Behnke, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1994

313 N.L.R.B. 1132 (N.L.R.B. 1994)

1132
313 NLRB No. 201
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The Respondent asserts that the judge’s finding of antiunion mo-
tivation with respect to James Betz’ reassignment and subsequent
discharge was based solely on legal and protected speech. We do not
agree. The judge properly inferred antiunion motivation from cir-
cumstantial evidence, including the timing of the Respondent’s reas-
signment of Betz immediately after his support for the Union be-
came apparent by his service as the Union’s election observer; the
pretextual nature of the Respondent’s asserted reasons for reassign-
ing and discharging Betz; and in discharging Betz for violating a
unilaterally and unlawfully established more onerous work rule cre-
ated at the time and first applied to Betz.
We find it unnecessary to rely on the judge’s gratuitous remarks
at fn. 6 of his decision.
1 All dates are in 1992 unless otherwise indicated.
Behnke, Inc. and Local No. 7, International Broth-
erhood of Teamsters, AFL–CIO. Case 7–CA–
33560
April 28, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On July 26, 1993, Administrative Law Judge Wil-
liam A. Pope II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Behnke, Inc., Battle Creek,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Howard M. Dodd, Esq., for the General Counsel.
Barry R. Smith, Esq., of Kalamazoo, Michigan, for the Re-
spondent.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. This case
was tried in Battle Creek, Michigan, on January 19 and 20,
1993. The original charge was filed on August 6, 1992, and
the amended charge was filed September 9, 1992.1 The com-
plaint was issued on September 16, 1992.
Background
Behnke, Inc. is an interstate motor carrier located in Battle
Creek, Michigan. It employs city drivers, who transport
cargo within 100 miles of Battle Creek and are paid on an
hourly basis, and over-the-road drivers, who transport cargo
beyond 100 miles of Battle Creek and are paid on a mileage
basis. Its over-the-road drivers have been represented for col-
lective-bargaining purposes since approximately 1982 by the
Charging Party, Teamsters Local 7, and on May 8, 1992,
Teamsters Local 7 won a representation election to represent
the Company’s city drivers. The Union’s observer at the
election was city driver James Betz, the alleged discriminatee
in this case, and the Company’s observer was city driver Ron
Brown. Teamsters Local 7 was certified as the exclusive col-
lective-bargaining representative of the unit composed of all
of Behnke’s full-time and regular part-time city drivers and
mechanics on May 18, 1992. Bargaining over a contract was
still in progress at the time of the hearing in this case. James
Betz was selected to be the Union’s chief steward, and was
a member of the Union’s bargaining team.
One of the regular driving assignments performed by
Behnke’s city drivers is referred to as the Ralston shuttle.
Operating under a contract which Behnke has had for ap-
proximately 8 years with the Ralston Purina Company (Ral-
ston), Behnke assigns drivers and equipment daily to trans-
port material between a Ralston warehouse and the main Ral-
ston plant in downtown Battle Creek, a distance of approxi-
mately 5 miles. Under the terms of the contract, Ralston pays
Behnke by the load, and guarantees that Behnke’s drivers
will not have to wait while Ralston employees load the cargo
onto Behnke’s trailers. At times, the load requirements set by
Ralston require that Behnke drivers work overtime or on
weekends. Although Ralston sets the number of trips to be
made on a daily basis, the Behnke drivers can affect the time
required to complete trips by minimizing delays at the point
of origin and the destination, and by minimizing delays en
route.
For a period of approximately 2 years, city driver James
Betz was the regularly assigned driver to the Ralston shuttle.
Beginning in November 1991, however, Behnke began rotat-
ing the assignment on a monthly basis between Betz and Ron
Brown, another city driver. At the end of the workday on
May 8, 1992, the Company terminated Betz’ regular assign-
ment to the Ralston shuttle. After May 8, until the Company
discharged him on August 4, 1992, Betz was given varying
driving assignments, including over-the-road assignments for
which he was paid on a mileage basis.
Issues
The complaint alleges that the Respondent, Behnke, Inc.,
violated Section 8(a)(1) and (3) of the Act on May 8, 1992,
by changing the work assignment of duty driver James Betz,
because of his activities in support of the Charging Union,
and, on August 4, 1992, by terminating Betz’ employment
for the same reason. The complaint further alleges that Re-
spondent violated Section 8(a)(1) and (5) of the Act by uni-
laterally changing its sick leave policy, without prior notice
to the Union and affording the Union an opportunity to bar-
gain. The complaint was amended at the hearing to show that
Betty Behnke is the general manager of Behnke, Inc., Mark
1133BEHNKE, INC.
Behnke is its assistant manager, Karl Behnke is its personnel
director, and Andy Behnke is a dispatcher.
General Counsel contends that Respondent was opposed to
its duty drivers choosing the Charging Party Union as their
collective-bargaining representative, and violated Section
8(a)(1) and (3) by retaliating against city driver James Betz
for supporting the Union, by changing his work assignment
on May 8, 1992, after it learned for the first time that Betz,
who served as the Union’s observer at an election which the
Union had won earlier in the day, was a union supporter, and
by discharging him on August 4, 1992, for failing to comply
with a directive to go to a hospital or emergency room to
verify an illness. General Counsel further contends that Re-
spondent also violated Section 8(a)(1) and (5) by unilaterally
changing an unwritten sick leave policy by requiring Betz to
go to a hospital emergency room to verify a minor illness.
Respondent argues that General Counsel has failed to
show that the Company was motivated by union animus in
any of the actions it took in May and August 1992 with re-
spect to its employee, James Betz. Respondent states that it
has had a long, productive adversarial relationship with
Teamsters Local 7 as representative of its over-the-road driv-
ers, and when Teamsters Local 7 received a majority of the
votes cast in a NLRB-conducted representation election
among its city drivers and mechanics on May 8, 1992, the
Company did not file objections to the election, and the re-
sults were promptly certified by the NLRB. There is no evi-
dence of vigorous campaign activity by the Company prior
to the election, and no history of union animus by the Re-
spondent.
