Yellow Transportation, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 2004

343 N.L.R.B. 43 (N.L.R.B. 2004)

YELLOW TRANSPORTATION, INC.
343 NLRB No. 9
43
Yellow Transportation, Inc. and Tony Laning. Case
17–CA–22549
September 29, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On July 19, 2004, Administrative Law Judge Gregory
Z. Meyerson issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply 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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Yellow
Transportation, Inc., Kansas City, Missouri, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Discharging or otherwise discriminating against
any of its employees because they engaged in protected
concerted activity by filing grievances under the terms of
the collective-bargaining agreement with the Union.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In adopting the judge’s finding that the Respondent unlawfully dis-
charged casual employee Tony Laning, we agree with the judge that
Laning’s discharge violated Sec. 8(a)(1) of the Act. We, therefore, find
it unnecessary to pass on the judge’s finding that the discharge also
violated Sec. 8(a)(3), because this additional finding would be essen-
tially cumulative with no material effect on the remedy. We shall mod-
ify the judge’s recommended Order accordingly.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you because you engage in protected con-
certed activity by filing grievances under the terms of the
collective-bargaining agreement with Teamsters Local
41.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Tony Laning full reinstatement to his former
job as a casual equipment service attendant or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Tony Laning whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Tony Laning, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
YELLOW TRANSPORTATION, INC.
Michael Werner, Esq., for the General Counsel.
Brian N. Woolley, Esq., of Kansas City, Missouri, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Overland Park, Kansas, on
June 2, 2004. Tony Laning, an individual (the Charging Party
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
or Laning), filed an original and an amended unfair labor prac-
tice charge in this case on December 31, 2003, and February 2,
2004, respectively. Based on that charge as amended, the Re-
gional Director for Region 17 of the National Labor Relations
Board (the Board) issued a complaint on March 29, 2004. The
complaint alleges that Yellow Transportation, Inc. (the Re-
spondent or the Employer) violated Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act). The Respondent
filed a timely answer to the complaint denying the commission
of the alleged unfair labor practices.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based upon the record, my consideration
of the briefs filed by counsel for the General Counsel and coun-
sel for the Respondent, and my observation of the demeanor of
the witnesses,1 I now make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent is a corporation, with an office and place of busi-
ness in Kansas City, Missouri (the Respondent’s facility),
where it has been engaged in the interstate transportation of
freight. Further, I find that during the 12-month period ending
December 31, 2003, the Respondent, in the course and conduct
of its business operations, derived gross revenues in excess of
$50,000 for the transportation of freight from the State of Mis-
souri directly to points located outside the State of Missouri.
Accordingly, I conclude that the Respondent is now, and at
all times material, has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that at
all times material, Teamsters Local 41 (the Union)2 has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Dispute
The General Counsel alleges in the complaint that on De-
cember 19, 2003,3 employee Tony Laning engaged in protected
concerted activity by filing a grievance against the Respondent
under the terms of the collective-bargaining agreement between
the Union and the Respondent. Laning, who at the time was

1 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
2 The current collective-bargaining agreement between the Employer
and the Union indicates that the correct name of the Union is Local
Union 41 International Brotherhood of Teamsters. GC Exh. 4.
3 All dates are in 2003, unless otherwise indicated.
employed by the Respondent as an equipment service attendant
on a casual basis, was claiming that the Respondent’s failure to
convert him to a position as a regular equipment service atten-
dant constituted a violation of the contract. According to the
General Counsel, the Respondent subsequently terminated Lan-
ing on December 19, because he filed this grievance. It is the
position of the General Counsel that by discharging Laning
because he exercised his right to file a grievance under the
terms of the contract, the Respondent has violated both Section
8(a)(1) and 8(a)(3) of the Act.
According to the Respondent, Laning had no contractual
right to file a grievance over the decision not to convert him to
a position as a regular employee. Further, in its answer to the
complaint, the Respondent contends that Laning was not termi-
nated, but, rather, that the Respondent simply ceased to need
his services. As a casual employee, Laning was utilized only
when work was available, and if he was considered the best-
qualified employee for that work. In the Respondent’s view,
Laning, as a casual employee, had no continued expectation of
work. It is the position of the Respondent that the decision to
cease using Laning was based solely on business considera-
tions, specifically the diminished availability of work and the
presence of better-qualified casuals. The Respondent denies
that its decision to cease utilizing Laning was in any way re-
lated to his filing of a grievance, or to any protected activity.
