Q-1 Motor Express

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1267 (N.L.R.B. 1992)

1267
308 NLRB No. 185
Q-1 MOTOR EXPRESS
1 On March 11, 1992, Administrative Law Judge Walter H.
Maloney issued the attached decision. The Respondent filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 On May 20, 1992, the Respondent filed a motion requesting the
Board to reopen the record in this case to include the transcript of
the 10(j) proceeding in this case before the United States District
Court, Southern District of Indiana, Indianapolis Division. The Gen-
eral Counsel filed a brief in opposition to the Respondent’s motion,
and the Respondent filed a reply brief. We deny the motion.
Contrary to the Respondent’s contention, the transcript of the 10(j)
proceeding is neither newly discovered evidence nor evidence which
has become available since the close of the hearing. The hearing in
the 10(j) proceeding was held on October 9, 16, and 21, 1991, and
the instant unfair labor practice hearing was held on December 2,
3, and 4, 1991. The Respondent received the first two volumes of
the transcript from the 10(j) proceeding before the close of the in-
stant hearing but made no attempt to introduce them into evidence.
Further, the third and final volume of the 10(j) proceeding was
mailed to the Respondent on December 2, 1991. Even if, as the Re-
spondent contends, it did not receive it prior to the close of the in-
stant hearing, it made no motion to the judge to admit the transcript,
although it attached a copy of the district court’s decision to its
posthearing brief to the administrative law judge. Under these cir-
cumstances, the Respondent clearly knew of the existence of the
transcript of the 10(j) proceeding at the time of the instant hearing,
and thus this transcript can not now be deemed to constitute newly
discovered evidence or evidence which has become available only
since the close of the hearing under Sec. 102.48(d)(1) of the Board’s
Rules and Regulations.
Further, introduction into evidence of the transcript of the 10(j)
proceeding would not require a different result than that reached by
the administrative law judge, as also required by Sec. 102.48(d)(1)
of the Board’s Rules and Regulations. The fact that the administra-
tive law judge reached different credibility resolutions than the dis-
trict court judge does not invalidate the credibility resolutions of the
administrative law judge, who is entitled to base his resolutions on
the record evidence in the hearing before him. See NLRB v. Pacific
Intermountain Express Co., 228 F.2d 170, 176 (1955).
3 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 resolution 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.
The Respondent contends that the judge’s rulings and conduct of
the hearing demonstrated bias against the Respondent. Our review of
the record reveals no evidence that the judge prejudged the case,
made prejudicial rulings, or demonstrated any bias against the Re-
spondent.
The judge incorrectly stated that Anthony Lupo came to the Re-
spondent’s office to pick up his last paycheck on June 1, 1991, rath-
er than June 17, 1991. We find that this inadvertent error does not
affect the validity of his findings.
We disavow the judge’s statement that the fact that the Respond-
ent’s president James E. Schroering (JE) sought legal advice before
discharging employee Donald Ray Denham ‘‘suggests that he was
plotting his course carefully from the outset.’’
4 The nine instances alleged in the complaint are: (a) Supervisor
Leah Conrad told employee Lupo that management was aware that
union cards were being distributed and that Lupo should stay away
from those who were involved if he knew what was good for him;
(b) JE told employee Denham that he had learned from another em-
ployee that Denham was the one who was passing out union cards;
(c) JE told Denham that the Respondent would have to fire its driv-
ers, close down, and hire all new drivers; (d) JE told Denham that
no ‘‘half-ass union’’ would come in and tell him how to run his
business and that he would close the doors and open under a new
name; (e) the Respondent awarded employees a pay raise of 1 cent
per mile; (f) JE promised at an employee meeting in response to an
employee request that he would put Lupo on the drivers’ list as a
regular full-time employee; (g) JE told employee Stevens that he
knew the identities of everyone who had signed a union card; (h)
JE told Stevens that he would be willing to fire all of his employees
if that was what it took to keep the Union out; and (i) JE told Lupo
that the Respondent was not a union company and if he were Lupo,
he would not worry about missing out on dispatches because Lupo
was on the way out.
5 Although the judge’s decision says that there were seven 8(a)(1)
violations not alleged in the complaint, he twice mentioned the same
incident involving JE’s statement to employee Hogan that unioniza-
tion would bring a policy of forced dispatch into the Respondent.
6 The six additional 8(a)(1) violations found by the judge are based
on the following incidents: (a) Conrad informed JE that union cards
were being distributed and that Denham was involved with the dis-
tribution; (b) Conrad told employee Hogan, in the presence of her
husband, also an employee, that she would hate to see her husband
join the Union because he would have to find another job; (c) JE
told Denham that he had called Denham’s previous employer and
learned that Denham had been a member of the Union for 10 years;
(d) JE called Longoria, the wife of an employee, and asked her what
she knew about the employees’ union activities; (e) JE told Longoria
that her husband had gotten himself ‘‘in a fix’’ because of his union
activities and suggested that the Respondent might take an adverse
personnel action against him because of an old accident; (f) JE told
employee Longoria that he was not going to let the Union come in
and destroy everything he and his father had built and that he could
Continued
Q-1 Motor Express, Inc. and Donald Ray Denham,
Dan W. Stevens, and Anthony Lupo and Gen-
eral Drivers, Warehousemen & Helpers Local
Union No. 89, affiliated with the International
Brotherhood of Teamsters, AFL–CIO. Cases 9–
CA–28654–1, –2, –3, and 9–CA–28762
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present issues regarding whether the Respondent, in
the context of a union organizing campaign, committed
violations of Section 8(a)(1) and (3) of the Act and
whether a bargaining order is warranted to remedy the
unfair labor practices.
The Board has considered the decision and the
record in light of the exceptions2 and brief and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions as modified, and to adopt his recommended
Order, as modified.
1. The complaint alleged that the Respondent vio-
lated Section 8(a)(1) in nine separate instances.4 The
judge found the violations as alleged, and we agree
with these findings for the reasons set forth by him.
The judge, however, found six5 additional 8(a)(1) vio-
lations which were not alleged in the complaint,6 and
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
turn the Respondent over to a sister company; and (g) JE told Hogan
that unionization would bring a policy of forced dispatch into the
Respondent.
7 In response to the Respondent’s objection to the admission of
evidence pertaining to one of the incidents not alleged in the com-
plaint, the General Counsel stated, ‘‘This proves, if nothing else,
knowledge and animus.’’
8 We also note that the judge erred in finding that Conrad’s state-
ment to JE that union cards were being distributed constituted a vio-
lation of Sec. 8(a)(1). Because this conversation took place between
two supervisors and was not made in the presence of any employees,
we find no violation of the Act.
9 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
10 The judge found that May 19, the date the Union obtained ma-
jority status, rather than July 18, the date the Union demanded rec-
ognition, is the appropriate date to use for the remedial order, be-
cause such an order is a remedy for an 8(a)(1) violation, not an
8(a)(5) violation. He also found that the Respondent violated Sec.
8(a)(5), as well as Sec. 8(a)(1), as of May 19. No 8(a)(5) violation
can be found as of that date, however, because no demand had as
yet been made, a critical element for making such a finding. Trading
Port, 219 NLRB 298, 300 (1975). Further, we disavow his state-
ments to the effect that they imply that July 18 would not be the
appropriate date for finding an 8(a)(5) bargaining order as a remedy
for the Respondent’s unlawful conduct. Nevertheless, we shall not
disturb his finding May 19 to be an appropriate date for the remedial
bargaining order given here. No exceptions have been taken by the
General Counsel or the Charging Party to his failure to find a viola-
tion of Sec. 8(a)(5) based on the July 18 demand. Moreover, Sec.
8(a)(5) is not a sine qua non for a remedial bargaining order and
an 8(a)(5) violation would not add to the remedy in this case. See
Peaker Run Coal Co., 228 NLRB 93, 94–95 (1977).
the Respondent excepts to these findings. We find
merit in the Respondent’s exceptions.
It is undisputed that the six additional 8(a)(1) viola-
tions were not alleged in the complaint, nor did the
General Counsel seek to amend the complaint at the
hearing to include these violations. Further, the Gen-
eral Counsel made a statement at the hearing indicating
that evidence regarding these additional instances was
adduced as background for the alleged incidents,7 and
he did not contend in his posthearing brief to the judge
that these instances constituted additional violations of
Section 8(a)(1). Under these circumstances, we find
that the Respondent did not have fair notice that the
judge would make findings of violations of the Act
based on these unalleged instances. Therefore, these in-
stances were not fully and fairly litigated at the hear-
ing. See Cafe La Salle, 280 NLRB 379, 382 (1986);
Seaward International, 270 NLRB 1034 (1984). Ac-
cordingly, we dismiss these additional 8(a)(1) findings
made by the judge.8
2. Although we have dismissed certain of the 8(a)(1)
findings made by the judge, we find, in agreement
with the judge, that a Gissel9 bargaining order is war-
ranted to remedy the remaining unfair labor practices
found by the judge and which we adopt for the reasons
set forth by him.
Shortly after the employees began their organizing
activities on behalf of the Union, the Respondent
began its campaign of threats and intimidation of em-
ployees designed to undermine the Union’s strength.
Thus, the Respondent’s president James E. Schroering
(JE) and Supervisor Leah Conrad created the impres-
sion of surveillance of the employees’ union activities
by telling employees that they knew that union cards
were being distributed and that they knew which em-
ployees were passing out and signing the cards. Fur-
ther, JE threatened to discharge the employees and
close down the facility to keep out the Union and
Conrad threatened an employee with unspecified re-
prisals if he engaged in union activities. In addition,
the employees received a pay raise of 1 cent per mile
and JE promised to adjust a grievance to discourage
union activities. Finally, the Respondent discharged
three employees because of their union activities.
We have emphasized, with court approval, that
threats of plant closure and discharge not only are
‘‘hallmark’’ violations but are ‘‘‘among the most fla-
grant’ of unfair labor practices.’’ Action Auto Stores,
298 NLRB 875 (1990) (citing Indiana Cal-Pro, Inc. v.
NLRB, 863 F.2d 1292, 1301–1302 (6th Cir. 1988),
enfg. 287 NLRB 796 (1987)). The coercive effect of
these threats are especially great in this case because
they were communicated by the Respondent’s presi-
dent and commenced soon after the advent of the
Union on the scene. See Somerset Welding & Steel,
304 NLRB 32 (1991). In addition, the Respondent un-
lawfully granted a wage increase to all the employees,
and unlawfully promised to remedy a grievance.
