Marsak Leasing

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 817 (N.L.R.B. 1994)

817
313 NLRB No. 139
MARSAK LEASING
1 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
2 The General Counsel has excepted to the judge’s failure to re-
quire removal of any disciplinary warning that may remain in Ches-
ter Janek’s file. Because the Respondent revived a warning given
Janek earlier in December as a basis for unlawfully discharging him
the following January, we shall modify the order to require removal
of any reference to any predischarge warning from Janek’s file. We
agree, however, with the judge that the record does not support the
General Counsel’s contention that the warning itself was based on
Janek’s union or other protected concerted activity, and we premise
our extension of this expunction remedy solely on the judge’s find-
ing that, as of late December 1991, Janek was told his record was
clear. We shall also amend the notice to reflect the modified remedy.
Marsak Leasing, Inc. and General Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Building Materials, Heavy and High-
way Construction Employees, Local Union No.
404, a/w International Brotherhood of Team-
sters, AFL–CIO. Cases 1–CA–28375 and 1–CA–
29051
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On March 24, 1993, Administrative Law Judge
David S. Davidson issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel resubmitted his posthearing brief
in support of the judge’s decision and filed cross-ex-
ceptions to the judge’s decision and a supporting brief.
The Board has considered the decision and the
record in light of those exceptions and briefs and has
decided to affirm the judge’s rulings, findings,1 and
conclusions, and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Marsak Leasing, Inc., Springfield, Massachusetts, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Add the following as paragraph 2(b) and reletter
the remaining paragraphs accordingly.
‘‘(b) Remove any reference to any disciplinary
warning placed in Chester Janek’s file prior to his Jan-
uary 21, 1992 discharge and notify him in writing that
this has been done and that those warnings will not be
used against him in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE 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 or otherwise discriminate
against any of you for supporting General Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Building Materials, Heavy and Highway Construction
Employees, Local Union No. 404, a/w International
Brotherhood of Teamsters, AFL–CIO or any other
union or for engaging in concerted activity for your
mutual aid or protection.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT threaten you with discharge or other
reprisals because you engage in protected concerted or
union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Chester Janek immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL remove any disciplinary warning placed in
Chester Janek’s file prior to his discharge and WE WILL
notify him of the removal and that those warnings will
not be used against him in any way.
WE WILL notify Chester Janek that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
MARSAK LEASING, INC.
Kevin J. Murray, Esq., for the General Counsel.
Robert Weihrauch, Esq., of Worcester, Massachusetts, for the
Respondent.
Michael J. Catanzaro, of Springfield, Massachusetts, for the
Charging Party.
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Errors in the transcript have been noted and corrected.
2 The dates which follow fall within the period between March
1991 and January 1992, unless otherwise indicated.
3 These findings are based on the uncontradicted testimony of
Kaplan, Robert, and Malke. Sirk did not testify.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Deputy Chief Administrative Law
Judge. The charge in Case 1–CA–28375 was filed June 14,
1991. A complaint issued on July 24, 1991, and on Decem-
ber 11, 1991, the parties entered into an informal settlement
agreement. On January 24, 1992, the charge in Case 1–CA–
29051 was filed, and on March 25, 1992, the Regional Di-
rector issued a complaint in Case 1–CA–29051 and an order
setting aside the settlement agreement in Case 1–CA–28375
and consolidating the cases. The consolidated complaint as
amended at the hearing alleges that Respondent interrogated
employee applicants concerning their union sympathies,
threatened employees with reprisals, warned and then dis-
charged Chester Janek because he engaged in concerted and
union activities, and told employees that Janek was dis-
charged because of his union and concerted activities. Re-
spondent denies the commission of any unfair labor prac-
tices.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Springfield, Massachusetts, where it leases trac-
tors, trailers, and drivers to other employers. It provides serv-
ices annually valued in excess of $50,000 outside of Massa-
chusetts. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Interrogation of employee applicants
In March 1991,2 Respondent began operations at Spring-
field where it serves a single customer, Novacor Chemical
Co. Respondent transports styrene monomer, a hazardous
chemical, in tank trucks from a Novacor facility in New
Haven, Connecticut, to Novacor’s Springfield plant, located
near Respondent’s terminal. It also transports bulk plastic
pellets in trailers from Novacor’s Springfield plant to loca-
tions throughout the United States and certain provinces in
Canada. Respondent also has operations at other locations,
including Worcester, Massachusetts, where its president,
Seder, has his office.
Before Respondent began operations at Springfield, Nor-
man Sirk, an agent of Respondent, interviewed applicants for
driver positions. During his interview, David Kaplan asked
Sirk if the Company was a union company. Sirk replied,
‘‘No, and I don’t want a Union.’’
During George Robert’s interview, Sirk asked Robert what
he had earned at his previous job. When Robert replied, Sirk
told him that he was not going to make that much with Re-
spondent and asked if his previous job had been a union job.
Robert replied that his three previous jobs had been union.
Sirk said that he was concerned because most of the drivers
with good records were former union employees. Sirk asked
Robert how long he had been in the Union, and Robert re-
plied that he had been in the Union 18-1/2 years. Sirk said
that the job for which he was interviewing would not be a
union job and that he did not want it to be. Robert said that
he had been through an organizational campaign once before,
that it had left him with a bad taste in his mouth, and that
he did not want to go through another. He added that if he
wanted to pursue another union job he would find one. Sirk
said nothing further about it.
Sirk also interviewed Steve Malke. As Sirk read through
Malke’s resume, he asked Malke if his last job had been a
union job. Malke said that it was. Sirk asked how long
Malke had been in the Union, and he answered that he had
been in two different unions for about 20 years. Sirk said
that the Employer did not want a union, that it would not
be a union job, that it would be a good company to work
for, and that they would treat drivers like one big family.
