Mashkin Freight Lines, Inc.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1473 (N.L.R.B. 1982)

MASHKIN FREIGHT LINES
Mashkin Freight Lines, Inc. and William J. Davis
and Allen Savage. Cases 39-CA-1871 and 39-
CA-350
May 28, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On September 30, 1981, Administrative Law
Judge Stephen J. Gross issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief and the
General Counsel filed an answering brief to Re-
spondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Mashkin
Freight Lines, Inc., Hartford, Connecticut, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
i Ban Leasing, Inc., was also alleged as a Respondent in Case 39 CA
187. Since no evidence was adduced to indicate that Bari Leasing had
any connection with the alleged offenses, the General Counsel agreed to
the dismissal of the complaint against Bari Leasing. See ALJD, fn 3.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
3 Respondent maintains that the Board should defer to arbitration in
this matter. In light of the uncertainty surrounding which of the two col-
lective-bargaining agreements is applicable in the present situation, Chair-
man Van de Water and Member Zimmerman deem it inappropnate to
defer to arbitration. Member Fanning, in any event, would not defer to
arbitration.
Chairman Van de Water would find the discharge of employee Savage
not a violation of Sec. 8(aXl) and (3). Respondent, by establishing that
Savage ignored a direct order of the dispatcher to "layover" and not take
a load to the Hartford terminal, effectively rebutted any prima facie case
that Savage was terminated for discriminitory reasons. It should be noted
that Savage had the choice of not taking the load at all and could have
returned to his home via public transportation and thereby have avoided
any disciplinary problems
261 NLRB No. 193
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge our employees be-
cause they supported International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local Union
No. 559, or any other union.
WE WILL. NOT discharge our employees be-
cause they engaged in concerted activity for
the purposes of mutual aid or protection.
WE WILI NOT deduct union dues from the
wages of our employees unless they authorize
us to do so.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them under Section 7 of the National Labor
Relations Act.
WE WILL make William J. Davis, Lawrence
R. Lukaszewski, Allen Savage, and Clifton S.
Thomas whole for any losses they may have
suffered as a result of our discharging them,
with interest.
WE WILl offer Allen Savage full and imme-
diate reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, with
interest.
MASHKIN FREIGHT LINES, INC.
I. INTRODUCTION
STEPHIN J. GROSS, Administrative Law Judge: Mash-
kin Freight Lines, Inc. (MFL) operated as a motor
common carrier of freight from at least as far back as the
late 1950's until November 1980.' Throughout most of
that period MFL operated out of one terminal, in East
Hartford, Connecticut.
As of the fall of 1979, MFL had about 150 drivers on
its payroll, all of whom were members of Teamsters
local 559 and were covered by a 3-year collective-bar-
gaining agreement entered into in April 1979.
i MFL does not dispute the General Counsel's contention that during
all matenal times it was an employer engaged in interstate commerce for
purposes of the National Labor Relations Act (the Act). The record indi-
cates that MFI ceased all operations in November 1980.
1473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 1979 Walter J. Baralari acquired MFL.
Soon after that acquisition Baralari began asking for
changes in the collective-bargaining agreement on the
ground that the agreement was unduly favorable to the
employees and accordingly was forcing MFL into finan-
cial trouble. (Baralari expressed these concerns to Local
559 officials, to MFL's drivers as a group, and, apparent-
ly, to individual drivers.)
MFL's drivers, however, and their Union (Local 559)
expressed a disinclination to change any of the terms of
the agreement. In response, on January 10, 1980, Baralari
entered into a collective-bargaining agreement with an-
other Teamsters local, Local 807. The terms of the Local
807 collective-bargaining agreement were in line with
those that Baralari had previously urged upon Local 559
and MFL's drivers. About 2 weeks after entering into
the collective-bargaining agreement with Local 807, Bar-
alari opened a second terminal, in North Bergen, New
Jersey, and hired a total of about 50 employee drivers
and owner-operators to staff that termimal. At that
time-January 23, 1980-MFL notified all of its drivers
who had been domiciled in East Hartford-i.e., all of the
MFL drivers who had been with the Company prior to
January 1980-that "we are transferring the whole of
our operation to a terminal at . . . North Bergen, New
Jersey." MFL thereupon laid off all of those drivers.
(Throughout the remainder of this Decision I will refer
to the drivers who worked for MFL prior to January 24
and who were domiciled in East Hartford-and who,
consequently, were members of Local 559-as the "East
Hartford drivers.")2
Notwithstanding the language of that notice, MFL did
not shut down the East Hartford terminal: MFL's offices
remained in the East Hartford terminal; most of MFL's
dispatching continued to be out of the East Hartford ter-
minal; customers continued to do business with MFL by
calling the East Hartford terminal; MFL continued to do
its vehicle maintenance at the East Hartford terminal;
and the East Hartford terminal continued to be used as
an MFL warehouse and freight transfer point. In fact the
only aspect of MFL's operation at East Hartford that
was wholly transferred to the new North Bergen termi-
nal had to do with driver employment. As of January 24,
1980, East Hartford ceased being a domicile for MFL
drivers and, concomitantly, MFL drivers always began
their workweek by reporting to the North Bergen termi-
nal.
MFL's January 23, 1980, notice to the East Hartford
drivers, discussed above, went on to advise the employ-
ees that they must tell management "immediately" if
they desired "to transfer to the ... North Bergen, New
Jersey terminal." The record in this proceeding contains
no information on how many of MFL's East Hartford
drivers notified management of their desire to transfer to
the North Bergen terminal, or exactly how many of
those employees MFL actually offered to put back on its
payroll. But testimony in this proceeding suggests that
after January 24, 1980, a total of between 8 and 10 of the
East Hartford drivers were put back to work by MFL.
2 All parties agree that Local 559 and Local 807 are labor organiza-
tions for purposes of the Act.
