Consolidated Freightways Corp.

National Labor Relations Board - Board Decisions

Jun 3, 1987

284 N.L.R.B. 90 (N.L.R.B. 1987)

90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Consolidated Freightways Corporation of Delaware
and Teamsters Local Union No. 579, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Cases 30-CA-8929 and 30-CA-
9218
3 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 10 November 1986 Administrative Law
Judge Wallace H. Nations issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,' and
conclusions, to modify the remedy, 2 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Consolidat-
ed Freightways Corporation of Delaware, Janes-
ville, Wisconsin, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
In adopting the finding of the judge regarding the temporary nature
of the position filled by Jensen we note specifically that the Respondent
had three positions when Tollefson took maternity leave: terminal manag-
er, dispatcher/foreman, and part-time billing clerk. Jensen replaced Tol-
lefson as the part-time billing clerk
That Jensen was hired as a temporary replacement for Tollefson
evinced by the notations on the request submitted by the terminal manag-
er for a replacement for Tollefson and the authorization to hire. Howev-
er, when the terminal manager took a week off, the office was again
shorthanded At the request of the Respondent, Tollefson returned early
from maternity leave. When the terminal manager returned, he felt that
an additional employee was needed and, contrary to his instructions, re-
tained Jensen. When this action was brought to the attention of higher
management, the terminal manager was reminded that Jensen was hired
temporarily to replace Tollefson and that she would have to be released.
Based on the foregoing we agree with the judge that Jensen's position
with the Respondent was temporary.
We also note that no exception was taken to the finding of a violation
of Sec. 8(a)(3) of the Act in the discharge of Jensen
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U S.0 § 6621
Paul Bosanac, Esq., for the General Counsel.
John M. Loomis, Esq., of Milwaukee, Wisconsin, for the
Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
On 10 September 1985 1 Teamsters Local Union No. 579,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (the Union) filed an unfair labor practice charge
against Consolidated Freightways Corporation of Dela-
ware (Respondent). On 24 October the Regional Direc-
tor for Region 30 issued a complaint and notice of hear-
ing alleging violations of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act. A hearing was held
before me on 18 December 1985 and briefs were submit-
ted by the parties.
On 23 June 1986 the Regional Director for Region 30
issued a complaint and notice of hearing in Case 30-CA-
9218 involving the same parties as in Case 30-CA-8929.
In addition to the allegations of the complaint in Case
30-CA-8929, the new complaint alleges additional viola-
tions of Section 8(a)(1) and (3) of the Act by Respond-
ent. Concurrently, with the issuance of the new com-
plaint, the General Counsel filed a motion to reopen the
record in Case 30-CA-8929 and consolidate it with Case
30-CA-9218. After issuing a Notice to Show Cause and
considering the matter and the responses to the notice, I
granted the motion of the General Counsel and reopened
the record in Case 30-CA-8929 and consolidated that
case with Case 30-CA-9218. Further hearing in these
matters was held in Janesville, Wisconsin, on 4 Septem-
ber 1986. At the request of the parties, additional briefs
were submitted.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation with an office
and place of business in Milton, Wisconsin, has been and
is engaged in operating a truck terminal providing truck-
ing and warehousing services. Respondent admits the ju-
risdictional allegations of the complaint, and I find that
Respondent is now, and at all times material has been, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
All parties admit that the Union is now, and at all
times material has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The alleged unfair labor practices in this proceeding
are substantially related and will be discussed below. Ba-
sically, the issues presented by the facts and pleadings in
this case are:
(1) Whether Respondent violated Section 8(a)(1) of the
Act by stating, in the context of union activities, that
Georgieann Jensen's job would have to be eliminated.
All dates are in 1985 unless otherwise indicated
284 NLRB No. 13
CONSOLIDATED FREIGHTWAYS CORP. 91
(2) Whether Respondent violated Section 8(a)(1) and
(3) by terminating Georgieann Jensen on 9 September.
(3) Whether Respondent violated Section 8(a)(1) and
(3) by hiring Jack Ziebarth rather than recalling to work
Georgiann Jensen on 14 January 1986.
(4) Whether Respondent violated Section 8(a)(1) and
(3) of the Act by failing to recall Georgieann Jensen on
or about 28 July 1986, when the employment of Jack
Ziebarth ended through his resignation and his position
was offered to Kristy Tollefson.
(5) Whether Respondent violated Section 8(a)(1) of the
Act by reducing th hours of work of Kristy Tollefson
about 14 February 1986 and further, by issuing written
warnings to Tollefson in June 1986.
(6) Whether Respondent violated Section 8(a)(1) and
(5) by withdrawing recognition from the Union on 30
August as the exclusive representative of its clerical em-
ployees.
(7) Whether Respondent has violated Section 8(a)(1)
and (5) by its continued refusal to recognize the Union as
the exclusive representative of its clerical employees.