Sirk asked Malke if he was for the Union. Malke answered
that he could take it or leave it. Respondent hired Kaplan,
Malke, and Robert as drivers.3
2. Janek’s union and concerted activity
In the spring 1991 the Union began an organizing cam-
paign among the approximately 13 drivers and mechanics at
the Springfield terminal. Chester Janek signed a union au-
thorization card on May 11, attended a number of union
meetings, and was identified in a letter to the employer as
one of five members of a union organizing committee. Steve
Wilder and Steve Malke, who were still employed by Re-
spondent at the time of the hearing in this case, were also
members of the organizing committee as were two other em-
ployees no longer with Respondent.
On May 14 the Union filed a representation petition seek-
ing an election among the drivers and mechanics. Janek and
one other member of the organizing committee attended the
representation hearing on behalf of the Union and was
present on August 22 when the ballots were opened and
counted. The vote was 7 to 5 against union representation.
During the preelection period Respondent held a meeting
with the employees at which Sirk and Respondent’s presi-
dent, Seder, asked employees why they wanted a union and
what Respondent was doing wrong. Janek spoke and said
that the styrene drivers were dissatisfied with pay rates and
shifting company policies. Sirk and Seder said that they
would try to straighten things out and that they were a new
company. They asked the employees to give them a break.
There is no question that Seder was aware of the union
activity and of Janek’s participation in it. Kent Pilarski who
became Springfield terminal manager after the election,
819MARSAK LEASING
4 These findings are based on a composite of the testimony of
Janek and Pilarski, neither of whom I totally credit as to this inci-
dent. Having observed Janek and considering his outspokenness
about working conditions, I do not believe that he would have sim-
ply conceded Pilarski’s charge, as Pilarski testified. More likely to
me is that he initially denied the charge, as he testified, but that
when Pilarski refused to accept his denial, he answered that he
wasn’t going to argue and added, perhaps with some sarcasm in-
tended, that he had to push the pickup out of the way.
5 I credit Janek that he was not given a copy of the notation in
his file or told about it.
6 Malke corroborated Janek’s uncontradicted testimony as to this
conversation.
learned about Janek’s union activity from Janek. Pilarski was
not aware of the union activity of others.
Pilarski, who became terminal manager after the election,
considered Janek the most outspoken of the drivers about his
own and other drivers’ working conditions. Some of the con-
ditions Janek complained about were difficulties with com-
pleting daily runs within 12 hours as required by Govern-
ment regulation, fairness of assignments, the requirement that
drivers wash their equipment, and driver pay. Janek almost
always came to Pilarski with Wilder who was in agreement
with him on issues.
3. The December tailgating incident
On December 12, when Janek returned to the terminal
from his runs as a styrene driver, Pilarski told Janek that he
had seen him that morning going out on his second run and
that he had been awfully close to a pickup truck, tailgating.
Janek denied that he ever tailgated, and Pilarski repeated that
he had seen it. Janek then said that he wasn’t going to argue
with Pilarski and that he had to push the pickup out of the
way.4 At some point during the day Pilarski told Seder about
it and made a notation in Janek’s file.5
4. The Christmas bonus and party
On December 12, Respondent gave all employees, includ-
ing Janek, a $100 bonus and a blue blazer. The bonus was
enclosed in a letter which thanked the employees ‘‘for mak-
ing our first nine months happen’’ and stated among other
things, ‘‘We’ve had some ups and downs adjusting to our
customer’s demands, survived the vote, and the company,
with your efforts, has survived.’’
On December 24, Respondent had a Christmas party for
the drivers and the terminal manager. Previously in October
Respondent had placed a written warning in Janek’s file
which Janek had protested and asked Seder to rescind on
several occasions. At the Christmas party Seder handed that
warning to Janek, saying, ‘‘Here’s a Christmas present.’’
Janek thanked him, and Pilarski who was present commented
that Janek’s file was now empty and that he was clear.6
5. Resetting the styrene truck governors
Styrene drivers haul empty trailers from Springfield to
Novacor’s New Haven facility where they are loaded with
styrene. Then they return to Novacor’s Springfield plant,
where they unloaded. The distance between the Novacor fa-
cilities is approximately 74 miles. All but about 4 miles is
over interstate highways with a 55-mile-per-hour speed limit.
Because of the hazardous nature of the styrene, Novacor and
Respondent are concerned about safety and speed limits. In
April, May, and July Respondent posted notices reminding
drivers of the importance of observing speed limits and the
law.
Respondent expects drivers to observe speed limits, but it
sets the governors on its trucks to permit a greater maximum
speed to give drivers extra power when going uphill and for
safety in emergencies. Before January at least some of the
styrene truck governors, including Janek’s and Wilder’s,
were set for a top speed of 68 miles per hour.
Respondent schedules runs between Springfield and New
Haven in response to information from Novacor as to the
number of loads it needs each day. In a normal workday, Re-
spondent has five drivers hauling styrene and schedules each
of them to make three round trips between Springfield and
New Haven. As Novacor’s needs vary, schedules change,
and each afternoon Terminal Manager Pilarski posts a sched-
ule for the next day.
Respondent’s styrene drivers are subject to Department of
Transportation regulations which require that drivers must
maintain records of their working time as evidence that they
have complied with DOT requirements relating to driving
and rest time. Because the styrene drivers do not travel more
than 100 miles from their home terminal and return to it each
night, they have the option to keep a 24-hour log or to keep
timecards showing that they have returned to their home ter-
minal and have been released from work within 12 consecu-
tive hours after reporting for work. An exception to the 12-
hour rule is provided for adverse driving conditions not
known to the dispatcher at the time the run began.
