So-White Freight Lines

National Labor Relations Board - Board Decisions

Jan 18, 1992

301 N.L.R.B. 223 (N.L.R.B. 1992)

223
301 NLRB No. 26
SO-WHITE FREIGHT LINES
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule a judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We find it unnecessary to pass on the judge’s finding that the reasons ad-
vanced by the Respondent for suspending and laying off Warner were
pretextual. Instead, in finding that the Respondent has violated Sec. 8(a)(3) and
(1) of the Act, we rely on the judge’s finding that the Respondent failed to
satisfy its burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983), to show that it
would have suspended and laid off Warner even in the absence of his pro-
tected concerted and union activities.
3 We shall modify the reinstatement language in the judge’s recommended
Order to conform to that traditionally used by the Board. No modification is
required in the notice.
4 The judge inadvertently failed to provide that Warner’s backpay is to be
computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
5 Programming & Systems, 275 NLRB 1147, 1148 (1985).
1 All dates are in 1989 unless otherwise stated.
So-White Freight Lines, Inc. and William A. War-
ner. Case 30–CA–10381
January 18, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On July 17, 1990, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed a brief in opposition to the Respond-
ent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings1 and con-
clusions,2 to amend the remedy, and to adopt the rec-
ommended Order, as modified.3
AMENDED REMEDY
Having found that the Respondent unlawfully per-
manently laid off employee Warner, the judge rec-
ommended that the Respondent be ordered to offer
him reinstatement and to make him whole for any loss
of earnings he may have suffered as a result of the dis-
crimination against him from the time of his November
28, 1988 layoff to the date he is offered reinstatement.4
In doing so, the judge refused to limit Warner’s back-
pay eligibility ‘‘by an alleged date on which he other-
wise would have been laid off after November 28,
1988.’’
Contrary to the judge, we find that the Respondent
is not precluded from the opportunity to show at the
compliance stage of this proceeding that, had it not
laid off Warner for unlawful reasons when it did so,
it nevertheless would have laid him off for lawful rea-
sons at a later date.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, So-
White Freight Lines, Inc., Plover, Wisconsin, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
Substitute the following for paragraph 2(a).
‘‘(a) Offer William Warner immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth
in the remedy section of this decision.’’
Joyce Ann Seiser, Esq., for the General Counsel.
Paul J. Zech, Esq. (Felhaber, Larson, Fenlon & Vogt, P.A.),
of Minneapolis, Minnesota, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a charge
filed by William E. Warner, on March 7, 1989,1 a complaint
was issued alleging that So-White Freight Lines, Inc., Re-
spondent, violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by suspending and subse-
quently laying off Charging Party William Warner because
he concertedly solicited complaints of Respondent’s employ-
ees regarding their wages, hours, and working conditions,
and brought the complaints to the attention of Respondent.
Respondent denies the allegations.
A hearing was held in Stevens Point, Wisconsin, on July
11. On the entire record in this case, including my observa-
tion of the demeanor of the witnesses and consideration of
the briefs filed by General Counsel and Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the interstate and intrastate
transportation of chemicals and other commodities. The com-
plaint alleges, the Respondent admits, and I find that at all
times material Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that General Teamsters Union, Local No. 662,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Profit-and-loss statements showed that Respondent experienced a loss of
$54,143 in 1986, and a loss of $265,318 in 1987, R. Exhs. 1 and 2, respec-
tively. R. Exh. 3 shows that Respondent had a loss for each of the months
of 1988, beginning with a loss of $31,040 in January and experiencing losses
of $27,937 in October, $41,433 in November, and $50,917 in December. Total
losses of $394,699 were recorded for 1988.
3 According to G.C. Exh. 6, Respondent, at the time of the hearing herein,
employed six drivers. Five drivers were laid off after Warner. Apparently, the
three or so other drivers left before they were laid off. Only one of the laid-
off drivers was recalled, Don Korbitz.
4 Assertedly, criteria included the efficiency of the trucks and deliveries, de-
pendability of the drivers, availability and flexibility of the driver to work
weekends, the driver’s attitude, safety, preparation and completion of paper-
work, customer complaints, ability to get the job done, dispatcher complaints
and other general problems.
5 Eckes testified that during the time he and Maluka made up the list rating
the drivers, they never had any discussions about a rumor that Warner was
interested in having a union; and that while he heard Warner was interested
in having a union at the Company, it had no bearing on his decision to put
him at the bottom of the list. Eckes also testified that if Warner was not laid
off in November 1988, he would have been laid off in February 1989.
6 She was Elaine Bottensek during her employment at Respondent’s Plover
facility. Bauman pointed out that one time Warner telephoned her and told her
that he was in Madison, Wisconsin, and he could not make his drop when
in fact Terry Weir, the production manager at So-White Chemical Company,
told her that he had just seen Warner a short distance from Respondent’s facil-
ity. The involved load had to be rescheduled for the following day, according
to Bauman’s testimony. Bauman could not explain why this alleged incident
was not documented and why there was no disciplinary action taken. Weir cor-
roborated Bauman, testifying that the incident occurred in the summer of 1988.
7 Maluka testified that he personally observed Warner on two occasions
wearing a holely T-shirt and holely cutoff jeans.
8 On cross-examination Maluka testified that the normal procedure is for the
driver to receive advance authorization from the dispatcher before he uses a
lumper.
CIO (Union) has been a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, which has a terminal at Plover, Wisconsin,
was established in 1986 to distribute the products of an affili-
ated company, So-White Chemical Company, namely,
bleach, ammonia, fabric rinse, pool chlorine, and windshield
wash. Eventually, it expanded its original fleet of two trucks
so that it could handle long-haul outbound loads of other
companies. In 1987 it had a total of 17 trucks. From its be-
ginning, Respondent operated at a loss.2
In May 1988 Respondent hired Gary Maluka to manage
the Company and determine why Respondent was losing
money and what should be done to end the losses.
In August 1988 So-White Chemical lost a major contract
that it had had with the Department of the Army for several
years.
When its losses continued notwithstanding a rate increase,
Respondent, on September 1, 1988, distributed the following,
General Counsel’s Exhibit 2, to its employees:
A management decision has been made to cutback
on out-bound loads for other shippers unless a profit
can be anticipated. So-White Chemical will continue to
be our principal customer.