A. Background
Respondent is one of the largest trucking companies in
the United States, employing approximately 13,000 em-
ployees, 70 percent of whom are drivers. It has divided
its nationwide operation into several areas, one of which
is the central area, within which there are several divi-
sions, including the Wisconsin Division that employs ap-
proximately 600 employees at 16 terminal locations
throughout the State of Wisconsin. The area vice presi-
dent is John Campbell and the area personnel manager is
Jim Biller. Robert Donahue is the division manager for
the Wisconsin Division and is responsible for the 16
company terminals in Wisconsin It is Respondent's
policy that only Charlie Schmalz, Respondent's central
area labor relations manager, can take binding actions
with regard to recognition or other labor relations mat-
ters.
Respondent has operated a terminal in Janesville, Wis-
consin, since 1981. Prior to 1981, the Janesville work
was performed by Respondent's Madison, Wisconsin,
and Rockford, Illinois terminal operations. Respondent
maintains an eight-door terminal facility at Janesville, the
home-base for eight drivers represented by the local
union.
Within Respondent's organizational structure, Janes-
ville is classified as a "grade 5" terminal, as are the Wis-
consin terminals located in Racine, Slinger, Sheboygan,
Madison, and Green Bay. The Janesville terminal has an
office staff, including managerial, supervisory, and cleri-
cal employees.
The Janesville terminal staff has undergone a number
of changes, due in part to an austerity program imple-
mented by Respondent during 1985 because of declining
business in the first half of the year. In January 1984 the
office was staffed by Joe Deschepper, terminal manager;
Joe Sesek, account manager; and Kristy Fritzke, office
clerical. A short time thereafter, billing functions previ-
ously performed in Peru, Illinois, were transferred to
Janesville. Kristy Tollefson was hired in March 1984 as a
part-time billing clerk to post the bills on the terminal's
computer.
Fritzke was responsible for assisting in dispatch oper-
ations, posting bills, manifesting, t-conning, and ensuring
that shipments were delivered properly. In February
1985 Fritzke resigned and, shortly thereafter, Steve An-
akler was hired as a salaried dispatcher/foreman, per-
forming many of the work duties performed previously
by Fritzke.
Respondent, as part of its austerity program, instituted
a number of personnel changes affecting the Janesville
terminal in June. Specifically, in mid-June, Joe Sesek was
offered the position of terminal manager in LaCrosse,
Wisconsin, and Joe Deschepper was down classified
from his position of terminal manager in Madison, was
transferred from Janesville to Madison. At this same
time, Tollefson took maternity leave.
On assuming his duties in Janesville, Scharping re-
quested that Pat Sugden, a part-time billing clerk in
Madison, perform the billing work in Janesville and
Sugden then transferred to Janesville. Scharping worked
only 2 weeks in Janesville when he left Respondent's em-
ployment. Sesek, who was designated to work in La-
Crosse, had not left Janesville as the terminal manager
and Sesek agreed. At the time Sesek assumed the termi-
nal manager's position, the Janesville office was staffed
by Deschepper and Sugden. At the end of July, Sugden
resigned his employment at Janesville because of insuffi-
cient pay to cover the additional cost of commuting
from Madison. On Monday, 29 July, following Sugden's
departure, Georgieann Jensen began work in the Janes-
ville office. Jensen was primarily assigned billing duties,
although she performed some other clerical tasks.
Sesek was absent from work the week of 5 August to
attend his father's funeral. During Sesek's absence, Des-
chepper telephoned Tollefson to inform her of Sesek's
father's death and during the conversation asked Tollef-
son to return to work because the office was hectic. Tol-
lefson returned to work the same day. Jensen continued
to perform billing work and Tollefson processed claims
at the telephone, and handled O.S.D. paperwork. During
August, Tollefson reported to work at 1 p.m. and
worked to approximately 7 p.m. and Jensen worked from
approximately 5 to 10 p.m.
On the afternoon of 29 August, Harley French, a
Local 579 organizer and business agent, and Local 579
President Marvin Lewis went to see Sesek at the Janes-
ville terminal. French handed Sesek a letter stating that
Respondent recognized Local 579 as its exclusive bar-
gaining representative for the Janesville office employ-
ees. Sesek signed the letter and Lewis witnessed it with
his signature. French then asked Sesek if he wanted to
see the authorization cards. French then showed Sesek
two authorization cards signed by Tollefson and Jensen.
On examining the cards, Sesek asked French why he had
not been shown the cards before he was presented with
the letter. French replied that the letter was clear. Sesek
then asked if he could photocopy the recognition letter
and French handed it to Sesek who copied and returned
it to French. The two union representatives then left.
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sesek immediately telephoned Donahue and reported
that he had just signed a letter recognizing the Union as
the bargaining agent for the office employees. On 4 Sep-
tember Sesek sent Lewis a letter stating he lacked au-
thority to recognize the Union. Five days later, Jensen
was terminated.
