respond-
ent discovered that some of its customers’ scrap material
from the warehouse was being removed by an employee and
sold (Tr. 382–384). President Treanor testified that he issued
the January 3 memorandum (G.C. Exh. 4) requiring depar-
ture after punching out as part of the mechanism to prevent
theft of material on Respondent’s premises (Tr. 384). and
that he did not notify the Union of this change because he
was not aware that he was obliged to notify the Union (Tr.
384). Respondent’s defense to the new restriction on ‘‘after
hours access to the business premises’’ was that Respondent
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
demonstrated a legitimate, nondiscriminatory reason for this
action (R. Br. 7).
Discussions and Conclusions
Although one may argue whether there is a necessary cor-
relation between the employee who allegedly stole the cop-
per scrap (an activity already forbidden in the Respondent’s
company manual) and employees remaining on Respondent’s
premises after hours, Respondent’s defense (‘‘legitimate non-
discriminatory reason’’) is simply not a defense to the al-
leged violation of Section 8(a)(5) of the Act. There is no al-
legation that this Respondent change of policy violates Sec-
tion 8(a)(3) of the Act; and therefore Respondent’s sugges-
tion that the change was nondiscriminatory misses the mark.
The question, as noted at the hearing (Tr. 384), was only
whether the change was made without notice to or an oppor-
tunity to bargain with the Union. There was no defense—
much less proof—of an emergency condition, i.e., other
thefts or vandalism, which obviated Respondent’s obligation
of prior notice to the Union.
I conclude that the employees’ preexisting right or privi-
lege of remaining on Respondent’s premises after punching
out, whether to talk about work or to wait for transportation,
was a mandatory subject of bargaining and a term and condi-
tion of their employment. After the Board-conducted elec-
tion, and certainly after July 22, 1991 certification, Respond-
ent’s January 3, 1992 memorandum, occurring after both
events, requiring employees to leave the premises after
punching out, necessarily changed this term and condition of
employment. Section 8(a)(5) of the Act requires that before
an employer changes or modifies the unit’s terms and condi-
tions of employment encompassing a mandatory subject of
bargaining, it must give their statutory bargaining representa-
tive notice of the intended change and an opportunity to bar-
gain thereon. Respondent’s failure to notify the Union, as al-
leged, violates Section 8(a)(5) and (1) of the Act.
(2) Further alleged violations of Section 8(a)(5)
of the Act
The complaint alleges further violations of Section 8(a)(5)
of the Act: that since the July 12 election, Respondent’s uni-
lateral reduction of hours of unit employees without giving
the Union notice and an opportunity to bargain violates Sec-
tion 8(a)(5) of the Act. I have already found, above, that
Thomason’s loss of the container runs violates Section
8(a)(3) of the Act because of discriminatory motivation. I
need not pass on whether Respondent’s actions with regard
to Thomason also violated Section 8(a)(5) of the Act. On the
above discussion, however, I find that a bargaining violation
occurred with regard to other unit employees when Respond-
ent, on or about August 15, forbade its furniture movers to
work in the warehouse thereby supplementing their hours of
work and gross pay notwithstanding that it was in retaliation
for their support of the Union. Gavette credibly testified on
this change (Tr. 143–144). This August 15 announcement of
the unilateral change in employees’ working hours and per-
missible workplaces violates Section 8(a)(5) because Re-
spondent declared the change in policy without notifying the
Union or giving it an opportunity to bargain over the loss of
hours of all unit employees who had previously been per-
mitted to work in the warehouse to accumulate a greater
number of hours and gross pay. These changes are changes
in mandatory subjects of bargaining.
The complaint also alleges that the August 15 unilateral
changes concerning employee parking, telephone use, access
to the warehouse and administrative offices, previously found
violative of Section 8(a)(3) also are violations of Section
8(a)(5) and (1) of the Act because Respondent failed to give
the Union notice and an opportunity to bargain with respect
to such changes. The record discloses no such prior notifica-
tion of the August 15 changes and I find that the changes,
as alleged, also violate Section 8(a)(5) and (1) of the Act.
Similarly, I find that the October 10 and November 29,
1991 unilateral, postelection change in the enforcement of
Respondent’s attendance policy, with regard to lateness, also
violate Section 8(a)(5) and (1) of the Act, as alleged, since
Respondent neither notified nor gave the Union an oppor-
tunity to bargain prior to making those changes with regard
to the enforcement of its attendance policy. Again, no emer-
gency or other condition was shown to relieve Respondent
of this statutory obligation.