The employment arrangement between those East
Hartford drivers and MFL took the following course:
MFL would contact the selected drivers (whom MFL
chose on the basis of seniority) and order them to report
to work at a specified time at the North Bergen termi-
mal. The drivers were expected to make their own way
to the North Bergen termimal. On some occasions the
drivers would then be given routine runs in the New
York-New Jersey area. More often than not, however,
the drivers would either be transported back to East
Hartford in company vehicles or assigned, as drivers, to
trucks destined for East Hartford. Once back at the East
Hartford terminal, the drivers would operate MFL
trucks throughout Connecticut, returning each night to
the East Hartford terminal (and their own homes). MFL
paid the drivers the standard $20 layover fee-which
was intended to cover motel costs-even though the
drivers went home for the night. (The theory was that
North Bergen was their home terminal, not East Hart-
ford.)
Finally, at the end of each workweek these drivers
would either run their trucks back to the North Bergen
terminal or be transported there in other MFL vehicles.
The drivers then made their way back to the East Hart-
ford area, where they all lived, in their own automobiles.
Only the East Hartford drivers were given the Con-
necticut runs by MFL. The record indicates that MFL
made a "special effort" to give those drivers runs to and
within Connecticut as much as possible, and that such as-
signments were far more convenient (and profitable) for
those drivers than assignments in other areas would have
been.
After January 24, 1980, MFL deemed all of its drivers
to be operating under the Teamsters Local 807 contract,
rather than the Local 559 contract that had covered the
East Hartford drivers. MFL accordingly paid the East
Hartford drivers on the basis of the Local 807 contract.
And MFL deducted Local 807 dues from the East Hart-
ford drivers' paychecks.
This proceeding concerns:
(1) Whether MFL violated the Act when it deducted
Local 807 dues from the paychecks of the East Hartford
drivers (discussed in sec. VI, below).
(2) Whether MFL's discharge on March 25, 1980, of
three East Hartford drivers violated the Act (see sec. IV,
below).
(3) Whether MFL's discharge of an East Hartford
driver on April 30, 1980, violated the Act (see sec. V,
below).
II. LITIGATION HISTORY
Case 39-CA-187 began with a charge filed on April
30, 1980, by East Hartford driver William Davis alleging
that MFL wrongfully (a) "contributed . ..support" to
Local 807 and (b) discharged Davis and two other East
Hartford drivers in March 1980. The General Counsel
followed with a complaint against MFL dated May 2,
1474
MASHKIN FREIGHT LINES
1980. 3 I heard the case in Hartford on September 22,
1980.
East Hartford driver William Savage filed a charge
against MFL in Case 39-CA-350 on September 30, 1980,
alleging that he was wrongfully discharged by MFL.
That led to the issuance of a complaint dated November
14, 1980.
I consolidated the two cases by order dated August 6,
1981,4 and reopened the hearing. The consolidated hear-
ing was held on August 10, 1981 (again in Hartford)."
111. OTHER L ITIGATION
In early 1980 the General Counsel issued a complaint
against Mashkin in Cases 39-CA-76, 39-CA-95, and 39-
CA-102 alleging that MFL interrogated its employees
concerning their union activities, that MFL discharged
employees because of their union activities and their as-
sertion of their Section 7 rights, and that MFL failed to
bargain in good faith with Local 559 concerning the
transferring of work from the East Hartford termimal.
Those proceedings were consolidated for hearing
before Administrative Law Judge Charles M. William-
son, who has now issued his Decision which concludes
that, among other things, MFL violated Section 8(a)(5)
of the Act when, without bargaining or consulting with
Local 559, it closed the East Hartford terminal, trans-
ferred its operations to New Jersey, and laid off the East
Hartford drivers.6 In order to remedy that unfair labor
practice, Administrative Law Judge Williamson ordered
Respondent to bargain collectively with Local 559, to
reopen the East Hartford operation, to transfer back to
that location any work which it transferred to its New
Jersey location from East Hartford, and to make bargain-
ing unit employees whole for any losses they may have
incurred thereby.
Administrative Law Judge Williamson also concluded
that MFL violated the Act by increasing its use of
owner/operators without bargaining with Local 559
about the matter; failed to allow Local 559 to examime
MFL's financial records in violation of Section 8(a)(5);
dealt directly with its employees when it should have
dealt with their bargaining representative; interrogated
and coerced employees in violation of the Act; suspend-
ed employees for requesting union representation during
the course of an interview that the employees had reason
to believe might eventuate in disciplinary action; and dis-
criminatorily discharged an employee in violation of Sec-
tion 8(a)(3) of the Act.7
3 The General Counsel also named Bari Leasing, Inc., as a Respond-
ent, along with MFL. But no evidence was adduced to indicate that Bari
Leasing had any connection with the alleged offenses, and the General
Counsel agreed to the dismissal of the complaint against Bari Leasing:
See transcript 1, p. 131. (There are two transcript volumes in this pro-
ceeding, and both are numbered starting with page 1. To avoid confu-
sion, therefore, citations to the transcript dated September 22, 1980, will
be prefixed with "1", and citations to the August 10, 1981, transcript will
be prefixed "11.")
4 See also tr. 11, p. 4-5.
5 The General Counsel and MFL each filed briefs after both the Sep-
tember 1980 hearing and the August 1981 hearing.
6 Administrative Law Judge Williamson also found that MFL's layoff
of its East Hartford employees beginning January 23, 1980, violated Sec
8(aX3).
7 JD-387-81.
IV. MFI.'S DISCHARGE OF DAVIS, LUKASZEWSKI, AND
THOMAS
A. The Facts
During the week of March 17, 1980, MFL notified
William Davis, Lawrence R. Lukaszewski, and Clifton
Thomas to report for work at the North Bergen terminal
on Monday, March 24. Each of the three told MFL that
he would do so. All three had worked for MFL prior to
January 24, 1980 (out of the East Hartford terminal) and
Davis and Thomas had since worked for MFL under the
arrangement described above (whereby East Hartford
drivers reported for work at the North Bergen terminal
but did most or all of their driving in Connecticut).
All three employees drove to North Bergen from the
East Hartford area late Sunday afternoon; Lukaszewski
and Thomas in one car, Davis in another. The three ate
together at a restaurant in New Jersey and then checked
into the same motel. Each of the three testified that
throughout that night he was violently sick to his stom-
ach, and that he felt better upon arising, but then again
became violently ill. Each was still feeling extremely sick
when the three went to the North Bergen termimal to
report in. While waiting for the terminal to open, Davis
had a telephone conversation with one of MFL's East
Hartford dispatchers, during the course of which Davis
said that he was too sick to work. When the North
Bergen terminal manager arrived, Lukaszewski and
Thomas each told the manager that he was too sick to
work, to which the manager replied noncommittally.