B. Jensen 's. Employment, Union Involvement, and
Termination
The background facts stated above are virtually undis-
puted. Questions however, arise with respect to the
nature of Sugden's employment and its duration, and the
same with Jensen's employment and the permanency of
the position filled by Jensen. As Jensen was hired as a
replacement for Sugden, the nature of Sugden's employ-
ment is significant.
Sugden presented evidence that Scharping asked him
to stay permanently. Sugden also testified that Sesek re-
quested him to continue his employment indefinitely. On
the other hand, Sesek testified that he did not have a talk
with Sugden about his position when he took over the
terminal manager's position, but also stated that he had
never told Sugden he could only work until Tollefson
returned from maternity leave. Respondent contends that
Sugden was employed in Janesville only as a temporary
replacement for Kristy Tollefson while she was on ma-
ternity leave, Respondent's Exhibits 1 and 2, which are
personnel forms relating to Sugden, reflect that Sugden
was being transferred to Janesville as a "supplemental re-
placement for Knsty Tollefson" and also that he was
being "transferred from Madison to assist at Janesville
during the absence of existing clerk K. Tollefson who is
on maternity leave."
As will be shown to be the case also with Jensen, the
paperwork describing the duration of employment for
the Sugden/Jensen position varies significantly from
what was told to the two employees. As the General
Counsel argues on brief, if, as Respondent maintains,
Sugden was only a temporary replacement for Tollefson,
why was he not offered his previous Madison billing
clerk job at the end of July when he indicated that he
was having financial difficulties commuting to Janesville?
Sugden had only worked a little more than a month in
Janesville and there should have been no difficulty in re-
suming his previous Madison duties, unless his Madison
job was filled. Sugden testified he saw a female billing
clerk replacement in Madison. Respondent suggested
that the woman performing billing work in Madison had
been hired before Sugden began his Madison employ-
ment and was a regular assigned employee. On the other
hand as pointed out by the General Counsel, if the
woman was not a replacement for Sugden, there should
have been enough work for him to return to Madison, as
there had been enough work between January and June
when Sugden worked at the Madison terminal. The Gen-
eral Counsel argues that the only reasonable conclusion
to draw is that Sugden, after working a short time in
Janesville, was considered to be permanently assigned
there. For the reasons argued ' by the General Counsel,
and based on the testimony of Sugden and Sesek, I agree
with the General Counsel's contention and find that
Sugden was intended to be a permanent part-time em-
ployee by the terminal managers, Scharping and Sesek.
This finding is further supported by the timing of Jen-
sen's hiring and Tollefson's return and Sugden's last day
of work. Sugden resigned on 26 July, Jensen was hired
on 29 July; and Tollefson returned to work on 5 August.
Tollefson was scheduled to return to work about 19
August. Even assuming that Tollefson could not have re-
turned as early as she did and would have been out until
19 August, it would have been simply obvious for Re-
spondent to have encouraged Sugden to stay on for the
additional 2 to 3 weeks than to hire a totally new em-
ployee who was unfamiliar in the position. Moreover,
Sugden had requested to stay on but also with a raise
that would have made the commute from Madison to
Janesville financially feasible for him. Again, to pay
Sugden a small amount more for 3 weeks would have
made far more sense than to hire a new untrained em-
ployee, if that employee were only to hold the part-time
position until Tollefson's return.
As noted, Sugden's last day of work was to be 26 July.
Sesek initially contacted his superior, Donahue, by tele-
phone and during the conversation was told he could
only hire someone temporarily until Tollefson returned
from maternity leave. During the conversation Donahue
told Sesek to attempt to obtain assistance through tempo-
rary employment agencies such as "Kelly Girl," Sesek
informed Donahue that such temporary agencies were
not available in Janesville and Donahue orally authorized
Sesek to hire a temporary part-time person. Due to Re-
spondent's austerity program, Sesek was required to pro-
vide written justification for replacing Sugden. Respond-
ent's Exhibits 3 and 4 constitute the paperwork justifica-
tion for the hiring of Jensen. Respondent's Exhibit 3,
dated 25 July, is a letter from Donahue to his superior
and is entitled, "Request For New Hire—Replacement at
Janesville." After acknowledging the attached justifica-
tion submitted by Sesek for the new hire, the request
states: "I concur with Mr. Sesek's need for a part-time
clerk and would appreciate review and approval of the
attached request." The handwriting on this request,
relied on in part by Respondent on brief, was excluded
by me as hearsay.
Respondent's Exhibit 4 is a memorandum from Jim
Biller, to Bob Donahue dated 1 August, relating to the
same subject, Respondent's Exhibit 4 states in substantive
part: "Your request replaces supplemental clerical posi-
tion at Janesville caused by the resignation of Pat
Sugden has been reviewed and approved. However, the
replacement is effective until the billing clerk returns
from maternity leave."