To meet the recordkeeping requirement, Respondent’s sty-
rene drivers chose to punch a timeclock when they report to
the terminal in the morning and when they return after their
last run. However, drivers are paid on the basis of each run
completed, and the recorded times do not affect their pay.
At the time they were hired, the styrene drivers were told
that they would have three runs a day between Springfield
and New Haven, and the rate per run was based on that as-
sumption. During the spring, the drivers complained that they
were unable to complete three runs within the 12-hour period
they were permitted to be on duty. In response Respondent
increased the rates that it paid per trip. Thereafter, changes
in Novacor’s operation reduced the amount of time drivers
had to wait to load and unload their trailers, and it became
possible for them to make three round trips in a day. The
rates were not reduced.
Facilities at the Novacor plants in New Haven and Spring-
field permit two trucks to be loaded and unloaded simulta-
neously. Drivers usually travel in pairs so that if something
happens to one of them the other driver can help. While Re-
spondent leaves it up to the drivers, Respondent encourages
the practice. Janek usually paired with Steve Wilder in mak-
ing his runs, and they were the first to start each day, leaving
the Springfield terminal for their first run at 3 a.m. Other
drivers started later to avoid waiting to load and unload at
the Novacor facilities. Malke and Robert traveled together
with a later starting time, and Kaplan, the fifth regular sty-
rene driver, usually traveled alone and started at a different
time.
The normal driving time for the styrene drivers between
Springfield and New Haven varied from 1 hour and 15 min-
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Drivers spend approximately one-half hour at each end loading
and unloading styrene. Thus, out of the 12-hour period in which they
are normally expected to complete three round trips, approximately
3 hours are spent loading and unloading, leaving approximately 3
hours driving time for each round trip. At an average speed of 50
miles per hour, the 74-mile trip each way would take 1 hour and
25 minutes. As all but 4 miles of the trip is on interstate highways,
it appears that a 50-mile-per-hour average speed is not impossible.
Indeed, a slower average speed would make it unlikely that a driver
could complete three round trips in 12 hours.
8 It is unclear from the record when the governors were reset, but
it appears most likely that they were reset on Saturday, January 11.
9 Janek and Wilder both testified to this conversation. Seder was
not asked specifically about the quoted comment but denied that he
was upset by Janek’s complaint about the setting of the governor on
his truck. For reasons set forth below, I have credited Wilder where
his testimony is in conflict with Seder’s testimony, and I credit
Janek and Wilder here.
10 Janek so testified. Pilarski testified that he told Janek to wait for
him at the terminal, that he could not recall whether Janek was still
there when he arrived, that Janek said he was going home, and that
he told Janek that he would reach him at home because company
policy was to wait to see if conditions improved enough to complete
the run. According to Pilarski the state police told him that there
were no unusual problems or delays on Interstate 91, and he tried
unsuccessfully to reach Janek at home at 10 and at noon to ask him
to return to complete his runs. I have credited Janek and not Pilarski
as to their initial conversation on January 16. Pilarski did not state
when he first called the state police, but it is likely that he called
them soon after Janek’s call. If he learned at the time of that call
that the trucks could run, it is doubtful that he would have waited
until 10 a.m., 2-1/2 hours after Janek called him, to try to reach
Janek and ask him to return to work. I find it more likely that at
the time of Janek’s and Pilarski’s conversations in the morning,
Pilarski had contacted the state police, was told that the road condi-
tions were getting worse, concurred in Janek’s decision to go home,
and only later learned of improved road conditions, causing him to
try to recall Janek when the Novacor contacted him.
utes to 1-1/2 hours, depending on time of day and driving
conditions.7
In early January 1992,8 at Novacor’s request, Respondent
instructed its mechanic to reset the governors on all the sty-
rene trucks to provide a maximum speed of 62 miles per
hour. The drivers had been told that the change was to be
made. After the change Janek and Wilder discovered that
Janek’s top speed was only 58 miles per hour which slowed
them down. Janek discussed his concerns with other drivers
by CB when they passed on the road and with Wilder who
was traveling with him. He and Wilder agreed that they
would talk to Seder about it and see if he would straighten
it out. When they returned to the terminal that night, they
complained to Pilarski that because Janek’s governor was set
too low, each trip took them longer and that it was impos-
sible to complete their runs within 12 hours or to stop to take
a break or eat lunch. Other drivers also made comments to
Pilarski about Janek’s truck, and all of them talked about it.
As Pilarski put it, ‘‘They’re a tight-knit group and they dis-
cuss everything. Most of them do at least.’’ On one or two
occasions after Janek’s governor was set back, he and Wilder
refused to make their third run for the day because they
could not complete it within 12 hours.
A day or two after Janek and Wilder complained to
Pilarski, they spoke to Seder, telling him that Janek’s truck
was going too slow, would only do 58 miles per hour, and
prevented them from completing three runs within 12 hours.
Seder said that they were all set at 62. When Janek repeated
that his would only do 58, Seder told Janek that he didn’t
believe him, but that he would check it, adding, ‘‘If you
don’t care for the way the trucks are going and this is going,
don’t let the door hit you in the rear end on the way out.’’9
A day or two later, Seder called Janek at home and told him
that the governor had been set wrong and that it had been
adjusted.
6. Janek’s January 16 run
On January 16 Janek arrived at the Springfield terminal at
about 2:30 a.m., started his truck and Wilder’s, punched in
their timecards, and went out to his truck to wait for Wilder.