Furthermore, the complaint alleges that Respondent’s Janu-
ary 3, 1992 unilateral change of policy regarding employees
remaining on premises after punching out also violated Sec-
tion 8(a)(5) and (1) of the Act because Respondent initiated
that policy without giving the Union prior notice thereof and
an opportunity to bargain. As with other above unilateral
acts. Respondent urges that it was ignorant of an obligation
to notify the Union prior to making the change. On the
record, Respondent’s subjective attitude was not innocent ig-
norance; it was, if anything, conscious rejection.
To the extent that Respondent defends on the ground that
these unilateral changes are not unilateral changes in manda-
tory subjects of bargaining I believe that it is in error and
that changes in established practices involving employee
parking, telephone use, enforcement of lateness and attend-
ance policies, and remaining on premises are all changes in
mandatory subjects of bargaining. Kansas National Edu-
cation Assn., 275 NLRB 638, 639 (1975).
To the extent Respondent further defends on the ground
that Respondent had a legitimate ‘‘urgent need to make ad-
justments’’ in the rules concerning parking and forcing em-
ployees who have punched out to leave the premises, such
a defense does not meet all of the above allegations of a vio-
lation of Section 8(a)(5). To the extent that there is a sugges-
tion of urgency with regard to the unilateral parking change,
Respondent introduced no evidence to support its claim of
urgency. To the extent that there was an urgent need to re-
quire employees who have punched out to leave the premises
to prevent stealing, it should be noted that there was already
in existence a Respondent rule requiring discharge of em-
ployees who steal Respondent’s or a customer’s property,
and that, to the extent that there is a relationship between
employees remaining on the premises and the stealing of
property, there was in any event, no proof of urgency and
certainly no proof of an urgency which would require dis-
pensing with notifying the Union and giving the Union an
opportunity to respond, much less to bargain, on the pro-
posed change. I find, on the basis of the record, considered
as a whole, that Respondent’s change in policy and practice,
regarding employees remaining on the premises after punch-
ing out, violated Section 8(a)(5) and (1) of the Act because
it changed the relationship between Respondent and its unit
387TREANOR MOVING & STORAGE CO.
13 A third alleged violation of Sec. 8(a)(5)—par. 15(a)—asserts, as
unlawful, the unilateral reduction of the hours ‘‘. . . of certain unit
employees.’’ I have already found that Respondent violated Sec.
8(a)(3) of the Act in its retaliatory reduction of hours of certain em-
ployees. The evidence shows that postelection, Respondent reduced
hours by the devices of changing its policy of permitting helpers to
work in the warehouses and transferring work (container runs)
amongst unit employees. Respondent must refrain from such con-
duct, whether or not discriminatory, starting from the ballot victory.
It must refrain from changes in unit employee working conditions
which are mandatory subjects of bargaining, such as hours of work
and pay. Cf. Consolidated Printers, 305 NLRB 1061 (1992), and
cases cited; Nave, Inc., 306 NLRB 926 (1992); NLRB v. Carbonex
Coal Co., 679 F.2d 200 (10th Cir. 1982). By such conduct, as al-
leged, Respondent violated Sec. 8(a)(5) and (1) of the Act.
employees, was accomplished without prior notice to the
Union and without affording the Union a meaningful oppor-
tunity to bargain. Kansas National Education Assn., 275
NLRB 638, 639 (1985).
(2) There remain two further allegations13 of a violation
of Section 8(a)(5) and (1) of the Act
(a) That beginning on or about November 18, 1991, Re-
spondent unilaterally shifted its bargaining unit work to non-
bargaining unit employees without giving the Union prior
notice and affording it meaningful opportunity to bargain;
and (b) since on or about September 5, 1991, Respondent un-
reasonably delayed meeting with or agreeing to meet with
the Charging Party Union for purposes of collective bargain-
ing.
(a) The alleged unlawful unilateral shift of bargaining
unit work to nonbargaining unit employees
I have found, above, that Respondent’s ‘‘tightening up’’ of
the attendance policy rules, including, lateness, and ‘‘no-
shows’’ because the employees selected the Union as their
statutory representative violated Section 8(a)(3) and (5) of
the Act. Consistent with that finding, I concluded, above,
that Respondent’s 30-day suspension of Rodriguez violated
Section 8(a)(3) and (1) of the Act because it was a result of
Respondent unlawfully and openly enforcing its rule, not his-
torically enforced, against Rodriguez, in particular, because
of his known support of the Union. Its openly favorable dis-
parate treatment of newly hired Steve Greenwood (Wyzgoski
giving him merely two oral warnings for no-shows), under-
scores Wyzgoski’s and Treanor’s animus in applying the
newly strict enforcement of the rule to Rodriguez. As noted
above, neither President Treanor nor Dispatcher Wyzgoski
denied Rodriguez’ testimony that they separately told him
that Respondent would no longer permit the employees, i.e.,
the entire unit, to get away with lateness because they chose
the Union as their bargaining representative in the Board
election. This unilateral change, without prior notification to
the Union, constitutes a change in a mandatory element and
violates Section 8(a)(5).