Neither Sesek's request, nor Donahue's 25 July letter
makes reference to the replacement position being limit-
ed in duration to Tollefson's maternity leave. The Gener-
al Counsel notes that the difference in titles given to the
position sought and that held by Tollefson also indicates
that Sesek, at least, was seeking a permanent part-time
person in addition to Tollefson. I agree with the General
Counsel's contention and find further support for this po-
sition in what was told to Jensen at the time of her
hiring.
CONSOLIDATED FREIGHTWAYS CORP. 93,
Sesek interviewed Jensen on 27 July, the Saturday
after Sugden quit. Sesek testified he told Jensen at that
time her position would last only until Tollefson re-
turned from maternity leave. Jensen denied she was told
her job was temporary. According to Jensen, Sesek said
both women' would work at night once Tollefson re-
turned from maternity leave. In July, Tollefson was also
told by Sesek there would be two part-timers, one to be
strictly billing. Tollefson's July conversation with Sesek
was not denied or contradicted. Based on the demeanor
of the witnesses and on all the other evidence of record,
I credit Jensen's version of her interview with Sesek and
do not credit Sesek's version. I also credit Tollefson's
version. In further support of this position, the General
Counsel argues that Jensen would not have accepted a
part-time job of approximately 3 weeks' duration as her
full-time job was in jeopardy because of a rumored move
of that employer to the South. She testified that she was
seeking a job that held out the possibility of continued
future employment.
Respondent notes that the 1 August written authoriza-
tion for the hiring of Jensen (R. Exh. 4) was transmitted
to Respondent's Milwaukee terminal and received there
on 5 August. A copy of the authorization was then trans-
ferred to the Janesville office, received sometime be-
tween 5 and 10 August. However, on 5 August, Sesek
learned of his father's death in Minnesota and left imme-
diately to make arrangements for the funeral. He was
away from the Janesville terminal for a week. The writ-
ten authorization was received at the Janesville while
Sesek was away and Joe Deschepper filed it away with-
out Sesek seeing it.
As noted above, Tollefson was requested to return to
work early by Deschepper and did so on 5 August. Tol-
lefson and Jensen then worked side by side.
If, as stated by Sesek, Jensen was only to work until
Tollefson's return from maternity leave, Jensen should
have been let go either on 5 August or, at the latest, on
Sesek's return from his father's funeral the following
week. Although Deschepper may have filed away com-
pany correspondence indicating Jensen's position was au-
thorized only until Tollefson's return, Sesek testified he
had hired Jensen on that basis and would have known of
the need to release her on Tollefson's return.
I find from the evidence set out above that Sesek led
Jensen to believe that she was being hired as a perma-
nent part-time employee and intended to retain Jensen in
this capacity for as long as he could. I also find that
Sesek's superiors had authorized only a temporary part-
time employee to replace Tollefson during her maternity
leave because of Respondent's ongoing austerity pro-
gram. Apparently both Sesek and his predecessor as ter-
minal managers saw a need for two part-time clerical
employees and presumably hoped that upper manage-
ment would change its position on the number of such
positions that the Janesville terminal would be author-
ized or hoped that they could keep the position filled by
Sugden and then Jensen for a substantial period of time,
beyond Tollefson's return. As Jensen was still employed
after Tollefson's return without anything being said
about her termination date and without upper manage-
ment discovering her continued employment (until the
union recognition) I find that Sesek could have contin-
ued her employment for an indefinite period of time.
Sesek testified, on cross-examination, that Jensen's job
was not eliminated because there was no work for her to
do but because of the documentation not authorizing her
position, beyond Tollefson's return.
Donahue, who was aware of the documentation limit-
ing Jensen's employment, admittedly told Deschepper,
"Keep them both employed that week," while Sesek was
away at the funeral. Donahue's admission demonstrates
that the documentation was not an absolute restriction
on Jensen's tenure, or else Donahue would have no au-
thority to countermand its clear terms without seeking
higher authority. Second, if Donahue had instructed
Deschepper to keep both women for only a week, it
would have been Deschepper's responsibility to ensure
her termination. Deschepper did not terminate Jensen,
did not pass the word to Sesek, and did not testify. One
would assume that Donahue, aware that both women
were employed contrary to the terms of the documenta-
tion, would have made a followup check, but either did
not or if he did not act upon finding that both women
were still employed.
In the latter part of August, Jensen and Tollefson
signed authorization cards on behalf of the Union. As
noted earlier, union officials took the cards and a letter
stating that Respondent recognized the Union as the bar-
gaining agent for the clerical employees to Sesek on 29
August. After signing the recognition letter and seeing
the authorization cards, Sesek called his superior, Dona-
hue, to notify him of his actions.