Moreover, the Respondent violated Section 8(a)(3)
of the Act by unlawfully discharging three bargaining
unit members. We find that these 8(a)(1) and (3) viola-
tions, which threaten the very livelihood of employees,
are likely to have a lasting impact which is not easily
erased by the mere passage of time or the Board’s
usual remedies, especially given the small size of the
bargaining unit and the fact that the unfair labor prac-
tices affected each of the employees. See Action Auto
Stores, supra. Finally, we find, contrary to the Re-
spondent’s contention, that evidence concerning em-
ployee turnover is an irrelevant consideration when as-
sessing the propriety of issuing a Gissel bargaining
order and, even if considered, would not require a dif-
ferent result. See F&R Meat Co., 296 NLRB 759
(1989). Accordingly, we agree with the judge that the
possibility of erasing the effects of the Respondent’s
extensive and serious violations is slight and the hold-
ing of a fair election unlikely. Therefore, we conclude
that a Gissel bargaining order is appropriate.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Q-1
Motor Express, Inc., Clarksville, Indiana, its officers,
1269Q-1 MOTOR EXPRESS
1 The principal docket entries are as follows: Charges filed herein
by Donald Ray Denham, Dan W. Stevens, and Anthony Lupo
against the Respondent in Cases 9–CA–28654 2,–3, respectively, on
June 12, 1991; Charge filed by General Drivers, Warehousemen
Helpers Local Union No. 89, affiliated with the International Broth-
erhood of Teamsters, AFL–CIO, against the Respondent in Case 9–
CA–28762, on July 18, 1991; consolidated complaint issued against
the Respondent by the Acting Regional Director for Region 9, on
July 23, 1991, and amended on August 14, 1991; Respondent’s an-
swer filed on August 7, 1991, and amended on August 26, 1991;
Hearing held in Louisville, Kentucky, on December 2, 3, and 4,
1991; briefs were filed with me by the General Counsel and the Re-
spondent on or before January 6, 1992.
2 The Respondent admits, and I find, that it is a corporation which
maintains an office and place of business at Clarksville, Indiana, and
is engaged in the interstate transportation of freight by motor carrier.
In the course and conduct of this business, it has performed services
valued in excess of $50,000 in States other than Indiana. Accord-
ingly, it is an employer engaged in commerce within the meaning
of Sec. 2(2), (6), and (7) of the Act. The Union is a labor organiza-
tion within the meaning of Sec. 2(5) of the Act.
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 1(a) and reletter the subsequent
paragraphs.
2. Substitute the following for paragraph 1(e).
‘‘(e) Threatening employees with unspecified repris-
als for engaging in union activities.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT create in the minds of our employees
the impression that their union activities are the subject
of company surveillance.
WE WILL NOT grant pay increases and promise to
adjust grievances in order to discourage union activi-
ties.
WE WILL NOT threaten to discharge employees or to
close the terminal in order to discourage union activi-
ties.
WE WILL NOT threaten employees with unspecified
reprisals for engaging in union activities.
WE WILL NOT discharge employees or otherwise dis-
criminate against them in their hire or tenure in order
to discourage their support for General Drivers, Ware-
housemen & Helpers Local Union No. 89, affiliated
with the International Brotherhood of Teamsters, AFL–
CIO, or any other labor oraganization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
WE WILL, on request, bargain collectively in good
faith with General Drivers, Warehousemen & Helpers
Local Union No. 89, affiliated with the International
Brotherood of Teamsters, AFL–CIO as the exclusive
collective-bargaining representative of all the full-time
and regular part-time drivers and driver mechanics em-
ployed at our Clarksville, Indiana terminal, exclusive
of office clerical employees and supervisors as defined
in the Act.
WE WILL offer full and immediate reinstatement to
Donald Ray Denham, Dan W. Stevens, and Anthony
Lupo to their former or substantially equivalent em-
ployment, and WE WILL make them whole for any loss
of pay which they have suffered by reason of the dis-
crimination practiced against them, with interest.
WE WILL remove from our files any references to
the unlawful discharges and disciplinary actions taken
against Donald Ray Denham, Dan W. Stevens, and
Anthony Lupo, and WE WILL notify them in writing
that this has been done.
Q-1 MOTOR EXPRESS, INC.
James E. Horner, Esq., for the General Counsel.
I. Joel Frockt, Esq., of Louisville, Kentucky, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Louisville, Kentucky,
on an amended consolidated unfair labor practice complaint,1
issued by the Acting Regional Director for Region 9, which
alleges that Respondent Q-l Motor Express, Inc.2 violated
Section 8(a)(1), (3), and (5) of the Act. More particularly, the
amended consolidated complaint alleges that the Respondent
coercively interrogated employees concerning their union ac-
tivities, threatened to close its plant in reprisal for the union
activities of employees, informed employees that it would be
futile for employees to select the Union as their bargaining
agent, threatened employees with more onerous terms and
conditions of employment if they unionized, created the im-
pression that the union activities of employees were the sub-
ject of company surveillance, threatened to fire employees
who signed union cards, informed an employee that he was
being denied work opportunities because of his union activi-
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Certain errors in the transcript are noted and corrected.
4 Clarksville is actually part of the metropolitan Louisville area and
is located on the north side of the Ohio River just a few minutes’
drive from downtown Louisville.
5 In the customer’s yard in Milwaukee, A. O. Smith employees are
responsible for stacking auto frames on the trailer of the Respond-
ent’s vehicle. The Respondent’s drivers are responsible for chaining
down the frames onto the trailer and for drawing the canvas curtains
along the sides of the trailer which serve to enclose the load. At
Corydon, a return trip is occasionally delayed because a driver is
called on to load and secure baskets or crates which have accumu-
lated at Corydon and which must be returned to Milwaukee.
ties, granted a wage increase and promised to designate a
part-time driver as a full-time driver in order to dissuade em-
ployees from supporting the Union, and discharged Charging
Parties Donald Ray Denham, Dan W. Stevens, and Anthony
Lupo because of their union activities. The consolidated
amended complaint also alleges that the Respondent failed to
bargain in good faith with the majority representative of its
employees. The Respondent denies the commission of any
independent violations of Section 8(a)(1) of the Act, asserts
that Denham, Stevens, and Lupo were discharged for job re-
lated deficiencies, including a failure to make themselves
available for dispatch, and contends that it had no duty to
bargain collectively with the Union since, at the time the
Union made its demand for recognition, the Union did not
represent a majority of the Respondent’s employees in an ap-
propriate bargaining unit. On these contentions the issues
were joined.3
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
The Respondent is a small family owned trucking com-
pany with a very short corporate history. It is owned by
James J. Schroering (JE), its president, and his father, James
J. Schroering Jr. (JJ), its vice president. It maintains a truck
terminal on Old Potters Lane in Clarksville, Indiana, and an
office on South Broadway in the same city.4 Respondent has
only one customer, the A. O. Smith Company of Milwaukee,
Wisconsin. Utilizing trailers owned by the corporation and
tractors rented from the Ryder Corporation, it has hauled
automobile frames since early 1990 from the A. O. Smith
plant in Milwaukee to the A. O. Smith plant in Corydon, a
small town in southern Indiana located about 18 miles from
Clarksville. After most of the events in this case took place,
the Respondent began hauling automobile frames for A. O.
Smith on another route running from Milwaukee to the O.
A. Smith plant at Bellevue, Ohio, a city located in northern
Ohio halfway between Toledo and Cleveland. Bellevue is
about 300 miles from Clarksville.
Respondent’s over-the-road drivers at Clarksville are dis-
patched by Leah Conrad, an admitted supervisor, who works
at the South Broadway office but frequently takes calls at her
home from drivers who are on the road. Her husband, Mark
Conrad, is employed by the Respondent as a driver. Over-
the-road drivers are compensated exclusively on a mileage
basis, except for occasional payments they receive for so-
called detention time, i.e., undue amounts of delay experi-
enced while loading at the A. O. Smith plant in Milwaukee.
Regardless of mileage actually driven, the number of miles
for which they are paid on standard runs was set by A. O.
Smith in its contract with the Respondent. As a motor carrier
operating in interstate commerce, the Respondent is governed
by administrative regulations issued by the U.S. Department
of Transportation (DOT). The regulations principally in-
volved in this litigation are the DOT requirement that all
over-the-road drivers maintain and turn in for audit detailed
logbooks showing the amounts of time they spend in driving.
These logs are required to permit government monitoring of
two other DOT regulations, one which prohibits any over-
the-road driver from operating a motor vehicle more than 70
hours in any 8-day span and another which requires that
every such driver take a rest period of at least 8 consecutive
hours after any 10-hour stretch of driving.
The Respondent is obligated to make a truck available for
loading at the A. O. Smith plant in Milwaukee at scheduled
hours throughout each day, Monday through Friday. On rare
occasions, loadings have taken place on Saturday or Sunday
but, since A. O. Smith is a unionized plant, such activity on
its part requires the payment of overtime and is therefore dis-
couraged. Like many suppliers in the automobile industry, A.
Smith operates on a ‘‘just in time’’ basis. ‘‘Just in time’’
means that deliveries of parts and equipment to major auto-
makers are made ‘‘just in time’’ for use in the final assem-
bly, thereby saving the automaker the cost of large inven-
tories. The ‘‘just in time’’ program puts pressure on suppliers
and deliverymen to make prompt pickups and immediate de-
liveries. Scheduled pickup times each weekday in Milwaukee
were at 9 a.m., 1 p.m., 5 p.m., 9 p.m., and occasionally at
11 p.m. To meet this schedule, the Respondent organized
four or five teams of drivers who make runs from southern
Indiana to Milwaukee in a relay system known as slip seat-
ing. A driver leaves the terminal at Clarksville, drives 385
miles to Milwaukee, and waits to be loaded. He then returns
to the A. O. Smith plant at Corydon, a trip of about 415
miles, unloads, and returns his truck to the Ryder terminal
in Clarksville, where the truck is gassed up and made ready
for a return run. The returning driver then takes the truck to
the Respondent’s terminal, about a mile from the Ryder loca-
tion, where his partner slip seats, i.e., takes over for an im-
mediate return to Milwaukee and a repeat of the same sce-
nario.