Over the next few weeks we will be reducing our
operations. We plan to run our best trucks and drivers
on an as needed, as available, basis. This will mean that
some of the employees will be reduced to part time.
Please see Gary Maluka or Mike Stensberg if you
have specific questions on the plans for the next few
weeks.
In November 1988 Respondent was faced with the renewal
of the annual registration and licensing of its trucks at a cost
of $18,000 per truck. it decided not to register some of its
trucks and to reduce its staff. Some of the trucks were sold
and others were parked or used for spare parts. Respondent
laid off mechanics and a dispatcher. Another dispatcher was
transferred to another company. Truckdrivers were also laid
off, with Warner being the first.3 Assertedly, driver Robert
Ward was scheduled to be laid off the same time as Warner
but Ward, during his last run, was injured and he went on
workmen’s compensation. At the time of Warner’s layoff,
some of the other drivers were on reduced hours or on work-
men’s compensation.
The layoffs were made according to a layoff list prepared
by Maluka and dispatcher Ronald Eckes (G.C. Exh. 8). As-
sertedly, the drivers’ position on the list depended on his or
her performance.4 Both Maluka and Eckes agreed that War-
ner deserved to be at the bottom of the list of 15 drivers be-
cause of his poor performance.5 The other dispatcher, Elaine
Bauman, agreed.6 Maluka testified that Warner was listed as
the first to be laid off because:
He was undependable. We put a load out to him to
schedule him for delivery, and he may take it or he
may not. He may call you on it and tell you ‘‘No, I
can’t make.’’ at the last minute. Then you gotta scram-
ble around and try to find some other driver for it. He
may just take off from [sic] and not be there on time.
Typically the one trip that comes to mind is one we got
involved in, where he went up to Duluth. When he
couldn’t take the Georgia trip he went up to Duluth and
it was supposed to be that move there, go up to Duluth,
make your delivery at Gateway, pick up a back haul,
come back and deliver the back haul. And it would take
five hours to get there, unload, pick up your backhaul,
and then the next day make your deliveries. And that
would be a two day trip. That is what we would nor-
mally schedule someone for. There are always problems
with Bill it seems, so that it turned into a three day trip
before he finally could get his load off. That wasn’t un-
usual.
Maluka also testified that Respondent received customer
complaints about Warner’s personal appearance with one
customer complaining that Warner wore a sweatshirt that
was ripped and had holes in it and cutoff blue jeans with
holes in them;7 that Warner came late to a safety meeting
and he complained after the meeting was over; that Warner
incurred ‘‘lumper’’ (unloading) charges which seemed exces-
sive and which involved places where other drivers would
deliver without lumpers;8 that while he heard that Warner
drank, he did not take into consideration Warner’s suspen-
sion for having alcohol on his breath, after returning from a
lunchbreak (G.C. Exh. 11(b)), since Warner ‘‘had a full ex-
planation that it was a non-alcoholic beer’’; that he was con-
cerned as to whether Warner would be under the influence
of alcohol when reporting for work on Monday morning; that
225SO-WHITE FREIGHT LINES
9 Another of Respondent’s truckdrivers, Linda Davis, testified that during
the few months that she drove for Respondent she had to tell Respondent’s
dispatchers four to six times that she could not take a load because she did
not have enough hours left. She was never disciplined for not having sufficient
hours to handle the loads. At the time of the hearing, Davis had lived with
Warner’s sister for 8 years.
10 Eckes corroborated Maluka on Warner’s misdelivery of product.
11 Bauman pointed out that Warner’s lateness on Monday mornings had a
domino effect in that the deliveries were by appointment brokers arranging the
backhauls and would give the load to someone else if it was not picked up
on time, and if Respondent lost the backhaul its dispatchers would have to
look for other loads.
12 Thomas Teske conceded that while Warner’s employee data calendar has
a place for marking days when an employee arrives for work late, there were
no marks of this kind on Warner’s calendar. G.C. Exh. 52.
13 While Thomas Teske testified that there probably was documentation of
the customer complaints, such documentation, if it exists, was not produced
at the trial.
14 General Counsel explained that the list introduced was one of those re-
turned by one of the truckdrivers since a blank copy was not available.
15 Errors in the transcript are noted and corrected.
16 Roger Teske testified that he did not remember the can that Warner gave
him but he, Teske, the night before he testified purchased a six-pack of non-
alcoholic Kingsburry Beer and the label indicated that it contained one-half
of 1 percent alcohol. Apparently the label reads less than one-half of 1 percent
alcohol.
Warner refused a trip to Georgia and the reasons he gave as
to why he couldn’t take it did not hold water or didn’t seem
logical or reasonable at the time; that they did not have War-
ner’s paperwork in at the time but they believed that he
should have been able to make the trip to Georgia on 3 days’
notice and yet he chose not to do it;9 that Warner received
a suspension over this refusal (G.C. Exh. 1 (a)); and that
Warner indicated that he did not want to drive a tanker any-
more because he felt he was not paid enough considering the
risks involved in transporting hazardous materials. Also, it is
asserted by Respondent’s witnesses that Warner lied to a dis-
patcher about his whereabouts; that empty beer cans were
found in a truck driven by Warner and other drivers; that
Warner hauled loads without shipping papers and transported
hazardous materials without appropriate placards in violation
of the Federal Department of Transportation (DOT) rules;
that Warner delivered loads late, receiving a warning notice
for, among other things, the late delivery of a tanker load
(G.C. Exh. 11(c)); that Warner’s late deliveries affected War-
ner’s ability to handle backhauls without a layover; that War-
ner delivered product to the wrong place;10 that on an aver-
age of once per month Warner would be late reporting to
work on Monday mornings;11 and that this, on one occasion,
caused Respondent to have to sell the product to a warehouse
at a cut rate when the customer rejected the load when it ar-
rived late.