Donahue did not direct Sesek to immediately termi-
nate Jensen in their 29 August conversation. Donahue
testified that he authorized Sesek to keep Jensen 1 more
week, demonstrating the flexibility Donahue had in re-
taining Jensen for a period time beyond Tollefson's
return.
I find that the General Counsel has established that
Respondent terminated Jensen at the time it did because
of her union activity. The timing of her discharge
coming as it did immediately after Sesek notified Dona-
hue of the authorization cards and his extending recogni-
tion to the Union is conclusive.
_ Two other factors support the General Counsel's posi-
tion. The first is Sesek's statement to Tollefson to the
effect that Jensen would lose her job because she had
signed a union authorization card, discussed later in this
decision, and the second is Respondent's withdrawal of
recognition from the Union even though it recognized
one person unionized clerical units at other terminals.
I find that the General Counsel has established a prima
facie case that the timing of the discharge of Jensen was
motivated by her union activity and Respondent's reluc-
tance to recognize the Union as the bargaining represent-
ative of a clerical unit at the Janesville terminal.
Respondent has offered no convincing evidence of
why it would have terminated Jensen at the time it did
absent the signing of the authorization card by Jensen. It
has, however, documented that Jensen's position would
have been terminated at some future date because the po-
sition was not permanent part-time but temporary part-
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time. Therefore, though I conclude that by terminating
Jensen on 9 September because of her signing a union
authorization card, Respondent violated Section 8(a)(1)
and (3) of the Act, I will order that Jensen be paid back-
pay for any money she may have lost because of her
protective activity, but will not order reinstatement.
The General Counsel argues that events occurring sub-
sequent to Jensen's termination demonstrate that a
second clerical position was subsequently authorized at
the Janesville terminal and filled, without the position
being offered to Jensen. It is also argued that if the posi-
tion that was authorized was not a clerical position that
by the promotion of Kristy Tollefson to the new position
in July 1986, the billing clerk position was obviously left
vacant and should have been offered to Jensen at that
time. These assertions are discussed below.
On 15 September, 1 week after Jensen's termination,
Sesek submitted a request for a additional full-time sala-
ried employee at Janesville to his superiors. (G.C. Exh.
11.) The request and Sesek's testimony surrounding the
request establish that Sesek was seeking another salaried
employee having approximately the same duties as his
dispatcher/dock foreman, Deschepper. Among other
things, the request notes that because Respondent had
eliminated the account manager position at Janesville
(previously filled by Steve Anacker), Sesek had to
expand the billing clerks hours from 5 to 9 p.m. to 3 to
10 p.m. and expanded the duties of the position to in-
clude clerical functions other than billing.
Sesek testified that although the Respondent had em-
barked on an austerity program in the first part of 1985,
after he had taken over as terminal manager at Janes-
ville, the tonage handled by the terminal began to grow
substantially. Sesek is evidently a successful salesman
who continuously expanded the business of the terminal
during the kite summer/fall and early winter following
his placement in the terminal manager's position. Sesek
credibly testified that because of the increase in the
workload and his need to perform all of his duties, in-
chiding the sales duties, he needed additional supervisory
help. His view of the office staff at Janesville, as outlined
in his testimony and General Counsel's Exhibit 11, would
be one terminal manager (himself); two salaried supervi-
sors (Dischepper and a new employee); and one billing
clerk (Tollefson). The terminal's operating hours had ex-
panded from approximately 7 a.m. to 6 p.m. to 5 a.m. to
approximately 10 p.m. Sesek anticipated that if the new
supervisory position was authorized, Deschepper would
report for work at approximately 4:30 a.m. and work
until 2 or 3 p.m. The new supervisor would come in at
approximately 10 or 11 a.m. and work until 10 p.m. The
terminal's manager would then be able to work from ap-
proximately 7 a.m to 6 p.m.
Approval for the position requested in the 15 Septem-
ber documentation was not immediately forthcoming
from Sesek's and Donahue's superiors. Nothing was done
with the request until January 1986. At that time, two
events occurred almost simultaneously, which required
that some action be taken. One was the closing of nation-
wide operations of McLean Truck Lines, a major com-
petitor of Consolidated Freightways. When McLean
ceased its operations due to bankruptcy, two very large
customers of that company in the Janesville area turned
immediately to Respondent to handle their trucking
needs. Respondent experienced an immediate substantial
increase in its tonage at the Janesville terminal. Second,
the Janesville dispatcher/dock foreman, Deschepper
became very ill and required hospitalization.
Because of the hospitalization of Deschepper, Sesek
was authorized to employ, at least on a temporary basis,
a person to fill his position.
Jack Ziebarth was employed in January 1986 as a part-
time billing clerk at the Madison, Wisconsin terminal of
Respondent. When he was hired at Madison, Ziebarth
expressed interest in any management opportunities that
might become available with the Company. In October
1985, Ziebarth had been interviewed by Sesek's supervi-
sor, Donahue, as a potential management trainee. When
a need for the replacement for Deschepper came up,
Donahue either recommended or told Sesek to interview
Ziebarth, who Donahue had interviewed earlier. Sesek
interviewed Ziebarth on the January 1986 and Ziebarth
reported to work on the following Monday.