Respondent asserts that management retains the right to
make work assignments as it deems necessary, and it reas-
signed Betz from the Ralston shuttle to other duties on May
8, 1992, not because of his union activity, but because a
study showed that since November 1991, Betz’ productivity
was lower than that of Ron Brown. According to Respondent
the mere coincidence in timing between its reassignment of
Betz and his union activities is insufficient to support a find-
ing of unlawful motivation.
With respect to terminating Betz’ employment on August
4, Respondent contends that there is clear evidence that the
Company has maintained a rule requiring employees to sup-
ply medical proof signed by a physician to prove that they
were ill and could not work. Its direction to Betz to go to
a hospital or emergency room on a weekend was an appro-
priate application of the rule because it was the only alter-
native to Betz’ unavailable personal physician. Further, the
Company had significant reasons for requiring Betz to prove
his illness, because it was experiencing resistance by some
employees to working on weekends. By August 1, contends
the Company, it was justifiably concerned and suspicious of
any employee who claimed he was unable to work on a sum-
mer Sunday. Finally, Respondent says that notwithstanding
Betz’ apparent failure to seek medical care on Sunday, Au-
gust 2, it did not decide to terminate him until August 4,
when he indicated that in the future he would still refuse to
seek medical treatment during the period of his illness.
I.
The General Counsel has the initial burden of establishing
a prima facie case that an employee was discharged or, as
in this case, discriminatorily reassigned to other work duties,
because of union animus. Wright Line, 251 NLRB 1083
(1980), enfd. as modified 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). As part of the prima facie case,
the General Counsel must prove that the employee engaged
in union or other protected activity, that the employer had
knowledge of the protected activity, and that the employee
was discharged or reassigned because of union animus or
other unlawful motive.
Inference of unlawful discrimination against an employee
can be drawn from an employer’s hostility toward the union,
and coincidence between the employee’s union activity and
his discharge or job reassignment. Lemon Drop Inn v. NLRB,
752 F.2d 323, 325 (8th Cir. 1985). Unlawful motivation can
be inferred from the timing of an employer’s action. Lemon
Drop Inn v. NLRB, supra; T.M.I., 306 NLRB 499 (1992);
Dorothy Shamrock Coal Co., 279 NLRB 1298 (1986); Dr.
Philip Megdal, D.D.S., Inc., 267 NLRB 82 (1983); NLRB v.
Del Rey Tortilleria, 787 F.2d 1118 (7th Cir. 1986), enfd. 823
F.2d 1125 (1987). Union animus can be inferred from cir-
cumstantial evidence. Abbey’s Transportation Services v.
NLRB, 837 F.2d 575 (2d Cir. 1988). Another factor from
which unlawful motivation may be inferred is the pretextual
nature of an employer’s asserted reasons for discharging or
taking other action against an employee. T.M.I., supra; Dr.
Philip Megdal, Inc., supra; Abbey Island Park Manor, 267
NLRB 163 (1982); Escambia River Electric, 265 NLRB 973
(1982), enfd. 733 F.2d 830 (11th Cir., 1984). The Board has
held that disparate treatment, such as stricter enforcement of
work rules, may constitute ‘‘a strong prima facie showing of
discriminatory intent.’’ Huttig Sash & Door Co., 300 NLRB
1298, 1299 (1986).
Once the General Counsel has met his burden of establish-
ing a prima facie case of discharge or other discrimination
because of union animus, the burden then shifts to the Re-
spondent to show that it would have discharged or reassigned
the employee to other duties even in the absence of protected
activity. Wright Line, supra; NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983); Huttig Sash & Door
Co., supra.
II.
I find that the General Counsel has made a prima facie
showing that Respondent’s action on May 8, 1992, reassign-
ing James Betz from driving the Ralston shuttle to other
driving duties, while otherwise within management’s discre-
tion, was, under the facts in this case, discriminatory and in
violation of Section 8(a)(1) and (3) of the Act, because Re-
spondent’s management was motivated by union animus. Re-
spondent has failed to meet its burden of showing that it
would have reassigned Betz to other duties even in the ab-
sence of his protected union activity.
A. Employees’ Opposition to Union
There is reliable evidence from which it can reasonably be
inferred that Behnke’s management opposed representation
of the Company’s city drivers by a union. The issue of union
representation of the city drivers was not a new one in May
1992; the Company had been victorious in a representation
election held approximately a year before. City driver James
Betz, the alleged discriminatee in this case, whose testimony
I find to be credible, said that in the late afternoon of May
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Betty Behnke, Respondent’s general manager testified that the
election took place between the hours of 6 and 7 a.m. James Betz
testified that the election was held between 6:30 and 7:30 a.m. I find
the one-half hour difference to be irrelevant to any issue in this case.
3 According to Betz he had left the vehicle in Behnke’s lot, with
Betty Behnke’s permission, for one of Behnke’s mechanics to make
mechanical repairs on it when he was off duty. Betz said that other
drivers had been permitted to leave their personal vehicles in
Behnke’s lot for as long or longer periods of time. Betz’ testimony
was not denied by Betty Behnke when she testified as a witness for
the Respondent.
7, in the presence of another city driver, Betty Behnke, Re-
spondent’s general manager, told him that she did not under-
stand why the city drivers wanted a union, and that she felt
that a union was unnecessary because of good communica-
tion between the drivers and the Company. Ms. Behnke also
stated that if the city drivers selected a union to represent
them, they would lose their right to speak for themselves and
everything they wanted would have to go through the union.
Betty Behnke, who also testified at the hearing as a witness
for the Respondent, did not deny Betz’ testimony on this
point.