Respondent’s president, Thomas Teske, testified that War-
ner belonged at the bottom of the layoff list, or in other
words he should have been the first to be laid off, because
he was told by the dispatchers that Warner and Ward were
not carrying their weight in that they were not making the
deliveries and traveling the miles as the other drivers were;
that Warner did not show up for work on time12 and he
would fail to make deliveries on time; that customers would
complain;13 that he would miss backhauls; that he believed
that Warner had a problem with alcohol because he had
heard of the suspension for drinking alcohol while on the job
and the fact that beer cans were found in a truck Warner
drove; that Warner promoted himself as a qualified tank
truckdriver when he was hired but after handling a few tank-
er loads of hazardous material, Warner refused to handle
these loads; and that Warner handled a hazardous load with-
out proper documentation or placards.
With respect to Warner’s record, he began working for
Respondent in April 1987, and on October 16, 1987, Warner
received two warnings (G.C. Exhs. 11(e) and (f)). Respec-
tively, the first was for damaging a trailer door. The second
was for mixing up deliveries.
On November 9, 1987, Warner received a warning for vio-
lating DOT’s regulations regarding the 70-hour, 8-day rule
and the 10-hour driving rule (G.C. Exh. 11(d)).
On February 25, 1988, Warner received a warning (G.C.
Exh. 11(c)), which indicated that he left the pant with no pa-
perwork and he returned with no paperwork, he had no
knowledge as to the type of product he was hauling, he had
the wrong placards on the tanker trailer, he had no signed
receipt from the customer and he was at least 3 hours late.
In early March 1988 Warner mailed a list of concerns to
his fellow drivers excluding those in Milwaukee, Wisconsin
(G.C. Exh. 50) which is attached as Appendix A.14 Approxi-
mately 1615 letters or lists were mailed and Warner testified
that he received about 13 or 14 back.
On March 24, 1988, Warner received a warning which in-
cluded a 3-day suspension (G.C. Exh. 11(b)). The ‘‘COM-
PANY REMARKS’’ section of the warning indicates ‘‘[s]mell
of alcohol on the breath after returning from lunch. Company
policy does not permit this.’’ In the ‘‘EMPLOYEE REMARKS’’
section of the warning, the following appears: ‘‘the smell
was not alcohol. We had two cans apiece of Kingsbury non-
alcohol malt beverage with our lunch. Can obtain written
statement to this fact. When tried to explain this to Diane
[Sparks, the terminal manager] she hung up on me. Do not
believe this warning justified.’’ (Emphasis in original.)
Warner testified that after he sent the above-described let-
ter (G.C. Exh. 50) to the drivers and after he had received
most of the replies, he received the March 24 warning; that
at the time he was injured and he was doing light duty in
the office; that he went to lunch with John Sparks at the
Dugout Pub and Grill where they had sandwiches and a cou-
ple of nonalcoholic Kingsburry drinks; that when they re-
turned to work Sparks told him that there was nothing for
him to do so he could go home; that Spott called him about
4 p.m. and told him that they had both been suspended for
drinking on the job; that he telephoned Sparks and she said
that he had alcohol on his breath; that when he tried to ex-
plain Sparks hung up; that the following Sunday he brought
Roger Taske a can of the nonalcoholic beer and an affidavit
from a waitress and a person from the pub;16 ‘‘that Roger
Teske said that he would look into the matter; that no one
from the Company talked to him about the incident before
issuing the suspension; and that on another occasion one of
the mechanics told him that some beer cans were found in
the side compartment of a truck that he and three or four
other drivers used but the beer cans were not his.
Thomas Bodzislaw, who worked as a truckdriver for Re-
spondent, testified that while he was doing light-duty work
in Respondent’s office in March or April 1988, he was told
to check Warner’s logs for violations since he was ‘‘screw-
ing off.’’ Bodzislaw testified that he overheard Eckes saying
that Warner would not put his unloading hours in the off-
duty section of the log but rather placed them in the on-duty
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Sparks corroborated this, testifying that she saw a one-page list of driver
complaints, Warner admitted to her that he had written it, and she gave a copy
of the list of complaints to and discussed the list with Roger Teske. Roger
Teske denied seeing the letter or anything like it at that time. Thomas Teske
also denied seeing the letter at that time. Thomas Teske testified that he never
heard of any effort on the part of any employee of the Respondent to bring
in a union; that he himself at one time belonged to a union, and his father
was once fired because he belonged to a union; and that he would reprimand
any supervisor who was engaged in antiunion activity. Sparks testified that she
did not recall ever hearing any comments about unionization or other orga-
nizing among the drivers at Respondent.
18 Sparks testified that Warner asked for a meeting with Roger Teske and
that the normal procedure was for her to tell the drivers who asked to see
Roger Teske that he would be available on Saturdays and Sundays, usually
in the afternoon; that she did not recall ever scheduling a 10 a.m. appointment
for Warner to meet Roger Teske; that Warner asked more than once to see
Roger Teske; and that Warner and driver Dave Lepak together testified that
Eckes made this statement. Subsequent testimony, however, demonstrates that
Warner made this statement.
19 At Tr. 116, L. 18, it initially apprars that Warner testified that Eckes
made this statement. Subsequent testimony, however, demonstrates that War-
ner made this statement.
20 This statement was not included in the affidavit Warner gave to the Na-
tional Labor Relations Board (Board).
section of the log. According to Bodzislaw, Warner was
making these entries in the log the proper way.
Warner testified that in the end of March or the beginning
of April he spoke with Terminal Manager Diane Sparks, ask-
ing her to set up a meeting with Supervisor Roger Teske,
who is the son of the president of Respondent; that he told
Sparks that he wanted to set up a meeting with Roger Teske
to talk about some of the concerns of the drivers; and that
Sparks said that Roger Teske had already seen a copy of the
letter,17 agreed with parts of it, and would meet on Saturday
at ‘‘10 o’clock.’’ Assertedly, the meeting was to take place
on the first Saturday of June.18
In May 1988 Warner had a chargeable accident (G.C. Exh.
49).
Also in May 1988, Warner received an evaluation (G.C.
Exh. 10). Most of the ratings on the ‘‘Driver Personnel Re-
view Form’’ are average with Warner receiving ‘‘GOOD’’
ratings on safety, care of equipment, and customer relations
and ‘‘FAIR’’ on punctuality. The remarks portion of the
form concludes with ‘‘You try to do too much in a day,
Mondays appear to be especially difficult. Please try to
schedule your time to avoid speeding and late deliveries.’’