The General Counsel contends that regardless of the
title given to the position filled by Ziebarth, Ziebarth's
actual position was substantially similar in duties to that
performed by Tollefson and during her employment,
Georgieann Jensen. Consequently, the General Counsel
asserts that the position should have been offered to
Jensen. Respondent contends, and I agree, that the posi-
tion offered to Ziebarth and filled by him was that of a
supervisor, not a clerical.
As described by Ziebarth, his duties were like these of
the afternoon supervisor. He was to supervise drivers,
dispatch trucks, make decisions about the flow of freight
that would go to other terminals, supervise the loading
of the trailers, answer phones, make decisions about the
priority of pickups, customer service, and complete the
general paperwork that went along with the other duties.
He testified that he was told to report to Sesek and work
along with Deschepper as a full-time supervisor for all
the other employees, including drivers and other office
personnel. His base hours were initially from 10 am to 8
p.m. and were increased at a later date from 10 a.m. until
the terminal closed.
Initially, while Deschepper was in the hospital, Sesek
covered the portion of the day when Ziebarth was not at
the terminal. When Deschepper returned, and after a
short illness on the part of Ziebarth, Deschepper worked
from 5 a.m. to 4 p.m. with Ziebarth working from 10
a.m. until the terminal closed. It was Ziebarth's under-
standing that he had authority to fire employees, under
circumstances similar to those in which the terminal
manager, Sesek, had authority to fire personnel. He was
authorized to schedule hours of work and shift work
schedules according to the needs of the shippers. He had
authority to authorize, and did authorize, overtime. He
had authority to discipline employees, although the only
discipline he actually meted out was a verbal warning.
Ziebarth was given written performances and production
goals on which either his continuing employment or
company bonuses would be contingent. Ziebarth was a
salaried employee and estimated, without contradiction,
CONSOLIDATED FREIGHTWAYS CORP. 95
that approximately 75 to 80 percent of his time on the
job was spent in supervisory or decision-making func-
tions and 20 to 25 percent performing clerical functions.
As noted earlier, Ziebarth resigned in July 1986 and
the position was shortly thereafter filled by Kristy Tol-
lefson. Her testimony corroborates the testimony of Zie-
barth about the supervisory nature of the job. She now
performs the same duties as did Ziebarth, considers her-
self as supervisor, and, as described, I find that her job is
that of a supervisor and not of a clerical. She no longer
performs any of the clerical functions she previously per-
formed. Because I find the position created and filled in
January 1986 at the Janesville terminal to be a superviso-
ry position, I do not find that Respondent has violated
the Act by not offering that position to Georgieann
Jensen.
However, there remains a question of whether the po-
sition of billing clerk, which became open in July 1986
when Kristy Tollefson was promoted to the supervisory
position, should have been offered as a matter of law to
Jensen. When that position became open, Sesek inter-
viewed several people ultimately hiring one of the per-
sons interviewed. Although Sesek contends that the
person hired has a skill level beyond that possessed by
Jensen. I do not consider this to be significant. He did
not offer the position to Jensen nor did he even inter-
view her for the position. Was he legally obligated to
make her an offer of employment for the billing clerk
position from which she had been terminated in Septem-
ber 1985?
I conclude that Respondent was not legally required
to offer the position vacated by ToIlefson to Jensen. I
have heretofore found that the position from which
Jensen was unlawfully terminated was a temporary posi-
tion. Because of the temporary nature of that position, I
did not require Respondent to recreate the position and
reinstate Jensen. Respondent has not recreated the posi-
tion Jensen filled in 1985 and still was only one perma-
nent part-time clerical position at the Janesville terminal.
Contrary to the allegations of the complaint in Case 30-
CA-9218, Respondent's subesquent actions with respect
to the office staffing at Janesville are consistent with the
position taken at the first hearing. Jensen's position
would have ended without regard to all protected activi-
ty and only the timing of her termination was affected
by the activity.
C. Sesek's Statement and Union Activity
The complaint alleges that Respondent, acting through
Sesek, violated Section 8(a)(1) of the Act by telling em-
ployee Tollefson that the position held by Jensen would
have to be eliminated. Tollefson testified that on 30
August, Sesek asked why she wanted to go in the Union
and also stated that Jensen's job would be eliminated be-
cause she signed an authorization card but admitted he
told Tollefson, "Now that Bob Donahue knows that
there are two part-time clerical people here, he said as
soon as he checks it out, I imagine I am going to have to
eliminate one of them."