B. Betz’ Union Activity and Employees’ Knowledge
Knowledge by the employer of Betz’ union activities and
support of the Union at the time of the alleged violations of
the Act is indisputable. Betz served as Teamsters Local 7’s
observer at the representation election held at the Company’s
facility on May 8, and after Local 7 was certified as the bar-
gaining representative of the city drivers he was elected to
the post of chief steward, and was a member of the Union’s
bargaining team. But, while there ample evidence of Betz’
open support of the Union at and after the election, there is
no evidence in the record that Betty Behnke, or any other
member of Behnke’s management, was aware of Betz’ union
activity and support for Teamsters Local 7 until he served as
the union’s observer at the representation election on May 8
which took place early in the morning in the drivers’ room
at Respondent’s place of business.2
C. Change in Work Assignment of James Betz
Betty Behnke’s behavior immediately after the election on
May 8 suggests that she was upset over the outcome of the
election and was angry at the city drivers. She admitted that
after the election was over, she observed a number of drivers
‘‘hanging around’’ while they were on the clock. She said
that she took it on herself to tell them to get to work, and
she told Betz, who was making a telephone call, to hang up
and get going. According to Betz, whose testimony on this
point was not denied by Betty Behnke, the telephone call he
was making at the time was to Ralston to find out where he
was to start the shuttle. He said that Betty Behnke entered
the room, grabbed the telephone from his hand, slammed it
down, and said that she did not care who he was calling.
When Betz returned in the afternoon of May 8, after com-
pleting the Ralston shuttle for the day, he found a note bear-
ing the initials ‘‘MAB,’’ which Betz recognized as the ini-
tials of Mark Behnke, Respondent’s assistant manager, at-
tached to his timecard telling him to remove his car from
Behnke’s lot by noon, the next day.3 Mark Behnke testified
that employees periodically left inoperable vehicles in the
Company’s parking lot, and he could have put a note on
Betz’ timecard telling him to remove his vehicle, but he did
not remember putting such a note on Betz’ timecard, and the
note produced by Betz (G.C. Exh. 2) was not in his hand-
writing.
That same afternoon, Andy Behnke, Respondent’s dis-
patcher, told Betz that he was off the Ralston shuttle. In re-
sponse to Betz’ inquiry as to why he was being removed
from the shuttle run, Andy Behnke replied that Ralston no
longer wanted him. After May 8, Betz was sent on over-the-
road trips outside of a 100-mile radius of Battle Creek almost
everyday. He said that he was paid mileage for the over-the-
road assignments, and he calculated that he was making
about $125 a week less than he had earned as a city driver
assigned to the Ralston shuttle.
Andrew Behnke confirmed that Betz had asked him why
he was being removed from the Ralston shuttle, but denied
telling Betz that Ralston had complained about Betz. Andrew
Behnke stated that after Betz was taken off the Ralston shut-
tle, he remained a city driver, but Behnke gave him numer-
ous over-the-road assignments. Behnke said that after the
election, he was told by management to give Betz over-the-
road assignments, but he denied that he was told why.
Having had the opportunity to observe the demeanor of
both Andrew Behnke and James Betz as witnesses testifying
in this case, I find Betz’ testimony to be more credible than
of Andrew Behnke. I find that Andrew Behnke’s testimony
was most strongly motivated by his desire to protect Re-
spondent’s interests, particularly in view of his familial rela-
tionship to the Company’s management. Accordingly, I find
that Andrew Behnke did tell Betz that his reassignment was
the result of complaints by Ralston. The Respondent having
failed to introduce any evidence to corroborate that statement
by Andrew Behnke, I find that it was pretextual.
The timing of these actions by Behnke’s management, di-
recting Betz to remove his vehicle from the company lot and
removing him from his long-time assignment to drive the
Ralston shuttle, coming on the same day as the Company
suffered a loss in a union representation election, supports a
clear inference that they are all connected, and that they were
taken against Betz in retaliation for his union activities.
Betz testified that he complained to another dispatcher,
named Corky, that he was unhappy with the change in his
driving assignments and, apparently in response to this com-
plaint, on Tuesday or Wednesday of the next week, Karl
Behnke, Respondent’s personnel director, asked what the
problem was. Betz then told Karl Behnke how Betty Behnke
had acted after the election, about the note attached to his
time card, and that Andy Behnke had said he was taken off
the Ralston shuttle at Ralston’s request. Karl Behnke told
Betz that he would look into the matter and, about a week
later, he told Betz that Betty Behnke had said she should not
have acted that way, and the note related to the Company’s
efforts to clean up the parking lot.
Mark Behnke, Respondent’s assistant manager, said that
Behnke, Inc., does not have a policy of guaranteeing specific
jobs to individual drivers. In late 1991, after failing to get
a rate increase from Ralston, he decided to do a study to de-
termine how the Ralston shuttle could be made more effi-
cient. He said that up until October 31, 1991, James Betz
was the regular driver on the Ralston shuttle, but that begin-
ning in November 1991, he began alternating the assignment
1135BEHNKE, INC.
to the Ralston shuttle on a monthly basis between Betz and
another city driver, Ron Brown. Behnke said that in Novem-
ber 1991 he told Betz about the study, and explained that the
Company needed to increase the number of loads carried per
hour in order to increase the Company’s revenues. Sometime
between January and May 1992, he explained the results of
the study to Betz.
Betz said that someone, possibly Betty Behnke, had told
him that Ron Brown was being assigned to alternate with
Betz on the Ralston shuttle, because Betz needed a break.
Betz denied having any conversation with Mark Behnke
about a study.
Mark Behnke identified Respondent’s Exhibit 9 as a com-
parison based on company records of the number of days
worked, average loads per day, average hours per day, and
average loads per hour of Betz and Brown between February
1992 and May 1992. For the month of February, during
which Betz worked on the Ralston shuttle for 7 days, com-
pared to 23 days worked by Brown, Betz delivered an aver-
age of .86 loads per hour and Brown delivered .96. For the
month of March, during which Betz worked on the shuttle
for 25 days, compared to 3 days worked by Brown, Betz de-
livered an average of .79 loads per hour and Brown delivered
.88. For the month of April 1992, during which Betz worked
on the shuttle for 5 days compared to 19 days worked by
Brown, Betz delivered an average of .79 loads per hour and
Brown delivered .98. For the month of May 1992, during
which Betz worked on the Ralston shuttle for 7 days, com-
pared to 14 days worked by Brown, Betz delivered an aver-
age of .70 loads per hour and Brown delivered .92.
Mark Behnke denied that Betz was removed from the Ral-
ston shuttle because he had been an observer at the election.