B. The Facts
The events in question all occurred at the Respondent’s Kan-
sas City, Missouri maintenance shop. The Respondent employs
employees represented by both the Teamsters and the Machin-
ists in the shop, with a total work complement of approximately
70 employees. The employees represented by the Union are
referred to as equipment service attendants. It is their responsi-
bility to service and maintain the Respondent’s fleet of trucks.
Typically, they perform work that does not require significant
mechanical ability, such as fueling trucks, and changing tires
and oil. The Machinists perform the more difficult mechanical
work. During the time period in question, there were approxi-
mately 34 “regular” and approximately 5 “casual” equipment
service attendants. The regular employees are full-time work-
ers, while the casuals are used as replacements when regular
employees are unavailable due to vacation, illness, or an emer-
gency. Casuals are not used to supplement the work force dur-
ing busy periods. Regular employees are used for overtime.
Both casual and regular equipment service attendants are in-
cluded in the bargaining unit represented by the Union.
Kevin Anderson is the Respondent’s manager of equipment
services. As such, he is responsible for the work performed in
the maintenance shop. The shop supervisors report directly to
him. According to Anderson, the floor supervisor decides
which casual employee to call for work to substitute for an
absent regular employee. The decision is allegedly based on the
supervisor’s perception of which casual will be the best worker
for the particular job required. Apparently the regular employ-
ees each specialize in a particular task, such as changing tires,
and a casual substituting will be expected to perform the spe-
cific task of the absent regular employee. Anderson testified
YELLOW TRANSPORTATION, INC. 45
that seniority is not a factor that the floor supervisor must con-
sider when deciding which casual to call for work.
The union shop steward at the Respondent’s maintenance
shop is Bill Kabus. He testified that there was no official sen-
iority list for the casual employees. However, he alleged that
unofficially the Respondent’s past practice has been to call
casuals for work in the order of their longevity with the Re-
spondent. He defined this as the casual employee’s continuous
service with the Employer. Further, he testified that when the
Respondent decides to hire another regular employee, the past
practice has been to hire that casual who has the longest con-
tinuous service. According to Kabus, “a major break in service”
would mean that the casual employee’s service employment
date would start again.
Anderson testified that the Respondent did not utilize the
seniority of casual employees as a priority for the hiring of a
regular employee. Instead, the deciding factor was which casual
had demonstrated the ability to be the best worker. Anderson
allegedly made this decision, after consultation with the super-
visors. In any event, both Kabus and Anderson agree that a
casual employee who is not hired as a regular employee does
not have the right to file a failure to hire grievance under the
terms of the collective-bargaining agreement between the par-
ties.4
Tony Laning testified that he began his employment with the
Respondent as a casual employee in the maintenance shop in
September 2000.5 Laning noted that the same day he started his
employment, his nephew also was hired as a casual.6 In June or
July 2001, Laning was fired.7 However, he was reinstated as a
casual only one day later. In September 2002, the Respondent
hired Laning’s nephew as a regular full-time employee. Ac-
cording to Laning, 2 or 3 days later he went to see Kevin
Anderson. Laning asked Anderson “if there was any chance of
[him] being hired.” By this reference Laning meant being hired
as a regular employee. He testified that Anderson responded,
“You will be the next guy hired when the next guy retires.”
Further, according to Laning, Anderson gave him “[his] word.”
However, on March 3, 2003, while he was still a casual, the
Respondent again fired Laning.8 The Respondent rehired him
as a casual employee in October 2003.
According to Laning, he went to see Anderson on November
17, 2003, because he had heard that the Respondent intended to
hire one of two other casuals as a regular employee. Laning
informed Anderson that he felt he should be the next casual

4 The collective-bargaining agreement between the parties is effec-
tive by its terms from June 1, 2003, through May 31, 2008. Art. 4, sec.
3(a) of the contract specifically states, “Casuals shall not have seniority
status.” GC Exh. 4.
5 There is a cryptic, passing reference to earlier employment, but no
direct testimonial or documentary evidence offered.
6 Kevin Laning is Tony Laning’s nephew.
7 In a subsequent proceeding before the U.S. Equal Employment
Opportunity Commission, Laning refers to this discharge as unlawful
discrimination against him because of a vision problem. See R. Exh. 1.