I do not find that Sesek's statement to Tollefson was a
threat nor a violation of Section 8(a)(1) of the Act. I
agree with Respondent that it was a statement of a su-
pervisor who had exceeded his authority, as discussed in
detail above, and was aware of the fact being discovered
by his superiors. The statement that the position would
be eliminated was logical because Sesek knew of docu-
mentation mandating the position being eliminated.
D. Recognition and Unit Issues
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) and (5) of the Act by withdrawing recogni-
tion from the Union on 30 August as the exclusive repre-
sentative of the clerical employees at the Janesville ter-
minal and by its continued refusal to recognize the Union
as the representative of the unit. As noted earlier in the
Background section of this decision, on 29 August Termi-
nal Manager Sesek was presented with signed authoriza-
tion cards for Jensen and Tollefson and signed a recogni-
tion agreement with the Union. Under the collective-bar-
gaining agreement to which Respondent is a signatory,
when a majority of the employees in an appropriate unit
sign authorization cards they are automatically covered
by the agreement.
Respondent introduced evidence that authority to rec-
ognize the unit did not reside with the terminal manager
but existed at the level of the central area labor manage-
ment function. On the other hand, I find that Sesek was
an agent of Respondent and if an appropriate unit exist-
ed, under the collective-bargaining agreement, Sesek
could have bound Respondent by signing the recognition
form.
As a justification for Sesek's signing of the letter rec-
ognizing the Union, Respondent introduced evidence
that on the day before the union representatives called
on Sesek, he received on his computer a notification that
the Wisconsin Motor Carrier Bureau would be mailing a
census to be filled out by the terminal manager. Re-
spondent argues that Sesek believed that he was answer-
ing this census when he signed the authorization letter. I
find this justification to be totally incredible. Sesek both
saw the authorization cards and read the letter, and they
clearly had nothing to do with a census by a motor car-
rier bureau. Based on Sesek's demeanor when he testified
and the other facts surrounding the census I do not find
credible Sesek's testimony that he thought he was sign-
ing a census. I find, on the other hand, that Sesek knew
that he was signing a union recognition letter when he
signed it though he may not have known the conse-
quences of his actions.
However, I do not find that an appropriate unit existed
for which the Board could require bargaining. I have,
heretofore, found that Jensen, though terminated because
she signed an authorization card and thus her presence
became known to upper management, was in fact meant
to be and at all times was a temporary part-time employ-
ee. Temporary employees are excluded from collective-
bargaining units and when Jensen is excluded, the unit
consists of only one regular employee. This case is simi-
lar td one cited by Respondent, Stern Made Dress Co.,
218 NLRB 372 (1975), in which an employer who had
only one union employee agreed to sign a collective-bar-
gaining agreement with the ILGWU. Later, the employ-
ee refused to sign the agreement and the Board held that
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
because the unit consistsed of only one employee the ob-
ligations of Section 8(a)(5) had been violated must be dis-
missed. I find that because the unit consisted of only one
regular employee, Respondent was free to withdraw rec-
ognition and refuse to bargain with the Union over the
terms and conditions of employment of the one person
within that unit without violating the Act.
The General Counsel argues that Respondent created
the one-person unit by unlawfully terminating the em-
ployment of Jensen. I do not agree. The timing of the
termination of Jensen was unlawful because it was moti-
vated by her union activity. The status of Jensen had
always been that of a temporary employee and she was
not an appropriate member of the unit at any time. I be-
lieve the proper remedy for Respondent's unlawful ter-
mination of Jensen is as recommended, that is appropri-
ate backpay. I do not believe it proper to unilaterally
change the status of the position that she held with the
Company and thus create a two-person bargaining unit
that never really existed.
E. Reduction in Tollefson's Hours of Work and Tune
1986 Warnings
As noted earlier, Tollefson signed a union authoriza-
tion card along with Georgieann Jensen in August 1985.
She testified at the initial hearing held in this matter in
December 1985. In February 1986, Tollefson's hours
were approximately 3 until 10 p.m. When she began
work in February 1985, her hours as a billing clerk were
5 to 10 p.m. Prior to the hiring of Jack Ziebarth, Tollef-
son had been asked to do more clerical work and differ-
ent clerical functions than the billing clerk job entailed.
Respondent contends this was because of lack of ade-
quate staffing. It is Respondent's position that once Zie-
barth and Deschepper were both working at their duties
at the terminal, Sesek was able to return Tollefson to her
billing duties that would require her only to work from 5
to 10 p.m.
Tollefson testified that Sesek told her about 14 Febru-
ary that he was cutting back her hours because there was
not enough work for her to do to justify coming in at 3
or 3:30 p.m. Tollefson understood that there was not a
decrease in work but there was another person working
there, Jack Ziebarth, who would be performing some of
the nonbilling clerical functions. Respondent's position
that Tollefson's hours were reduced because of the
change in the office staffmg rings true. When Tollefson
was promoted to supervisor, the person hired to replace
her as part-time billing clerk was given the same hours,
that is, 5 in the evening until 10 at night. Therefore, I
find that Tollefson's hours were changed by Respondent
in response to a change in the office staffing and not be-
cause of her activity on behalf of the Union and her tes-
timony given before the Board in December.