Behnke said that the Company had been very cautious before
the election about what it did ‘‘to make sure that we didn’t
discriminate against anyone,’’ but that after the election was
over, he decided to get back to the business of making
money, and put Brown on the shuttle because the Company
made more money using him than it did by using Betz.
The evidence presented by the General Counsel raises an
inference that Betz’ removal from the Ralston shuttle was
triggered by his union activity and, more specifically his ap-
pearance at the May 8 election as the Union’s observer. Re-
spondent’s management opposed the Union, and were un-
aware until the morning of the election that Betz was a union
supporter. Betty Behnke appeared to be upset over the Com-
pany’s election loss, and displayed anger towards Betz after
the election process had been completed. When Betz returned
from driving the Ralston shuttle on May 8, he found a note
on his time card directing him to remove his personal vehicle
stored on Respondent’s parking lot, and he was told that he
would no longer drive the Ralston shuttle. The timing of this
series of adverse actions by his employer immediately fol-
lowing his disclosure that he was a union supporter is suffi-
cient to support an inference that the adverse actions, includ-
ing job reassignment and his union activities, were con-
nected. It is well established that unlawful motivation can be
inferred from the timing of an employer’s actions, and I find
there to have been sufficient evidence presented by the Gen-
eral Counsel to constitute a prima facie showing that James
Betz was discriminatorily reassigned to other work duties by
his employer, Behnke, Inc., because of union animus and in
retaliation for his support of Teamsters Local 7.
The General Counsel having met its Wright Line burden,
the burden shifts to the Respondent to show that Betz would
have been reassigned to other driving duties even in the ab-
sence of his protected union activities. I find that Respondent
has not met this burden.
Mark Behnke, Respondent’s assistant manager, admitted
that he made the decision to take Betz off the Ralston shut-
tle, and advanced as his reason for making that decision that
he had conducted a month-long study which showed that an-
other city driver, Ron Brown, performed the Ralston shuttle
more efficiently than Betz, and that he had delayed reassign-
ing Betz only until the election was over in order to avoid
a charge of discrimination. But, having had the opportunity
to observe Mark Behnke’s demeanor while testifying, and
considering his testimony in the light of other testimony and
evidence adduced during the hearing, I find that his testi-
mony is not credible.
Whatever the study conducted by Mark Behnke may indi-
cate, the results of the study were known to him before the
assignment to the Ralston shuttle rotated from Ron Brown to
Betz on May 1. If there were economic grounds to remove
Betz from driving the shuttle, those grounds were known to
Respondent on May 1, 7 days before the May 8 election, yet
on May 1, Respondent took Ron Brown, supposedly the
more efficient of the two drivers, off the Ralston shuttle, and
put Betz, supposedly the less efficient driver, back on the
shuttle. The question, then, is what happened between May
1, when Betz was assigned to drive the shuttle during the
month of May under the established rotation plan, and May
8, when he was suddenly taken off the shuttle. The answer
is that on May 8 Mark Behnke first learned that Betz was
a union supporter and was engaged in union activity. I find
that the economic justification advanced by Mark Behnke is
no more than pretextual. The record, in its entirety, clearly
shows that Respondent was motivated by union animus in re-
assigning James Betz from the Ralston shuttle to other du-
ties.
Behnke’s management retains the right to unilaterally
make driving assignments to its city drivers, and in the ab-
stract, management’s decision to reassign Betz to other driv-
ing duties was within management’s prerogative. However,
an otherwise lawful act, done for an unlawful purpose, can
be the basis for finding a violation of the Act. Here, Re-
spondent’s otherwise lawful Act in reassigning Betz to other
driving duties violates the Act because it was motivated by
union animus.
III.
I further find that the General Counsel has made a prima
facie showing that Respondent terminated James Betz’ em-
ployment on August 4, 1992, because of union animus and
in retaliation for his union activities. I also find that General
Counsel has shown that Respondent unilaterally changed or
implemented a work rule concerning sick leave, without prior
notice to the union or affording it an opportunity to bargain.
The events leading up to Betz’ discharge are largely undis-
puted. He was not scheduled to work on Saturday, August
1, 1992, but he was scheduled to report for work on the
morning of Sunday, August 2, and on Monday, August 3.
Between 7:30 and 8:30 p.m., August 1, Shirley Cammauf,
Betz’ mother-in-law, placed a telephone call to Respondent’s
facility, and reported to Mark Behnke that Betz was ill and
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Each side accused the other of being rude at some point during
these three telephone conversations. I find it unnecessary for pur-
poses of my decision to find who was the more rude or who sorted
the lack of activity. For purposes of my decision, I note that by this
time the relationship between Betz and his employer had deteriorated
to the point of open hostility. Betz clearly did not want to call in
to the company, himself, although there has been no convincing evi-
dence that he was incapable of doing so, and instead had his wife
and mother-in-law make the calls for him. Mark Behnke, for his
part, while claiming that Betz’ wife was rude to him, and hung up
on him, admitted that he asked her twice if she understood English
when she indicated her husband was not going to go to a hospital.
What is clear is that each side used the telephone to draw battle lines
which had little to do with whether or not Betz was actually ill.
5 In a minor testimonial discrepancy, Jackie Betz, James Betz’
wife, said that she told her husband that Mark Behnke had said that
he had to go to a hospital emergency room, and a doctor’s slip was
not acceptable. That discrepancy is irrelevant. The issue is not why
Betz did not go to a hospital on Sunday, August 2, to have his ill-
ness verified, but whether or not the employer acted lawfully in or-
dering him to go to a hospital in the first place. If the order, which
Mark Behnke admits was given, was not lawful under the cir-
cumstances, discharging Betz for not obeying the unlawful order was
also unlawful, regardless of Betz’ reasons for not obeying it.
would not be coming to work on Sunday, August 2. Behnke
admits that he told her that Betz had to see a doctor at a
hospital to verify that he was ill. On the morning of August
2, Jackie Betz, James Betz’ wife, called Respondent twice,
and spoke to Mark Behnke each time. In the first call, about
6:45 a.m., she reported that James Betz was ill and would
not be coming to work that day. Mark Behnke admits that
he told her that Betz had to see a doctor at a hospital to ver-
ify his illness. Mrs. Betz called a second time on August 2,
about 8 a.m., and again spoke to Mark Behnke, who admits
that he told her that Betz’ employment would be terminated
unless Respondent received documentation from a doctor at
a hospital.4 There is no disagreement that James Betz did not
go to a hospital to see a doctor on Sunday, August 2, or on
Monday, August 3. On Tuesday, August 4, when he next re-
ported to work, he met with Betty, Mark, and Karl Behnke.