As further above found, Respondent, in violation of Sec-
tion 8(a)(3) of the Act, no longer permitted its otherwise un-
occupied furniture movers to perform warehouse work in
order to increase their hours and gross pay.
In the period November 18 through December 7, 1991,
warehouseman Thomason was on medical leave. During
Christmas week 1991, he was on vacation.
The evidence shows that employees Rodriguez, Tony
Brown, Nurburger, and apparently employees Stamps and
Gavette were all proficient warehouse workers (Tr. 57–58).
Wyzgoski admitted that employees other than Rodriguez
were capable of performing Thomason’s duties in the ware-
house (Tr. 496–498).
During Thomason’s November–December absence due to
illness and during his Christmas vacation, and while
Rodriguez was on the unlawful disciplinary 30-day layoff
(commencing November 18, 1991), these other employees
were not called into the warehouse to perform warehouse du-
ties. It was Supervisor Wyzgoski and Vice President Rick
Treanor who performed the Warehouse duties on a regular
basis (Tr. 469–484; G.C. Exhs. 15–24).
If Rodriguez had not been on a (unlawful) 30-day discipli-
nary layoff, commencing November 18, 1991, he would have
filled in at the warehouse for Thomason during that period
and in the period (after the disciplinary layoff) of
Thomason’s Christmas vacation. Similarly, if more employ-
ees than Rodriguez were needed, other employees who had
proved proficient in performing warehouse duties could have
been employed in the warehouses.
On July 12, the unit employees chose the Union as their
collective-bargaining representative and on July 22, 1991, the
Union was certified. At all material times prior to such ac-
tions, warehouse duties were performed by unit employees.
Commencing certainly no later than the certification of the
Union on July 22, Respondent was not free to cause the per-
formance of unit work by supervisors where the past practice
had been to have this work performed by unit employees.
The uncontradicted Thomason testimony is that after the
union election, Dispatcher Wyzgoski and President Treanor
told him that no one was to work in the warehouse unless
directed by Respondent. The record shows that after the
union election, the employees, including Rodriguez, who had
normally worked in the warehouse, were no longer permitted
to work in the warehouse. Their work was done by two sum-
mer-help employees and thereafter by Dispatcher Wyzgoski.
The complaint alleges that commencing November 18,
after the summer-help employees left, Respondent violated
Section 8(a)(5) and (1) of the Act by permitting Dispatcher
Wyzgoski to perform the work rather than the unit employ-
ees who erstwhile performed that work. The performance or
transfer of unit work by or to nonunit employees, i.e., super-
visors, is a mandatory subject of collective bargaining. Main-
tenance Service Corp., 275 NLRB 1422, 1427 (1975). When
Respondent, commencing on or after November 18, 1991,
caused a unilateral change in its use of unit employees to
perform unit work and by having Dispatcher Wyzgoski or
Vice President Treanor perform the work, it violated Section
8(a)(5) and (1) of the Act because it failed to notify and bar-
gain with the Union prior to having a supervisor perform the
unit work thereby displacing unit employees. See J. W. Rex
Co., 308 NLRB 473, 498 (1992); Harris-Teeter Super-
markets, 307 NLRB 1075 (1992); Brunswick Electric Mem-
bership Corp., 308 NLRB 361 (1992).
(b) Alleged violation of Section 8(a)(1) and (5) of the
Act; unreasonable delay in meeting with or agreeing
to meet with the Union
In late July, following the July 12 election, Union Orga-
nizer Thomas Ziembovic telephoned Respondent and spoke
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with Vice President Rich Treanor. Treanor said that he
would call Ziembovic regarding future negotiation dates. He
did not do so. Thereafter, Ziembovic telephoned Treanor and
set up a collective-bargaining session for September 4, 1991.
Representing the Union, on September 4, were Ziembovic
and Jim Cianciola, secretary-treasurer of the Charging Party.