When Wilder did not appear by 2:55, Janek called Wilder at
home and learned that he was not coming in. Janek shut off
Wilder’s truck and left for New Haven. As he approached
Hartford the road started to get slick, and he observed a
pickup truck in the northbound lanes hit the median and flip
over. He stopped briefly and then continued on to New
Haven. It was snowing somewhat, but the snow was not
sticking on the road, and after he passed Meriden it appeared
to clear up.
He arrived at the New Haven terminal at 4:29 a.m.
Kaplan, who usually made his runs alone, was there filling
his tank and was about ready to leave. Janek told Kaplan
about the accident he had seen and the deteriorating condi-
tions near Hartford. They agreed that as each was alone,
Kaplan would wait for Janek, and they would make the run
back to Springfield together. Janek’s truck was loaded and
weighed out at 4:55 a.m., and they left together, remaining
together for the entire trip. After they passed Meriden, the
roads started to get slippery. As they approached the Massa-
chusetts border, the roads became worse, and the road sand-
ers were not out. Both arrived at the Novacor plant at 6:30
a.m. to unload. They discussed whether they should make
another run in view of the road conditions. Kaplan said that
he was going to because he needed the money.
Janek went back to Respondent’s terminal and called
Pilarski at his home at about 7:30 a.m.. He told Pilarski that
it was bad and was getting worse. Pilarski told him to wait
at the terminal about half an hour while he checked with the
state police on road conditions. About 10 minutes later,
Pilarski called Janek at the terminal and said that the state
police reported that the roads were getting worse and that the
styrene tankers did not belong on them. Pilarski said that he
could go home and call him in the afternoon to find out the
schedule for the next day.10
During the morning Pilarski received a call from
Novacor’s production manager informing him that Novacor
needed more styrene and demanding that the product be de-
livered. Pilarski tried to reach Janek at 10 a.m., noon, and
2 p.m., and left messages on his answering machine, but
when Janek did not return the calls, Pilarski asked two bulk
drivers, Richard James and Robert Dodge, who were coming
in from their normal bulk runs, to haul loads of styrene to
make up the deficit. Sometime during the day Pilarski spoke
to Seder and told him what had happened.
Janek was away from his home for at least part of the day.
When he returned home at about 2:30 p.m. there was a mes-
sage on his answering machine to call Pilarski. Pilarski told
him that he had tried to reach him because the weather had
821MARSAK LEASING
cleared and he wanted Janek to make a run. Janek said he
was sorry but he had gone out, and asked if Pilarski needed
him then. Pilarski said that that other drivers had covered it
and told Janek that he had no runs scheduled for the next
day.
Wilder and Malke also did not work on January 16. Ear-
lier that morning Wilder called Pilarski at home to tell him
that he could not get out of his driveway because of the
snow. Malke also decided not to go in because of the weath-
er and called Pilarski at his home to say that he would not
be in. No one tried to reach him that day to come into work.
7. The January 20 timecard incident
On January 20, Janek arrived at the terminal at about 2:30
a.m. He started his and Wilder’s trucks, went in the terminal,
printed his name and Wilder’s on two blank timecards,
punched them, put them in the rack, and went outside to wait
in his truck for Wilder who usually arrived at about 2:55
a.m. Wilder didn’t come and Janek called his house. Wilder
said he was sick, so Janek shut off Wilder’s truck, and left
on his run.
Wilder called Pilarski at his home at approximately 2:55
a.m. and said that he was not coming in because he was sick.
When Pilarski arrived at the terminal later that morning, he
noticed that Wilder’s timecard was punched, but Wilder’s
truck was there. He checked the other cards and realized that
the only person who could have filled out and punched the
timecard was Janek. Pilarski took the timecards and reported
what he had discovered by telephone to Seder.
8. Janek’s discharge
Seder testified that he decided to discharge Janek during
the day on January 21 because of the December warning
given to him by Pilarski and Janek’s conduct on January 16
and 20. Seder testified that his investigation leading to the
discharge began during the afternoon on January 16 when
Pilarski told him that Janek called him at home that morning,
told him that the driving conditions were severe that the level
of the Novacor tanks was at 70 percent, and that he was not
going to go out for another load. According to Seder,
Pilarski said that although he had told Janek to stay at the
terminal while he called the state police and came to the ter-
minal, Janek said that he was going home. Seder testified
that Pilarski recounted that he told Janek that he would call
him as soon as he got to the terminal and that depending on
the conditions of the road, he needed him to go out. How-
ever, according to Seder, after Pilarski checked with the state
police and learned that the roads were fine and that other
drivers were making their runs, Pilarski was unable to reach
Janek at his home and dispatch him. According to Seder, he
told Pilarski that he was very concerned because Janek told
Pilarski that the tanks were at 70-percent capacity and that
the customer didn’t need the product when the drivers had
been told that that was not their decision.
Seder testified that he went to the Springfield terminal the
next day to look into what the other drivers had done at a
time Janek said that weather conditions kept him from driv-
ing. Seder went to the Novacor plant and obtained a copy
of the styrene monomer receiving log which showed when
the drivers arrived at and left the plant. On the next work
day Seder looked at the bills of lading for Kaplan’s and
Janek’s loads which arrived at his Worcester office. They
showed when Janek and Kaplan weighed out at New Haven
on January 16. After looking at these documents, Seder de-
cided that Janek had made the run in an hour and a half
under what he said were adverse weather conditions. He
noted further that Kaplan was weighed out of the New
Haven terminal half an hour before Janek but arrived at the
Novacor plant at the same time as Janek to unload. He testi-
fied:
Knowing the instructions that I had given to all of the
drivers relative to the nature of the product, the com-
modity, the hazardness of this commodity and the fact
that he did, in an hour and a half, in adverse driving
conditions, what he had said takes two hours under
good conditions to do, I determined that Mr. Janek was
driving in an unsafe manner, did not follow the instruc-
tions that were issued by the company and did not—
and disobeyed the directive relative to questioning the
capacity of the tanks.