The manager then turned to Thomas, saying, "I suppose
you're sick too." Thomas said that he was. The three
employees then left the termimal and made their way
back to East Hartford.
Later that day Lukaszewski called the East Hartford
terminal manager to report that he had been too sick to
accept an assignment at the North Bergen terminal. The
East Hartford terminal manager responded: "I don't
know why you listened to those guys down in Jersey
.... You just listened to the wrong people. As far as
I'm concerned, you're through."8
On March 25 MFL sent the following identical letters
to Davis, Lukaszewski, and Thomas:
This is to acknowledge your voluntary refusal to
accept the assignment designated for you on March
24, 1980 at our North Bergen, New Jersey termi-
mal. This action, taken in concert with two (2)
other drivers, forces us to conclude that you do not
wish to work at our New Jersey terminal.
Accordingly, we have removed you from our se-
niority list.9
B. MFL's Discharge of Davis, Lukaszewski, and
Thomas-Conclusion
MFL's motivation: MFL obviously fired the three driv-
ers because of management's belief that the three had
feigned illness and that their claimed inability to work
T r 1, p. 33
G C. Exhs. 4-6.
1475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was in fact a concerted refusal to work. The discharge
letters (referring to each of the driver's refusal to accept
an assignment "taken in concert with two . . . other
drivers") and the terminal manager's comments to Lu-
kaszewski ("I don't know why you listened to those guys
down in Jersey") make that clear.'°
An employer violates the Act if it discharges an em-
ployee because of its belief that the employee concerted-
ly engaged in activity of the kind the Act protects. And
it is immaterial whether the employer was correct in that
belief. N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 589-90
(1941). Thus the question of whether Davis, Lukas-
zewski, and Thomas really were sick on the morning of
March 14, 1980, does not have to be resolved. The issue
is whether the concerted activity that MFL believed the
drivers to be engaged in is the kind of activity that is
protected by the Act.''
Turning to the nature of the employees' activity, in
MFL's view that activity was the concerted false claim
of illness. And it is clear that that kind of concerted ac-
tivity is protected (assuming that the purposes of the ac-
tivity are appropriate ones). See Union Boiler Co., 245
NLRB 719 (1979); Northern Telecom, Inc., 233 NLRB
1374 (1977); Henning & Cheadle, Inc., 212 NLRB 776
(1974), enforcement denied on other grounds 522 F.2d
1050 (7th Cir. 1975).
As to the purposes of the employee activity in ques-
tion, we are faced with the necessity of determining
what MFL's management believed those purposes to be
in circumstances in which: (1) MFL did not say what it
thought those purposes were; and (2) the employees in-
volved say that there was no purpose to the concerted
activity because there was no concerted activity. And
that requires that the Board look at the record as a
'0 MFL contends that Davis, Lukaszewski, and Thomas "voluntarily
quit the employ of the Company" when they told their supervisor on
March 24 that they were too sick to work. MFL br., p. 1; see also "spe-
cial defense" in MFL's answer dated May 8, 1980. MFL bases that con-
tention on the fact that (in its view) the employees were not actually sick
when they declined to work. (None of the three in fact said they were
quitting or otherwise indicated a desire to leave the employ of the Com-
pany. To the contrary they indicated their desire to remain with the
Company.) An employer may for its own purposes use whatever termi-
nology it likes in relation to any given employee behavior. But clearly,
for the purposes of the Act (and under the usual meaning of the word),
neither Davis nor Lukaszewski nor Thomas "quit," looking at either
what the employees actually did or what MFL thought they did.
II While it appears to me that it is unnecessary for the purposes of this
proceeding to determine whether the employees actually were sick, I
have nonetheless considered the question. The answer is far from clear,
but the preponderance of the evidence indicates that each of the three
drivers was sick, as he claimed. On the one hand it is a surprising coinci-
dence that all three of the drivers almost simultaneously became suddenly
and violently ill. Moreover, none of the three saw a doctor, all had large
breakfasts notwithstanding their claimed illness, Lukaszewski chose to
report to the MFL terminal before 7 a.m. even though he was not sched-
uled to report until 9 am., and all were able to drive private vehicles
back to East Hartford (or share in that driving) that same morning. Final-
ly, there were a number of inconsistencies in the testimony of the three
drivers on matters relating to their sickness. On the other hand there was
nothing about the demeanor of the three drivers during the course of
their testimony that indicated that their claims of illness were false; MFL
submitted no proof of any kind purporting to refute the drivers' claims;
and there is nothing in the record to suggest why Davis, Lukaszewski,
and Thomas would undertake to drive all the way to North Bergen from
the East Hartford area and then back again simply to feign illness. As to
the testimonial inconsistencies, they were minor ones, of the kind to be
expected in testimony given 6 momths after the event in question.
whole to determine what reasonable inferences, if any,
can be drawn about MFL management's beliefs about
those purposes. See Metropolitan Orthopedic Associates,
PC., 237 NLRB 427 (1978).
MFL argues, on brief, that the reason Davis, Lukas-
zewski, and Thomas "created a sham illness" was "in
order to refuse work they simply did not wish to per-
form." 12 The apparent major premise inherent in that
contention is correct. MFL would not have run afoul of
the Act if in fact it fired the three drivers because, in the
view of its management, the three claimed illness because
they happened not to feel like working on March 24 or
because they disliked the particular runs that MFL as-
signed to them that day.
But the facts of record do not suggest that that is why
MFL fired the drivers.
As far as any dislike of their particular assignments is
concerned, all three drivers reported in sick before they
were given their assignments.
As for the claimed illnesses being a product of a gen-
eralized disinclination to work: (1) the three drove at
their own expense from Connecticut to New Jersey to
report in; (2) they traveled to New Jersey the evening
before their reporting date, which necessitated restaurant
and motel expenses (for which the Company did not
paya3); (3) Davis and Thomas had been working out of
MFL's North Bergen terminal for a week or two prior
to March 24, apparently without incident; and (4) Lukas-
zewski had explicitly refused an assignment during the
week of March 17 because of sickness, had no trouble
with the Company in that connection, and had subse-
quently affirmatively volunteered to work for the week
of March 24.