Ziembovic testified that both he and Cianciola were respon-
sible for contacting Respondent regarding the establishment
of negotiations. At this meeting, the Union provided copies
of its contract proposals and requested that the parties estab-
lish dates for collective-bargaining sessions. Respondent re-
fused and said that it would get back to the Union (Tr. 248).
The next day however, when Ziembovic and Vice President
Rich Treanor had a telephone conversation in which the
Union tried to obtain meeting dates, Treanor told him that
there were some omissions in the Union’s contract proposals
including ‘‘cola’’ language and missing work rules (Tr. 249).
Ziembovic told Treanor that he would immediately fax the
missing materials to him and he did so (G.C. Exh. 8; Tr.
249). Treanor said that he would be in touch with Ziembovic
after he received the missing material, but he failed to do so
and Ziembovic made further phone calls to reach Treanor.
On September 11, Ziembovic wrote to President Treanor
regarding contract negotiations, affirmed that he had faxed
the missing material to Respondent, and said that Vice Presi-
dent Treanor had failed to contact him as he had promised
to do. Ziembovic offered eight meeting dates as suitable for
collective bargaining and requested a response as soon as
possible with regard to the establishment of collective-bar-
gaining negotiations (G.C. Exh. 9). During the next 2 weeks,
Ziembovic testified that he tried to reach Respondent by
phone but failed to make contact.
President Don Treanor testified that he telephoned
Cianciola two or three times and left messages with the of-
fice clerical who answered the phone in which he identified
himself and requested a phone call back. In addition, Treanor
testified that after the September 4 meeting, he telephoned
Secretary-Treasurer Cianciola and told him that Respondent
needed time to find legal counsel for the negotiations. Al-
though President Treanor testified that he could not recall
what Cianciola’s response was, he recalls that when he told
Cianciola that Respondent needed time to find a lawyer,
Cianciola merely grunted and moaned ‘‘something like that’’
(Tr. 368).
Respondent acknowledges (R. Br. 2) that Ziembovic ac-
cused Respondent of failing to respond to his phone calls.
On September 23, 1991, President Treanor wrote (R. Exh.
4) to Ziembovic stating that Respondent’s legal representa-
tive desired a complete copy of the contract proposal, re-
minding the Union that there had been some typing errors
and omissions in its previous submissions. President Treanor
said that after he received the documents and the attorney re-
viewed them, they would set up a meeting.
On the next day, September 24, 1991, apparently without
having received Respondent’s September 23, 1991 letter (R.
Exh. 4), Ziembovic and Cianciola wrote to Respondent (G.C.
Exh. 10) reminding them that on September 11, the Union
had faxed a list of dates to schedule contract negotiations and
had left two phone messages requesting a return call and that
there had been no response to either. On September 25, the
Union filed its unfair labor practice charge alleging, inter
alia, the refusal to negotiate with the Union (G.C. Exh. 1(a)).
The Postal Service green card receipt shows that this unfair
labor practice charge (Case 7–CA–22367), served by cer-
tified mail, was received by Respondent on September 30,
1991.
On October 3, 1991, President Treanor wrote to Secretary-
Treasurer Cianciola asserting that there was a ‘‘ communica-
tion problem’’ and requested Cianciola to contact him. Re-
garding the Union’s September 24, 1991 letter (G.C. Exh.
10), in which the Union requested meeting dates, President
Treanor again requested that the Union forward a complete
copy of the Union’s contract proposals for review by its at-
torney. President Treanor noted that this was his second re-
quest for the information and stated that, after review, Re-
spondent would set a meeting date with the Union. President
Treanor also stated that he was sorry that he missed any
phone messages but denied having received them from
Cianciola or Ziembovic (R. Exh. 5).
On October 2, 1991, the Union responded to Respondent’s
September 23 letter (R. Exh. 4) without, of course, having
received Respondent’s October 3, 1991 letter (R. Exh. 5).
Responding therefore to Respondent’s September 23 letter
(R. Exh. 4), the Union not only reminded Respondent that
it had faxed the missing language to Respondent on Septem-
ber 10, 1991, but it nevertheless again mailed the two omit-
ted proposals in the October 2 letter. The Union accused Re-
spondent of failing to bargain and denied that Respondent
had returned any of the Union’s phone calls which attempted
to schedule collective-bargaining sessions (G.C. Exh. 11).