Seder testified he also concluded that Janek had dis-
regarded instructions from Pilarski to remain available after
he went home on January 16.
Seder made no further investigation of Janek’s conduct on
January 16, and did not talk to Janek or any of the other
drivers about it before he discharged Janek. Seder testified
that he believed that all the drivers who were scheduled to
work on January 16 did so, and that drivers who did not
work had not been dispatched.
Seder testified that he had been aware of the tailgating
warning in Janek’s file from the time that Pilarski gave it to
Janek in December, but that before he decided to discharge
Janek, he also investigated the January 20 timecard incident.
He testified that while there was no company policy on
punching timecards, Janek’s conduct violated Federal regula-
tions, and it was company policy to abide by Federal regula-
tions. Other than looking at the timecards, Seder made no
further investigation of that incident.
On January 21 at about 7:30 in the evening, Seder tele-
phoned Janek at his home and told him that that he was dis-
charged. According to Janek he asked why, and Seder said
that it was because he had ‘‘a bad attitude.’’ Janek testified
that he asked Seder what he was talking about, and Seder
said that was what he was terminating him for, ‘‘you have
a bad attitude, you don’t have a company attitude.’’ Accord-
ing to Janek, Seder would give him no other reason.
According to Seder, when he told Janek that he was fired,
Janek asked why, and Seder told him that a series of three
events led him to his decision. He testified that he stated
each of the reasons and elaborated on them. He told Janek
that was not the way he ran his operation, that Janek was
not conducting himself as he had been told to, and that in
his opinion ‘‘that is a lousy attitude.’’ He testified that when
he told Janek that based on the information he had Janek was
driving at an excessive rate of speed, he did not recall men-
tioning Kaplan, and that Janek said that he was making a big
mistake but said nothing about Kaplan to him.
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 These findings are based on the testimony of Wilder who was
still employed by Respondent as a driver at the time of the hearing
and had more reason to shape his testimony to support than to op-
pose his employer’s position. Midwestern Mining, 277 NLRB 221
(1985). Seder testified that he met with Wilder at Wilder’s request
and that Wilder told him that he wanted to let Seder know that after
he cut back the governors, Janek ‘‘was on your back, constantly, and
relentlessly, and would not let up. And in my opinion, he was going
too far, he should not have pushed you.’’ According to Seder, Wild-
er said that he hoped that Seder did not have anything against him,
and Seder assured him that he had nothing against him and that the
complaints had nothing to do with the reason Janek was terminated.
Seder also testified that he did not feel that Janek had been out of
bounds in the way he had talked to him.
Thus, according to Seder, Wilder sought to make his peace with
Seder after Janek’s discharge and should have had no reason to fear
reprisals from Respondent for testifying in this proceeding. Yet
Pilarski testified that shortly before the hearing Wilder speculated
that he might lose his job if he testified, causing him to think about
having a memory lapse on the stand. If Seder and Pilarski are to
be believed, Wilder needlessly went out of his way immediately
after Janek’s discharge to dissociate himself from Janek’s conduct,
needlessly expressed fear of reprisal by Respondent if he testified,
and then in an inexplicable turnabout proceeded to misrepresent his
conversation with Seder in his testimony. I credit Wilder and not
Seder where their testimony is in conflict.
12 Robert and Malke both testified to this conversation. Seder testi-
fied that he explained to them the reasons why he discharged Janek.
Seder conceded that he may have said that Janek was not a team
player or that he had a bad attitude but testified that it was in the
context of the incidents for which he terminated Janek and that he
regarded one who did those kinds of things and jeopardized the
whole operation as one who was not a team player and had a bad
attitude. I have credited Robert and Malke, both current employees,
and do not credit Seder that he explained the reasons for Janek’s dis-
charge or explained what he meant by Janek’s attitude in view of
his clear meaning when he spoke to Wilder.
13 These findings are based on the uncontradicted testimony of
Malke and Kaplan.
14 Wilder so testified. Pilarski testified that Wilder’s testimony was
accurate except that the words Wilder attributed to him were spoken
by Wilder. He testified that Wilder said that if he testified he might
lose his job and that it makes people think about having a memory
lapse on the day of the hearing. Pilarski said nothing in response ex-
cept a little ‘‘hmmm.’’ He testified that he knew not to say such
things and that he would not jeopardize or threaten an employee
with discharge. I have credited Wilder.
9. Statements by Seder to Wilder, Malke, and Robert
after Janek’s discharge
The night after Janek’s discharge Seder called Wilder at
home. Wilder asked him if this was one of his 8 o’clock
phone calls. Seder asked him what he meant, and Wilder re-
plied that Seder called everybody at 8 o’clock and fired
them, with apparent reference to Seder’s call the night before
to Janek. Seder asked if Wilder thought he deserved to be
fired. Wilder said no, and Seder said that was not why he
was calling. He told Wilder he just wanted to have a talk
with him at the terminal.