8 While the evidence is not entirely clear, it appears that Laning was
fired on this occasion because under the Respondent’s antinepotism
policy, he could not be employed as a casual employee while his
nephew was a regular full-time employee.
hired, that he had worked hard for 2-1/2 years, and that Ander-
son had given his word that Laning would be hired next as a
regular employee. Laning testified that Anderson denied prom-
ising to hire him as a regular employee, and said that even if he
did, he would hire whomever he wanted to hire. During his
testimony, Anderson did not dispute the substance of this con-
versation as recited by Laning. However, Anderson testified
that he was upset with Laning’s “demeanor.” By this he appar-
ently meant that Laning was allegedly demanding that he be
hired next. According to Laning, he was not demanding a job,
but only expressing his concern that another casual “was going
to be hired in front of [him] again.” In any event, the conversa-
tion obviously ended in an acrimonious atmosphere.
On December 19, Laning did not work. However, he went to
the shop at approximately 2:30 p.m. for the specific purpose of
filing a grievance. He spoke with A. C. Martin, the alternate
steward, and asked for the regular steward, Bill Kabus. After
being told that Kabus was not at work, Laning informed Martin
that he wanted to file a grievance. Martin wanted to know what
this was all about, and Laning told him that he felt it was unfair
that the Respondent had hired another casual as a regular em-
ployee, rather than himself. Further, he complained to Martin
that he felt his discharge in March 2003 had been unfair, and
that it had disrupted his continuous service.9 He told Martin that
he felt this was a violation of the collective-bargaining agree-
ment, and Laning gave Martin a written statement that he
wanted Martin to file as a grievance. Martin testified that he
tried to talk Laning out of filing a grievance, as it was his view
that casuals had no right to file such a grievance. However, he
was unsuccessful. Copying Laning’s statement, Martin filled
out the grievance form, which he and Laning signed. Martin
then presented the grievance to Anderson at about 3 p.m. (GC
Exh. 2.)
As Laning was leaving the facility, he was called back by
Anderson, who told him to get Martin and come to his office.
As soon as the meeting began, Anderson informed Laning that
casuals could not file grievances. Anderson asked Laning to
explain the grievance to him, and Laning repeated what he had
told Martin and what was contained on the grievance form.
Further, Laning told Anderson that Anderson had given his
word that Laning would be hired next, and mentioned that Su-
pervisor Errol Smith had also made such a promise. Anderson
then had Smith come to the meeting and informed of Laning’s
claim. Smith denied ever having told Laning that he would be
hired next. According to Smith, it was Laning who had previ-
ously told Smith that he expected to be the next casual hired as
a regular employee, because Anderson had allegedly made him
such a promise.
Laning testified that toward the end of the conversation,
Anderson informed him that, “[a]s of today, Tony, you’re taken
off the casual list. As of today, you’re no longer allowed on
Yellow freight’s premises.” Laning responded, “Okay, Kevin. I

9 Although the Respondent takes the position that casual seniority is
not a factor considered when deciding to hire a regular employee,
Kevin Anderson testified that because of the break in service caused by
the March discharge, that several casual employees had more continu-
ous service than did Laning.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
guess I’ll see you in court.” With that comment, the meeting
ended. Anderson testified that the entire conversation lasted
about 15 minutes. He does not dispute telling Laning that the
Employer “would not be using him as a casual anymore,” and
receiving Laning’s threat to see him in court.
Smith approached Laning as he was cleaning out his locker
immediately following his discharge. According to Laning,
Smith asked him, “Well, what I want to know Tony, is what did
you do to get fired?” Laning testified that he responded that he
was fired because he filed the grievance. Martin, who at the
time was standing by the locker, testified that Smith wanted to
know what was happening, because “he didn’t know what was
going on.” When he testified, Smith did not deny making these
remarks.
The Respondent denies that the decision to cease using Lan-
ing as a casual was based on his filing of a grievance. Accord-
ing to Anderson, he made the decision to cease using Laning 1
or 2 days prior to December 19. He testified that the Respon-
dent was “going into the slow season right before Christmas.”
Allegedly, in an effort to reduce the number of casuals being
utilized, Anderson decided to discontinue using Laning, be-
cause he “was the casual that was used the least.” Another rea-
son offered by Anderson to cease using Laning was his “con-
stantly questioning why he got the days that he got, and why
did other casuals get the days that they got versus him.” Finally,
Anderson mentioned the meeting he had with Laning in No-
vember, where Laning allegedly “insisted . . . almost demanded
that he be the next person hired.” According to Anderson, this
incident “rubbed [him] very wrong also,” and was another rea-
son why he decided to cease using Laning. In any event,
Anderson admitted that initially his decision was not communi-
cated to anyone, that he did not write it down, and that it was
only “in [his] mind.”