During that meeting, Mark Behnke discharged Betz because
he had not gone to a hospital emergency room or to a hos-
pital to see a doctor in order to have his illness verified.
James Betz testified that he had a fever and a sore throat
on Saturday, and through his mother-in-law and his wife,
who made telephone calls at his request, notified Respondent
that he was ill and would be unable to work on Sunday, Au-
gust 2. He said he had a fever most of the day on Sunday,
August 2, and was still feeling ill on Monday, August 3. He
admitted that he knew that Mark Behnke had instructed his
mother-in-law and his wife that he was to have his illness
verified by a doctor at a hospital, but he did not know that
Mark Behnke would be satisfied with only that, and would
not be satisfied with a doctor’s certificate from a doctor who
was not associated with a hospital.5 He stated that he heard
his wife tell Mark Behnke (he heard only his wife’s part of
the telephone conversation) that he would see a doctor some-
time on Monday, August 3, and that his wife made an ap-
pointment for him to see their family doctor the next day,
August 3. He also admitted that he did not comply with
Mark Behnke’s instructions to seek medical attention at a
hospital or hospital emergency room, but on Monday, August
3, he was examined by the family doctor, who gave him a
disability certificate stating that he was totally incapacitated
from August 2 to August 4, and that he could return to work
on August 4. General Counsel’s Exhibit 3 is a copy of the
disability certificate, dated August 3, purportedly signed by
W. E. Frankenstein, D.O.
According to Betz, during the afternoon of Monday, Au-
gust 3, he spoke by telephone with Corky Singer, Respond-
ent’s dispatcher, and told Singer that he had a doctor’s slip
to return to work the next day. After asking Betz to hold for
a moment, Singer came back on the line and informed Betz
that Betty Behnke wanted a meeting with him. Karl Behnke
then came on the line, and Betz repeated, in response to
Behnke’s question, that he had a doctor’s slip. Karl Behnke
told him to bring the slip the next day and that the meeting
with Betty Behnke would be at 9:30 a.m. Behnke told Betz
that after the meeting, he would be dispatched on a trip so
that he did not lose an entire day’s pay. Betz related that he
arrived at Respondent’s facility at 9:25 a.m., on Tuesday,
August 4, and spoke with Karl Behnke in person. Behnke
asked if Betz had the doctor’s slip, but declined to take it
from Betz when the latter replied in the affirmative and of-
fered it to him. Behnke then took Betz to Betty Behnke’s of-
fice.
Initially, Betz said, he met with only Betty Behnke and
Karl Behnke in Betty Behnke’s office. According to Betz,
Betty Behnke told him that while she was not saying she did
not believe him, the Company had been experiencing a prob-
lem with drivers calling off on weekends, and she did not
always believe that they were sick. She said that the Compa-
ny’s policy required drivers to call in sick 1 hour before
work, and the second part of the Company’s policy required
drivers who missed work because of illness to have a doc-
tor’s slip to return to work. According to Betz, he said he
did have a doctor’s slip, and pulled it out. Mark Behnke,
who had entered the room by this time, said that was not
good enough, and that he did not believe Betz, and that was
why he told Betz’ spokespersons that he wanted Betz to
prove his illness by going to the hospital or a doctor. Ac-
cording to Betz, Mark Behnke then said that Betz was termi-
nated, and escorted him out. Betz said that no one would ac-
cept the doctor’s certificate which he had brought with him.
Respondent’s 1992 attendance record for James Betz (R.
Exh. 10) shows that he was absent from work because of
sickness on April 12 (a Sunday), and May 11 through 15
(Monday through Friday). The exhibit also shows that Betz
was absent on Monday, January 1, and Friday, July 3, be-
cause of an out-of-plant accident to himself or his family.
Betz testified that he was off for 5 days in May 1992 to have
a hemorrhoid operation, but that with Betty Behnke’s permis-
sion, he used his vacation time to cover his absence. Betz’
1991 attendance record (R. Exh. 3) shows that he missed 1
day in April 1991 for sickness, 9 days in July 1991, and 12
days in December 1991. He provided doctors’ certificates to
Respondent covering his July and December 1991 absences.
Betz testified that he had never seen a written statement
of the Company’s policy regarding sick time. When asked
for the basis of his knowledge of company rules concerning
this subject, he said: ‘‘Experience, speculation, in part. Or
perhaps the employer had told [me].’’ He said that if his em-
ployer did tell him at some point that he needed a doctor’s
slip when he came back from an illness, ‘‘then it has not
been a problem. I have done it.’’
1137BEHNKE, INC.
The General Counsel called five more city drivers to tes-
tify concerning their knowledge of Respondent’s sick leave
policy and practices. William L. Martin, a city driver for Re-
spondent for over 5 years, said that he had never seen a writ-
ten company rule concerning its sick leave policy. He said
that he been absent for 1 day 2 years ago because of illness,
and had been absent on another occasion for 3 to 4 days
after hurting his back. Although on one of the occasions the
dispatcher told him to bring a doctor’s certificate, he did not
visit a physician and returned to work without a medical cer-
tificate. Mark Behnke told the dispatcher to put Martin back
to work without a medical certificate. Martin said he has
never been told to go to a hospital emergency room.
Troy Oliver, a city driver for over 2 years, has been absent
because of illness on five to six occasions. He said he some-
times brought in a doctor’s certificate, and sometime did not.
He said he was only asked for one on a couple of occasions.