According to the testimony of Warner, Roger Teske did
not show up for the meeting on the first Saturday of June
1988 and when he, Warner, mentioned this to Sparks, she in-
dicated that Roger Teske changed the meeting to the fol-
lowing Saturday at 10 a.m. at the chemical plant, which is
next door to Respondent’s facility. Warner testified that sub-
sequently Sparks told him that Roger Teske indicated that he
did not want to talk to more than two of the drivers at a
time.
Warner arranged a picnic on July 30, 1988, for Respond-
ent’s drivers. Warner testified that he made a flyer announc-
ing the picnic and tried to have copies made at the chemical
plant. He was told that since it was not a company-sponsored
picnic he could not use the copy machine. Warner had copies
made and he put them on the drivers clipboards and one on
the bulletin board in the hall. The flyers did not say anything
about a union. But in talking with the drivers, Warner told
them that the purpose of the picnic was to determine whether
they should go to a union. About eight drivers attended the
picnic. It was decided that Warner should contact a union.
Bodzislaw, who at the time worked in Respondent’s office
on light duty, testified that at that time Eckes said that War-
ner was a ‘‘pain in the ass, causing trouble with the union’’
and that Eckes said that Warner ‘‘is tryiny to organize a
union in here.’’ Roger Miller, Respondent’s safety director,
assertedly told Bodzislaw that Warner was organizing the
picnic.
During the first week in August 1988 Warner contacted a
local of the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO.
Warner was told that the Teamsters was trying to organize
So-White Chemical and it did not want to be trying to orga-
nize both companies at the same time.
After the picnic and after he spoke to the union representa-
tive, Warner had occasion to be in Respondent’s office when
a load was not ready when he arrived at the facility. Warner
testified that he would get called in to leave with a load and
it would take 4 hours after he got there to have the truck
loaded. Assertedly Eckes was present and he, Warner,19 said
‘‘this stuff will asked change . . . if the union is in here’’
or ‘‘things would be better around here once the union is
in.’’20
On September 26, 1988, Warner received a warning which
included a 3-day suspension (G.C. Exh. 11(a)). The ‘‘Com-
pany Remarks’’ section of the warning reads:
Refusing to leave at So-White Lines in time to make
delivery in Forest Park Ga. 7:00 am Monday 9-26-88
We had to find another driver to cover the load so
not to be late on the delivery time and chance of the
load spoiling as it was a perishable load.
Oral warnings on calling in late and/or not calling as
directed in the company policy book.
The ‘‘Employee Remarks’’ section of the warning contains
the following:
1. Wasn’t hired for long hauls recently refused long
haul tractor. Ad I answered stated 3 day runs 900 plus
miles long haul
2. told by Roger Miller he had found trade and I
owed Lee Barz that was Sat. Fri could not reach dis-
patch
[3.] Work Thursday trip could not have made trip on
time.
4. turned down long haul truck several months ago
not very many trucks in fleet suitable for long haul.
5. Was told by Ron Eckes Thursday to call in Friday
4:30 PM which I did. His standard practice.
6. other drivers have refused trips no action taken. I
didn’t refuse load first stated I couldn’t make 7:00 AM
Monday.
7. this is exactly the kind of problems drivers want
to discuss with management meetings were set up man-
agement didn’t show up.
8. Feel this is first a way of not paying unemploy-
ment when work shortage is forecasted by management
letter to drivers.
9. I also feel I am being harassed by company be-
cause I refuse to run illegal and my attempt to listen
to drivers problems and relate them to management,
227SO-WHITE FREIGHT LINES
21 Warner pointed out that the ad he answered indicated that the trips would
be 1 to 3 days and said nothing about trips longer than 3 days. Respondent
introduced the ad and said it ran around the time Warner was hired. R. Exh.
16. The ad reads, in part, as follows: ‘‘We offer 1, 2, and 3 day runs primarily
mid-west.’’ Sherri Teske, Roger’s wife, testified that she interviewed Warner
and she thought that she made it clear to Warner that ‘‘[w]e didn’t go way,
way out east, New York, every day. But we were looking for people who
could do some traveling.’’
22 Warner pointed out that G.C. Exh. 51 shows that he had 18.5 hours re-
maining in his 70-hour work week. Also, he testified that, depending on traf-
fic, it would take 22 to 24 hours to legally drive from Milwaukee to Atlanta,
Georgia, during a weekend; that he does not drive long haul so that he has
not driven the route; that when he told the dispatcher that he did not have
enough hours, the dispatcher did not have any way of knowing how many
hours he had already driven in his 70-hour week; and that no one called and
talked to him about this before the suspension was issued.
23 Bodzislaw also testified that he heard people in the office discussing the
fact that Warner was trying to get the Union in there and cause trouble among
the drivers; and that he did not know who said this. Roger Teske testified that
he was sure that he said that Warner was ‘‘screwing off’’ too much but since
he, Roger Teske, did not know about the Union other than suspecting Lepak
of union affiliation, he could not have made a comment that Warner was cre-
ating problems because of the attempt to unionize the drivers.
and management personal [sic]. I talked to [sic] has
since been laid off.
10. I also worked one day of suspension because it
benefitted the company. Date of warning 9-26-88 was
dispatched Sat. to Duluth Minn. 6:00 A.M. Monday.
Under the above-described quoted material the following ap-
pears:
TOM T.
2. told Bill Warner that Lee was going to take load
after Bill refused to make delivery time.
5. Did not call in till 5:30 pm.
6. Had time to make delivery [by] leaving Sat after-
noon. only 912 miles, was off 2-1/2 days. Tom Bill has
been a problem with using up his hours by logging
every stop. on duty not driving Then he is always out
of hours.
Roger Miller’s signature appears under the last of the above-
quoted portions of the warning.
Regarding this warning, Warner testified that he received
the dispatch on the morning of September 24, 1988; that
when he was told that he had to be in Atlanta, Georgia, at
6 a.m. Monday, he told the dispatcher that he was not hired
to handle long hauls21 and that he did not have enough hours
to make the delivery on Monday morning22 but could make
it on Tuesday morning; that he asked the dispatcher if he
could find someone to trade loads; that the dispatcher called
him back and said Roger Teske said that if he did not take
the load he would be suspended; that the dispatcher called
later and indicated that driver Lee Barz would take the load
and Warner would take Barz’ load to Duluth; that he made
the run to Duluth and when he returned he was advised that
he had been suspended but that he was to handle another
load before starting his suspension; and that he had turned
down dispatches for long hauls prior to this one and he had
never been disciplined.