Normally drivers do two or three runs a week. There have
been instances where drivers have made four round trips in
a single week and frequent instances where drivers have
made back-to-back runs, without any rest interval at home.
The time it takes for a round trip has been estimated at from
19 to 25 hours, depending on the very flexible amounts of
time spent in loading at Milwaukee and unloading at
Corydon. Normal running time is about 7–l/2 to 8 hours in
each direction. However, there are variables, such as weather,
traffic in and about Chicago, and breakdowns which can ex-
tend that time.
The Respondent has an agreement with the A. O. Smith
Company that the latter will reimburse the Respondent, at the
rate of $7.50 an hour, for any delays, known as detention
time, in excess of 2 hours experienced by a driver while
loading at Milwaukee,5 but the Respondent, fearing to an-
tagonize its only customer, had been reluctant until recently
to press A. O. Smith for detention payments. The Respond-
ent’s individual agreements with its drivers provide that un-
less it is reimbursed by the customer for detention time, the
1271Q-1 MOTOR EXPRESS
6 Drivers’ logs regularly failed to match the time entered on the
Respondent’s dispatch sheets and on the trip tickets turned into
Ryder at the end of each trip. In September 1990, driver James
Hogan had a discussion about illegal logs in the company office with
JE. He asked JE how he could be expected to turn in a legal log
‘‘when you run me illegal?’’ JE simply replied, ‘‘You can be easily
replaced.’’ Former driver Homer Longoria testified credibly that at
his hiring-in interview JE told him that he knew that drivers could
not make any money if they ‘‘ran legal’’ and the Company could
not make any money either under those circumstances, so all that
JE asked was that drivers turn in logs that appeared to be legal.
Longoria followed that advice, keeping two sets of logs on his trips,
one which reflected his actual time on the road and the other which
reported time on the road which complied with DOT regulations.
Early in Stevens’ career as a driver, he complained to JE about the
difficulty he was experiencing in keeping accurate logs which were
also legal logs. JE told Stevens that if he wanted to keep two sets
of logs he could do 80 adding that there were plenty of logbooks
in the company office. He also told Stevens that, if he did not want
to do so he could look for another job. JE said on that occasion that
drivers were the least valuable asset the Company had and could be
replaced as easily as a tire on a truck.
7 Respondent insists that it does not observe seniority. Driver Shir-
ley ‘‘Tex’’ Glisson testified that the Respondent observes seniority
when it serves the Respondent’s purpose to do so. The Respondent
did post and maintain at the company office a list of drivers ar-
ranged in order of date of hire. The list was not entitled ‘‘seniority
list’’ but was referred to as such. I credit testimony in the record
that the Respondent did observe seniority in practice when it made
dispatches. The parties agree that the Respondent did not observe the
practice of ‘‘ forced dispatches.’’ Drivers were free to turn down a
run which was offered them and they often did. In such instances,
the dispatcher offered the open run to the next available driver on
the seniority list. The name of discriminatee Anthony Lupo appeared
on the list as a casual driver. He was actually a regular part-time
driver and was dispatched at least once each week. Often he re-
ceived more assignments, filling in for regular drivers who were ill
or on vacation. The principal distinction between so-called regular
drivers and casual drivers was not the number of hours worked in
a given week but simply that those who enjoyed regular status re-
ceived health insurance benefits after 90 days of employment and
those denominated as casuals did not.
8 The record contains authorization cards signed by Denham,
Glisson, Lupo, Stevens, Martin E. Suddeth, Todd E. Tomes, and
Hogan. Homer Longoria testified credibly that he executed an au-
thorization card sometime before the company meeting which was
held on May 19. However, his card was misplaced and was not of-
fered.
driver will not receive any money for excessive time lost in
loading. However, after the events in this case arose, the Re-
spondent altered its policy and began to pay detention time
when claimed by a driver, regardless of whether the claim
had been reimbursed by its customer. Throughout the course
of a trip, a driver is required to call in to Leah Conrad at
various intervals to let her know where he is and when he
may be expected to return to Clarksville so that she can alert
his slip seat partner as to when to be available for a return
run to Milwaukee. While there is a dispute in the record be-
tween employee and management witnesses, I conclude that
it is virtually impossible to execute a round trip between
Clarksville and Milwaukee in the time allotted by the Re-
spondent and still comply with DOT regulations, except for
the first run of the week, when a driver can leave southern
Indiana at an hour chosen by him, arrive in Milwaukee in
time to take 8 consecutive hours of rest before being loaded,
and thereafter directly return to Corydon. I further conclude
that few drivers did in fact make this round trip in full com-
pliance with DOT regulations, except for the first round trip
of the week. Several drivers testified credibly that it was
their regular practice to falsify log cards to conceal the fact
that they were running illegally. I further conclude that the
Respondent was well aware of this practice and not only
condoned it but virtually insisted on it in order to cut the
corners which had to be cut to complete the runs the Re-
spondent had to make with the limited number of drivers and
trailers it was employing.6
An effort to organize the Respondent’s employees began
in the first week in May when discriminatee Donald Ray
Denham contacted Union Business Agent Jerry Shaw in Lou-
isville and told him that the Respondent’s employees were
interested in unionizing. Denham was, at that time, the Re-
spondent’s senior driver, having started to work on February
6, 1990, not long after the Respondent commenced oper-
ation.7 Denham obtained union authorization cards and began
disseminating them among company drivers in various ways.
The Company’s over-the-road drivers rarely congregated in a
single place so it was necessary to distribute and collect
cards by leaving them in private pickup trucks, at drivers’
homes, or during casual encounters along interstate 65, the
principal route used on trips to and from Milwaukee. A total
of eight authorization cards were signed by company drivers
on or before May 19.8 Denham gave several cards to Glisson
for distribution among drivers who lived on the Indiana side
of the Ohio River. He personally gave cards to Starcher, Ste-
vens, and Longoria. He collected a signed card from Stevens
and gave it and other cards to Lupo to be turned in to the
Union.
One of the cards was given to Mark Conrad, the husband
of Leah Conrad. Leah Conrad informed JE that cards were
being distributed and also told him that Denham was in-
volved with the Union. Mark Conrad was one of three driv-
ers in the bargaining unit who did not execute a card. JJ tes-
tified that he had learned from an employee of Ryder that
union cards were being distributed among company drivers
and had passed this information along to his son. About a
week after signing a card on May 10, Lupo had occasion to
call Leah Conrad on a business related matter. During the
conversation, Leah Conrad told Lupo that company manage-
ment was aware that union cards were being distributed and,
if Lupo knew what was good for him, he would stay away
from those who were involved in this effort. On or about
May 18, Hogan visited the Conrad home to pick up his pay-
check. Both Conrads were present. Mark Conrad asked
Hogan what he thought about the passing out of union cards
and whether he was going to join. Leah Conrad then entered
the conversation to say that she would hate to see Mark join
the Union because, if he did, he would have to find another
job, adding that, ‘‘if the Union got in . . . Q-1 could not
stand union pressure.’’
When Denham arrived at the Ryder truckstop in Clarks-
ville on the afternoon of May 17 to gas up his truck, he was
met by JE. I credit Denham’s testimony relating to his con-
versation with JE. It was corroborated in part by Lupo, who
heard part of the conversation while he was in the area gas-
sing up his own truck. JE told Denham that he had already
talked with Homer Longoria and that he knew that Denham
was the one who was passing out union cards. JE also told
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 I credit the straightforward testimony of both Longorias. Homer
Longoria is no longer employed by the Respondent, having found
employment driving for another motor carrier. Neither of them
would have any personal motive for exaggerating or falsifying their
testimony.
10 While the Schroerings persisted for awhile with the contention
that JE had never phoned Sandra Longoria and that the caller must
have been someone else, on the following Sunday evening, follow-
ing the company meeting with the drivers, JE spoke to Longoria pri-
vately and apologized for the call.
11 Those attending the drivers’ meeting were Tomes, Glisson,
Longoria, Suddeth, Stevens, Denham, Hogan, and Howard ‘‘Pappy’’
Starcher.
Denham that he had spoken with his attorney and learned
that he would have to fire all the drivers, something he did
not want to do because it would mean losing people like
Mark Conrad and Jim Logsdon, but he would have to do 80
in order to close the Company down and reopen it. He told
Denham he would fire all the drivers and hire all new drivers
and could do so within 72 hours. Denham replied simply that
he was tired and did not want to argue; he just wanted to
go home. JE persisted, telling Denham that he would not per-
mit ‘‘no half-ass union to come in and try to tell him how
to run his business’’ and before he would let this happen, he
would ‘‘close the doors first and open up under a new
name.’’ JE also said that he felt that the drivers had betrayed
him and informed Denham that he had called Denham’s pre-
vious employer and learned that Denham had been a member
of the Teamsters Union for 10 years. He further informed
Denham that he was holding a drivers’ meeting the following
Sunday at 5 p.m. and knew that the drivers themselves were
planning to hold their own meeting an hour earlier. He said
he had considered attending the drivers’ meeting but had
changed his mind, adding, ‘‘You all go ahead and have your
meeting, and then, when you come down, we’ll have our
meeting.’’
On the same afternoon, JE phoned Sandra Longoria, the
wife of driver Homer Longoria, who was out of town on a
run to Milwaukee.9 JE began to ask Sandra Longoria, who
suffers from a chronic intestinal disorder known as ‘‘Crohn’s
Disease,’’ about the organizing drive. He told her that all the
men were talking about the Union and wanted to find out
what she knew about it. Sandra Longoria replied that her
husband had said something about the Union but she did not
know what it was all about. She then asked JE whether he
was calling the wives of the other drivers. JE replied that in
fact he was but refused to tell her which wives he was call-
ing. He then told her that her husband was up to his knees
in Union business and had really gotten himself ‘‘in a fix.’’
Sandra Longoria asked JE ‘‘What do you mean?’’ and ac-
cused him of making an unethical phone call. JE went on to
remind her that when her husband had been in an accident
the previous October the Company had kept him on the pay-
roll even though another trucking company would not have
done so. He added that the Company would now have to
rethink its position. She objected, saying, ‘‘I cannot believe
that you are making this phone call.’’ JE replied that he
wanted to find out about ‘‘this Union business’’ and why the
men were so upset. Sandra Longoria replied that one reason
was that the Company was not paying detention pay. They
argued, JE saying that the men were receiving all the deten-
tion pay they were entitled to receive and Sandra Longoria
disagreeing. She then accused him of making promises to
drivers that he had no intention of keeping and suggested
that this was why the drivers were upset. Sandra Longoria
then asked JE whether his father knew that he was making
this phone call. When he replied that JJ did not know about
it, she then asked JE for his father’s phone number. She told
JE that she did not take kindly to the fact that he had called
her, knowing that her husband was out of town, and that he
had tried to pump her for information. She then hung up.