On one occasion, Betty Behnke wanted a medical certificate
when he took a Saturday off because his child was sick. On
another occasion, he told Betty Behnke he was not going to
go to a doctor for a 1-day illness. He said that he was ‘‘writ-
ten up’’ for Saturday absences, a couple of which were the
result of illness, and a couple of which were because he had
already worked 55 to 56 hours that week. Oliver said that
he has never seen a company rule book, but he knows that
drivers have to call in on the first day of absence, and have
to go to a doctor for a 1-day illness. He said he sometimes
did not do that, and was not fired. He said he has never been
told to go to a hospital emergency room.
Anthony Phillips, a city driver for 19 months, has been ab-
sent because of illness on three to five occasions. He has
never seen anything in writing concerning the Company’s
sick leave policy. He said that on one occasion he had asked
another driver what the Company’s policy was. On occasion
he has turned in medical certificates, even though he was not
asked for one, and on other occasions he did not provide a
medical certificate and was not asked for one. He said he
had never been ordered to go to a hospital. Although he did
not have an understanding that the Company required a med-
ical certificate, on occasions he turned in certificates to ‘‘pro-
tect’’ himself.
Leeman Borden, a city driver for 17 months, has been off
because of illness only once, for one day. He said he did not
provide a medical certificate, and was not asked for one. He
said he was not told to go to an emergency room to verify
his illness in order to return to work, and had never heard
of that happening to anyone other than Betz.
Jeffrey Evans, a city driver for 5 years, has called in sick
two to three times. On the last occasion, in November 1991,
he was off 1 day, and did not furnish a medical certificate
nor was he asked for one. On another earlier occasion, he
was told by Betty Behnke that he needed a medical certifi-
cate for a 1-day absence. He did not have a certificate when
he returned to work the next day, and did not obtain one
until 2 or 3 days later when he was able to get a doctor’s
appointment. Evans said that he had never seen written com-
pany rules concerning its sick leave policy, and was never
instructed to go to a hospital emergency room to have an ill-
ness verified, and had never heard of anyone other than Betz
being required to do so.
I find that the General Counsel made a prima facie show-
ing that James Betz was discriminatorily discharged because
of Respondent’s union animus. The General Counsel has
shown that Respondent had already discriminated against
him in his job assignment because of his union activities in
May 1992. After the election, Betz continued to be active in
union activities as the Union’s chief steward and a member
of its bargaining team. There had been one or more bargain-
ing sessions, but a contract had not been reached by the time
he was discharged. The union animus shown by Respondent
in May 1992 carries over to its actions in discharging Betz
in August 1992.
The General Counsel has also offered evidence sufficient
to show that if Respondent had any work rule concerning ab-
sences because of illness, it was no more than a loosely en-
forced rule that was observed as much in the breech as in
the compliance and required only that a driver who called in
sick produce a medical certificate when he returned to work.
The General Counsel’s case includes evidence that James
Betz produced a medical certificate attesting to his illness,
that Respondent had not demanded that other employees who
became ill on a weekend go to a hospital to seek a doctor
to verify their illnesses, and that Respondent’s treatment of
Betz was disparate because other employees had not been
fired for failing to comply with such a directive.
The General Counsel having met its burden of showing a
prima facie case of unlawful discrimination, the burden shifts
to Respondent to show that it would have discharged Betz
even in the absence of his protected union activity.
In its effort to meet its burden in this regard, Respondent
relies on the testimony of Betty Behnke and Mark Behnke.
Betty Behnke, Respondent’s general manager, testified that
she was unaware that any decision had been made to dis-
charge Betz before she met with him in her office on August
4. She testified that she told Betz the Company was con-
cerned because he had a long history of illness, and wanted
him to get immediate medical attention. She said that Betz
responded that the Company did not have the right to tell
him when to go to see a doctor. She said that the Company
provides medical insurance for its employees. She said that
at about that point, her son, Mark Behnke, Respondent’s as-
sistant manager, entered her office, and took over the meet-
ing.
Mark Behnke said that he was concerned about Betz’ ab-
sences in 1991, and said that he wanted him to see a doctor
immediately when he got sick so the Company could get him
back to work without further loss. He said that the Company
provided medical coverage for its employees as a self-in-
surer, and that it is Respondent’s policy to require a doctor’s
slip from employees who miss work because of illness. He
said that the purpose of the rule is to verify the illness. He
said that he told Betz that when a driver calls in sick, the
Company has to find a replacement and it may be costly to
the customer because the driver who shows up may not be
familiar with the job.
Behnke said the Company had been having problems with
assisting drivers to work on weekends, and that on a prior
weekend, Betz had refused to work on a weekend claiming
he had already worked the maximum number of hours al-
lowed for 1 week. Behnke said that issue was clarified for
Betz. He said he had been concerned when Betz’ mother-in-
law, and then his wife, called to report Betz’ illness, because
it was not normal procedure for an employee to have some-
one else call in for him. Behnke said that he questioned
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 It is worth noting that even if such a work rule existed, its rea-
sonableness and appropriateness are open to question. A hospital and
its emergency room are acute care facilities, intended to provide ur-
gently needed care for persons acutely ill. It is not a proper use of
an acute care facility to provide verification to a suspicious employer
that one of its employees is suffering from a minor illness, such as
a fever and sore throat.
whether Betz was, in fact, ill, and that he had asked for ver-
ification of the illness from a doctor at a hospital so that he
would know that Betz was sick. He said that he told Betz’
wife that unless the Company received documentation from
a doctor at a hospital, Betz’ job would be terminated.
According to Behnke, at the meeting on August 4, Betz
told him that he could not get in to see a doctor until
Wednesday (the next day), and did not produce a medical
certificate. Behnke said that he had not made a decision prior
to the meeting to discharge Betz, but that when Betz said
three times that no one was going to tell him to see a doctor,
he unilaterally made the decision to discharge him. He said
that he felt that Betz was not trying to work with the Com-
pany.