Anderson testified that he first communicated to anyone his
intention to no longer use Laning at about 11 a.m. on Friday,
December 19. As was his habit, on Friday he reviewed the cas-
ual schedule for the following week. At that time he noticed
that Laning was scheduled to work on December 26. Having
allegedly decided to no longer use Laning, Anderson informed
Supervisor Errol Smith of his decision. According to Anderson,
after telling Smith of his decision, he directed Smith to call
Laning and tell him that the Respondent would no longer be
using him as a casual, and to cancel the work for the following
week. The Respondent argues that as Laning had yet to file his
grievance at this point, that Anderson’s decision to cease using
him could not possibly have been related to the grievance.
Errol Smith is a supervisor and the equipment manager in the
Respondent’s shop. He reports directly to Kevin Anderson.
Smith testified that on December 19, sometime after 10 a.m., he
called Laning to schedule him to work the following week.
However, at about 1 p.m., he had a conversation with Anderson
in which Anderson informed him that the Employer would no
longer be using Laning. Anderson directed him to call Laning
and tell Laning that he would no longer be used as a casual, and
to cancel the work for the following week. According to Smith,
he called Laning and told him that the work he had been as-
signed for the following week had been canceled. However,
Smith did not mention anything to Laning about the Respon-
dent ceasing to use him as a casual. Smith testified that “[he]
felt that it wasn’t [his] position to tell [Laning] that [Laning]
wasn’t going to be used anymore, and Mr. Anderson was the
manager in charge, and [he] felt it was [Anderson’s] duty to
advise [Laning] of that information.” In any event, it is clear
from the testimony of both Smith and Laning that the first no-
tice Laning received that he would no longer be used as a cas-
ual was when so informed by Smith in his office at about 3 p.m.
Union Steward Kabus testified that the Monday following
Laning’s termination of December 19, he had a conversation
with Anderson about the termination. During the conversation,
Anderson claimed that he had made the decision to cease using
Laning prior to the time Laning filed his grievance. Anderson
told Kabus that he had informed Errol Smith of his decision
earlier on December 19. However, according to Kabus, Ander-
son never gave him any reason for no longer utilizing Laning.
Kabus testified that since Laning was terminated, the Respon-
dent has hired four casual employees to work in the service
department. The Respondent did not dispute the hiring of new
casuals following Laning’s discharge, except to suggest in
counsel’s posthearing brief that the number hired was actually
three, not four.
Pursuant to Laning’s request, the Respondent sent him a let-
ter dated February 4, 2004, in which a reason was given for the
decision to cease using him as a casual employee. The letter,
signed by Anderson, indicated that Anderson believed that
fewer casual service attendants would be needed in the future.
Further, he informed Laning in the letter that, “because you
were normally the last casual to be called when work was
available, your name was removed from the casual list.” (GC
Exh. 3.) As noted, Anderson took the position that Laning was
the least utilized casual. However, in his testimony Laning
disputed this, and no documentary evidence was offered to
support Anderson’s contention.
Anderson testified that at some time in the past, Steward Ka-
bus had suggested to him that if the Respondent had no inten-
tion of hiring a casual as a regular employee, that the Respon-
dent should cease using that casual, and “should cut him loose.”
Kabus did not deny making this statement. Further, Kabus testi-
fied that in the fall of 2003, he had a conversation with Ander-
son where they discussed the likelihood that the Respondent
would be hiring another regular employee, to replace one who
was retiring. According to Kabus, both he and Anderson sug-
gested different casuals who might be selected, but neither man
suggested Laning. Of course, the Respondent claims that this
supports its contention that Laning was not a highly regarded
casual.
Analysis and Conclusions
It is the position of counsel for the General Counsel that by
insisting that the Union file a grievance in his behalf over the
Respondent’s failure to hire him as a regular employee, Laning
was engaged in both union activity and protected concerted
activity. I agree. The Union and the Employer were, during the
time of the events in question, and continue to be, parties to a
collective-bargaining agreement, which agreement contains a
grievance procedure. (GC Exh. 4, art. 5, sec. 2, grievances.)
Laning attempted to take advantage of that agreement, in order
YELLOW TRANSPORTATION, INC. 47
to remedy what he believed to be the injustice of the Respon-
dent’s decision to hire as a regular employee a casual other than
himself. A grievance was in fact written, signed by Laning and
the alternate steward, and presented to the Respondent. (GC
Exh. 2.) While the Respondent and the Union apparently agree
that Laning, as a casual, did not have the contractual right to
file such a grievance, and despite perhaps citing the wrong
contract provisions, Laning was still exercising his Section 7
right to engage in union and protected concerted activity.