Having become upset, Sandra Longoria began to suffer an
attack of her longterm illness. After calming down, she
called JJ, told him the substance of the conversation she had
with his son, and objected to his son’s behavior. JJ replied
that ‘‘we don’t do business like that’’ and insisted that his
son had not in fact made the phone call. She replied that the
maker of the phone call was his son, pointing out that the
caller had identified himself as such, and that he knew a
great deal about Longoria’s work history and record as an
employee. JJ’s response was that this information was all in
the company computer and anyone could have obtained it
from that source. He also told her that the Company had no
problem with the unionization of its employees and sug-
gested that possibly a union representative had made the
phone call about which she was complaining and was trying
to put the blame for it on the Company. He then said he
would get a court order to have everyone’s phone tapped in
order to get to the bottom of the question and cautioned her
to be careful about making accusations such as the ones she
had just made. He asked her to have her husband call him.
Sandra Longoria reported this conversation to her husband
when he phoned her while he was out on his run. On return-
ing to Clarksville about midnight, Longoria phoned JE and
angrily complained about the call to his wife. He told JE that
the latter had no business involving members of his family
in company business and informed him that his wife’s health
was precarious, and complained to him that incidents involv-
ing stress served only to bring on renewed attacks. JE replied
that he did not know much about the Union and was also
unaware that Sandra Longoria suffered from Crohn’s Dis-
ease. He went on to say that he and his father had started
the Company, had taken all of the risks incident to opening
a new business, and that he was not going to let the Team-
sters come in and destroy everything they had done. He men-
tioned to Longoria that the Schroerings owned a sister com-
pany and that he could turn Q-1 over to the sister company.
The following morning, Longoria went to the company of-
fice and spoke with JJ. Again he voiced a strong objection
to what had transpired the day before. He told JJ he was sure
that it was JE who had made the call since he had stated
things to his wife concerning Longoria’s work record that
only JE would know. He insisted that JJ call his wife and
apologize. JJ did so in Longoria’s presence.10
At or about this same point in time, JE had occasion to
speak about the Union to Hogan. He told Hogan that he
might have to shut the Company down and start it over be-
cause the Union would break him.
Two meetings took place on Sunday afternoon, May 19.
Eight drivers met informally in a group at the Union-76
truckstop on I-65 at Hamburg, Indiana, a few miles north of
Clarksville.11 At that point, Denham told the group that he
had in hand authorization cards signed by a majority of the
1273Q-1 MOTOR EXPRESS
12 It was at the drivers’ meeting that Stevens signed a union au-
thorization card. He laid it on the hood of a truck while he was fill-
ing it out. Because of his interest in what was being said by other
drivers, he forgot to sign his name at the bottom, although he filled
in all the other items in his own handwriting.
13 Smith is an in-law of the Schroerings and an admitted super-
visor.
14 JJ admitted in his testimony that, by ‘‘little green cards,’’ he
meant union cards.
employees and said that he had contacted the Teamsters to
tell that ‘‘we had elected Local 89 as the bargaining rep-
resentative.’’ Reference was then made to a want-ad for driv-
ers which had appeared the same day in the Louisville Cou-
rier-Journal. The ad read:
Drivers
Q-1 Motor Express
is now Hiring. Offering
—23 cents per mile
—2300 miles per week
—late model conventionals
—home every other day
—vacation pay & company health insurance
For more information call Bo Schroering 288–1121
Stevens wondered aloud why they were advertising for more
drivers when they were reluctant to put Lupo on full-time
and suggested that the ad was just a scare tactic. The drivers
rehashed among themselves certain standing grievances, such
as the failure of the Company to pay detention pay and its
continuing failure to raise the mileage payment from 23 to
24 cents a mile. The suggestion was made that they should
not even attend the forthcoming company meeting and
should simply elect a spokesman to attend on their behalf.
They finally decided to attend the company meeting but
elected Longoria to speak at the company meeting on their
behalf.12
The company meeting began at 5 p.m at the company ter-
minal. Both Schroerings, their new vice president for finance,
Joseph Smith,13 and Leah Conrad attended for the Company.
All the drivers were present except Lupo, Hogan, and
Logsdon. JJ opened the meeting by stating that he knew that
some ‘‘little green cards’’14 were being circulated but the
Company would ‘‘address that issue whenever the time
comes.’’ He went on to say that the employees at the A. O.
Smith plant in Milwaukee were represented by a union and
that a ‘‘majority of our problems was because of them being
in the union.’’ JJ mentioned that he had worked for the Ford
Motor Company for about 30 years and had seen where the
union at Ford had caused problems with production and
slowed the plant down.
JE then addressed the drivers. Among other things, he told
them that business was picking up and that the Company
would be starting a new run from the A. O. Smith plant in
Milwaukee to its plant in Bellevue, Ohio. He mentioned that
wages would be increased from 23 to 24 cents a mile be-
cause of improved gasoline mileage which drivers had been
able to achieve, namely, operating vehicles at 6.3 miles per
gallon, and he mentioned that if drivers could achieve 6.8
miles per gallon, they would get another penny on their mile-
age. However, he told them that the implementation of raises
would be delayed until the anniversary date of each driver
because he felt that seniority was one of a drivers’ most val-
uable assets.
Denham brought up the question that drivers were unable
to get a full 8 hours’ rest after driving a 10-hour stint. JE
cut him off, saying that they had discussed this matter at ear-
lier meetings and he was not going to discuss it again. His
concluding words to Denham were ‘‘you know how you
have to run.’’ Longoria, who was acting as a spokesman for
several drivers, brought up the fact that Tony Lupo wanted
to be made a full-time driver. JE replied that making Lupo
a full-time driver might cut in on hours available to other
drivers but those in attendance indicated that they approved
of the move. JE then said he would go ahead with it after
consulting with the two drivers who were not at the meeting,
told Leah Conrad to make a note of it, and promised to no-
tify Lupo the following day. Toward the end of the meeting,
Denham brought up the fact that insurance benefits were not
being provided for Starcher. JE simply replied that Starcher
was uninsurable.
After the formal meeting concluded, Denham, Longoria,
Stevens, Tomes, and Glisson met together briefly in the back
room. Glisson voiced the opinion that the drivers had not ac-
complished anything. Outside the terminal building, Stevens
asked Denham to turn in his union card along with the oth-
ers. Denham made arrangements later with Lupo to deliver
the cards to the Union, but the record does not reflect when
this was done.
A week later, on May 28, Denham received a phone call
from JE, telling him that the Company no longer needed his
services and that he would be getting a letter from an attor-
ney giving the reasons. JE did in fact consult with counsel
before discharging Denham. Denham went to the company
office to pick up his paycheck. Inside the envelope with the
check was the letter which was to be sent to him by the Re-
spondent’s attorney, I. Joel Frockt. It read:
This office represents Q-l Motor Express, Inc., your
employer. At this time, Mr. James E. Schroering has
come in to review your file with us.
This review reveals that:
1) April 2, 1990—You were given an oral warning
a written record of which is in your file, that your log
records were not in order and you were admonished at
that time to review your procedures and told that fur-
ther indiscretions would not be tolerated.
2) May 3, 1990—Again, your log records were not
properly kept, you were told in a written warning that
it was your last warning and that further indiscretions
would not be tolerated.
3) February 6, 1991—You were given a written
warning for having backed into a fixed object while
driving a company leased vehicle and tore the trailer’s
curtain in half. You were further told that this was a
serious matter and that the cost to the Company was in
excess of $2,000.
4) January 15, 1991—You were given an oral warn-
ing, a record of which is contained in your file, regard-
ing your drifting off the road surface on I-65 in central
Indiana. It was apparent that you were in danger of fall-
ing asleep at the wheel or that you had some other
problem which affected your ability to control your ve-
hicle in a safe and efficient manner. The Company was
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Stevens spent the weekend at Rough River Reservoir, about 75
miles south of Louisville.
16 Leah Conrad admits receiving this call. To the extent that her
testimony conflicts with that given by Stevens, I discredit her.
17 During the 10-day period immediately following the drivers
meeting on May 19, the Respondent hired four new drivers—Don
Redden on May 21, Bill Torres on May 22, and Brent Mathews, and
Bob Long on May 28.
18 On various occasions during his tenure with the Respondent,
Stevens had gone to New Orleans to attend to personal business.
aware that you were working outside of Company
hours on a farm and advised you were to operate your
vehicle in a safe manner. You have also been spoken
to on several occasions although not formally warned
about coming to work tired and not ready to drive your
assignment.
5) March 28, 1991—A review of your January 1991
logs provided information that you committed nine log
violations in spite of all previous meetings. You were
therefore given a three-day suspension and told that the
behavior was unacceptable.
6) May 25, 1991—You were dispatched on a return
run from Milwaukee to Corydon, Indiana at 14:30 cen-
tral daylight time, a trip which takes an average of
eight hours. As of 10:30 am this date, youstill have not
called into the dispatch office. This is nineteen hours
from the time you were dispatched.
7) May 25, 1991—It has come to the attention of the
Company that you received a traffic violation in the
State of Indiana within the recent past. A review of
your log records indicates that this violation has not
been logged in violation of Indiana regulation and
Company policy.
Because of your poor work record, itemized above,
and because of recent violations which have occurred,
the Company is left with no choice other than to termi-
nate you at this time. The effective date of your termi-
nation is May 25, 1991, upon your return to the Com-
pany premises.
