North Dixie Truck & Trailer, Cal'S Trucking, Inc. And Roeder Cartage Co., Inc.

National Labor Relations Board - Board DecisionsSep 30, 1988

291 N.L.R.B. 158 (N.L.R.B. 1988)

158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD North Dixie Truck & Trailer, Cal's Trucking, Inc and Roeder Cartage Company , Inc and Team sters Local Union No 908 , a/w International Brotherhood of Teamsters, Chauffeurs, Ware housemen and Helpers of America , AFL-CIO i Case 8-CA-20136 September 30 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT AND HIGGINS On April 26 1988 Administrative Law Judge Marvin Roth issued the attached decision The Re spondent filed exceptions and a supporting brief 2 The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and a supporting brief and has decided to affirm the judge s rulings findings 3 and conclusions and to adopt the recom mended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent North Dixie Truck & Trailer Cal s Trucking Inc and Roeder Cartage Company Inc Lima Ohio its officers agents successors and assigns shall take the action set forth in the Order On November 1 1987 the Teamsters International Union was read milted to the AFL-CIO Accordingly the caption has been amended to reflect that change The Respondent has requested oral argument The request is denied as the record exceptions and brief adequately present the issues and the positions of the parties 3 The Respondent has excepted to some of the judge s credibility find rags 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 Paul C Lund Esq for the General Counsel Thomas J Gibson Esq and Patrick J Johnson Lsq of Toledo Ohio for the Respondents Mr Jerry Rhinock of Lima Ohio for the Charging Party DECISION STATEMENT OF THE CASE MARVIN ROTH Administrative Law Judge This case was heard at Lima Ohio on 18 November 1987 1 The ' All dates are for 1987 unless otherwise indicated charge was filed on 29 May by Teamsters Local Union No 908 a/w International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America (the Union) The complaint which issued on 13 July alleges that North Dixie Truck & Trailer Cal s Trucking Inc and Roeder Cartage Company Inc (respectively North Dixie Cal s and Cartage and collectively the Company or Respondents) violated Section 8(a)(1) and (3) of the National Labor Relations Act The gravamen of the complaint is that the Company allegedly discharged em ployees Richard Roeder and Gary Joseph because of their union activities and engaged in unlawful interroga tion threats of reprisal surveillance and creating the im pression of surveillance The Company s answer denies the commission of the alleged unfair labor practices All parties were afforded full opportunity to participate to present relevant evidence to argue orally and to file briefs The General Counsel and the Company each filed a brief On the entire record in this case2 and from my obser vation of the demeanor of the witnesses and having con sidered the briefs and argument of the parties I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY North Dixie a sole proprietorship and Cal s and Cart age each an Ohio corporation maintain a common office and place of busines. in Lima Ohio North Dixie is engaged in the service and repair of trucks and trailers Cal s is engaged in interstate and intrastate transportation of freight and Cartage is engaged in interstate and intra state transportation of liquid chemicals In their respec tive operations Cal s and Cartage each annually derive gross revenues in excess of $50 000 from interstate trans portation of freight and commodities and North Dixie annually provides services valued in excess of $50 000 for other enterprises that are directly engaged in inter state commerce It is undisputed that North Dixie Cal s and Cartage are commonly owned operated and con trolled have a common labor policy and constitute a single business enterprise and a single employer or joint employer within the meaning of the Act It is also undis puted and I so find that Respondents are employers en gaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel presented uncontroverted evi dence concerning the Union s organizational campaign and the Company s response including alleged interroga tion threats surve llance and creating the impression of surveillance As will be discussed the facts established by that testimony are to a considerable extent dispositive Errors in the transcript have been noted and corrected 291 NLRB No 21 NORTH DIXIE TRUCK & TRAILER 159 of the allegations that Richard Roeder and Gary Joseph were discriminatorily discharged Calvin Roeder is president and principal owner of the Company He has and still does employ members of his family In February Dana Roether Calvin Roeder s son in law was working for Cartage as a truckdriver and Richard Roeder Calvin s brother was working as a me chanic for North Dixie (Because of the similarity or identity of surnames I shall sometimes refer to Calvin Roeder Richard Roeder and Dana Roether by their first names) During the week of February 16 there was talk of union organization among the employees at the Company s Lima facility The Union scheduled a meet ing for employees for Saturday February 21 at 11 am at a union hall in Lima On Friday February 20 be tween 5 and 6 p in Richard went to the shop foreman s office with his worksheets before leaving work for the day Richard previously told other employees that he would attend the union meeting He overheard part of two telephone conversations involving Cartage Chief Dispatcher and Safety Coordinator Roy Alexander who is undisputedly a supervisor within the meaning of the Act The telephone rang and Alexander answered He said Okay thank you I will notify Cal right away Alexander then made a call He said Cal this is Roy I just heard of a union meeting for tomorrow morning After further conversation Alexander said I 11 explain the rest of it to you when you get here About 6 p in after Richard left Dana came into the dispatch office from a run Alexander asked if he knew about the union meeting Dana admitted that he did Alexander asked if he was going to attend Dana answered that he would probably go that It s a free country Alexander replied that Cal would close the doors before he would let a union in and that we all knew that (The quoted words were Alexander s) Alexander said that they would just start a bunch of trouble Alexander asked how many drivers were going to the meeting Dana an swered that he did not know Also during the same period of time (5 to 6 p m) driver Gary Joseph called in about a dispatch Alexander asked if he knew about the union meeting Joseph answered