On October 15, 1991, President Treanor wrote to
Ziembovic, acknowledging receipt of the allegedly missing
materials, asserted that the Union had failed to return Presi-
dent Treanor’s phone calls and stated that Respondent would
soon contact the Union to discuss dates for future collective-
bargaining sessions. President Treanor stated that Respondent
gave no weight to the Union’s continued insistence on dates
for collective bargaining because the Union had failed to
remit the missing materials. (R. Exh. 6).
In response, Ziembovic, on October 21, 1991, noted that
the reason that the Union had not returned Respondent’s
phone calls was that Respondent had never telephoned the
Union. In further response, Ziembovic reminded President
Treanor that the missing materials had been faxed to Re-
spondent on September 10 and were also mailed on October
2. Ziembovic said that Respondent had had the proposal for
some time and still was refusing to set up meeting dates for
negotiations. Lastly, Ziembovic provided three prospective
dates for collective bargaining, asserting that the Union was
willing to bargain 24 hours a day.
On October 31, 1991, President Treanor wrote to the
Union (R. Exh. 7) that he had reserved a hotel room for bar-
gaining commencing on the morning of November 7, 1991
(R. Exh. 7).
Subsequent to the November 7, 1991 collective-bargaining
session, there appear to have been several further collective-
bargaining sessions (Tr. 270–271).
Discussions and Conclusions
The complaint (par. 15(c)) alleges an unreasonable delay
in meeting, or agreeing to meet, for collective bargaining oc-
curred since on or about September 5, 1991. It would appear,
therefore, that apart from perhaps shedding light on events
389TREANOR MOVING & STORAGE CO.
after September 5, 1991, none of Respondent’s conduct prior
to that time itself constitutes an unreasonable delay.
Shortly after that initial September 4 meeting of the par-
ties, at which the Union presented its contract proposals,
there is unrebutted, somewhat hazy testimony by President
Treanor that he telephoned Secretary-Treasurer Cianciola, ad-
vised him of Respondent’s need for time to find legal rep-
resentation in negotiations and that Cianciola did not object
to the request. Cianciola was not called to deny Treanor’s
testimony. In addition, the General Counsel does not deny
that there were at least two serious textual omissions from
the Union’s contract proposals presented to Respondent at
the September 4 meeting. While it may be true that the
Union faxed these materials to Respondent as early as Sep-
tember 10, 1991, there was no proof adduced by the Union
or the General Counsel to contradict Treanor’s testimony that
some portions of the material, faxed to Respondent on Sep-
tember 10, were in fact, not legible (Tr. 265–266) and that
a further faxing was necessary. Moreover, the General Coun-
sel not only failed to produce Secretary-Treasurer Cianciola
to deny or explain the alleged ‘‘no objection’’ response to
President Treanor’s phone call (requesting additional time to
seek counsel) but also failed to present any evidence denying
that President Treanor repeatedly and unsuccessfully tele-
phoned the Union but nevertheless left his name. In short,
the General Counsel failed to present the Union’s office cler-
ical to deny President Treanor’s testimony of having an-
swered Ziembovic’s telephone calls. These omissions, what-
ever doubts I hold on Treanor’s veracity, cause me to infer
that General Counsel cannot successfully attack Respondent’s
testimony. International Automated Machine, 285 NLRB
1122, 1123 (1987).
Respondent, on September 23, 1991, wrote to Ziembovic
(R. Exh. 4) mentioning the existence of typing errors and
omissions from the contract proposal and requesting time to
review a completed document with its attorney. This Re-
spondent September 23 letter was written to the Union before
the Union filed its September 25 unfair labor practice charge
alleging Respondent’s stalling in setting a date for negotia-
tions. By October 3, Respondent, answering the Union’s Sep-
tember 24 letter (G.C. Exh. 10, requesting dates for collec-
tive-bargaining sessions), reminded the Union that it was
again requesting a complete contract proposal for review by
Respondent’s attorneys (R. Exh. 5). Unknown to Respondent,
the Union, on October 2, by mail (G.C. Exh. 11) transmitted
copies of the contract proposals. By October 15, Respondent
acknowledged receipt of the complete contract proposal and
stated that it would review it with its attorney and get back
to the Union. By October 31, Respondent had reserved a
room for collective bargaining (R. Exh. 7).