Linda Davis, who was a truckdriver for Respondent, testi-
fied that while she was performing light duty in Respond-
ent’s office in mid-October 1988 she overheard a conversa-
tion between Maluka and Eckes and one of these individuals
said that the owners of the Company, the Teskes, ‘‘didn’t
like the idea of Bill starting a union, and they wanted to get
him either to quit or something.’’ Maluka testified that he
never had this conversation or any conversation with Eckes
about Warner’s union activities since he was not even aware
of Warner’s union activities; and that neither of the Teskes
said anything to him about Warner supposedly being in-
volved with union activities. Eckes testified that he did not
recall ever having a conversation with anyone at Respondent
about Warner’s alleged interest in the Union. And Bauman
testified that she never heard Maluka and Eckes discuss War-
ner’s attempt to get a union in at Respondent.
Davis also testified that around the first of November 1988
she overheard another conversation between Maluka and
Eckes during which they indicated that ‘‘they didn’t like the
idea of the union, that Bill was causing too much trouble,
they wanted to get him to quit by giving him crappy loads
and harassing him.’’
Bodzislaw testified that in the fall of 1988 he heard Re-
spondent’s supervisor, Roger Teske, tell Eckes to get rid of
Warner since he, Roger Teske, was getting tired of ‘‘screw-
ing around with him’’; and that Maluka was present.23
Warner received notice of his layoff on November 28,
1988, when he telephoned Eckes and asked him about being
dispatched. Eckes said that things were slow and the Re-
spondent was going to lay Warner off for a while. He testi-
fied that prior to his layoff he had never been told that he
was at risk of being discharged for any of his conduct as a
driver.
On an absence report of Warner, filled out after Warner
was laid off, Maluka wrote ‘‘Do not expect to rehire.’’
Davis, who was laid off in January 1989, returned periodi-
cally to Respondent’s office to drop off her doctor’s bills and
check to see if Respondent had any kind of work for her to
do. On about March 1, 1989, while she was in Respondent’s
office, she asked Maluka who Respondent would rehire if the
need occurred. Assertedly Maluka said that Respondent
would not rehire Warner. Maluka testified that he may have
discussed the fact with Davis that it was unlikely that Warner
would be recalled; and that his conclusion would have been
based on the fact that there was no work available for him.
Warner testified that in February 1989 he asked Maluka if
he was permanently laid off and Maluka replied, ‘‘I guess
so.’’
On about May 1, 1989, Davis was again in the office to
see if Respondent had any work. She and Maluka discussed
the fact that Respondent was starting to recall drivers. Davis
testified that Maluka said that Warner would not be recalled
because he was trying to get the Union in. He had a suit
going with the Labor Board, and he had a poor attitude. On
rebuttal, Warner testified that the only time he could remem-
ber wearing torn up shirts and cutoff jeans while on duty was
when he spilled bleach or chlorine he handled while working
and it made holes in his clothes; that no customers com-
plained to him about his clothes and none of Respondent’s
supervisors told him that customers complained to him about
his appearance; that he hauled two or three tanker loads of
methanol during one pay period; that he hauled tanker loads
of bleach water but subsequently he refused to take the
bleach water to Milwaukee; that he subsequently refused to
handle the methanol because ‘‘it was a dangerous chemical
and the money wasn’t worth it’’ and he refused to handle the
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bleach water because it was being dumped in the Milwaukee
sewer system so that Respondent would not have to pay for
sewerage disposal in Stevens Point; that in his opinion the
unloading procedure utilized with the bleach water was not
safe and the tankers used to transport this product ‘‘were in
pretty rough shape . . . in that the caustic would blow out
the valves’’; additionally he never called the terminal and
said he was in Madison when he was not in Madison; that
he was advised about customer complaints about late deliv-
eries once or twice; that for a while Respondent had drivers
come in for loads and they had to wait for the trucks to be
loaded and this resulted in the late deliveries; that possibly
two or three times he made deliveries late because he himself
was late; that he came to work late on Monday mornings
maybe once a month or once in a month and a half. Also
Bauman once said something to him about being late on
Mondays; that the normal procedure regarding lumpers was
to get Eckes to okay it before the driver used the lumper;
that on his September 1988 trip to Duluth he was supposed
to pick up a load of salt but it was not ready until the day
after he showed up to make the pickup (G.C. Exh. 52(a) and
(b)); that he handled a tanker load without paperwork be-
cause he assumed that the paperwork in the cab of the truck
was the correct paperwork for the involved load; that subse-
quently he handled tanker loads and he followed the correct
procedure; that one of his misdeliveries was due in part to
the failure of dock personnel at Respondent’s subsidiary
company to set up the load according to the instructions on
the cover sheet of the shipping documents; and that his other
misdelivery occurred because he had to drop part of a load
off at a company other than designated store because he
could not get under a bridge to make the delivery to the des-
ignated store.