In a recent decision, the Board affirmed an administrative
law judge’s finding that a respondent violated Section 8(a)(3)
and (1) of the Act by discharging an employee in retaliation for
the filing of a grievance. LB & B Associates, Inc., 340 NLRB
214 (2003). The judge, citing Prime Time Shuttle International,
314 NLRB 838, 841 (1994), specifically found that filing a
grievance is protected concerted activity within the meaning of
the Act. Further, the judge held that a grievance filed in good
faith is protected conduct even when the employee has no con-
tractual right to file a grievance. Regency Electronics, 276
NLRB 4 fn. 3 (1985).
In the matter at hand, Laning is apparently of the belief that,
were it not for his alleged unfair discharge in March 2003, he
would have had the most seniority of any of the casual employ-
ees. Further, he contends that the Respondent’s past practice
has been to hire as a regular employee that casual having the
longest continuous service with the Respondent. It is his opin-
ion that the Respondent ignored its past practice when he was
not selected to be the next regular employee hired. I am of the
view that Laning held this opinion, wrong though it may have
been, in good faith. It would seem, therefore, that when he filed
the grievance in question, he did so on behalf of not only him-
self, but for any similarly situated casual employee.
The Board in Regency Electronics, supra, cited Interboro
Contractors, 157 NLRB 1295 (1966), for the proposition that a
complaint made by a single employee for the purpose of en-
forcing a collective-bargaining agreement is concerted activity
protected by Section 7 of the Act irrespective of the merits of
the complaint. Id. at 1298 fn. 7; accord: Jersey Power & Light
Co., 269 NLRB 886, 888 (1984). The Supreme Court approved
the Board’s Interboro doctrine in NLRB v. City Disposal Sys-
tems, 465 U.S. 822 (1984), stating that an employee’s “honest
and reasonable invocation” of a collective-bargaining contract
is concerted activity “regardless of whether the employee turns
out to have been correct in his belief that his right was vio-
lated.” Id. at 1516. As indicated above, I conclude that Laning
was of the belief that in failing to hire him as a regular em-
ployee, the Respondent was ignoring its past practice, and,
therefore, was in violation of the contract. While his conclusion
may have been in error, it does not detract from the reasonable
and honest nature of his belief.
The case law strongly supports the proposition, and I find,
that Laning was engaged in both protected concerted and union
activity when he filed his grievance on December 19. However,
the question, which still must be addressed, is whether the Re-
spondent’s decision to cease using Laning as a casual was mo-
tivated, at least in part, by his filing of the grievance.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer’s decision. This showing must be by a preponderance
of the evidence. Then, upon such a showing, the burden shifts
to the employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct. The
Board’s Wright Line test was approved by the United States
Supreme Court in NLRB v. Transportation Corp., 462 U.S. 393
(1983).
The Board in Tracker Marine, L.L.C., 337 NLRB 644
(2002), affirmed the administrative law judge who evaluated
the question of the employer’s motivation under the framework
established in Wright Line. Under that framework, the General
Counsel must establish four elements by a preponderance of the
evidence. First, the General Counsel must show the existence of
activity protected by the Act. Second, the General Counsel
must prove the respondent was aware that the employee had
engaged in such activity. Third, the General Counsel must show
that the alleged discriminatee suffered an adverse employment
action. Fourth, the General Counsel must establish a link, or
nexus, between the employee’s protected activity and the ad-
verse employment action. In effect, proving these four elements
creates a presumption that the adverse employment action vio-
lated the Act. To rebut such a presumption, the respondent
bears the burden of showing that the same action would have
taken place even in the absence of the protected conduct. See
Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996);
Farmer Bros. Co., 303 NLRB 638, 649 (1991).
For the reasons stated earlier, I conclude that Laning was en-
gaged in both protected concerted activity and union activity
when he filed the grievance on December 19. Of course, there
is no doubt that the Respondent was aware of that activity, as
alternate Steward Martin presented the grievance directly to
Manager Kevin Anderson, who immediately called Laning into
a meeting to discuss the grievance with him and Martin. Fur-
ther, it is clear that during that meeting Laning suffered an ad-
verse employment action. Anderson informed him that the Re-
spondent was no longer going to utilize his services as a casual
employee. This was the equivalent of being terminated. While
the Respondent takes the position in its answer that Laning was
not really discharged, since as a casual he had no expectation of
continued employment, I find this argument rather disingenu-
ous. Casual employee or not, Laning had in fact worked for the
Respondent for significant periods of time from September
2000 until December 19, 2003. Certainly, being suddenly de-
prived of this employment was an adverse employment action,
as it eliminated any future monies that Anderson might have
received by virtue of his continued casual employment. Seman-
tics aside, I conclude that the Respondent terminated Laning
when Anderson precluded him from future casual employment.