Under all those circumstances, it is unlikely that
MFL's management could have come to the conclusion
that Davis, Lukaszewski, and Thomas concertedly
feigned illness due to bouts of laziness or the like.
What the record in this proceeding does suggest is that
MFL knew that the East Hartford drivers, including
Davis, Lukaszewski, and Thomas, did not like the wage
scale under which the North Bergen terminal was oper-
ating; knew that employees like Davis, Lukaszewski, and
Thomas were opposed to MFL moving the domicile of
its employees to North Bergen; knew that such employ-
ees opposed shifting their membership from Local 559 to
Local 807; and must have been aware that the reporting
system that required drivers to travel from Connecticut
to New Jersey in order to report for work was upsetting
for the affected employees. And absent evidence to the
contrary, it can only be assumed that, given MFL's
belief that Davis, Lukaszewski, and Thomas concertedly
feigned illness on March 24, MFL must have concluded
that the three were protesting those circumstances when
they reported in sick.
12 MFL br., p. 3
* As MFL knew (see tr. I, p. 62), Local 559 paid for the New Jersey
motel expenses of those of its members who incurred them working for
MFL. Each of the three drivers supported Local 559, as MFL also knew,
and presumably would not have wanted to run up needless expenses for
the Union.
1476
MASHKIN FREIGHT LINES
Since a protest for any of those purposes relates
squarely to conditions of employment or to bargaining
agent identity, concerted activity to protest any of the
foregoing circumstances is protected. And since the only
reasonable inference to be drawn from the record is that
MFL believed that the three drivers' refusals to work
were in protest against one or more of those circum-
stances, MFL's discharge of the three drivers violated
Section 8(a)(1) of the Act. (The discharges arguably vio-
lated Sec. 8(a)(3) as well. But that is open to question.
And since the remedy will be the same whether or not
Sec. 8(a)(3) is deemed to have been violated by MFL's
action, no purpose would be served by resolving that
question.)
I have considered the fact that Davis, Lukaszewski,
and Thomas were asked in advance to take an assign-
ment, specifically agreed to do so, and then, at the time
work was to actually begin, concertedly refused (in
MFL's view) to go to work. Under the circumstances,
MFL's managment might well have felt deliberately de-
ceived. But if the employees were discharged for that
presumed act of deception, their dismissal letters presum-
ably would have indicated such, and the letters did not.
Similarly, no one from MFL took the stand to say that
was the case. Moreover, there was no showing that the
three drivers' refusal to work resulted in any hardship
for MFL. Finally, Board precedent appears to indicate
that a concerted refusal to work that would otherwise be
protected does not lose that protection even if the work
was a voluntary assignment that the employees had spe-
cifically agreed to undertake. See Northern Telecom,
supra. 1 4
The no-strike clause in the MFL-Local 807 agreement:
Article 18 of the collective-bargaining agreement be-
tween MFL and Local 807 provides, in part, that "the
Union agrees that there will be no strikes, work stop-
pages or slow downs . . . "'5 (There is no comparable
provision in the MFL-Local 559 agreement.)
Subject to certain exceptions, "individuals violating
such clauses appropriately lose their status as employ-
ees." Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 280
(1956). The General Counsel does not contend that the
MFL-Local 807 agreement was invalid or inapplicable
to the employment relationship between Davis, Lukas-
zewski, and Thomas, on the one hand, and MFL, on the
other. Arguably, therefore, the three lost their employee
status when (in MFL's view) they concertedly feigned
illness on March 24. And if they did, that activity was
unprotected.
But MFL at no time referred to the no-strike clause-
either in its answer, at the hearing, or on brief. (Indeed
the Local 807 agreement entered the record as a General
Counsel exhibit; and the clause in question was not men-
tioned before or at the hearing by anyone. It was re-
ferred to at all only in a short note in the General Coun-
sel's brief.)
There does not appear to be any precedent directly on
point. But cases that have arisen in comparable situations
" The rule seems to be that employees are allowed on protected bite
of that particular apple See Gulf-Wandes Corp., 233 NLRB 772, 776
(1977).
15 G.C Exh. 3
suggest that the Board ought not consider a no-strike
clause as a defense to allegations of unlawful discharge
unless the defense is raised in timely fashion by respond-
ent. E.g., Chicago Roll Forming Corp., 167 NLRB 961,
971 (1967); N.L.R.B. v. Nettleton Co., 241 F.2d 130 (2d
Cir. 1957). Moreover, as between Respondent and the
General Counsel, it is Respondent who must be pre-
sumed to have the greater familiarity with collective-bar-
gaining agreements to which it is a party, and who ac-
cordingly is in a better position to raise the issue of no-
strike clause applicability. And unless the issue is timely
raised, the General Counsel may be foreclosed from
making a valid rebuttal to a defense based on the exist-
ence of a no-strike clause. Here, for example, had MFL
raised the issue the General Counsel might perhaps have
sought to show that unfair labor practices committed by
MFL interfered with the free selection by the MFL em-
ployees of their bargaining representative (see Mastro
Plastics, supra) or that it was not the intention of MFL
and Local 807 that the no-strike clause in question cover
three employee sick-outs.
I accordingly conclude that the applicability of the no-
strike clause in the MFL-Local 807 collective-bargaining
agreement was not raised in a manner appropriate for
Board consideration. 6
Other General Counsel contentions: The General Coun-
sel contends that a reason that MFL discharged the three
drivers was its desire to rid itself of employees who were
members of Local 559. While it is true that an inference
of that kind could be drawn from some of the facts of
record in this proceeding and from the findings that Ad-
ministrative Law Judge Williamson made in Case 39-
CA-76, et al., other facts point in the other direction.
Specifically, MFL seemed to go out of its way to give
its East Hartford drivers runs to and within Connecticut,
assignments that greatly added to the convenience and fi-
nancial well-being of the East Hartford drivers."