On the above record, the period between September 5 and
October 15 was occupied by Respondent’s insistence on a
complete, legible copy of the Union’s contract proposals; the
Union’s (Secretary-Treasurer Ciancola’s) apparent acquies-
cence in the Respondent’s demand for time to get an attorney
and thereafter to review the Union’s contract proposal; and
the General Counsel’s failure to present evidence, contradict-
ing Treanor, that there was no union acquiescence in a delay
and that there were no phone calls from Treanor. On such
a record, while there would seem, to be little question that
Respondent was just finished telling its employees that they
would never get a contract and was not in a great hurry to
establish collective-bargaining dates with the Union, much
less to engage in collective bargaining, the circumstances
surrounding the Respondent’s failure to act with alacrity may
be laid at the doorstep of the Union. The Union must take
responsibility for (a) submitting a contract proposal with ma-
terial omissions; (b) thereafter acquiescing in Respondent’s
demand for more time to seek an attorney; (c) submitting il-
legible copies of its proposals. Under these circumstances, I
shall recommend to the Board that the General Counsel’s al-
legation, that since September 5, 1991, Respondent unreason-
ably delayed in meeting with or agreeing to meet with the
Union for purposes of bargaining, be dismissed as unproven.
CONCLUSIONS OF LAW
1. American Warehousing & Distribution Services, Inc.,
d/b/a Treanor Moving & Storage Company, Inc. (Respond-
ent), at all material times, has been and is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local No. 243, International Brotherhood of Teamsters,
AFL–CIO (the Union), at all material times has been and is
a labor organization within the meaning of Section 2(5) of
the Act.
3. The following employees of Respondent constitute a
unit appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time drivers, helpers and
warehouse employees employed by the Respondent at
or out of its facilities located at 25 West Walton Boule-
vard, Pontiac, Michigan, and at or out of its facility lo-
cated at 5321 Dixie Highway, Drayton Plains, Michi-
gan; but excluding office clerical employees, manage-
rial employees, guards and supervisors as defined in the
Act.
4. On July 22, 1991, the Regional Director for Region 7
of the National Labor Relations Board certified the Union
and the exclusive bargaining representative of the employees
of Respondent in the above-appropriate unit in Case 7–RC–
19604.
5. Since July 22, 1991, by virtue of Section 9(a) of the
Act, the Union has been, and now is, the exclusive represent-
ative of all employees in the above-appropriate unit for pur-
poses of collective bargaining with respect to wages, hours,
and other terms and conditions of employment.
6. Respondent, in violation of Section 8(a)(5) and (1) of
the Act, has refused to bargain collectively with the Union
as the exclusive representative of its employees in the above-
described unit in that:
(a) Since on or about August 15, 1991, Respondent unilat-
erally changed its policies regarding unit employee parking,
telephone use, and access to the warehouse and administra-
tive offices without giving the Union prior notice of such
changes and affording the Union a meaningful opportunity to
bargain about such changes.
(b) Since on or about July 12, 1991, Respondent unilater-
ally reduced the hours of unit employees and on or about
October 10, 1991, Respondent unilaterally changed its policy
and practice regarding enforcement of its attendance policy
of unit employees without giving the Union prior notice
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
thereof and affording it a meaningful opportunity to bargain
about such change.
(c) Since on or about November 18, 1991, Respondent
unilaterally shifted bargaining unit work to nonbargaining
unit employees without giving the Union prior notice thereof
and affording it a meaningful opportunity to bargain.
(d) Since on or about January 3, 1992, Respondent unilat-
erally changed its policy and practice regarding employees
remaining on its premises after punching out without giving
the Union prior notice thereof and affording it a meaningful
opportunity to bargain about the change.
7. Respondent has interfered with, restrained, and coerced
and is continuing to interfere with, restrain, and coerce em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, thereby violating Section 8(a)(1) of the Act by the
following acts at its Pontiac facility:
(a) On or about July 11 September and October 1991, Re-
spondent, by its president and agent, Don Treanor, informed
various employees that it would be and (after July 12) was
futile for them to select the Union as their bargaining rep-
resentative in that they would never get a union contract.
(b) Since on or about August 1991, and at various times
since, Respondent, by its agent and president, Don Treanor,
threatened to accord employees less favorable treatment as a
consequence of their having selected the Union as their col-
lective-bargaining representative.
(c) In or about October 1991, Respondent, by its agents,
Tom Wyzgoski and Don Treanor, threatened its employee,
David Thomason, by telling him that he had more to lose
than other employees by supporting the Union.
(d) On or about October 10, 1991, and thereafter on or
about November 18, 1991, Respondent, by its agents, Tom
Wyzgoski and Don Treanor, also its president, announced
that it would strictly enforce Respondent’s attendance policy
because the employees had chosen the Union as their collec-
tive-bargaining representative.