The General Counsel having established the first three nec-
essary elements of his case, there still remains the requirement
that the General Counsel show a link, or nexus, between Lan-
ing’s protected activity and the Respondent’s decision to termi-
nate him. Tracker Marine, supra. I believe that the evidence
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
does establish such a connection. Certainly, the timing of
Anderson’s notice to Laning is highly suspect. Laning first
learned that he would no longer be used as a casual when so
informed by Anderson while they were discussing his griev-
ance on December 19. While Anderson alleges that he actually
made this decision a day or two earlier, I do not believe him.
There is no credible evidence to support his contention. He
made no notes, took no action of any kind, and at the time told
no one of his alleged decision. The first person to whom he
allegedly communicated this decision was Errol Smith, but only
on the morning of December 19.
I did not find Kevin Anderson to be a credible witness. Ob-
serving his demeanor, he appeared to me to be visibly upset
when testifying about Laning’s filing of the grievance, despite
the passage of 6 months time. While he denied that the filing of
the grievance was at all unusual,10 or that it adversely affected
him, his mannerisms conveyed the opposite impression. He
seemed tense, defensive, and on edge.
Also, Anderson’s testimony was inherently implausible. Had
Anderson actually instructed Smith to inform Laning that the
Respondent would no longer be using him, Anderson himself
would not have had to break the news to Laning at the griev-
ance meeting. He would not have needed to do so, believing
that Smith had already conveyed the news.11 It is logical, there-
fore, to assume that Anderson gave Laning the news that he
was terminated, because he made the decision on the spot, im-
mediately following the filing of the grievance.
Further, Errol Smith’s testimony only partially supported
Anderson. Smith testified that Anderson told him in the early
afternoon of December 19 that Laning would no longer be used
by the Respondent, and directed Smith to so inform Laning.
While Smith called Laning, he acknowledges that he said noth-
ing to Laning about an alleged decision to cease using him as a
casual, merely canceling the scheduled work for the following
week. Clearly, in having to testify, Smith was in a difficult
position. As a direct subordinate of Anderson, Smith would
likely have been under considerable pressure to corroborate the
testimony of his boss. In an effort to do so, I believe that Smith
testified untruthfully that Anderson spoke to him on December
19 about ceasing to use Laning as a casual. However, to his
credit, Smith was not willing to further lie, and testified accu-
rately that during his telephone conversation with Laning, he
conveyed nothing about the alleged decision.
I am of the view that Laning testified credibly. He seemed
sincere, and his testimony was clear, certain, and without ambi-
guity. It had “the ring of authenticity” to it. Further, it was in-
herently plausible. He acknowledged getting a call from Smith
on December 19, canceling the work that he had been sched-
uled for the following week, because the regular employee he
was to replace had decided not to take the time off. According
to Laning, Smith ended the conversation by saying, “If I get

10 According to Anderson, an average of 20 to 30 grievances are
filed in the shop every year.
11 While Smith testified that, in fact, he did not inform Laning that
the Respondent would no longer use him, Smith did not testify that he
told Anderson that his alleged order had not been carried out. The Re-
spondent offered no evidence to establish that Anderson had any reason
to know that Smith had disregarded his alleged order.
anything else, I’ll give you a call.” In my opinion, this is simply
not the parting comment of a man who allegedly knows that the
Respondent will not be using Laning as a casual in the future.
Also, Laning and Martin credibly testified that following the
termination, Smith approached Laning at his locker and asked
him why he had been terminated, or words to that effect. Smith,
who did not deny asking this question, certainly seemed un-
aware of exactly what had transpired. Such would only be the
case if Smith, contrary to his testimony, had not been informed
of Laning’s termination prior to the time of the grievance meet-
ing.
As I have indicated, I believe that Smith’s testimony was un-
true, and that he was merely trying to support Anderson’s claim
that a decision to cease using Laning had already been made by
the time Laning filed his grievance. To the contrary, I conclude
that no such decision was made until after Laning filed the
grievance. Thus, the timing of Anderson’s decision strongly
suggests that he made his decision precisely because he was
very upset with Laning for filing the grievance.