The General Counsel did not show that MFL was
forced to assign the East Hartford drivers to Connecticut
runs as a matter of business necessity or otherwise, and
the assumption accordingly must be that MFL could
have assigned the East Hartford drivers to runs far from
Connecticut if it so chose. Had MFL in fact been strong-
ly motivated to rid itself of Local 559 drivers, it presum-
ably would have assigned the East Hartford drivers to
non-Connecticut runs in the hope that the drivers would
thereby find working for MFL too inconvenient to con-
tinue. Under these circumstances I cannot find that, by
discharging Davis, Lukaszewski, and Thomas, "Re-
'6 The General Counsel argues that the clause does not apply because
the three drivers were not in fact engaged in a work stoppage. (Br., fn
I I.) But an alternative view is that for purposes of no-strike clause issues,
MFL.'s mistake about the existence of a work stoppage is relevant only in
an action brought to enforce the agreement, not in an unfair labor prac-
tice proceeding before the Board. Fortunately the matter need not be re-
solved here
17 As touched on in sec. I, above, North Bergen technically was the
domicile of the MFL drivers after January 24. Thus the drivers received
$20 per diem from MFL on all runs that required the drivers to be away
from the North Bergen terminal overnight. As a result, on runs in the
Fast Hartford area the East Hartford drivers received per diem compen-
sation even though they ate and slept at home.
1477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent was merely continuing its campaign to rid itself
of union drivers." 1 8
V. MFI.S DISCHARGE OF ALLEN SAVAGE
A. The Facts
As of January 1980 Allen Savage had worked as an
MFL driver for 16 years. (He was, of course, a member
of Local 559.) Savage was laid off, with all the other
East Hartford drivers, on January 24 (see sec. I, above).
Then in early March 1980 MFL transferred Savage to its
North Bergen terminal. And like the other East Hartford
drivers who had been transferred to that terminal,
Savage did most of his driving in Connecticut out of the
East Hartford terminal.
While the following 7 weeks of his employment by
MFL were largely uneventful, Savage did raise a
number of complaints with MFL's management during
the period. On one occasion Savage refused to drive a
truck with a bad front end. On another, Savage and an
MFL dispatcher got into an argument over a change in
Savage's starting time that, in Savage's view, was made
without any notice. Finally, Savage complained to
MFL's East Hartford terminal manager about MFL's un-
authorized deduction of Local 807 dues and about
MFL's failure to abide by the terms of its collective-bar-
gaining agreement with Local 559.
On the morning of April 28, 1980 (Monday), Savage
routinely reported for work at MFL's North Bergen ter-
minal and, as it happens, was given a run in New Jersey.
During the course of his workday, Savage learned that
his wife's car was inoperable.
The significance of that is this: Savage's wife has leu-
kemia, and has and the disease for the past 5 years. Due
to that disease, from time to time-and the times are un-
predictable-Savage's wife needs prompt medical care
and needs transportation to get to that care. As Savage
put it:
[S]he'll get to a point where she'll have to go in,
either for shots or blood transfusion. And she never
knows when until she gets to a certain point, and
then she calls a doctor and he has her come in.' 9
The car's malfunction accordingly had serious implica-
tions.
There is no dispute that many MFL supervisors knew
that Savage's wife had leukemia and that as a result she
sometimes needed special care.
After learning of his wife's problem with her car,
Savage promptly spoke to an MFL dispatcher, men-
tioned the problem, and asked if there was "any possible
way I could come home."2 0 The dispatcher replied that
it was too late in the day (April 28) to get Savage back
to Connecticut that day, but that "if possible, I'll get you
home tomorrow." 2 '
's G.C. br., p. 8.
' Tr. II, p. 42.
20 Id. Savage's car was not at the North Bergen terminal. Prior to the
start of the workweek Savage had driven to MFL's East Hartford termi-
nal, met another East Hartford driver there, and rode to North Bergen in
the other driver's car.
I" Tr. 11, p. 43.
Savage remained overnight in New Jersey and on
April 29 was assigned to a run that should have resulted
in Savage getting back to Connecticut that evening. But
delays arose at the shipper's warehouse and Savage's
truck was not loaded in New Jersey until after 8 p.m.
At that point Savage called his dispatcher to report his
status. The dispatcher told Savage to take the truck into
the North Bergen terminal and to remain overnight in
New Jersey. (While the record is not explicit in this
regard, there is no doubt that the dispatcher planned to
have Savage drive the truck to East Hartford the follow-
ing morning.)
Neither the dispatcher nor any other MFL supervisor
testified, and thus we do not know with any certainty
why the dispatcher ordered Savage to bring the truck
into the North Bergen terminal rather than to have
Savage drive directly to East Hartford, which is where
the load in the truck was destined. But presumably that
order had to do with restrictions on driver duty time im-
posed by the United States Department of Transporta-
tion (DOT). DOT regulations forbid truckdrivers to
remain on duty for more than 15 hours in any 24-hour
period (with some exceptions not here relevant). Since it
takes 3 or 4 hours to drive a truck from North Bergen to
East Hartford, and since Savage had been on duty since
6:30 a.m. on April 29, Savage could not have driven to
East Hartford from New Jersey, starting after 8 p.m.,
without violating DOT regulations.
Savage, however, felt that he had to get home to his
wife and insisted that the dispatcher route h:m directly
back to East Hartford. According to Savage's testimony
(which I credit), the conversation ended this way: the
dispatcher said, "'Al, I'm sorry, I can't bring you home.'
I said, 'well I'm coming anyway. I have to come
home. .. .' He again stated that all he could do was tell
me what they had told him to tell me. And I told him, 'I
didn't care at this point. I was coming home to see what
was wrong at home....' He said, 'you do what you
want to."'22
Savage did drive the truck to East Hartford; the drive
was uneventful, and he pulled in about 12:30 a.m. (April
30), completed his routine checkout procedures, and left
the terminal at 1 a.m., about 18-1/2 hours after he began
duty at 6:30 a.m. on the 29th.