Two days later when Wilder returned from his last run,
Seder was at the terminal and asked Wilder to accompany
him to a nearby restaurant. There Seder told Wilder that he
was giving him a final warning and that he wanted him to
change his attitude and stop complaining. Seder told him that
he had taken into consideration the personal misfortunes
Wilder had suffered in the last couple of years and that was
why he was warning him, but that if his attitude did not
change he would be fired. Seder also told Wilder that if he
wanted to fire any one for union activity he could have at
any time, but that was not the case with Janek and that he
did not fire Janek for union activity. Wilder said that he
would like Seder to talk to Pilarski because he was turning
drivers against each other by saying different things to dif-
ferent people. Seder said that he would talk to Pilarski. After
this conversation Wilder curtailed his complaints.11
Within a few days after Janek’s discharge, Seder saw Rob-
ert and Malke at the Novacor terminal while they were un-
loading. Seder told them that he felt bad that he had to let
Janek go, that he had never really fired any drivers before,
but that he couldn’t have somebody with that attitude work-
ing there. Neither Robert nor Malke said anything in re-
sponse.12
10. Statements by Pilarski
Within a month after Janek’s discharge, Pilarski told
Malke that he was sorry that Janek was gone, that Janek was
a good worker, and that it was not his decision. He also said
that since Janek was gone, there were no more complaints
about the hours. Later, in the spring or early summer when
several drivers were talking among themselves at the termi-
nal about what happened to Janek, Pilarski commented that
Janek was a troublemaker.13
About 10 days before the hearing in this case, Wilder and
Pilarski spoke about the subpoena Wilder received to testify
in this case. After discussing how the drivers would cover
runs during the hearing, Wilder said that he hoped that they
all had jobs after the hearing was over. Pilarski said, ‘‘It kind
of makes you wonder whether you ought to be a little afraid
to get up on the stand and whether you’re going to get amne-
sia to keep your job.’’ Wilder replied that he would answer
whatever was asked as honestly as he could.14
B. Concluding Findings
1. Interrogation
I find that Respondent violated Section 8(a)(1) of the Act
when Sirk asked Malke and Robert about their previous
union employment and membership during their job inter-
views and expressed his determination to operate without a
union. Active Transportation, 296 NLRB 431 fn. 3 (1989);
Gilberton Coal Co., 291 NLRB 344, 348 (1988).
In Kaplan’s case, his testimony shows that Sirk did not
question him about his prior union affiliation, but he raised
the subject of a union in his prehire interview. In his brief
the General Counsel moves to amend the complaint to add
a paragraph alleging that Sirk’s reply to Kaplan, that Re-
spondent was not a union company and did not want a
union, was coercive. While I believe that the allegation is
closely related to the allegation that Sirk interrogated em-
ployee applicants and that the matter was fully litigated, I
find that Sirk’s response to Kaplan does not establish coer-
cion. In Kessel Food Markets, 287 NLRB 426, 428–429
(1987), cited by the General Counsel, the respondent poten-
tially was a successor employer with a bargaining obligation
depending on the number of employees of the former em-
ployer it chose to hire. In those circumstances the statement
that the stores would operate nonunion conveyed the intent
not to hire employees because they had been represented by
823MARSAK LEASING
15 The complaint as amended also alleges that during the week of
January 27 Pilarski told employees at the Springfield terminal that
Janek was fired because he engaged in Union and/or protected con-
certed activities. The only evidence of statements by Pilarski to em-
ployees after Janek’s discharge consists of his statement to Malke
within a month after Janek’s discharge that since Janek was gone
there were no more complaints about the hours and his statement to
drivers in the lounge in the spring or early summer that Janek was
a troublemaker. I find it unnecessary to decide whether either of
these statements falls within the compass of the complaint as further
findings based on them would in any event be cumulative.
the union and was coercive. In Willmar Electric Service, 303
NLRB 245 (1991), the respondent’s representative stated that
it did not have a union and intended to stay that way, not
merely that it did not want a union.
2. Threats attributed to Seder
a. The 10(b) defense
Respondent contends that the allegations in paragraphs
7(b), (c), and (d) of the complaint are barred by Section
10(b) of the Act. These allegations were added to the com-
plaint by amendment at the hearing more than 6 months after
the charges in this case were filed. However, each is closely
related to the allegations of the charge in Case 1–CA–29051
and not barred by Section 10(b). NLRB v. Fant Milling Co.,
360 U.S. 301 (1959); Redd-I, Inc., 290 NLRB 1115 (1988);
Overnite Transportation Co., 296 NLRB 669 (1989).
b. The threat to Wilder
When Seder spoke to Wilder a few days after Janek’s dis-
charge, Seder threatened Wilder with discharge if he did not
change his attitude and stop complaining. There can be no
doubt that by attitude Seder meant protected concerted activ-
ity. There is no evidence relating to Wilder’s job perform-
ance even to suggest that Seder was referring to Wilder’s at-
titude toward his work, and Seder directly linked his attitude
to his complaints, in which he usually and most recently had
joined with Janek.
Janek and Wilder had acted concertedly in complaining
about the resetting of the governor on Janek’s truck. While
Janek was employed, he and Wilder made other complaints,
sometimes with the support of the other drivers. Although
Seder professed to be unaware of it, Pilarski considered
Janek a trouble maker who got the other drivers riled up.
Principal among those he riled up was Wilder. As Pilarski
put it, Janek and Wilder almost always came to him as a pair
in agreement, ‘‘It was almost like they were finishing each
other’s sentences.’’ I do not credit Seder’s testimony that
Pilarski never communicated these views to him or that he
did not share them.