B. Contentions
General Counsel, on brief, contends that Warner engaged
in union and protected concerted activities; that Respondent
was aware of this and it manifested its hostility by sus-
pending Warner on September 26, 1988, and laying him off
on November 28, 1988, as a result of these activities; that
Respondent did not demonstrate that it had a legitimate, con-
sistent, objective, and nondiscriminatory rationale justifying
Warner’s selection for layoff in the absence of his activities
protected by Section 7 of the Act; that Respondent offered
varying and inconsistent subjective reasons for Warner’s se-
lection for layoff and it failed to submit documentary evi-
dence to substantiate its subjective reasons for Warner’s se-
lection; that Respondent failed to rely on available objective
indices of Warner’s job performance which proved him supe-
rior to other less senior drivers. Also that the subjective rea-
sons offered by Respondent for Warner’s layoff were typi-
cally based on either unsupported accusations or isolated in-
cidents, which were generalized and embellished far beyond
the severity accorded them at the time; that knowledge of
employee protected activity may be inferred from the small
number of employees, especially where the activity has been
discussed in the facility, Mitchell’s Disposal Service, 260
NLRB 150, 154 (1982). In addition Roger Miller, an admit-
ted supervisor and agent of Respondent, was also one of the
drivers employed until Warner’s layoff in November and
therefore he, Miller, was in a position to know of the orga-
nizing among the drivers; that Respondent’s knowledge of
and hostility toward Warner’s union activities was evidenced
by statements made in the office by supervisors and/or agents
as overheard by Bodzislaw and Davis, who risk not being re-
called from layoff as a result of their testimony; that Warner
engaged in protected concerted activity by (a) distributing a
letter soliciting employee comment and support, (b) orga-
nizing a meeting of employees on July 30, 1988, to discuss
the advisability of organizing into a union, and (c) and being
chosen by those in attendance on July 30, 1988, to contact
the Union; that directions given to Bodzislaw to check War-
ner’s logs, in particular, for violations, supports an inference
that Respondent became hostile toward Warner’s activities as
early as March 1988 and began looking for a way to get rid
of him. Additionally that Warner’s September 28, 1988 sus-
pension was not warranted by any reasonable nondiscrim-
inatory business rationale for while Maluka testified that
Warner was suspended for refusing to cooperate to take a
load without a good excuse, Warner had told Miller that he,
Warner, did not have enough driving hours left to make the
delivery on schedule, and he had refused long hauls in the
past without being disciplined; that Davis had refused loads
4 to 6 times telling the dispatcher that she was out of hours
and she was never disciplined; that Respondent employed 15
drivers effective November 18, 1988, and Brodzislaw, Davis,
and Ward were working in the office on light duty at that
time; that Warner was the sixth most senior driver of the 12
drivers at the time of his layoff; that Brodzislaw and Davis
were laid off from their office jobs in January 1989; that Re-
spondent laid off three more drivers on February 10, 1989,
namely, Goodwin (fourth in seniority), Korbitz (13th in se-
niority), and Miller (11th in seniority). Also regarding War-
ner’s alleged drinking problem, it is incredible that Respond-
ent’s supervisors believed that one of their over-the-road
truckdrivers had a drinking problem but they never talked to
him about it or counseled him about it; that the alleged
drinking problem is a baseless accusation and an exaggera-
tion of one incident in March, which did not even merit
mention on Warner’s May evaluation; that regarding lateness
and missing loads, Respondent did not introduce any docu-
ments showing the excessive length of Warner’s holdovers or
late deliveries; that while Maluka testified that Warner’s trip
to and from Duluth took 3 days because Warner was late in
arriving at Duluth, Warner’s testimony that he was not late
because they unloaded him at Duluth was not contradicted;
that Respondent offered no documentary evidence that War-
ner’s expenses for lumpers were higher than other drivers,
and such charges were preauthorized and preapproved by
dispatch; that there was no documentation of customer com-
plaints about Warner’s appearance; that regarding his alleged
lying about truck problems in Madison, the questions which
beg for an answer are why would he make such a telephone
call only a mile from Respondent’s facility and why would
he not be disciplined for so serious an infraction. Addition-
ally that all objective data, including seniority, personnel re-
view forms, employee warning records, logging violation re-
ports, accident reports, the driver safety board, citations, and
truck expense calculations evidence that Warner was not the
worst driver; that drivers Mark Allen (ranked number 2 on
the layoff list) and Donald Korbitz (ranked 9 on the layoff
list) received poorer personnel reviews in May 1988 than did
Warner (who was in effect ranked 15 on the layoff list); that
Allen, Korbitz, and driver Robert Ward had worse discipli-
229SO-WHITE FREIGHT LINES
nary records than Warner; that Warner’s truck was operating
at the fourth best per-mile cost; that given the subjectivity of
the reasons for Warner’s layoff, Respondent cannot dis-
entangle its subjective hostility toward Warner’s work per-
formance from its subjective hostility toward his union and
protected concerted activities, and, therefore, Respondent
cannot prove that it would have taken the same actions ab-
sent Warner’s union and protected concerted activities; and
that it would be inappropriate to limit Warner’s eligibility for
backpay by an alleged date on which he would have been
otherwise laid off after November 28, 1988, since the evi-
dence of record is insufficient to prove that Warner would
have ever been laid off based on nondiscriminatory consider-
ations.
Respondent, on brief, argues that Respondent’s decision to
lay off drivers followed an informal ranking based on their
performance, experience, reliability, and interaction with the
dispatch department; that Warner received the lowest ranking
and, therefore, was the first driver to be laid off; that the de-
cision to suspend and layoff Warner was the result of legiti-
mate business reasons and at no time the result of any union
activities on the part of Warner; that the General Counsel has
failed to establish a prima facie case in that (1) the General
Counsel’s evidence of union activity on the part of the War-
ner is extremely limited, (2) the General Counsel failed to
establish that Respondent had knowledge of any union activ-
ity by Warner and the small-plant doctrine is not applicable
since General Counsel has failed to establish that Respondent
had reason to notice the union activities in the facility and
an off-the-cuff remark to Dispatcher-Supervisor Eckes is in-
sufficient to adopt the small-plant doctrine, and (3) the Gen-
eral Counsel has failed to show antiunion animus and Davis’
testimony is extremely suspicious and lacks credibility since
not only is she involved in a lawsuit against Respondent, but
also she has been living with Warner’s sister over the past
8 years; that the evidence is clear and overwhelming that Re-
spondent laid off employees for economic reasons since it
was losing approximately $30,000 per month during 1988;
that the Board has held that an employer does not violate the
Act where despite a showing of a prima facie case, layoffs
were motivated by economic reasons, Gem Urethane Corp.,
284 NLRB 1349 (1987); that the evidence is clear and over-
whelming that Warner was the first driver laid off because
of his performance in comparison to other drivers; that as a
result of Warner’s specific performance problems including
tardiness, refusal to deliver loads, lying to dispatchers,
misdeliveries, and excessive lumper expenses, Warner was
rated last among all of the drivers; that General Counsel has
failed completely to show any causal connection between the
suspension and subsequent layoff of Warner and his pro-
tected concerted activities and union activities; that regarding
timing, Warner’s last concerted activity occurred in July
1988, ‘‘five’’ months before he was laid off; that had the ini-
tial layoff not occurred, Warner would have been laid off in
February 1989 since he was not rated as a top driver and
General Counsel never offered any proof that Warner de-
served to be rated higher than 15th; and that even if General
Counsel was able to establish a causal connection between
Warner’s union activities and his November 1988 layoff, he
would have been subsequently laid off in February 1989.