Savage asked to take the morning off and reported
back to the East Hartford terminal about I p.m. on April
30. Upon his arrival at the terminal the terminal manager
asked Savage why he had "quit." Savage responded that
he had not quit. According to Savage's credible testimo-
ny the conversation then went as follows:
He says "when you brought home-brought the
load in last night, after you were told to lay over,
it's a voluntary quit." I said, "Sal, I've worked here
almost 17 years, I do not intend to quit. Now, you
can fire me, but I'm not going to quit. I didn't put
all this time in here to walk in here and quit." I
tried to explain to him what had happened. I was
promised I could come home the next day. "Well,"
22 Tr. II, pp. 50-51
1478
MASHKIN FREIGHT LINES
he says, "as far as this-Mr. Baralari's concerned,
you're all done. "23
A day or two later Savage received the following
letter from MFL:
This is to acknowledge your refusal to accept or
follow your direct orders during your period of em-
ployment on April 29, 1980 and your illegal and im-
proper taking of company equipment for personal
use to transport you from our New Jersey terminal
to your home in Connecticut. We further acknowl-
edge your statement that if you are not fired you
would quit. Accordingly, you have been removed
from our seniority list as of April 29, 1980.24
B. Other Background Circumstances
Applicable collective-bargaining provisions: As far as
Savage was concerned, he was still represented by Local
559. The collective-bargaining agreement between that
Local and MFL provides:
In respect to discharge or suspension, the Employer
must give at least one (1) warning notice of the spe-
cific complaint against such employee .... No
warning notice need be given, however, to any em-
ployee before he is discharged if the cause of such
discharge is dishonesty, recklessness resulting in a
serious accident while on duty, the carrying of un-
authorized passengers or the consumption of alco-
holic beverages as set forth in the DOT rules and
regulations.2 5
MFL contends that the collective-bargaining agree-
ment between Local 807 and MFL was the agreement
that covered Savage's employment. That agreement has
much the same language as Local 559's:
Prior to suspending or discharging the Employer
shall give at least one (1) warning notice of the spe-
cific complaint against such Employee, in writing,
to such Employee .... except that no warning
notice need be given to any Employee before he is
discharged or suspended for any of the following
causes: A. Theft of money, goods or merchandise
during working hour; Acts of dishonesty; B. Drun-
keness, or being under the influence of liquor or
drugs during working hours; C. Calling an author-
ized strike or walkout; D. Assault on Employer [or]
his representative during working hours; E. Failure
to report an accident which the Employee would
normally be aware of; F. Recklessness resulting in a
serious accident while on duty; G. Carrying of un-
authorized passengers in the cab of a truck while on
duty. 26
23 Tr 11, p. 55.
24 G.C. Exh. 18. (As indicated above, I find that Savage told an MFL
supervisor that he did not and would not quit. Accordingly, I can give
no credence to the sentence in the letter referring to Savage saying that
he would quit.)
'2 G.C. Exh. 22, art. XXIII.
2 6
G.C. Exh. 3, art. 14.
On the face of it, Savage was guilty of none of the
acts that, under the terms of either collective-bargaining
agreement, would have subjected him to immediate dis-
charge. Since Savage was discharged without the warn-
ing required by those agreements, it appears that his dis-
charge may have been in violation of MFL's contractual
obligations.
Earlier violations of DOT regulations: The record shows
that, during the 9-month period prior to his discharge,
Savage violated DOT's maximum daily duty hours regu-
lations six times, as follows:
Savage's Hours
On Duty
July 24, 1979 16-1/2
Aug. 23, 1979 17
Aug 30, 1979 16-1/4
Sept. 4, 1979 16-1/2
Sept. 7, 1979 17
Sept. 24, 1979 1627
Other MFL practices: There had been a longstanding
practice at MFL that drivers were not to be assigned
runs that resulted in layovers for 2 nights in a row. And,
in fact, Savage mentioned that practice to the dispatcher
when the dispatcher told Savage to lay over on the 29th.
At least as a technical matter, however, the North
Bergen terminal was Savage's domicile. Accordingly, as-
signments that resulted in Savage bringing his truck into
the North Bergen terminal for the night could not-
again speaking technically-be considered layovers.
Savage testified that on numerous occasions he had
told dispatchers that he could not lay over after a dis-
patcher had ordered him to. But the record does not sug-
gest that Savage had ever driven to his home terminal in
contravention of orders that he lay over.
Other discharges: MFL discharged six drivers during
the course of MFL's ownership by Baralari: Savage (as
just discussed); Davis, Lukaszewski, and Thomas (as dis-
cussed in sec. IV, above); a driver whom Administrative
Law Judge Williamson found was discharged for dis-
criminatory reasons (see sec. III, above); and another
driver whose discharge is not alleged to have violated
the Act (he was fired for failing to report damage to his
vehicle).
C. Savage's Discharge-Conclusion
Savage's offenses against MFL on the evening of April
29 clearly were not insignificant ones. He knowingly vio-
lated DOT's maximum duty hour regulations, rendering
the Company liable (at least theoretically) to action by
DOT. He knowingly violated a direct order by his dis-
patcher. And he used an MFL truck for personal pur-
poses-to get back to his home city. In doing so it must
be presumed that he endangered other users of the high-
ways, since the purpose of the DOT regualtions in ques-
tion is to keep unduly tired drivers off the highways.
27 See G.C. Exhs. 21 and 22. The figure includes the time that Savage
spent on breaks. See tr. II, pp. 102-103. All of those incidents occurred
prior to Baralari's acquisition of MFL
1479
Date
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beyond that, as discussed in section IV, above, the
record does not suggest that MFL was determined to rid
itself of those of its employees who were members of
Local 559. And that certainly is true in Savage's case.
Practically all of Savage's assignments permitted him to
spend his evenings at home, and there is no doubt that
MFL could have avoided doing that. Moreover, it is
clear that on April 29 the MFL dispatcher made a real
effort to give Savage an assignment that would get him
back to Connecticut. (That effort failed only because of
the unexpected delays that Savage encountered at the
shipper's warehouse.)
Finally, disciplinary action in violation of a collective-
bargaining agreement (as MFL's discharge of Savage ap-
parently was) is not, for that reason alone, a violation of
the Act. As for Savage's purpose in refusing to lay over,
disciplinary action that appears hardhearted is not there-
by an unfair labor practice. Moreover, there is no indica-
tion in the record that the only way available to Savage
of handling his wife's needs was to drive an MFL truck
to East Hartford. For instance the record indicates that
MFL permitted drivers to "book off'" more or less at
their convenience. Presumably, therefore, Savage could
have brought his truck into the North Bergen terminal
on the evening of the 29th, booked off, and then made
his way home using public transportation or a borrowed
or rented car.