In June 1986, after the filing of a charge with the
Board that her hours had been reduced, Tollefson was
given three written warnings about her work perform-
ance. The three warnings all involved errors made by
Tollefson in billing. The first such warning resulted from
an error made by Tollefson that cost one of the Re-
spondent's customers approximately $1 million and
almost resulted in Respondent losing one of its best cus-
tomers in the Janesville area. The other two warnings
also reprimanded Tollefson for documented killing
errors. The last of the warnings stated that if she. „made
further mistakes she may be terminated. Tollefson, testi-
fied that she had not received a written warning before
June, though she retracted that being , shown a written
warning in her file issued by Joe Deschepper at an earli-
er date. Sesek testified that the warnings were issued , be-
cause of the serious consequences of the one event- that
caused the first letter and the continuing "rash" of fur-
ther billing errors committed within a short period of
time by Tollefson.
Immediately prior to the period in which Tollefson
was reprimanded, she had been cited for a merit increase
by Sesek and in fact received a merit increase in the
latter part of June. Also, as noted above in early July,
she was promoted from the billing clerk' position to the
supervisory position of assistant dispatcher/dock fore-
man.
The General Counsel contends that the warning were
prompted by Tollefson's complaints to the Board about
her change in hours. Respondent denies that it had any-
thing to do with it. Tollefson, herself, seems to have lost
interest in the matter because of her promotion to the su-
pervisory position, wherein she makes substantially more
money than she made as a billing clerk. Although I
would agree with the General Counsel's position that the
timing of the warnings, coming as they did immediately
after the filing of a new charge, would lead one to be-
lieve that the warnings were in response to the filing,
Respondent's position that the errors made were seriqus
enough to justify the warnings also has merit. I ,wonld
agree with Respondent that it cannot simply ignore a
billing error that nearly caused it to lose a substantial
customer and one which does cost the customer a .very
substantial sum of money. It is not disputed that further
billing errors occurred by Tollefson that resulted in the
subsequent warnings. As the errors did in fact occur,and
coming as they did immediately after the earlier very se-
rious error, I find that there was resonable business justi-
fication for issuing the warnings and there is insufficient
evidence to find that they were motivated by Tollefson's
actions with respect to the Board. Accordingly, I will
recommend that the portions of the complaint -alleging a
violation of the Act by the issuance of the warnings, as
well as the reduction in hours worked by Tollefson, be
dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Teamsters Local Union No. 579, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By terminating temporary employee Georgieann
Jensen on 9 September 1985 because she signed a union
authorization card, Respondent has violated Section
8(a)(1) and (3) of the Act.
CONSOLIDATED FREIGHTWAYS CORP. 97
4. The unfair labor practice found to have been com-
mitted is an unfair labor practice affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not committed any other unfair
labor practices as alleged in the consolidated complaint
in this proceeding.
REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent has violated the Act
by terminating the employment of temporary employee
Georgieann Jensen on 9 September 1985, I will recom-
mend that she be made whole for any losses that she
may have suffered by virtue of Respondent's unlawful
act. The amount of money owed her shall be determined
by the Board and the parties as there are not sufficient
facts in this record to determine exactly on what date the
temporary employment of Georgieann Jensen would
have ceased absent her signing a union authorization
card. The amount of backpay determined to be owed to
Jensen shall be paid with interest to be computed in ac-
cordance with the formula set forth in F. W Woolworth
Co., 90 NLRB 289 (1950), with interest computed in the
manner described in Florida Steel Corp., 231 NLRB 651
(1977), see generally Isis Plumbing Co., 138 NLRB 716
(1962).
Reinstatement is not found to be appropriate because
the position held by employee Jensen was temporary in
nature and would have ceased even in the absence of Re-
spondent's unlawful activity.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Consolidated Freightways Corpora-
tion of Delaware, Janesville, Wisconsin, its officers,
agents, successors, and assigns, shall
I. Cease and desist from
(a) Terminating employees who sign union authoriza-
tion cards or otherwise engage in lawful union activity.
2 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 objections to them shall be deemed waived for all pur-
poses.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reimburse Georgiann Jensen for any loss she may
have suffered by virtue of Respondent's unlawful activity
in a manner described in the remedy section of this deci-
sion.
(b) Post at its Janesville Wisconsin place of business
copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Regional
Director for Region 30, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
3 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 Nation-
al 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'
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge employees because they sign
union authorization cards or otherwise engage in lawful
union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL reimburse employee Georgieann Jensen for
any loss she may have suffered by virtue of our unlawful
termination of her employment
CONSOLIDATED FREIGHTWAYS