I find that Seder threatened Wilder with discharge because
of his protected concerted activity and that Respondent there-
by violated Section 8(a)(1) of the Act.
c. Seder’s statements to Robert and Malke
Seder told Robert and Malke that Janek was discharged
because of his attitude. Although Seder testified that he was
referring to Janek’s attitude toward the performance of his
work, the record does not support the explanation. When
Seder used the same word in his warning to Wilder, he tied
it directly to Wilder’s concerted activity with Janek, and as
found below, examination of the reasons advanced by Seder
for Janek’s discharge supports the General Counsel’s conten-
tion that the reasons given by Janek were pretexts and that
Janek was discharged because of his protected concerted ac-
tivity. In addition, I do not credit Seder that he explained the
reasons for the discharge to Wilder, Robert, or Malke when
he spoke to them after the discharge. I find that by Janek’s
attitude Seder referred to Janek’s concerted complaints which
were well known to and often joined in by the other drivers
and that in the absence of any other explanation the drivers
were likely to have understood Seder as referring to Janek’s
protected activity. Accordingly, I find that Seder’s statements
to Robert and Malke conveyed the message that other em-
ployees might be discharged for a similar ‘‘attitude’’ and
violated Section 8(a)(1) of the Act. Edwards Restaurant, 305
NLRB 1097 fn. 4 (1992); M. K. Morse, 302 NLRB 924
(1991).
3. Threats attributed to Pilarski
The complaint alleges that Pilarski threatened an employee
with reprisals if he testified in this proceeding. When Wilder
expressed concern to Pilarski over retention of his job if he
testified in this proceeding, Pilarski did nothing to calm his
fears, but indicated that they had substance by his response.
Thus, he suggested that Wilder should be afraid to get up on
the witness stand and might consider getting amnesia to keep
his job. Pilarski’s response could only fuel Wilder’s fears of
reprisal and interfere with Wilder’s duty to respond to the
subpoena he received and to testify truthfully. I find that
Pilarski’s statement to Wilder violated Section 8(a)(1) of the
Act. Eddyleon Chocolate Co., 301 NLRB 887, 903 (1991);
Overnite Transportation, 297 NLRB 638 (1990).15
4. The discharge of Janek
The General Counsel contends that Janek was discharged
because of his union and protected concerted activities and
that the reasons advanced by Respondent for his discharge
were pretextual. Respondent contends that there is no evi-
dence of antiunion animus, that Seder was not upset over
Janek’s complaint about the governor on his truck, and that
Janek was discharged for the reasons stated by Seder to
Janek and at the hearing.
There is substantial evidence to support the General Coun-
sel’s contention that the reasons advanced by Seder for
Janek’s discharge were pretexts. I do not find that the the
December warning to Janek about tailgating was contrived
after the fact, as the General Counsel contends. But I do find
from what Pilarski told Janek at the Christmas party that Re-
spondent either regarded it as insignificant or removed it
from Janek’s file along with the October warning in the in-
terest of wiping the slate clean. The revival of the December
warning as one of Seder’s claimed considerations in deciding
to discharge Janek suggests that Seder sought to justify a
predetermination to discharge Janek rather than to determine
whether there was cause to discharge him.
Seder’s claimed reliance on the January 16 and 20 inci-
dents is also suspect. In both cases Seder barely investigated.
He jumped to the conclusion that Janek had been speeding
without asking the most obvious questions. Despite Kaplan’s
identical arrival time at Novacor’s Springfield plant and
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Pilarski testified that on January 16 he may have tried to reach
some of the other drivers and did not necessarily get an answer, that
he imagined that he tried to call everyone but had no recollection
whether he did or not. Malke testified that he was not called. Wilder
was not asked.
company policy encouraging drivers to travel together, Seder
never spoke to Kaplan or Janek to ask whether they had trav-
eled together or what the road conditions were. While
Janek’s time may have been less than the 2 hours that Seder
testified Janek had told him it took to complete a trip be-
tween the Novacor facilities, at 1 hour and 35 minutes it was
more than the average time that a driver would need to main-
tain during a 12-hour day to complete three round trips be-
tween the facilities. At the very least, no conclusive inference
could be drawn based on the time taken by Janek to com-
plete the trip, and further investigation was required.
While Seder portrayed Janek’s conduct as contrary to Re-
spondent’s policy concerning driving in bad weather, the evi-
dence shows at best an ambiguous policy which was not ap-
plied to others as it was to Janek. Respondent’s policy was
contained in the following notice posted on December 12:
On 12/12/91, I spoke to Bud Early re: What to do
with drivers, especially styrene, when weather becomes
a factor.
We agreed the decision, because the tank has a large
capacity, would be left up to us.
Accordingly, when drivers awake to come to the ter-
minal and there is snow/sleet/ and/or freezing rain, they
should call the terminal manager at home and he will
call the State Police for an update and forecast. He will
use his best judgement, which will be driven by our
commitment to safety. No one will be forced into an
unsafe situation. Good drivers discretion is expected.
Seder testified that he did not have a policy for a situation
in which a driver felt that it was unsafe to drive and the re-
port from the state police indicated otherwise. However, ac-
cording to Seder, the last line of the memo meant that a driv-
er was to take into consideration the needs of the customer,
the condition of the roads as reported by the state police, and
not just the driver’s own opinion that the roads are slippery.
In his view a driver could not refuse to drive just because
he thought it was unsafe if no one else thought so. However,
the only stated policy was contained in the posted notice, the
last lines of which left unclear the extent to which drivers
were free to exercise their own discretion, and other drivers
apparently felt free to make their own decisions. Other driv-
ers testified that they had refused to work in bad weather
without disciplinary repercussions, and Wilder testified that
on one occasion when Pilarski asked him to come back if
the roads cleared up he refused without disciplinary con-
sequence. Although Seder presumed without investigating
that all drivers worked who were scheduled to drive on Janu-
ary 16, neither Malke nor Wilder reported to work on Janu-
ary 16, and neither was disciplined.16 The record shows that
Respondent had an unclear policy which was not applied to
other as Seder applied it to Janek.