The weekend following the company meeting of May 19
was Memorial Day weekend and no pickups were scheduled
in Milwaukee because the A. O. Smith plant was closed. As
a result, the truck driven in relay by Stevens and Glisson
would be making only four round trips that week. These trips
were scheduled from Tuesday through Friday. Glisson and
Stevens agreed that Glisson would make the Tuesday and
Thursday pickups and that Stevens would have to be ready
to drive from Clarksville to Milwaukee sometime Tuesday
evening. Leah Conrad was informed of their agreement and
approved. Stevens told her that he was going j take a week-
end at a lake resort, to which she said: ‘‘Have a nice holi-
day.’’15
Before leaving the office, Stevens went into JE’s office to
pick up his paycheck. Before giving him the check, JE asked
him to sit down and talk. JE began the conversation by tell-
ing Stevens that he had talked with the Company’s health in-
surance carrier and said that they would have to pay for fix-
ing Stevens’ teeth, which needed attention as a result of an
injury he had sustained. JE’s only comment on that subject
was, ‘‘I have no argument against that [the payment]. If you
hurt yourself, you hurt yourself.’’ He then went on to say to
Stevens, ‘‘You know, I thought I had better friends in this
Company amongst the drivers than what’s turned out to be.
I know everybody that signed a Union card. If it takes firing
everybody to keep the Union out of here, then that’s what
I’ll do. I’m not going to have Local 89 coming in here tell-
ing me what I can and can’t do with my own company.’’
Stevens replied, ‘‘Oh, yeah!’’ or something to that effect. He
picked up his paycheck and left.
On the following Sunday morning, Leah Conrad called the
home of Stevens’ mother in order to get in contact with him.
Mrs. Stevens notified her son of the call and he returned the
call immediately over the Company’s 800 line.16 Stevens
asked Leah Conrad what was the matter and she said ‘‘Noth-
ing. I thought I was going to need you for a run but don’t
worry about it. I got it covered.’’ Stevens ended the con-
versation by saying, ‘‘I’ll talk to you Tuesday night.’’
Stevens returned to Clarksville on Monday evening and
was home during the following day. He estimated that
Glisson would be back to Corydon about 10 p.m. or there-
about on Tuesday evening so he phoned Leah Conrad to in-
quire. She replied that Glisson had not yet arrived in
Corydon, in which Stevens asked her if she wanted him to
call back or whether she would notify him upon Glisson’s
arrival. Her reply was, ‘‘Well Tex [Glisson] didn’t make the
run. We sent another driver to make the run.’’17 Stevens was
angry and asked her ‘‘What the hell’s going on? Why wasn’t
I offered the run?’’ Her reply was that it was a ‘‘manage-
ment decision.’’ She refused to tell Stevens whom she put
on the run and suggested that he take up the question with
JE the following morning.
On Wednesday morning, May 29, Stevens called JE and
asked him why the Company sent out another driver when
he was available to take the run. JE replied, ‘‘We didn’t
know where you was.’’ Stevens told JE that he had told
Leah Conrad the previous Friday where he was going to be
and also informed him that she had called him on Sunday.
Stevens repeated that Leah Conrad knew where he was but
JE said she had not said anything to him about the call, add-
ing that ‘‘we thought you might be in New Orleans.’’18 Ste-
vens then said, ‘‘Jim, do you think I would go eight hundred
miles away from my job without notifying the Company. If
I had been going to New Orleans, I would have said so.’’
With this exchange, JE just hung up on Stevens.
On Wednesday evening, May 29, about 10 p.m. or so,
when Stevens suspected that Glisson would be back in
Corydon from a run to Milwaukee, Stevens called Leah
Conrad and asked her if he was scheduled to go out. She re-
plied hesitatingly that Glisson had not yet returned and that
‘‘you probably won’t work this week because they’ve got
some loads off for the end of the week.’’ Stevens replied that
if such were the case he would start some long-postponed
root canal work. He told Leah Conrad he would talk with
her the following Sunday or Monday night.
On Sunday night, about 9:30 p.m., he called JE at his
home. He complained that he had lost a week’s work be-
cause of a lack of communication between Leah Conrad, JE,
and himself and stated emphatically that he did not want it
to happen again. He told JE ‘‘I’m letting you know right this
minute on Sunday night that I am available for dispatch right
now.’’ JE replied, ‘‘Well, just call me tomorrow. I really
1275Q-1 MOTOR EXPRESS
don’t like to discuss business after hours.’’ He phoned the
office the following morning about 10 a.m. and was told that
JE had not arrived. He called an hour later and informed JJ,
who answered the phone, that he was available for dispatch.
JJ replied, ‘‘I’m not going to send you back out in the truck
until you, me and Leah [Conrad] sit down and discuss what
happened last week.’’ He said that he would be busy the rest
of the day and suggested that Stevens call him the following
morning.
Stevens called the office the following morning to speak
with JE. He was told by Smith that both JE and JJ left for
Milwaukee. Stevens asked Smith if he was aware that they
had scheduled a meeting with him and that he was not to
be dispatched until the meeting took place. Smith simply re-
plied that the business trip to Milwaukee came about sud-
denly and it probably slipped their minds.
The following day, Stevens went personally to the office
and spoke with Leah Conrad. He asked her whether he was
laid off, suspended, or fired. She simply replied that she had
no idea because they had not said anything about it. She re-
ferred him to Smith. He posed the same question to Smith
and Smith replied that he had no idea either. His only in-
structions were that Stevens was not to be sent back out on
the road until a meeting took place involving the
Schroerings, Stevens, and Leah Conrad.
On returning home, Stevens received a termination letter
in the mail signed by JE which was dated May 30, nearly
a week before. It was written in the form of a memo and
read:
Driver: Dan Stevens
Subject: Termination of Employment
This letter is to inform you that your employment at
Q-l Motor Express, Inc., Clarksville, Indiana, is termi-
nated on this date, May 30, 1991. You have (3) three
previous letters in your employee file:
Oral warning—Oct. 25, 1990
Written warning— Feb. 7, 1991
Suspension—April 25, 1991
On 5/26/91, Q-l Operations Manager Leah Conrad
tried to contact you for dispatch reasons. You were un-
available for work. Please note the attached letter to
J.E. Schroering from Leah Conrad dated 5/28/91.
The letter from L. Conrad is self explanatory. You
were to be available for dispatch and you made yourself
unavailable. You had an explanation for your absence,
but the excuse has been determined to be invalid. You
are effectively terminated as of May 30, 1991.
The letter contained an enclosure which read:
To: J. E. Schroering, President
From: Leah Conrad, Operations Manager
Date: 5/28/91
Please be advised that upon contacting Dan Stevens
on 5/26/91 and 5/27/91 that he was unavailable for dis-
patch on Tuesday 5/28/91. Dan telephoned me on
5/27/91 and stated that he was out of town and would
not be available until Tuesday night. As you know, this
is not the first time Dan has done this.
Lupo came to work for the Respondent in November
1990. He was variously described as a casual or a regular
part-time driver. He drove anywhere from 24 to 72 hours
each week and was driving almost as many hours as so-
called full-time drivers during the final weeks of his employ-
ment with the Respondent. He signed a union card on or
about May 10 and was the one whom Denham asked to de-
liver signed cards to the union office in Louisville. As noted
above, he was the recipient of a warning from Leah Conrad
to stay away from those who were passing out cards among
the Respondent’s employees.
Lupo did not attend the company meeting of drivers on
May 19 when his status as regular full-time driver was dis-
cussed. Two days later, he had occasion to discuss his status
with Leah Conrad. She informed him that he would be re-
ceiving a letter from the Company informing him that he
would not be made a full-time driver but she advised him
to ignore the letter. She told Lupo that JE was mad about
the fact that Lupo had called in and made himself unavail-
able for assignment on or about May 22 and told him that
it would all ‘‘blow over.’’
On May 28, Lupo received in the mail a memo from JE
dated May 23. It read:
Mr. Lupo, you have been employed by this company
for several months now as a ‘‘casual’’ employee. Our
work level has not justified that you be added to the
permanent ‘‘driver list’’ but you have been working
quite a bit due to driver illness and vacations. The driv-
ers have mentioned that they would like to see you be-
come ‘‘permanent,’’ but this will not be the case in the
near future.
On Wednesday, May 22, 1991, you called Oper-
ations Manager, Leah Conrad, at approximately 05:00
hours and informed her that you were unavailable for
dispatch because you had been out all night. You also
mentioned that you consumed an amount of alcohol
that would make you unavailable for dispatch. This is
the second time that this has happened since you began
working for Q-l Motor Express, Inc., as a ‘‘casual’’
employee.
We have also experienced some problems with your
overall dispatch behavior. Until these behavior incon-
sistencies are corrected, you will not be considered for
full-time status. Operations Manager, Leah Conrad, and
myself will re-evaluate your personal situation again in
(90) ninety days.
Lupo went to the office the following day and complained
to JE about the letter. Lupo objected that he had never said
anything to Leah Conrad about alcohol or partying when he
told her that he would be unavailable for dispatch on May
22. JE replied that Leah Conrad had never lied to him but
told Lupo to disregard the letter. He assured Lupo that he
was still on the driver’s board and said that he had written
the letter just ‘‘to cover my butt.’’
Lupo continued to be dispatched but noticed that three
drivers who had recently been hired were taking more runs
than he was receiving. On June 10, he called JE to complain
about these assignments. JE’s reply was to say that the Re-
spondent was not a union company, that he ran the boat, and,
if he were Lupo, he would not worry about it because Lupo
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was on his way out. With those words as a concluding salu-
tation, JE slammed down the phone. Lupo did not work after
that date. His last run to Milwaukee had been completed on
June 9. On June 12, he and the other two discriminatees in
this case filed individual charges with the Board. Lupo de-
layed turning in the bill of lading on his final run and was
contacted by company officials to do so in order to permit
them to bill their customer. He did so on or about June 1
when he came to the office to pick up his paycheck. On June
21, JE sent Lupo a telegram, which read:
We have attempted to reach you daily beginning 6–
7–91 through 6–17–91. No response. Again, on 6–18–
91, through 6–21–91 daily attempts were made with no
response. Effective this date, 6–21, you are being re-
moved from the casual driver list for absenting yourself
during this period. You are hereby requested to return
to the Q-l Motor Express any company equipment in
your possession as of this date.
On or about July 18, 1991, the Union wrote to the Re-
spondent to demand recognition. The Respondent did not
reply. In the fall of 1991, after the consolidated complaint in
this case had been issued and additional drivers had been
hired, JE had occasion to speak with Hogan in the parking
lot near the office. JE told Hogan that all he wanted was an
election and asked Hogan to pass the word that an election
was all he really wanted. He went on to suggest to Hogan
that the latter would not like working for a union company
because unionization would mean ‘‘forced dispatch.’’