C. Analysis
As noted above, the complaint herein alleges that Warner
concertedly solicited complaints of Respondent’s employees
regarding their wages, hours, and working conditions; that
Warner brought the complaints to the attention of Respond-
ent; and that he was suspended and subsequently perma-
nently laid off because he engaged in the conduct described
above and in order to discourage employees from engaging
in such activities for the purpose of collective bargaining or
other mutual aid or protection. I agree.
General Counsel demonstrated that Warner engaged in
concerted protected activity and union activity in that he cir-
culated a list of concerns to the other drivers, he arranged
a meeting/picnic of the drivers so that they could determine
whether to seek union representation, he acted as the group’s
representative in trying to get a union to represent the in-
volved employees, and he tried to meet with Roger Teske to
discuss the concerns of the drivers.
General Counsel also demonstrated that Respondent knew
of Warner’s activities. Sparks testified that she showed Roger
Teske the list of concerns drafted by Warner and she dis-
cussed the list with Roger Teske. At that time she told War-
ner that Roger Teske had seen the list of concerns and
agreed with parts of it. Roger Teske’s testimony that he did
not see the list of concerns at the time is not credited. It ap-
pears that Roger Teske decided that the best approach in the
situation at hand was to deny knowledge of Warner’s pro-
tected activities. The overwhelming weight of the evidence
in this record demonstrates, however, that Respondent knew
of Warner’s activities. Eckes was overheard saying that War-
ner was a ‘‘pain in the ass, causing trouble with the union
. . . [he] is trying to organize a union here’’ at the time of
the drivers’ July 30, 1988 picnic. Bodzislaw is credited on
this point. He impressed me as being a forthright individual.
On the other hand, Eckes testified only that he did not recall
ever having a conversation with anyone at Respondent about
Warner’s alleged interest in the union. Eckes conceded that
he heard that Warner was interested in having a union at the
Company but Eckes asserted that it had no bearing on his
decision to put Warner at the bottom of the list. Eckes was
not a credible witness. He did not deny that after the picnic
Warner said to him that ‘‘things will be better around here
once the union is in.’’ As noted above, in the ‘‘employee re-
marks’’ section of the September 16, 1988 warning or sus-
pension Warner wrote ‘‘I . . . feel I am being harassed by
company in part because . . . [of] my attempt to listen to
drivers’ problems and relate them to management.’’ Davis is
credited regarding her testimony that Eckes had a conversa-
tion in mid-October 1988 with Maluka during which it was
stated that the Teskes ‘‘didn’t like the idea of . . . [Warner]
starting a union.’’ Maluka’s assertion that this conversation
did not occur because he did not know about Warner’s union
activity is not credited. Eckes, a supervisor, knew about War-
ner’s activities. Maluka, therefore, also knew. Davis is also
credited regarding her testimony that around the first of No-
vember 1988 she overheard Maluka and Eckes discuss the
fact that ‘‘they didn’t like the idea of the union, that . . .
[Warner] was causing too much trouble, they wanted to get
him to quit by giving him crappy loads and harassing him.’’
Roger Teske did not deny that in the fall of 1988 he told
Eckes to get rid of Warner since he, Roger Teske, was get-
ting tired of ‘‘screwing around with him.’’ Rather Roger
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Roger Miller also noted on the warning that Warner ‘‘has been a problem
with using up his hours by logging every stop.’’ Bodzislaw testified that Re-
spondent’s management was upset with Warner because he would not put his
unloading hours in the off-duty section of the log but rather placed them in
the on-duty section of the log. According to Bodzislaw, Warner was making
the entries in the log the proper way.
25 I agree with the position taken by General Counsel on brief that it would
be inappropriate to limit Warner’s eligibility for backpay by an alleged date
on which he otherwise would have been laid off after November 28, 1988.
26 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set forth in the 1986 amendment to
26 U.S.C. § 6621.
27 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
Teske testified that he was sure he said it but that it did not
refer to unionization because he did not know of Warner’s
activities. As noted above, Eckes and Maluka knew of War-
ner’s protected activities. Consequently, Roger Teske knew
of Warner’s concerted protected and union activities.
Roger Teske’s admission that he was sure that he said that
Warner was ‘‘screwing off too much’’ raises another ques-
tion in that Roger Teske did not specifically deny
Bodzislaw’s testimony that he, Roger Teske, at the same
time told Eckes to get rid of Warner. Bodzislaw is credited.
There was no subjective or objective evaluation process en-
gaged in by Maluka and Eckes regarding Warner. Eckes was
told to get rid of Warner and that is exactly what occurred.
Maluka and Eckes may have gone through the process re-
garding the remaining 14 drivers but Warner was not a part
of the process. And finally Maluka did not specifically deny
telling Davis that Warner would not be recalled ‘‘because
[among other things] he was trying to get the union in.’’
With respect to suspensions, Maluka, who was not there
at the time, expressed his opinion that Warner’s explanation
regarding whether he had alcohol on his breath was satisfac-
tory. Yet Roger Teske did nothing at the time, albeit he was
provided with an affidavit and a can of the involved bev-
erage. The drink involved might smell like beer but assert-
edly basing a 3-day suspension on the fact that Warner con-
sumed a beverage which contains less than one-half of 1 per-
cent alcohol was highly questionable. The fact that Sparks
would not listen to Warner’s explanation, and Roger Teske,
armed with an affidavit and the involved beverage, would
not investigate the matter demonstrates, in my opinion, that
Respondent was not interested in resolving the matter on the
basis of what was actually involved. There was no business
justification for this suspension, which General Counsel went
into for background. Regarding the suspension for refusing
a load, Respondent did not demonstrate that it ever meted
out so severe a punishment in circumstances similar to those
at hand. The record contains evidence that another driver re-
ceived a warning for refusing a load. And at least one other
driver, Davis, was not punished for refusing a load when she
did not have enough hours. Warner explained that he did not
have enough hours. It is questionable whether the 18.5 hours
Warner had left in driving time would have been sufficient
to deliver the perishable load on time. The warning speaks
to ‘‘[r]efusing to leave So-White in time to make the deliv-
ery.’’24 Yet what really was involved was how much driving
time Warner had left. Warner testified that the dispatcher did
not have any way of knowing how many hours he, Warner,
had left in his 70-hour week and that no one called him to
talk to him about this before the suspension was issued. In
other words, once again Respondent was not really interested
in resolving a matter based on the merits.