8. Since on or about July 13, 1991, Respondent, by its
agent and president, Don Treanor, reduced the work hours of
unit employees including David Thomason, Ray Rodriguez,
Gary Gavette, and Casey Stamps in violation of Section
8(a)(3) and (1) of the Act because of their activities on be-
half of and support of the Union and because of the Union’s
victory in the July 12, 1991 Board-conducted election.
9. Since on or about August 15, 1991, Respondent, in vio-
lation of Section 8(a)(3) and (1) of the Act, changed its pol-
icy regarding employee automobile parking, telephone use,
access to the warehouse and administrative portions of its of-
fices because of the employees’ activities on behalf of and
in support of the Union and because of the Union’s victory
in the July 12, 1991 Board-conducted election.
10. Since on or about October 1991, Respondent, by its
agent, Tom Wyzgoski, in violation of Section 8(a)(3) and (1)
of the Act, changed its policy and practice regarding enforce-
ment of its attendance policy thereby unlawfully disciplining
employees Rodriguez, Gavette, and Stamps because of em-
ployee activities on behalf of and in support of the Union
and because of the Union’s victory in the July 12, 1991
Board-conducted election.
11. The General Counsel failed to prove the Respondent
violated the Act in any other regard.
THE REMEDY
I shall recommend to the Board that Respondent be or-
dered to cease and desist from its union labor practices, in-
cluding its discriminatory practices as opposed in appropriate
notice.
I shall also recommend that Respondent restore to its em-
ployees the rights it discriminatorily removed. In addition, in
order to remedy the effects of Respondent’s unlawful refusal
to recognize and bargain with the Union prior to making uni-
lateral changes in the unit employees’ terms and conditions
of employment, and in order to affirmatively remedy its dis-
criminatory practices, I shall recommend that Respondent
make each of its affected employees whole for any loss of
earnings and other benefits suffered as a result of Respond-
ent’s unlawful discrimination and unilateral changes in terms
and conditions of employment. All such sums shall be cal-
culated in accordance with the methods set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On the above finding of fact and conclusions of law and
on the entire record, I issue the following recommended14
ORDER
The Respondent, American Warehousing & Distribution
Services, Inc., d/b/a Treanor Moving & Storage Company,
Inc., Pontiac, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Local No. 243,
International Brotherhood of Teamsters, AFL–CIO (the
Union), as the exclusive bargaining representative of employ-
ees in the below-described appropriate unit by making unilat-
eral changes in terms and conditions of employment which
are mandatory subjects of bargaining, without first giving
adequate prior notice thereof to the union and giving the
Union a meaningful opportunity to bargain on such changes,
including unilaterally reducing the hours of unit employees;
changing policies and practices regarding employee parking,
telephone use, access to the warehouse and administrative of-
fices; changing policy and practice regarding enforcement of
its attendance policy; and changing policy and practice re-
garding employees remaining on the premises after punching
out:
All full-time and regular part-time drivers, helpers and
warehouse employees employed by the Respondent at
or out of its facilities located at 25 West Walton Boule-
vard, Pontiac, Michigan, and at or out of its facility lo-
cated at 5321 Dixie Highway, Drayton Plains, Michi-
gan; but excluding office clerical employees, manage-
rial employees, guards and supervisors as defined in the
Act.
(b) Discriminating against unit employees by reducing the
work hours of certain unit employees because of their activi-
391TREANOR MOVING & STORAGE CO.
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ties on behalf of and support of the Union or because of the
Union’s victory in the July 12, 1991 National Labor Rela-
tions Board election.
(c) Discriminating against its unit employees by retaliating
against them because of their activities on behalf of and sup-
port of the Union and because of the Union’s victory in the
July 12, 1991 National Labor Relations Board election by
changing its policies regarding employee parking, telephone
use, access to the warehouse and administrative portions of
the office, and by discriminatorily enforcing its attendance
policy.
(d) Informing employees that it would be/was futile for
them to select the Union as their collective-bargaining rep-
resentative and that they would never get a contract.
(e) Threatening employees with less favorable treatment as
a consequence of their having selected the union representa-
tion.
(f) Telling any employee that he had more to lose than
other employees by supporting the Union.
(g) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive representative of the employees in the above-
described appropriate unit concerning wages, pay rates,
hours, and other terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed contract.
(b) Forthwith, at the Union’s request, reinstate all wages,
hours, work assignments, including container runs, rights to
work in the warehouse, and other terms and conditions of
employment which Respondent unilaterally changed on and
after the Board-conducted election of July 12, 1991.