Behnke said that he had told another employee to go to
a hospital to have an illness verified on the same day he
gave that instruction to Betz’ wife. He recalled that about a
month before he had told another employee to go to a hos-
pital to verify an illness, but that the employee had elected
to come to work instead. However, Respondent did not call
either of these drivers as a witness, or make a showing that
they were unavailable to testify. Nor did Respondent ques-
tion Betty Behnke, who did testify as a witness for Respond-
ent, about other instances in which it may have placed a
similar requirement on other city drivers. Moreover, even if
the two incidents mentioned by Mark Behnke occurred, they
were isolated and are insufficient to establish a bona fide
work rule.6 There is in this regard a clear showing in the
record that Betz was treated disparately when Mark Behnke
terminated his employment, ostensibly because he did not go
to a hospital on Sunday, August 2, to have his illness veri-
fied by a doctor.
Having had the opportunity to observe the demeanor of
James Betz, Mark Behnke, and Betty Behnke as they testi-
fied, as well as the opportunity to weigh the testimony of
each in light of the extent to which their testimony is cor-
roborated or not corroborated by the testimony of other wit-
nesses or other evidence in this case, I conclude that Betz
is the more credible witness. His testimony concerning his
illness is corroborated by that of his wife and mother-in-law,
both of whom I find to be credible witnesses. Both of them
attested to Betz’ illness, and his wife communicated Betz’ in-
tention to visit a doctor on Monday, August 3, to Mark
Behnke.
I find that Mark Behnke was not being truthful when he
testified that he had made no decision to discharge Betz until
August 4, when Betz allegedly said no one was going to tell
him when to see a doctor. Behnke admitted that he had told
Mrs. Betz on the morning of August 2 that unless her hus-
band went to a hospital that day to have a doctor verify his
illness, Respondent would terminate his employment. It is
uncontested that Betz did not go to a hospital as instructed
by Mark Behnke. All that remained was for Mark Behnke
to carry out his threat, which he did on August 4.
Betty Behnke’s limited testimony on the meeting in her
office on August 4 does little to buttress the testimony of
Mark Behnke in any material respect. While she testified that
Betz said on August 4 that the Company did not have the
right to tell him when to see a doctor, I find that even if he
made that statement, it must be viewed in the context of the
dispute between Respondent and Betz over Mark Behnke’s
demand that he go to see a doctor at a hospital on Sunday.
There was no reason for Betz to refuse generally to see a
doctor when he was ill, particularly since he had gone to see
a doctor before the August 4 meeting. It is undisputed Betz
had furnished doctor’s certificates in the past, and there is
credible evidence that, in fact, he visited his family doctor
on Monday, August 3, which was the earliest reasonable op-
portunity that he would likely have had to see a doctor in
private practice for a minor, nonlife threatening illness, and
the doctor provided him with a disability certificate on that
date. It makes no sense that he would have made an issue
out of seeing a doctor when he had already complied with
the requirement, and had a medical certificate excusing his
absence.
General Counsel’s Exhibit 3 is a disability certificate dated
August 3, 1992, bearing the name and purported signature of
W. E. Frankenstein, D.O. Respondent has offered no evi-
dence W. E. Frankstein is not who he purports to be, or that
he did not sign the certificate on the date shown, August 3,
or that he falsified his certification that Betz was totally inca-
pacitated from August 2 to 4, when he was authorized to re-
turn to work. General Counsel’s Exhibit 3 refutes Mark
Behnke’s attempts to discredit the genuiness of Betz’ claim
to having been ill on Sunday, August 2. Respondent has of-
fered no testimony from a medically qualified witness to dis-
credit Betz’ claim that he was ill, as substantiated by Dr.
Frankenstein’s certificate. Accordingly, I find as fact that
General Counsel’s Exhibit 3 is genuine and that Betz was
medically disabled from working on August 2 and 3.
I do not credit Mark Behnke’s testimony that Betz said
that he could not get an appointment to see a doctor until
the next day, and did not produce a medical certificate on
August 4, 1992, at the meeting in Betty Behnke’s office. As
between Betz and Mark Behnke, I find that Betz is the more
credible witness, and I credit his testimony that he offered
the medical certificate to Mark, Betty, and Karl Behnke on
August 4, before he was discharged. Although Mark Behnke
denied Betz’ testimony on this point, Respondent failed to
call Karl Behnke, to whom Betz said he offered the certifi-
cate before the meeting in Betty Behnke’s office on August
4, which Karl Behnke attended. Respondent had made no
showing that Karl Behnke was unavailable as a witness at
the hearing, and Respondent did not question Betty Behnke,
who did testify as its witness for Respondent at the hearing,
on whether or not Betz produced a doctor’s certificate. From
these failures, I conclude that if Karl Behnke had been called
to testify and Betty Behnke had been examined on this point
they would have supported the testimony of James Betz.
Considered in it entirety, the credible evidence of record
shows that Respondent was motivated by union animus and
that it treated James Betz disparately when Mark Behnke ter-
minated his employment on the pretext that he had failed to
comply with a nonexistent company rule requiring employees
to go to a hospital to verify even a minor illness when they
called in sick on weekends. Accordingly, I find that Re-
1139BEHNKE, INC.
spondent violated Section 8(a)(1) and (3) of the Act by dis-
charging James Betz on August 4, 1992.
IV.
The evidence of record clearly shows that if Respondent
had a work rule concerning sick leave prior to certification
of Teamsters Local 7 as the collective-bargaining agent of its
city drivers, it was an unwritten rule which required that a
driver who called in sick had to produce a medical certificate
when he returned to work, even if the absence lasted only
1 day. General Counsel’s city driver witnesses testified they
had never seen a written company rule concerning sick leave,
and the Respondent offered no evidence to rebut their testi-
mony. But, even assuming that the Respondent had a work
rule requiring drivers to produce a medical certificate when
they returned to work after an absence of 1 day or more, it
did not consistently enforce it. There is persuasive evidence
that in practice, Respondent requested doctor’s slips from
some employees, but not from others, and took no further ac-
tion against employees who failed to produce one when re-
quested to do so.