Nonetheless, it is my recommendation that the Board
conclude that MFL violated Section 8(a)(l) and (3) of
the Act when it discharged Savage.
To begin with, Savage's actions on the evening of
April 29, 1980, were not particularly heinous-even ig-
noring the reasons for his actions. Exceeding DOT duty
hours regulations is not unprecedented in the motor-car-
rier business, as witnessed by Savage's own record. As
for his disobeying his dispatcher's orders and using an
MFL truck for personal purposes, the fact is that the
truck was destined for East Hartford anyway. In that re-
spect Savage's offense was to ignore an order that he
delay in driving a truck destined for East Hartford to
East Hartford. Lastly, Savage was honest in his response
to his dispatcher and his drive to East Hartford was
without incident.
The record in this proceeding (and particularly the
two collective-bargaining agreements in evidence) indi-
cates that as a matter of industry practice a driver would
ordinarily be entitled to a warning before being dis-
charged for the kind of offenses committed by Savage on
April 29, 1980-no matter how trivial his purpose in re-
fusing to lay over and how low his seniority with the
Company. Yet MFL chose to fire Savage. And MFL
made that choice notwithstanding his 16 years with the
Company and notwithstanding that, as MFL well knew,
Savage's motivation in disobeying his dispatcher was to
handle an urgent situation at home.
At some point an employer's disciplinary action can
become so atypical, relative to the way people generally
behave toward one another, that absent some further ex-
planation by the employer the Board must presume that
there was an unstated motivation behind the employer's
action. Yet in this proceeding MFL gave no explanation
for its decision to discharge Savage, beyond the dis-
charge letter submitted into evidnece by the General
Counsel. Indeed no one from MFL's management testi-
fied at all.
I recognize that the probable existence of an employ-
er's unstated motive for disciplinary action is not enough,
standing alone, to warrant the finding of a violation of
the Act. See Marriott Corporation, 251 NLRB 1355
(1980). But here the evidence shows that Local 559 and
the East Hartford drivers had consistently thwarted the
wishes of MFL's owner, Baralari, that Baralari felt be-
trayed and unfairly treated by Local 559 and those driv-
ers, that Baralari moved part of MFL's operation in
order to avoid his obligation to those drivers, and that
Savage vocally supported Local 559 even when working
out of the North Bergen terminal.
Given the absence of any other reason for MFL's out-
of-the-ordinary treatment of Savage, I can only conclude
that the position of the East Hartford drivers relative to
Baralari's contract proposals and the resulting difficulties
Baralari encountered were a significant irritant to Bara-
lari, that that irritation affected MFL's judgment in mat-
ters pertaining to the discipline of East Hartford drivers,
and that it was that impact on MFL's judgment that led
to MFL's decision to fire Savage.
In sum, I find that MFL would not have fired Savage
but for his participation in an employee group (the East
Hartford drivers) and a labor organization (Local 559)
that opposed owner Baralari's proposals and actions re-
garding changes in working conditions. And that
amounts to a violation of Section 8(a)(1) and (3).
Vt. UNAUTHORIZEI) DEDUCTION OF DUES
The collective-bargaining agreement between Local
807 and MFL provides, in part, that:
. . .the Employer shall furnish the Union with a
list of employees who have signed checkoff authori-
zation cards. The Employer shall deduct from said
employees the dues, initiation fees and/or uniform
assessments of the Union .... 28
Starting in March 1980, MFL deducted monthly dues
from at least some of the East Hartford drivers who had
transferred to the North Bergen terminal and transmitted
those dues to Local 807. By July 1980 MFL had submit-
ted a total of $810 to Local 807 on that basis.
All of those transferred drivers had previously submit-
ted authorizations to MFL that permitted MFL to
deduct Local 559 dues from their wages. But none of
those employees had ever executed checkoff authoriza-
tions on behalf of Local 807.
The General Counsel claims that MFL thereby violat-
ed Section 8(a)(l) and (2) of the Act. MFL contends that
it did not violate the Act by its deduction of dues on
behalf of Local 807 since the employees had authorized
the deduction of Local 559 dues and had signed state-
ments accepting transfers to New Jersey under the terms
and conditions in effect there.2 9
28 G.C. Exh 3, p. 4.
29 It appears that all of the East Hartford drivers employed by MFL
at North Bergen specifically agreed that they desired "to transfer" to the
Continued
1480
MASHKIN FREIGHT LINES
The Board has long held that an employer violates
Section 8(a)(l) and (2) of the Act if it deducts union dues
from an employee's wages absent authorization by the
employee of such deduction. E.g., Dan T. Edwards and
Son d/b/a Western Auto Associate Store, 143 NLRB 703
(1963). And, clearly, an employee's authorization of dues
deductions on behalf of one labor organization does not
amount to a dues deduction authorization in regard to
other labor organizations. As to the statements that the
transferred employees gave to MFL indicating their
desire to transfer, those statements by their terms related
only to their interest in employment at the North Bergen
terminal. The statments give no indication, even implicit-
ly, that the employees wanted MFL to make any pay-
ments to Local 807 on their behalf.
In sum, MFL violated Section 8(a)(1) and (2) when,
without authorization, it deducted moneys from the
wages of the East Hartford employees who had trans-
ferred to the North Bergen terminal and remitted such
moneys to Local 807. See, generally, American Geriatric
Enterprises, Inc., etc., 235 NLRB 1532 (1978).
VII. OTHER ISSUES
A. Deferral to Arbitration
The MFL-Local 807 collective-bargaining agreement
provides for grievance processing, including arbitration.
MFL argues that "Board acquiescence in accepting these
charges [of the alleged discriminatees] and failing to refer
the parties to arbitration is to discourage parties from ar-
bitrating at all ... .,30
MFL's contention runs afoul of a long line of Board
cases to the contrary, both as regards the discharge of
Davis, Lukaszewski, Thomas, and Savage (see, e.g.,
Union Boiler Company, 245 NLRB 719 (1979)), and the
8(a)(2) allegation (see, e.g., Servair, Inc., 236 NLRB 1278,
fn. I (1978)). a ' Moreover, this proceeding relates in part
to MFL's preference for its agreement with Local 807
rather than its agreement with Local 559, and the impact
of that preference on the East Hartford drivers (who,
turn, all supported Local 559). And Administrative Law
Judge Williamson's Decision concludes that MFL's shift
to North Bergen (and, therefore, to Local 807) was un-
dertaken improperly. Under all these circumstances it
would be particularly inappropriate to require the East
Hartford drivers to turn to the grievance procedures of
the MFL-Local 807 agreement.