With respect to the January 20 incident, Seder testified
that company policy was to follow Federal regulations and
that Janek violated Federal regulations by filling out and
punching in a timecard for the absent Wilder. Seder made no
attempt to determine the circumstances under which Janek
filled out and punched in Wilder’s card. Although Seder and
Pilarski denied any knowledge of practices of other drivers,
Wilder, Robert, Kaplan, and Malke all testified that it was
common practice for drivers to sign and punch in one an-
other’s timecards, on occasion with Pilarski present. Wilder
and Kaplan also both testified to specific instances in which
they called Pilarski before completing their work for the day
and asked Pilarski to punch their cards in so that they would
not appear to have run over the 12-hour daily limit. Before
Janek’s discharge drivers had not been told not to about
punch timecards of others. Although they were told not to
sign or punch in another driver’s timecard after Janek’s dis-
charge, they soon reverted to their former practices without
any disciplinary consequence.
I do not credit Seder’s and Pilarski’s denials of knowledge
of the practices of the drivers. Although Respondent argues
that punching a card in for an absent driver differs from
punching the card of a driver who is present, I find that what
Janek did was certainly no more violative of Federal regula-
tions than Pilarski’s complicity in the efforts of Wilder and
Kaplan to evade the 12-hour rule. In the context of the prac-
tices of the drivers before and after Janek’s discharge and in
light of the fact that what Janek did had no impact on any-
one’s pay, I find that the timecard incident would have been
ignored had anyone other than Janek been involved.
Finally, I credit Janek and not Seder as to the reason Seder
gave him for his discharge on January 21. If Seder had told
Janek the claimed reasons for his discharge, Janek was not
the sort to fail to challenge Seder’s reasons or point out that
he and Kaplan had traveled together. Janek’s version is con-
sistent with what Robert and Malke testified Seder told them
a few days later. I credit Janek that Seder told him that he
was discharged because he had a bad attitude and not a com-
pany attitude.
All of the above supports the conclusion that the reasons
advanced by Seder were not the true reasons for Janek’s dis-
charge. The record otherwise makes clear what the true rea-
sons were. Contrary to Respondent, the evidence establishes
Seder’s hostility toward Janek based on his concerted activ-
ity. In the concerted activity which continued after the elec-
tion, Janek was marked by Pilarski as the most outspoken
driver and a troublemaker who riled up other drivers. There
is no question from Pilarski’s testimony that he was hostile
toward Janek because of his concerted activity. While Seder
claimed no knowledge of Pilarski’s view of Janek, I have not
credited him. Janek was discharged within days of the com-
plaints by him and Wilder over the setting of the governor
on Janek’s truck and their refusal to make a third run in a
single day because of their inability to complete it in the re-
quired time. The complaints signaled a renewal of Janek’s
‘‘troublemaking’’ only a few weeks after Respondent made
a conciliatory gesture to Janek by clearing adverse materials
from his file. When Janek and Wilder told Seder of their
complaint about the governor, Seder replied angrily that if
they did not like working there, they should not let the door
hit them on the way out, suggesting that they should quit.
The day after Janek’s discharge Seder arranged a meeting
with Wilder to warn him that he would be discharged if he
did not change his attitude and stop complaining. There is
no ambiguity in what Seder meant by Wilder’s ‘‘attitude.’’
It equated to ‘‘stop complaining.’’ Given the timing of the
825MARSAK LEASING
17 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.
warning to Wilder and the fact that Wilder’s most recent
complaints had been in concert with Janek, the inference is
strong that Janek’s discharge and the warning to Wilder were
related actions taken for a common cause. I find that the
record establishes that Janek was discharged because of his
protected concerted activities in violation of Section 8(a)(1)
of the Act.
The complaint alleges that the discharge was also caused
by Janek’s union activity. There is no question that Respond-
ent opposed unionization of its drivers, and in its Christmas
bonus letter to the drivers Respondent expressed gratitude for
surviving the election. Janek’s union activity, at least insofar
as appears, ended with the counting of the ballots in late Au-
gust almost 5 months before Janek was discharged. The evi-
dence of antiunion animus dates from almost a year before
the discharge when Respondent was interviewing prospective
drivers. In the absence of Janek’s later concerted activity, it
is doubtful that Respondent would have sought to remove
Janek in January because of his earlier union activity. As
Seder told Wilder, he could have discharged Janek at any
time because of his union activities. However, that is not the
end of the matter. Concerted activity is intimately related to
union activity and is often its precursor. The perception of
employees that their working conditions are unsatisfactory is
a prime motivator for seeking outside assistance from a
union. Where there is a past history of union activity, the
likelihood that continuing concerted activity will lead to re-
newed union activity is even greater. Despite Seder’s self-
serving denial to Wilder, I believe the inference is warranted
that Respondent’s reference to Janek’s attitude in the cir-
cumstances encompassed not only his more recent protected
concerted activities but also his earlier union activity. Ac-
cordingly, I conclude that Janek’s discharge also violated
Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By discharging Chester Janek because of his protected
concerted and union activities, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7)
of the Act.
2. By interrogating employees concerning their union ac-
tivities and threatening employees with reprisals for engaging
in protected concerted activity, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) 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 discriminatorily discharged Ches-
ter Janek, it must offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, Marsak Leasing, Inc., Springfield, Massa-
chusetts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting General Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Building Materials,
Heavy and Highway Construction Employees, Local Union
No. 404, a/w International Brotherhood of Teamsters, AFL–
CIO or any other union or for engaging in concerted activity
for the purpose of collective bargaining or other mutual aid
or protection.
(b) Coercively interrogating employees about union sup-
port or union activities.
(c) Threatening employees with discharge or other repris-
als because they engage in protected concerted or union ac-
tivity.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Chester Janek immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially 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) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
(c) 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.
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 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.’’
(d) Post at its facility in Springfield, Massachusetts, copies
of the attached notice marked ‘‘Appendix.’’18 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 1, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.