II. ANALYSIS AND CONCLUSIONS
The Independent Violations of Section 8(a)(1) of
the Act
(a) When Leah Conrad informed JE, in response to infor-
mation brought to her by her husband, a bargaining unit
member, that union cards were being distributed and that
Denham was involved with the distribution, the Respondent
engaged in surveillance of the union activities of employees
in violation of Section 8(a)(1) of the Act.
(b) When Leah Conrad told Lupo in the course of a tele-
phone conversation that management was aware that union
cards were being distributed and Lupo should stay away
from those who were involved if he knew what was good
for him, the Respondent created in the minds of employees
the impression that their union activities were the subject of
company surveillance and also threatened employees with
unstated reprisals for engaging in union activities in violation
of Section 8(a)(1) of the Act.
(c) When Leah Conrad told Hogan, in the presence of her
husband, that she would hate to see her husband join the
Union because he would have to find another job, the Re-
spondent was guilty of an implied threat that it would dis-
charge employees in reprisal for union activities in violation
of Section 8(a)(1) of the Act.
(d) When JE told Denham that he had talked with Homer
Longoria and had learned that Denham was the one who was
passing out union cards, the Respondent was guilty of creat-
ing in the minds of employees the impression that their union
activities were the subject of company surveillance in viola-
tion of Section 8(a)(1) of the Act.
(e) When JE told Denham that the Company would have
to fire its drivers, close the Company down, and hire all new
drivers, the Respondent engaged in an unlawful threat of re-
prisal for engaging in union activities in violation of Section
8(a)(1) of the Act.
(f) When JE persisted, telling Denham that no ‘‘half-ass
union’’ would come in and tell him how to run his business
and that he would close the doors and open under a new
name, the Respondent again made an unlawful threat of re-
prisal for engaging in union activities in violation of Section
8(a)(1) of the Act.
(g) When JE told Denham that he had called Denham’s
previous employer and learned that Denham had been a
member of the Teamsters Union for 10 years, JE created the
impression that Denham’s union activities were the subject
of company surveillance and admitted engaging in an act of
illegal surveillance, all in violation of Section 8(a)(1) of the
Act.
(h) When JE phoned Sandra Longoria, stated that all the
men were talking about union organization, and asked her
what she knew, he was creating in the minds of employees
the impression that union activities were the subject of sur-
veillance and was engaging in coercive interrogation con-
cerning union activities. It is true that Sandra Longoria was
not an employee of the Respondent and did not personally
enjoy the protections of the Act. However, the action of the
Respondent in this instance was of such a character that it
must have known that the contents of the phone conversation
with the wife of an employee would soon be communicated
to the employee himself, as indeed it was, bringing about, as
it did, an immediate and angry reaction. Accordingly, the Re-
spondent, by these actions, violated Section 8(a)(1) of the
Act.
(i) When JE told Sandra Longoria that her husband had
gotten himself ‘‘in a fix’’ because of his union activities and
went on to suggest that it might take an adverse personnel
action against him because of an old accident, he threatened
an employee with discharge for engaging in union activities
in violation of Section 8(a)(1) of the Act.
(j) When JE told Longoria that he was not going to let the
Teamsters come in and destroy everything he and his father
had built and that he could turn Q-l over to a sister company,
the Respondent threatened to close the plant in response to
union activities in violation of Section 8(a)(1) of the Act.
(k) When JE told Hogan that unionization would bring a
policy of forced dispatch into the Company, he was threaten-
ing employees with more onerous terms and conditions of
employment in reprisal for union activities in violation of
Section 8(a)(1) of the Act.
(l) When the Respondent awarded employees a pay raise
of 1-cent per mile to dissuade them from engaging in union
activities, it was making an illegal promise of benefit which
violated Section 8(a)(1) of the Act. Pressure had been put on
the Respondent for several months to grant an increase in the
mileage rate from 23 to 24 cents a mile, but had been re-
sisted on the claim that gasoline mileage had been insufficent
to permit the increase. On May 1, JE sent a memo to drivers
thanking them for operating their vehicles with increased fuel
economy. He said he would continue to monitor the situation
and, if the trend continued, ‘‘I will be giving serious consid-
eration to raises in compensation.’’ Three weeks later, he an-
nounced the increase. However, between the May 1 letter
1277Q-1 MOTOR EXPRESS
19 Application for temporary injunction under Sec. 10(j) of the Act.
Bordone v. W-l hotor Express, NA, 91–141–C, U.S. District Court
for the Southern District of Indiana, New Albany Division.
20 See Goren Printing Co., 284 NLRB 30, 34 (1987), and cases
cited therein.
and the May 19 announcement, there is nothing in this
record to suggest any reason for the granting of the long-
promised increase except the onset of union activities. There
is no objective data comparing gas mileage on May 1 to gas
mileage on May 19 which would support JE’s statement at
the May 19 drivers meeting that gas mileage had suddenly
improved to the point where an increase of 1 cent per mile
was warranted. On the contrary, there is a great deal of evi-
dence in the record of company animus and illegal activity
designed to stifle the unionization of the terminal. This ani-
mus, taken together with the timing of the announcement,
makes it clear that the modest pay increase was offered for
illegal reasons and was therefore a violation of the Act.
(m) The consolidated complaint alleges that the Respond-
ent also made an illegal promise of benefit when, at the
meeting of May 19, JE agreed to put Lupo on the drivers
list as a regular full-time employee, subject only to the ap-
proval of two drivers who had not attended the meeting.
Lupo had been an employee of the Respondent for several
months and had recently been receiving a full share of dis-
patches, largely because of vacations, illnesses, and other ab-
sences by regular drivers. He had been pressing the Respond-
ent for several months to become a full-time driver, since
this status would entitle him to health insurance benefits.
Each time he made a request he had been rebuffed and
given, as a response, the equivalent of ‘‘later.’’ At the driv-
ers meeting, however, JE agreed to this request and in-
structed Leah Conrad to make a note of it. He went so far
as to promise to notify Lupo of his decision the following
day, subject to the qualification noted before. The fact that
JE reneged on this promise within a matter of days does not
detract from the fact that he made it. It also illustrates a will-
ingness to adjust a grievance in response to an employee
complaint, even though his advertised willingness was insin-
cere. By promising to install Lupo to permanent driver status
at a time when the Respondent was making both threats and
promises aimed at heading off the unionization of the Com-
pany and, by doing so for antiunion reasons, the Respondent
violated Section 8(a)(1) of the Act.
(n) Late in May during a conversation that took place in
his office, JE told Stevens that he knew the identities of ev-
eryone who had signed a union card. This statement con-
stitutes another instance of creating in the minds of employ-
ees the impression that their union activities were the subject
of company surveillance and is a violation of Section 8(a)(1)
of the Act.
(o) JE’s statement to Stevens on the same occasion that he
would be willing to fire all of his employees if that is what
it took to keep the Union out of the Company is an illegal
threat of reprisal which violates Section 8(a)(1) of the Act.
(p) JE told Lupo on June 10 during the course of a phone
call that the Company was not a union company and if he
were Lupo he would not worry about missing out on dis-
patches since Lupo was on the way out is a threat to dis-
charge an employee for union activities which violates Sec-
tion 8(a)(1) of the Act.
(q) JE’s statement to Hogan in the fall of 1991 that the
unionization of the plant would bring about forced dispatches
is a threat to impose upon employees more onerous working
conditions in repisal for union activities and is a violation of
Section 8(a)(1) of the Act.
The Discharges of Denham, Stevens, and Lupo
The discharges of Denham, Stevens, and Lupo, all of
which took place within 3 weeks of each other, were accom-
plished by an employer who, by its statement, had never be-
fore discharged anyone and who had sought legal advice be-
fore doing so. The discharges were accomplished against a
background of intense antiunion animus, just shortly after the
onset of an organizing drive, by an employer who had re-
peatedly threatened to fire all of its drivers if that is what
it took to defeat the organization of its company. These is
charges also contain other common threads. All three dis-
charges were justified by a string of stale complaints about
the job performances of the affected drivers. They were evi-
denced by a series of written reprimands which none of the
drivers had ever seen before they were confronted with them,
months later, in the course of a U.S. district court hearing
in Indianapolis in October 1991.19 In all three instances the
discharged employees had signed union cards before being
discharged and had been the subjects of 8(a)(1) statements by
the Respondent’s supervisors which were directed personally
and individually at them. In the case of Denham, the dis-
charge served to remove from the Respondent’s payroll the
leader of the organizing drive and a person whose leadership
was well known to the Respondent. These common threads
give rise to more than a mere suggestion that they were ac-
complished for discriminatory reasons.
I credit the testimony of Denham, Stevens, and Lupo that
none of them had access to their respective personnel records
and that none of them had actually received the written
warnings relating to a score of misdeeds on which the Re-
spondent relies to justify their respective discharges. Laying
a paper trail to prepare a legal defense for an illegal action
is hardly an unprecedented act on the part of an employer
who is bent on defeating an organizing drive. See, for exam-
ple, Chopp & Co., 295 NLRB 1058 (1989); Lousiana-Pacific
Corp., 299 NLRB 16 (1990). The fact that JE sought legal
advice before taking a routine step of discharging an erring
employee suggests that he was plotting his course carefully
from the outset. Moreover, the reliance on stale complaints—
misconduct which was tolerated when it happened but which
later became intolerable when unionization was taking
place—is a solid indication that the discharge is being ac-
complished for a discriminatory motive20 because it is moti-
vation, not justification, that determines whether a discharge
violates Section 8(a)(3) of the Act. Family Foods, 300
NLRB 649 (1990).
In the case of Denham, he was furnished with a seven-
item bill of particulars justifying his discharge by the Re-
spondent’s attorney within a week after he solicited sufficient
cards to provide the Union with majority status in the Re-
spondent’s bargaining unit. The letter was sent within days
of Denham’s action in speaking up at the drivers’ meeting
of May 19 to complain about certain company practices.
Two of the items in the bill of particulars related to events
which were more than a year old and pertained to improper
driver’s logs. The Respondent knew and indeed engendered
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the standard practice among its drivers of keeping false and
improper logs to cover up their ongoing practice of violating
DOT driver safety regulations. Relying on such complaints
to explain or justify a discharge is little short of hypocrisy.