The Board has held that the timing of a discharge can sup-
port an inference of antiunion motivation. In Sawyer of Napa,
300 NLRB 131, 150 (1990), the administrative law judge, who
was affirmed by the Board, concluded that “a coincidence in
time between Respondent’s knowledge of [the two discrimina-
tees’] union sympathies and activities and their discharges is
strong evidence of an unlawful motive for their discharges.”
The judge cited NLRB v. Raine Ware, Inc., 732 F.2d 1349,
1354 (7th Cir. 1984) (timing alone may be sufficient to estab-
lish that union animus was a motivating factor in a discharge
decision); NLRB v. Windsor Industries, 730 F.2d 860, 864 (2d
Cir. 1984); and Dayton Typographic Service, 778 F.2d 1188,
1193 (6th Cir. 1985). Accord: Wal-Mart Stores, 341 NLRB
796, 806 (2004); Electronic Data Systems Corp., 305 NLRB
219, 219–220 (1991).
Animus or hostility toward an employee’s protected con-
certed activity or union activity may be inferred from all the
circumstances, even without direct evidence. See Shattuck
Denn Mining Corp., v. NLRB, 362 F.2d 466 (9th Cir. 1966);
and U.S. Soil Conditioning Co., 325 NLRB 762 (1978). Ander-
son’s almost immediate reaction to the filing of the grievance
was to inform Laning that as a casual employee he did not have
the right to file a grievance, and, further, that the Respondent
would no longer be using him in any capacity. This sequence of
events certainly demonstrates that Anderson harbored animus
toward Laning because of his protected activity in filing the
grievance.
I do not accept Anderson’s claim that the filing of the griev-
ance was a nonevent, because of the frequency with which
grievances were filed in the shop. It appears that in Anderson’s
mind this grievance was different, as he immediately called
Laning into his office to inform him that as a casual employee
he had no contractual right to file the grievance. The filing of
this specific grievance seemed to, for whatever reason, particu-
larly upset Anderson. In explaining why he decided to cease
using Laning, one reason offered by Anderson was Laning’s
alleged habit of “constantly questioning” management’s deci-
sions. I can only assume that in Anderson’s mind the filing of
the grievance was a continuation of Laning’s practice of ques-
YELLOW TRANSPORTATION, INC. 49
tioning management. Anderson was apparently further infuri-
ated by what he considered to be the meritless nature of the
grievance.
In any event, regardless of why Laning’s grievance so upset
Anderson, the credible evidence establishes that Anderson de-
cided to cease using Laning as a casual specifically because he
filed the grievance. As the filing of the grievance constituted
both protected concerted and union activity, the General Coun-
sel has met his burden of establishing that the Respondent’s
action in discharging Laning from his position as a casual em-
ployee was motivated, at least in part, by animus toward that
protected conduct.
The burden now shifts to the Respondent to show that it
would have taken the same action, absent the protected con-
duct. Senior Citizens Coordinating Council of Riverbay Com-
munity, 330 NLRB 1100 (2000); Regal Recycling, Inc., 329
NLRB 355 (1999). The Respondent must persuade by a pre-
ponderance of the evidence. Peter Vitalie Co., 310 NLRB 865,
871 (1993). I am of the view that the Respondent has failed to
meet this burden.
It was the Respondent’s position, as stated in Anderson’s let-
ter to Laning dated February 4, 2003, that it ceased using Lan-
ing as a casual employee because fewer casual service atten-
dants were going to be used, and Laning was the last casual
called when work was available. (GC Exh. 3.) However, as
noted earlier, the unrebutted evidence established that at the
time of the hearing, at least three, and possibly four, additional
casuals had been hired since Laning’s termination. This evi-
dence disproves the Respondent’s contention that business
considerations required the use of fewer casuals. Further, the
Respondent offered no documentary or testimonial evidence to
support Anderson’s assertion that Laning was the least used
casual.12 Laning denied this assertion, and, for the reasons that
I have previously noted, I credit his testimony, rather than that
of Anderson.
Almost as an afterthought, Anderson testified that he decided
to cease using Laning as a casual because Laning was “con-
stantly questioning” management’s decisions, and because in
November Laning had allegedly “almost demanded” to be the
next regular employee hired. Laning credibly denied making
any such “demand,” testifying that he merely expressed his
“concern” to Anderson about some other casual being hired for
the next available regular position.