Respondent had no lawful reason for suspending Warner
and it did not demonstrate that it laid him off in a lawful
manner. The reasons given are a pretext. This is not a dual-
motive case under Wright Line, 251 NLRB 1083 (1980),
enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). If it were to be treated as a
dual-motive case, in my opinion the alleged business jus-
tifications advanced by Respondent do not demonstrate that
absent Warner’s concerted protected and union activities, he
would have been suspended and subsequently laid off.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of the
Act by suspending William Warner and subsequently laying
him off because he engaged in concerted protected and union
activities.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Sections 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that Respondent be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
Having found that Respondent suspended William Warner
on September 26, 1988, and subsequently permanently laid
him off in violation of Section 8(a)(1) and (3) of the Act,
it is recommended that Respondent offer William Warner
immediate and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights and privi-
leges,25 and make him whole for any loss of pay he may
have suffered as a result of the discrimination against him by
payment to him of a sum of money equal to that which he
would have earned as wages during the 3-day suspension and
during the period from the date of his permanent layoff to
the date on which Respondent offers reinstatement less net
earnings, if any, during said period with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).26
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended27
ORDER
The Respondent, So-White Freight Lines, Inc., Plover,
Wisconsin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending an employee because he engaged in union
and concerted protected activity.
(b) Permanently laying off an employee because he en-
gaged in union activity and concerted protected activity.
231SO-WHITE FREIGHT LINES
28 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the purposes of the Act.
(a) Offer William Warner immediate and full reinstatement
to his former or substantially equivalent job and make him
whole for any loss of earnings he may have suffered by rea-
son of Respondent’s discrimination against him in the man-
ner and to the extent set forth in the remedy of this decision.
(b) Expunge all records kept of William Warner’s Sep-
tember 26, 1988 suspension and permanent layoff, and make
whatever record changes are necessary to negate the effect
of the disciplinary action taken.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, timecards, personnel records and reports and all
other records necessary to analyze the amount of backpay
due and the right of reinstatement under the terms of this
recommended Order.
(d) Post at its facility in Plover, Wisconsin, copies of the
attached notice marked ‘‘Appendix B.’’28 Copies of the no-
tice, on forms provided by the Regional Director for Region
30, after being signed by Respondent’s representative, shall
be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced or cov-
ered by other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this decision what steps it has taken to com-
ply.
APPENDIX A
[Italicized portions were handwritten in original.]
The following is a list being sent to all So-White Freight
Lines drivers, stating some of our concerns as employees of
our company.
As it is virtually impossible to have a meeting with every-
one attending, letter form seems most appropriate.
The following issues need to be attended to, the order of
priority will vary and your comments will be greatly appre-
ciated.
1. Increase daily wages; Yes!
under six months . . . . $65.00 in state, $80.00 out
of state $90.00 long haul (retroactive after third day)
over six months . . . . $75.00 in state, $90.00 out of
state, $100.00 long haul (retroactive after third day)
2. Mileage; increase .020 per mile. Yes, but doesn’t affect
me.
3. Weekly payroll; impossible to budget for hauls avail-
able. Makes no difference to me
4. Vacation pay; equal to average pay week.
5. Holiday pay; after six months Yes
6. Seniority amongst drivers. Yes
7. Uniform allowance yes paid for in full.
8. Tanker pay; in accordance to risk. yes
9. Unloading/Loading; $10.00 per stop (six months), after
twelve hours-hotel payed. Dont Understand
10. Long Haul pay should not be interrupted by stops at
Arco, etc. as there are no facilities. Yes
11. Truck jumping; self explanatory. No thanks, especially
in winter months
12. On the road repair; increase rate from $4.00 to $9.00
per hour Yes
13. Sick days; three a year equal to a average daily wage.
14. Motel allowance; second day out, $15.00, third day
out, 25.00, fourth and each day following, $35.00 maximum.
15. Pension plan. Yes
16. Plover-gas pump; quicker pump, outside light and
trash container.
17. Load locks; assigned to trailers, not tractors or drivers.
Yes
18. Equipment bonus; $150.00 yearly when no repair run-
ning. Yes
19. Safety bonus; paid quarterly @ .01 per mile. Yes
20. Fuel incentive; coordinated out bound, last in-last out.
Yes
21. Company representatives; management/driver commu-
nication Yes
WE FEEL THERE IS AN EXCELLENT NUCLEUS OF DRIVERS
AND THAT MOST WOULD PREFER TO STAY UNDER WORKABLE
CONDITIONS. PLEASE FEEL FREE TO ADD ANY CONCERN THAT
WE MIGHT HAVE OMITTED AND SIGN ENCLOSED FORM IF IN
AGREEMENT WITH PROPOSALS, ALONG WITH COMMENTS.
BILL WARNER
532 W. CORNELL
STEVENS POINT, WISC. 54481
I /s/ David C. Schneider am in agreement, in whole or in
part to the afore mentioned proposals.
Thank you
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT suspend employees or permanently lay them
off because they have engaged in concerted protected activity
or union activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under
the National Labor Relations Act.
WE WILL offer William Warner reinstatement to the job he
was unlawfully laid off from or, if such job no longer exists,
to a substantially equivalent job, without prejudice to his se-
niority or other rights and privileges previously enjoyed, and
make him whole, with interest, for any loss of pay he may
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have suffered by reason of his being suspended and subse-
quently permanently laid off.
WE WILL notify William Warner that we have removed
from our files any reference to the unlawful suspension and
permanent layoff and that the suspension and permanent lay-
off will not be used against him in any way.
SO-WHITE FREIGHT LINES, INC.