The February 6, 1991 item in the attorney’s letter relating to
a torn trailer curtain recites false information. The curtain in
question was repaired by Denham and Suddeth and the tear
cost the Company nothing. Moreover, curtain tears on com-
pany trailers are commonplace in the Respondent’s operation.
Torn curtains are routinely repaired and retained in service,
as was the case with the torn curtain on Denham’s truck.
With regard to drifting off the road surface on I-65 in central
Indiana on February 15, this is another example of a stale
complaint. There is no proof, other than the Respondent’s
unworthy testimony, that any written record of an oral warn-
ing for this infraction was ever placed in Denham’s file nor
is there any credible evidence in the record to rebut
Denham’s testimony that he was not working outside com-
pany hours on a farm, as alleged in the discharge letter. As
for the allegation, also set forth in the letter, that Denham
was repeatedly warned for coming to work tired, to the ex-
tent this was so his fatigue was occasioned by the excessive
number of hours, without required breaks, which he was re-
quired to drive in order to meet the Respondent’s tight deliv-
ery schedule. The Respondent was well aware of this prob-
lem from several complaints which Denham had made, in-
cluding one which he had recently voiced at the May 19
meeting, only to be put down by JE for even mentioning the
topic.
Item 5 in the attorney’s letter, a March 28, 1991, is a log
violation for which Denham was given a suspension. This is
another example of a complaint for activity which was rou-
tinely condoned and encouraged by the Respondent and
hardly the basis for any discipline which might be adminis-
tered evenhandedly. The suspension mentioned in the letter
took place over a 3-day Easter holiday weekend when
Denham and all the Respondent’s other drivers were not
scheduled to work, so any loss of pay which a suspension
would normally bring about was never reflected in Denham’s
paycheck. Denham testified credibly that he never knew of
the suspension until confronted on the stand at the U.S. dis-
trict court hearing in October concerning the March dis-
cipline. The whole complaint was contrived and without
merit, either as a basis or a motivating cause for discharge
and is a further indication of the pretextual nature of the dis-
charge.
Item 6—which apparently is the precipitating event which
assertedly triggered Denham’s discharge—recites that, on
May 25, on a return run to Corydon, Indiana, from Milwau-
kee, Denham was on the road for 19 hours without calling
the disptacher at stated intervals, as required by company
practice. Denham testified that, during this run, he called in
to the dispatcher at repeated intervals throughout the trip. I
credit his testimony.
Item 7—Denham’s failure to log a traffic violation in his
report—falls within the same category as other log viola-
tions. In March, Denham promptly reported a traffic citation
to the Respondent and was able to have it dismissed. The
gravamen in this so-called disciplinary action was not that he
failed to notify the Company of a traffic citation but that he
failed to write it in his log as well. To rely on a trivial mat-
ter occurring in late March to justify a discharge in late May
is another instance of a stale complaint justification as well
as disparate treatment of Denham vis-a-vis other drivers who
routinely engaged in falsification of logs.
In light of the factors outlined above—company animus,
threats of discharge, and animus directed particularly to
Denham, suspicious timing, Denham’s conspicuous leader-
ship in the union drive, and the flimsy, sometimes false, and
thoroughly pretextual nature of the Respondent’s proffered
explanation—I conclude that the Respondent discharged
Donald Ray Denham because of his membership in and ac-
tivities on behalf of the Union and, in so doing, violated Sec-
tion 8(a)(1) and (3) of the Act.
The discharge of Dan W. Stevens followed hard on the
heels of Denham’s termination. Stevens began working for
the Respondent in August 1990 and, in the course of his em-
ployment, drove an estimated 80 or 85 round trips to Mil-
waukee from southern Indiana. His last day of work was
May 30, 1991.
Stevens signed a card on May 19 at the meeting which the
drivers held just before the company meeting. The following
weekend he had a conversation with JE during which JE told
Stevens that he knew the identities of everyone who had
signed a card and expressed an opinion to Stevens that the
drivers had betrayed him, complaining that he thought he had
better friends than he did. There can be little doubt that JE
was referring to Stevens when he made this remark.
What followed after this conversation was a runaround
that led to the sending of a letter, dated May 30, which re-
cited three previous disciplinary actions and stated that Ste-
vens’ excuse for making himself unavailable for dipatch on
May 28 was invalid. In fact, Stevens was available for dis-
patch on that date and planned on taking a return trip to Mil-
waukee as soon as his slip-seat partner, Glisson, returned to
Clarksville. In fact, on the evening of May 28, he was wait-
ing for a call from the dispatcher and, when it did not come
as expected, called Leah Conrad to learn that someone else
had been sent out in his place. His response to this informa-
tion was, ‘‘What in the hell is going on?’’
Three previous disciplinary actions noted in Stevens’
memo of termination were either stale complaints or false
recitations of the events which gave rise to characterizations
of wrongdoing on his part. Stevens was involved in an acci-
dent of minor consequence on October 25, 1990, and, at the
suggestion of JE, falsified some of the facts relating to the
collision so that the Company’s insurance company would
not learn that Stevens had backed into a parked truck. JE
told Stevens during the investigation of the accident that if
he made the insurance company aware of his action the
Company would have to fire him. For his complicity with JE
in this scam, a reprimand appeared in Stevens’ personnel file
when the Respondent was attempting to building a case
against him to justify his discharge.
The second reprimand, dated February 7, involved a blow-
out along the road which resulted in damage to the rim on
one of the Respondent’s trailers. The document accused Ste-
vens of lying when he reported the blowout and exercising
poor judgment in bringing the truck into the terminal for re-
pair rather than calling first to find out whether he should
bring it in. This stale complaint, like the October 25 rep-
rimand, had been placed in Stevens file without his knowl-
edge. Like Denham, he had no knowledge of these rep-
1279Q-1 MOTOR EXPRESS
rimands until confronted with them in October at the U.S.
district court hearing in Indianapolis in the 10(j) case.
The third reprimand recited a suspension on April 25 be-
cause of a false report concerning an accident suffered by
Stevens during the loading of his truck in the A. O. Smith
yard in Milwaukee. At the time Stevens received the suspen-
sion, he was on workmen’s compensation and would not
have been employed in any event. Accordingly, he lost no
pay that he would otherwise have earned. This suspension,
like the other reprimands, first came to Stevens’ attention at
the 10(j) hearing months later.
Stale complaints, coupled with a fanciful version of the
events assertedly bringing about Stevens’ discharge, do not
rebut the strong prima facie case which the General Counsel
established. Accordingly, I conclude that the Respondent dis-
charged Dan W. Stevens because of his membership in and
activities on behalf of the Union and, in so doing, violated
Section 8(a)(1) and (3) of the Act.
Lupo was employed by the Respondent in November
1990. He signed a union card on or about May 10. He was
discharged (removed from the casual driver list) on or about
June 19, 7 days after filing one of the unfair labor practice
charges in this case. The asserted reason for the discharge
was his failure to make himself available for dispatch, al-
though the Respondent presumably had no policy of forced
dispatch and even featured that policy, in conversations with
drivers, as a reason for avoiding unionization. The Respond-
ent’s response to Lupo’s long-sought desire to become a reg-
ular full-time driver was, at best, ambivalent. Before the or-
ganizing drive arose, JE told Lupo that it would be a while
before he would be considered for permanent status. After
the drive arose, JE acceded to a driver request that Lupo be
hired on a full-time basis, subject only to the concurrence of
two employees who were missing from the company meet-
ing. JE even said that he would notify Lupo of this decision
the following day. Within days, JE wrote Lupo, saying that
Lupo would not be considered immediately for permanent
status because, among other things, there were insufficient
runs justifying the employment of another full-time driver.
At the same time, the Respondent was hiring four new em-
ployees. The other proffered reason for denying Lupo perma-
nent status was that he had failed to make himself available
for dispatch on May 22. Not only was this reason contrary
to the Company’s announced policy against forced dispatches
but the facts stated in the reprimand, namely, that Lupo had
been drinking, were also false.
Throughout June, following his last dispatch on June 7,
Lupo continued to make himself available for dispatch. On
or about June 10 he phoned JE and asked why new employ-
ees were being assigned to runs in preference to himself and
was given a curt reply relating to union activities and to
Lupo’s dubious future with the Company. This reply clearly
suggested that JE was aware that Lupo was among the ma-
jority of employees who had signed union cards. Lupo vis-
ited the company office on or about June 14 to pick up his
paycheck and was not informed, either then or on any other
occasion, of any dispatch to which he had been assigned,
notwithstanding the Company’s repeated assertion that it had
been attempting to contact him for 2 weeks without success.
The reasons advanced for the discharge of Lupo, a known
union adherent, were flimsy and pretextual and without foun-
dation in fact. They fall far short of any reliable explanation
which would rebut the strong prima facie case of discrimina-
tion which the General Counsel established. Accordingly, I
conclude that Anthony Lupo was discharged because of his
membership in and activities on behalf of the Union and that
the discharge violated Section 8(a)(1) and (3) of the Act.
The Respondent’s Refusal to Bargain
The parties have agreed to a generic description of an ap-
propriate bargaining unit. It should include all full-time and
regular part-time truckdrivers and driver-mechanics employed
at the Clarksville terminal. They disagree, in some respects,
as to who should be included in that unit. They agree that
Glisson, Conrad, Logan, Logsdon, Stevens, Longoria, Tomes,
Lupo, and Starcher should be in the unit, as of that date. The
General Counsel also contends that Denham and Suddeth
should be included, thereby establishing a bargaining unit of
11 members. There is no reason why Denham, who was then
a full-time driver on the Respondent’s payroll, should not be
included and I do so. As for Suddeth, he was not only a me-
chanic but also drove for the Respondent on occasions when
driver shortages arose. He was always on call and regularly
employed. His status clearly fits the unit description of a reg-
ular driver mechanic. Accordingly, I include his name among
those eligible to vote on May 19.
Six of these individuals signed union cards which were ad-
mitted into evidence on or before May l9. Their designation
of the Union would give the Union majority status as of that
date. Denham said as much at the informal drivers’ meeting
which took place before the company meeting on May 19.