(c) Offer to all unit employees found subject to Respond-
ent’s unlawful unilateral or discriminatory acts as found here-
in, full and immediate reinstatement to their former positions,
work assignments and rights to work as they existed on July
12, 1991, or prior to Respondent’s subsequent unlawful ac-
tions against them or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or other rights or privileges previously enjoyed; and
make each of them whole for any loss of wages and benefits
they may have suffered by virtue of Respondent’s unlawful
actions against them.
(d) On request of the Union, bargain in good faith with
Local No. 243, International Brotherhood of Teamsters,
AFL–CIO, as the exclusive bargaining representative of unit
employees with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed
contract.
(e) Expunge and remove from its files any memoranda,
records, or other references to the unlawful November 18,
1991 suspension of Ray Rodriguez, and the unlawful suspen-
sions of Gavette and Stamps and notify them in writing, that
this has been done and that these disciplinary actions will not
be used against them in any way.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its facilities located in Pontiac and Drayton
Plains, Michigan, copies of the attached notice marked ‘‘Ap-
pendix.’’15 Copies of the notice on forms provided by the
Regional Director for Region 7, after being signed by Re-
spondent’s authorized representative, shall be posted by Re-
spondent immediately on receipt and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other ma-
terial.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith with Local
No. 243, International Brotherhood of Teamsters, AFL–CIO
(the Union), as the exclusive bargaining representative of
employees in the below-described appropriate unit by making
unilateral changes in terms and conditions of employment
which are mandatory subjects of bargaining, without first
giving adequate prior notice thereof to the Union and giving
the Union a meaningful opportunity to bargain on such
changes, including reducing the hours of unit employees;
changing policies and practices regarding employee parking,
telephone use, access to the warehouse and administrative of-
fices; changing policies and practices regarding enforcement
of its attendance policy; and unilaterally changing policy and
practice regarding employees remaining on the premises after
punching out:
All full-time and regular part-time drivers, helpers and
warehouse employees employed by the Respondent at
or out of its facilities located at 25 West Walton Boule-
vard, Pontiac, Michigan, and at or out of its facility lo-
cated at 5321 Dixie Highway, Drayton Plains, Michi-
gan; but excluding office clerical employees, manage-
rial employees, guards and supervisors as defined in the
Act.
WE WILL NOT discriminate against unit employees by re-
ducing the work hours of certain unit employees because of
their activities on behalf and support of the Union or because
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Union’s victory in the July 12, 1991 National Labor
Relations Board election.
WE WILL NOT discriminate against our unit employees by
retaliating against them because of their activities on behalf
and support of the Union or because of the Union’s victory
in the July 12, 1991 National Labor Relations Board election
by changing our policies regarding employee parking, tele-
phone use, access to the warehouse, and administrative por-
tion of the office; and by discriminatorily enforcing our at-
tendance policy.
WE WILL NOT inform our employees what it would be/was
futile for them to select the Union as their collective-bargain-
ing representative and that they would never get a contract;
nor will we threaten employees with less favorable treatment
as a consequence of their having selected the Union as their
bargaining representative; nor will we tell any employee that
he had more to lose than other employees by supporting the
Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed by Section 7 of the Act.
WE WILL, on request of the Union, bargain in good faith
with the Union as the exclusive representative of our em-
ployees in the above-described appropriate unit concerning
wages, rates of pay, hours, and other terms and conditions
of employment and, if an understanding is reached, embody
the understanding in a signed contract.
WE WILL forthwith at the Union’s request, reinstate all
wages, hours, work assignments including container runs,
rights to work in the warehouse, and other terms and condi-
tions of employment which we unlawfully changed on and
after the Board-conducted election of July 12, 1991.
WE WILL offer to all unit employees found subject to our
unlawful unilateral or discriminatory acts as found herein,
full and immediate reinstatement to their former positions,
work assignments and rights to work, as they existed on July
12, 1991, or prior to our subsequent unlawful actions against
them or, if those positions, assignments, and rights no longer
exist, to substantially equivalent positions, assignments, or
rights without prejudice to employees’ seniority or other
rights or privileges previously enjoyed; and make each of
them whole for any loss of wages and benefits they may
have suffered by virtue of our unlawful actions against them.
WE WILL notify employees Rodriguez, Gavette, and
Stamps that we have removed and expunged from our files
and records any references to their unlawful suspensions and
that any such memoranda of discipline will not be used
against them in any way.
AMERICAN WAREHOUSING & DISTRIBUTION
SERVICES, INC., D/B/A TREANOR MOVING &
STORAGE COMPANY, INC.