Regarding the contention that Laning was constantly ques-
tioning management, I have no doubt that this thought went
through Anderson’s mind on December 19 when he viewed
Laning’s grievance for the first time. In fact, questioning
whether management has violated the collective-bargaining
agreement is the essence of a grievance. It does not matter
whether Laning’s grievance had merit or not. He had the right
under Section 7 of the Act to attempt to file the grievance, and

12 Presumably, the Respondent had business records in its possession
that would establish both the extent of its continuing need for and use
of casual employees, as well as the hours worked by Laning in com-
parison with the other casuals. As the Respondent offered no such
records into evidence in support of its position, I draw an adverse infer-
ence that its reason for discharging Laning was other than economic.
See Miramar Hotel Corp., 336 NLRB 1203, 1215 (2001).
in so doing question management’s decision not to hire him as
a regular employee. For all practical purposes, Anderson has
admitted that it was this very “questioning” which he resented,
and which contributed to his decision to terminate Laning.
I find the Respondent’s stated explanation for terminating
Laning to constitute a pretext. Accordingly, the Respondent has
failed to rebut the General Counsel’s prima facie case by any
standard of evidence. It is, therefore, appropriate to infer that
the Respondent’s true motive was unlawful, that being because
of Laning’s protected concerted and union activity. Williams
Contracting, Inc., 309 NLRB 433 (1992); Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982); Shattuck Denn Mining Corp. v. NLRB, 326 F.2d 466,
470 (9th Cir. 1966).
Accordingly, I find and conclude that the Respondent has
violated Section 8(a)(1) of the Act by discharging Tony Laning
because he engaged in protected concerted activity, as alleged
in paragraph 6 of the complaint. As the Respondent’s conduct
had the natural effect of discouraging its employees from utiliz-
ing the contract grievance procedure, a Section 7 right, it con-
stitutes an independent violation of Section 8(a)(1) of the Act.
Further, I find and conclude that the Respondent has violated
Section 8(a)(3) and (1) of the Act by discharging Laning be-
cause he engaged in union activity, as alleged in paragraph 7 of
the complaint.
CONCLUSIONS OF LAW
1. The Respondent, Yellow Transportation, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Teamsters Local 41, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging its casual employee Tony Laning on De-
cember 19, 2003, the Respondent has violated Section 8(a)(1)
of the Act.
4. By discharging casual employee Tony Laning on Decem-
ber 19, 2003, the Respondent has violated Section 8(a)(3) and
(1) of the Act.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.13
The Respondent having discriminatorily discharged its cas-
ual employee Tony Laning, my recommended Order requires
the Respondent to offer him immediate reinstatement to his
former position as a casual equipment service attendant, dis-
placing if necessary any replacement, or if his position no
longer exists, to a substantially equivalent position, without loss

13 In its answer to the complaint, the Respondent raises eight “Af-
firmative Defenses.” While the Respondent proffered no evidence at
the hearing to support these defenses, they all relate to the issue of
backpay and reinstatement for Laning. As such, the appropriate forum
at which to offer evidence in support of these defenses is at a compli-
ance proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD50
of seniority and other privileges. My recommended Order fur-
ther requires the Respondent to make Laning whole for any loss
of earnings and other benefits, computed on a quarterly basis
from the date of his discharge to the date the Respondent makes
a proper offer of reinstatement to him, less any net interim
earnings as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The recommended Order further requires the Respondent to
expunge from its records any reference to the discharge of Lan-
ing, and to provide him with written notice of such expunction,
and inform him that the unlawful conduct will not be used as a
basis for further personnel actions against him. Sterling Sugars,
Inc., 261 NLRB 472 (1982). Further, the Respondent must not
make reference to the expunged material in response to any
inquiry from any employer, employment agency, unemploy-
ment insurance office, or reference seeker, or use the expunged
material against Laning in any other way.
Finally, the Respondent shall be required to post a notice that
assures the employees that it will respect their rights under the
Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, Yellow Transportation, Inc., Kansas City,
Missouri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any of its
employees because they engaged in union activity or protected
concerted activity by filing grievances under the terms of the
collective-bargaining agreement with the Union.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Tony Laning full reinstatement to his former job as a casual
equipment service attendant or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his sen-
iority or any other rights or privileges previously enjoyed.

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(b) Make Tony Laning whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge of
Tony Laning, and within 3 days thereafter notify him in writing
that this has been done and that the discharge will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Kansas City, Missouri, copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms provided
by the Regional Director for Region 17after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at its Kansas City, Missouri
maintenance shop at any time since December 19, 2003.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”