Respondent objects to any determination of majority based
on Longoria’s card because it was not produced at the hear-
ing for inspection. Longoria credibly testified that he signed
a union card before the May 19 meeting. Apparently his card
was mislaid. It is well settled that secondary evidence is ad-
missible to authenticate the signing of a card and I would do
so in this instance, thereby counting Longoria’s designation
of the Union in determining its status as of May 19. Aero
Corp., 149 NLRB 1283, 1291 (1964) (Monroe Lindsey);
J. P. Stevens & Co., 247 NLRB 420 at 486 (1980) (Fred
Houston); Hedstrom Co., 223 NLRB 1409, 1411 (1976)
(William Hammer); Gupta Permold Corp., 289 NLRB 1234,
1258 (1988) (Brian Moree). The Respondent also objects to
the use of Stevens’ card because, while Stevens filled out the
body of the card, he neglected to affix his signature in cur-
sive script at the bottom. Such a trivial oversight does not
invalidate a card. Pilgrim Life Insurance Co., 249 NLRB
1228 at 1241 (1980) (Debra Marie Marinaro); Laidlaw Waste
Systems, 305 NLRB 30 (1991) (Delbert Baldwin). Thus, it is
clear that, as of May l9, 1991, the Union had been des-
ignated the collective-bargaining representative by 8 out of
the 11 individuals employed by the Respondent in its driver-
mechanic bargaining unit.
The Respondent points out that the Union did not make
a demand for recognition until July 18 and contends that ma-
jority status should be determined as of that date, not as of
May 19. If this were so, the cards of Denham, Stevens, and
Lupo would still have to be counted since they are
discriminatees and cannot be deprived of their right to des-
ignate a bargaining agent by the Respondent’s unlawful con-
duct. John Rinkel & Son, 157 NLRB 744 (1966); Brunswick
Meat Packers, 164 NLRB 887 (1967); Wisconsin Bearing
Co., 193 NLRB 249 (1971); Custom Bent Glass Co., 304
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). 22 F. W. Woolworth Co., 90 NLRB 289 (1950).
NLRB 373 (1991). As of July 18, the date of the demand,
there were four additional drivers on the Respondent’s pay-
roll. These are the individuals who were hired in late May,
presumably in response to the ad which was placed in the
Louisville Courier-Journal. Using July 18 as the date for de-
termining majority status would mean that the Union still
had eight cards in a unit of 15 rather than 11 employees and
would not be deprived of a majority status.
However, May 19, not the later date, is the appropriate
date to use for this purpose. It is well settled that a so-called
Gissel21 order is a remedy for an 8(a)(1) violation, not an
8(a)(5) violation. Hence, where, as here, an employer em-
barks on a campaign of illegal activities designed to under-
mine the union’s majority status, a union will be deemed to
have achieved that status if it has done at any time after the
unlawful campaign has begun. Indeed, there is no legal re-
quirement that a union, in such circumstances, even make a
demand for recognition in order to be entitled to the benefit
of a bargaining order. In this case, the Respondent began to
undermine the Union’s status as soon as it learned that its
employees were organizing, an event which occurred several
days before the May 19 date here in issue. Lapeer Foundry
& Machine, 289 NLRB 952 (1988); M. K. Morse Co., 302
NLRB 921 (1991); Laidlaw Waste Systems, supra. In light of
these considerations, I conclude that by failing and refusing
to bargain with the Union as the exclusive majority rep-
resentative of its employees in the unit noted above, the Re-
spondent violated Section 8(a)(1) and (5) of the Act.
On these findings of fact and on the entire record consid-
ered as a whole, I make the following
CONCLUSIONS OF LAW
1. Q-l Motor Express, Inc. is now and at all material times
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. General Drivers, Warehousemen & Helpers Local
Union No. 89, affiliated with the International Brotherhood
of Teamsters, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time drivers and driver-
mechanics employed by the Respondent at its Clarksville, In-
diana terminal, exclusive of office clerical employees and su-
pervisors as defined in the Act, constitute a unit appropriate
for collective bargaining within the meaning of Section 9(b)
of the Act.
4. Since on or about May 19, 1991, the Union has been
the exclusive collective-bargaining representative of all the
employees in the unit found appropriate in Conclusion of
Law 3 for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain collectively with
the Union as the exclusive collective-bargaining representa-
tive of its employees employed in the unit found appropriate
in Conclusion of Law 3, the Respondent has violated Section
8(a)(5) of the Act.
6. By discharging Donald Ray Denham, Dan W. Stevens,
and Anthony Lupo because of their membership in and ac-
tivities on behalf of the Union, the Respondent violated Sec-
tion 8(a)(3) of the Act.
7. By the acts and conduct set forth above in Conclusions
of Law 5 and 6; by coercively interrogating employees con-
cerning their union activities and the activities of other em-
ployees; by creating in the minds of employees the impres-
sion that their union activities are the subject of company
surveillance; by threatening to discharge employees and to
close the Company in order to discourage union activities; by
promising and paying increased wages to employees in order
to discourage union activities; by threatening to impose on
employees more onerous working conditions if they engaged
in union activities; by promising to adjust grievances in order
to discourage union activities; and by threatening to take un-
specified reprisals upon employees if they unionized, the Re-
spondent violated Section 8(a)(1) of the Act.
8. The unfair labor practices recited above have a close,
intimate, and adverse effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cerain
unfair labor practices, I will recommend that it be required
to cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purposes and policies of
the Act. Because the independent violations of Section
8(a)(1) of the Act found are repeated and pervasive and evi-
dence an attitude on the part of the Respondent to behave
in total disregard of its statutory obligations, I will rec-
ommend to the Board a so-called broad 8(a)(1) remedy de-
signed to suppress any and all violations of that section of
the Act. Hickmott Foods, 242 NLRB 1357 (1979). The rec-
ommended Order will also recommend that the Respondent
be required to offer to Donald Ray Denham, Dan W. Ste-
vens, and Anthony Lupo full and immediate reinstatement to
their former or substantially equivalent employment and to
make them whole for any loss of earnings which they may
have sustained by reason of the discriminations practiced
against them, in accordance with the Woolworth formula,22
with interest at the rate prescribed by the Tax Reform Act
of 1986 for the overpayment and underpayment of Federal
income taxes. New Horizons for the Retarded, 283 NLRB
1173 (1987).
The General Counsel has requested a so-called Gissel rem-
edy which would require the Respondent to recognize and
bargain with the Union as the exclusive bargaining represent-
ative of its production and maintenance employees. In this
case, the Respondent engaged in a campaign of wholesale in-
timidation of its employees. It included the discharge of the
in-house leader of the campaign and two other card signers.
The Respondent threatened to close the plant and gave evi-
dence of the seriousness of its announced intention when it
carried out a companion threat to discharge union adherents.
The 11-man unit in which this activity took place interacted
with each other and with the Respondent’s management on
a highly personal basis, it is hard to imagine that an election
could be conducted in an atmosphere free of coercion and in-
timidation when the owners and managers behaved without
compunction in the manner in which they did. The Board
and the Seventh Circuit have approved bargaining orders in
other cases where illegal conduct was far more restrained
than that which was recited in the record in this case. NLRB
1281Q-1 MOTOR EXPRESS
23 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.
24 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.’’
v. Henry Colder Co., 447 F.2d 629 (1971); NLRB v. Copps
Corp., 458 F.2d 1227 (1972); NLRB v. Big Ben Shoe Store,
440 F.2d 347 (1971); NLRB v. Brown Specialty Co., 436
F.2d 372 1971); NLRB v. Texaco, Inc., 436 F.2d 520 (1971),
cert. denied 409 U.S. 1008 (1972); NLRB v. Self-Reliance
Ukranian American Cooperative, 461 F.2d 33 (1972); Town-
house TV & Appliance v. NLRB, 531 F.2d 26 (1976);
Walgreen Co. v. NLRB, 509 F.2d 1014 (1975); NLRB v.
Berger Transfer Storage, 678 F.2d 679 (1982). I will also
recommend that the Respondent be required to expunge the
personnel records of the three discriminatees of any and all
reprimands and other disciplinary action taken in pursuit of
its illegal purposes and that it be required to post the usual
notices advising its employees of their rights and of the re-
sults in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended23
ORDER
The Respondent, Q-l Motor Express, Inc., Clarksville, In-
diana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their
union activities and the union activities of other employees.
(b) Creating in the minds of its employees the impression
that their union activities are the subject of company surveil-
lance.
(c) Threatening to discharge employees or to close the
plant in reprisal for engaging in union activities.
(d) Granting pay increases and promising to adjust griev-
ances in order to discourage union activities.
(e) Threatening employees with more onerous working
conditions and other unspecified reprisals for engaging in
union activities.
(f) Discouraging membership in or activities on behalf of
General Drivers, Warehousemen & Helpers, Local Union No.
89, affiliated with the International Brotherhood of Team-
sters, AFL–CIO, or any other labor organization, by dis-
charging employees or otherwise discriminating against them
in their hire or tenure.
(g) Refusing to recognize and bargain collectively with
General Drivers, Warehousemen & Helpers, Local Union No.
89, affiliated with the International Brotherhood of Team-
sters, AFL–CIO as the exclusive collective-bargaining rep-
resentative of all the Respondent’s full-time and regular part-
time drivers and driver-mechanics employed at its Clarks-
ville, Indiana terminal, exclusive of office clerical employees
and supervisors as defined in the Act.
(h) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the purposes of the Act.
(a) Offer to Donald Ray Denham, Dan W. Stevens, and
Anthony Lupo full and immediate reinstatement to their
former or substantially equivalent employment, without prej-
udice to their seniority or to other rights previously enjoyed,
and make them whole for any loss of pay or benefits suf-
fered by them by reason of the discrimination found, in the
manner described above in the remedy section.
(b) Expunge from the personnel records of Donald Ray
Denham, Dan W. Stevens, and Anthony Lupo any and all
disciplinary warnings and discharge notices, and notify them
in writing that such warnings and notices will not form the
basis for future disciplinary actions.
(c) Recognize and, on request, bargain collectively in good
faith with General Drivers, Warehousemen & Helpers, Local
Union No. 89, affiliated with the International Brotherhood
of Teamsters, AFL–CIO, as the exclusive collective-bargain-
ing representative of all full-time and regular part-time driv-
ers and driver-mechanicg employed by the Respondent at its
Clarksville, Indiana terminal, exclusive of office clerical em-
ployees and supervisors as defined in the Act.
(d) 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.
(e) Post at the Respondent’s Clarksville, Indiana terminal
copies of the attached notice marked ‘‘Appendix.’’24 Copies
of the notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous 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.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.