B. Alleged Harassment of Respondent by Subregion 39
MFL's brief refers to the Subregion's refusal to permit
Davis to withdraw his charge notwithstanding a settle-
ment worked out between Davis (the Charging Party)
and Thomas on the one hand, and MFL on the other,
and to alleged arbitrary behavior toward MFL by the
Subregion. "Such behavior is clearly a violation of the
Administrative Procedure Act and grounds for dismiss-
ing the complaint." MFL br., p. 8.
North Bergen terminal (see, e.g., G C. Exh 8 (a)) and, prior to reporting.
were advised that there was a "labor agreement covering that terminal"
(G.C. Exh. 8 (b))
30 MFL br., p. 7.
S' Modified on other grounds 607 F.2d 258 (9th Cir. 1979)
But the record fails to show any misbehavior by any
element of the Board or by the General Counsel. See
Community Medical Services of Clearfield, Inc., d/b/a
Clear Haven Nursing Home, 236 NLRB 853 (1978). In
any case, since the evidence presented by the General
Counsel shows that MFL violated the Act in several dif-
ferent respects, it can hardly be contended that the Gen-
eral Counsel prosecuted frivolous complaints at MFL's
expense.
I conclude, accordingly, that there is no merit to
MFL's contention that the complaint should be dismissed
on the ground that the General Counsel's behavior vio-
lated the Administrative Procedure Act.
CONCI.USIONS OF LAW
I. Mashkin Freight Lines, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 559 and Local 807, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, are labor organizations within the meaning of
Section 2(5) of the Act.
3. By discharging William J. Davis, Lawrence R. Lu-
kaszewski, and Clifton S. Thomas on March 25, 1980,
MFL violated Section 8(a)(1) of the Act.
4. By discharging Allen Savage on April 30, 1980,
MFL violated Section 8(a)(l) and (3) of the Act.
5. By, without authorization from the affected employ-
ees, deducting moneys from the wages of employees and
remitting such moneys to Local 807, MFL violated Sec-
tion 8(a)(1) and (2) of the Act.
6. The unfair labor practices referred to in paragraphs
3, 4, and 5, above, affect commerce within the meaning
of Sections 2(6) and (7) and 10(a) of the Act.
7. There is no evidence that Bari Leasing, Inc., violat-
ed the Act in any respect.
THE REMEDY
It is evident that the remedy to be ordered in Cases
39-CA-76, 39-CA-95, and 39-CA-102 (see sec. III,
above) will affect the remedy that ought to be ordered
here. But the Board has not yet acted on Administrative
Law Judge Wiliamson's Decision. For present purposes
it accordingly seems best to order a remedy here that
takes into account only the matters litigated in this pro-
ceeding.
The recommended Order will require MFL to cease
and desist from the following acts:
1. Engaging in the unfair labor practices described in
section VIII, paragraphs 3, 4, and 5.
2. Interfering with, restraining, or coercing, in any like
or related manner, its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
The recommended Order will require that MFL, at
such time as it resumes operations, reinstate Allen
Savage to the position he previously held, or, if that po-
sition does not then exist, to a substantially equivalent
position, without prejudice to his seniority and other
rights and privileges. (Reinstatement of Davis, Lukas-
1481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zewski, and Thomas is not being ordered since MFL
previously offered reinstatement to all three.3 2)
The recommended Order shall also require MFL to
make Davis, Lukaszewski, Savage, and Thomas whole
for any loss of earnings they may have suffered as a
result of their unlawful discharges by MFL. Loss of
earnings shall be computed as prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon 33 to be computed as prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).
Finally, MFL will be required to notify its employees
of the action being ordered by the Board
As a last matter, the General Counsel urges that I
order MFL to reimburse its employees for any Local 807
dues wrongfully deducted from their wages. The Board
may ultimately determine to do that (in light of the mat-
ters litigated in Cases 39-CA-76, et al.). But the Local
807-MFL collective-bargaining agreement contains a
union-security provision that appears to comply with the
requirements of the Act. And the agreement itself is pre-
sumptively valid absent the General Counsel's conten-
tions to the contrary. Under the circumstances a reim-
bursement order would not be appropriate. American
Geriatric Enterprises, 235 NLRB 1532.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, I hereby issue the fol-
lowing recommended:
ORDER3 4
The Respondent, Mashkin Freight Lines, Inc., Hart-
ford, Connecticut, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging any employee by reason of the em-
ployee's support for Local 559, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Teamsters), or any other labor or-
ganization, or by reason of any other concerted activity
for the purpose of mutual aid or protection.
32 See tr. 1, pp. 37, 103, 124.
33 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
34 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
(b) Assisting Teamsters Local 807 by deducting from
the wages of any employee and remitting to Local 807
amounts equal to union dues when such deductions are
not authorized by the employee.
(c) 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, which is nec-
essary to effectuate the policies of the Act:
(a) At such time as Respondent, or its successors or as-
signs, resumes operations, offer Allen Savage full rein-
statment to his former position or, if that position does
not then exist, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges previously enjoyed.
(b) Make William J. Davis, Lawrence R. Lukaszewski,
Allen Savage, and Clifton S. Thomas whole for any
losses they may have suffered by reason of their unlaw-
ful discharges, in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other documents nec-
essary to analyze and compute the amount of backpay
due under this Order.
(d) Post the attached notice marked "Appendix" 35 at
its facilities at such time as Respondent or a successor or
assign resumes operations. Copies of the notice, on forms
to be provided by the Officer-in-Charge, Subregion 39,
shall be signed by the authorized representative of Re-
spondent or its successor or assign and maintained by it
for 60 consecutive days after posting, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
to ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Officer-in-Charge, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply with this Order.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act by Bari
Leasing, Inc.
lb In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1482