In this case, the Respondent attempted to create a new and
more onerous work rule, with the harsh penalty of discharge
for violating it, where no such rule had existed before. There
is no credible evidence that prior to the time Teamsters Local
7 was certified as the collective-bargaining representative of
Respondent’s city drivers in May 1992, Respondent had a
work rule, written or unwritten, requiring employees calling
in sick on weekends to go to a hospital or hospital emer-
gency room to have their illness verified, the penalty for vio-
lation of which was termination of employment. Six city
driver witnesses, including the alleged discriminatee, testified
that they were unaware that such a rule existed. In support
of its position that such a rule did exist, Respondent, through
its witness Mark Behnke, whom I have found to be not cred-
ible, could cite only two other applications of the alleged
rule, one on the same day, and the other a month before,
both of which occurred after Teamsters Local 7 was cer-
tified. On the evidence of record, I find that the rule requir-
ing an employee to obtain verification from a doctor at a
hospital of any illness occurring on a weekend was a new
work rule created by Mark Behnke expressly for the purpose
of retaliating against employee James Betz for engaging in
protected union activities.
The Respondent’s attempt to unilaterally create and imple-
ment a more onerous rule and enforce it against employee
James Betz on August 4, 1992, at a time when Teamsters
Local 7 and the Respondent were engaged in bargaining over
a collective-bargaining agreement, violated Section 8(a)(5)
and (1) of the Act. As correctly noted by the General Coun-
sel, citing Equitable Gas Co., 303 NLRB 925, 929 (1991),
and Southern Florida Hotel Assn., 245 NLRB 561, 567–568
(1979), enfd. in relevant part 751 F.2d 1571 (11th Cir. 1985),
the law on this point is settled. ‘‘An employer violates Sec-
tion 8(a)(5) of the Act if, during the term of a collective-bar-
gaining agreement, it implements, without first having bar-
gained with its employees’ collective bargaining representa-
tive over the matter, changes in its employees’ work rules.’’
Southern Florida Hotel Assn., supra at 567. The rule is no
different whether an employer unilaterally implements a
change in a work rule during the term of a collective-bar-
gaining agreement, or while the union and the employer are
attempting to negotiate their first collective-bargaining agree-
ment after certification of the union as the employees’ collec-
tive bargaining representative. Further, there is no evidence
that Teamsters Local 7 waived its statutory right to bargain
over this change in the terms and conditions of employment
of the employees it represents. Equitable Gas Co., supra at
929.
The Board has said that the test for determining whether
a discharge violated Section 8(a)(5) of the Act is: ‘‘If an em-
ployer’s unlawfully imposed rules or policies were a factor
in the discipline or discharge, then the discipline or discharge
violated Section 8(a)(5) of the Act.’’ Equitable Gas Co.,
supra at 931. Here, the complaint alleges that the implemen-
tation of the new rule violated Section 8(a)(5), and the Re-
spondent admits that employee James Betz was discharged
pursuant to the new rule. By implementing the new rule
without prior notice to Teamsters Local 7 and affording it an
opportunity to bargain, Respondent violated Section 8(a)(5)
of the Act. Therefore, the discharge of employee James Betz
on August 4, 1992, pursuant to the new rule, also violated
Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. At all material times since May 18, 1992, Local No. 7,
International Brotherhood of Teamsters, AFL–CIO has been
the exclusive collective-bargaining representative of Re-
spondent’s regular full-time city drivers and mechanics.
2. By changing the work assignment of employee James
Betz on May 8, 1992, and terminating his employment on
August 4, 1992, because he engaged in protected union ac-
tivities and supported Teamsters Local 7, and by unilaterally
promulgating a work rule requiring employees who missed
work on weekends because of illness to go to a hospital for
the purpose of having their illness verified, the Respondent
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1), (3), and (5) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having unlawfully and discriminatorily
changed the work assignment of city driver employee James
Betz on May 8, 1992, and unlawfully and discriminatorily
discharged him on August 4, 1992, it shall be ordered to
offer him reinstatement and make him whole for any loss of
earnings and other benefits, computed on a quarterly basis
from date of the change in his work assignment to date of
proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
The Respondent having unlawfully and unilaterally imple-
mented a network rule on August 4, 1992, it shall be ordered
to rescind the new work rule requiring employees who call
in sick on weekends to go to a hospital to obtain verification
of their illness.
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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.
8 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Behnke, Inc., Battle Creek, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the work assignment or terminating the em-
ployment of employees because they supported Local No. 7,
International Brotherhood of Teamsters, AFL–CIO or any
other union.
(b) Unilaterally implementing and enforcing changes in
work rules, including a work rule requiring its city drivers
and mechanics who call in sick on weekends to go to a hos-
pital to have their illnesses verified.
(c) In any like or related manner interfering with, restrain-
ing, or coercing unit employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer city driver employee James Betz immediate and
full reinstatement to his former job as a driver on the Ralston
shuttle or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, 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 the decision.
(b) Rescind the August 4, 1992, work rule requiring em-
ployees who call in sick on weekends to go to a hospital to
have their illnesses verified.
(c) Remove from its files any reference to the unlawful job
reassignment and discharge of James Betz, and notify the
employee in writing that this has been done and that the re-
assignment and discharge will not be used against him in any
way.
(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 its facility in Battle Creek, Michigan, copies of
the attached notice marked ‘‘Appendix.’’8 Copies of the no-
tice, on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees, 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT change your job assignment or discharge or
otherwise discriminate against you for supporting Local No.
7, International Brotherhood of Teamsters, AFL–CIO or any
other union.
WE WILL NOT unilaterally and without bargaining with
Local No. 7, International Brotherhood of Teamsters, AFL–
CIO institute, implement, and enforce work rules, including
a work rule requiring employees who call in sick on week-
ends to go to a hospital to have their illnesses verified.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the right
guaranteeds you by Section 7 of the Act.
WE WILL offer James Betz immediate and full reinstate-
ment to his former job as driver on the Ralston shuttle or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges previously enjoyed and WE WILL make him whole
for any loss of earnings and other benefits resulting from his
job reassignment and discharge, less any net interim earn-
ings, plus interest.
WE WILL rescind the work rule which we put into effect
on August 4, 1992, requiring employees who call in sick on
weekends to go to a hospital to have their illnesses verified.
WE WILL notify James Betz that we have removed from
our files any reference to his job reassignment and his dis-
charge and that the job reassignment and discharge will not
be used against him in any way.
BEHNKE, INC.