that he did Alexander replied Well you know you guys are starting a bunch of trouble Cal s going to close the doors The forego ing findings are based on the testimony of Richard Dana and Joseph Alexander was presented as a compa ny witness but did not testify concerning these matters The next morning some 8 to 13 employees went to the union meeting including Don Armer (who evidently iris tiated the union campaign) Joseph Dana and Richard Union Business Agent Jerry Rhinock was late and the meeting eventually started about 11 45 a in In the mean time the employees went across the street to a carryout As they were standing in the parking lot they saw Alex ander drive by with another person On Monday Febru ary 23 Alexander asked Dana if he saw Alexander in the parking lot Dana answered that he saw him drive by Alexander replied that he and Cal s manager William Russell (also a supervisor) sat in the parking lot to see who went to the union meeting Alexander did not tests fy about the matter on his direct examination On cross examination by the General Counsel (over the objection of company counsel) Alexander testified that he and Russell knew there would be a union meeting that they drove by the union hall and saw a few of the employees there and that he (Alexander) went because he was cu sous to see who was there The employees who were present at the meeting signed union authorization cards and Joseph took addi tional cards with him The next day (Sunday February 22) Dana s wife told him that her mother told her that Calvin thought Dana started the union talk Dana went to Calvin s home and explained that he did not start the union campaign Calvin answered that he was taking all that with a grain of salt (i e that he was skeptical of such denials) Calvin pulled out a sheet of paper with a list of names and proceeded to read them off one by one asking Dana if each was present at the union meet ing Dana confirmed that all those named were present Calvin made remarks concerning some of those named He said that he was hurt because Dana was present He said that it also hurt him that Don Armer went be cause they had gone hunting together He said that he was also hurt by Joseph s presence because he had done a lot for Gary over the years As for his brother Rich and he said that Dick had been a thorn in his side since he had been there and he was going to take care of him Calvin added that he knew who the troublemakers were and would take care of them The foregoing find ings concerning the event of February 22 are based on Dana s testimony Calvin was not presented as a compa ny witness He was called to testify by the General Coansel concerning other matters I reject the Compa ny s argument (Br 15) that the February 22 conversation should be disregarded as being just a friendly family con versation that could not possibly have any bearing on the merits of this case As indicated Calvin employed mem bers of his family Calvin also felt free to fire family members when he was so inclined He fired his brother Russell in 1986 he fired Richard on February 23 and he fired Dana on March 19 3 It is evident that when it came to the business Calvin dealt with his family at arm s length Dana was an employee entitled to the protection of the Act See Laborers Local 282 (Millstone Construc tion) 236 NLRB 621 640-641 (1978) Under the Act the February 22 conversation should be considered in the same manner as any other conversation between an em ployer and employee I find in light of the evidence dis cussed above that Calvin instructed Supervisors Alexan der and Russell to spy on the union meeting and identify those employees who attended the meeting that the su pervisors did so and furnished Calvin with a list of the names of the employees who attended the meeting and that Calvin did so in order to intimidate the employees and obtain information in order to retaliate against the employees In the context of the February 22 conversa tion which concerned the union meeting Calvin s ex pressed anger at those who attended the meeting and his expressed intent to punish the troublemaker., I find 'Some testimony was introduced concerning the circumstances in which Russell and Dana were terminated However their discharges are not at issue in this case and I have not made any findings on the record for their terminations 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Calvin threatened to take care of Richard because of his union activity and not because of his work per formance and that Calvin s threat may properly be con sidered as evidence indicating the real reason for Rich and s subsequent discharge On Monday February 23 Richard was at work when he was summoned to Calvin s office Calvin said I hear you don t like working here Richard did not answer Calvin then declared that from your appraisal it has not improved and that you re fired Calvin did not show Richard any appraisal Richard was not aware of any actual or ostensible current appraisal and was not shown any such appraisal until he subsequently applied for un employment compensation (On January 19 Shop Fore man Thomas Eickholt gave Richard a written appraisal which will be discussed ) That same day when Dana came in from a run Chief Dispatcher Alexander told him that the shit hit the fan that there would be a safety meeting on Saturday and that the Company would be making changes includ ing two manning drivers Alexander subsequently told Dana that the Company would be making these changes because of the Union Two manning is a system that is usually used for a hot load (i e one that must run continuously and would not allow time for the driver to stop for sleep) Two drivers are assigned to the truck so that one can sleep in the truck while the other drives The drivers do not like this system because their pay is divided (i e the drivers divide their mileage loading and unloading pay) The Company also uses two drivers for training runs In these situations an experienced driver is assigned to a run with a new driver who al though qualified to drive the truck may not be familar with loading and unloading procedures (e g with liquid chemical loads) As will be discussed the testimony is in dispute concerning the manner of pay on these runs and whether they constitute two manning The safety meeting was conducted on February 28 as scheduled The drivers were not required to be present at the meeting and Gary Joseph chose not to attend Dana was present and testified concerning the meeting Calvin was present and addressed the employees Alex ander told the employees that the Company was going to start two manning One employee asked if the drivers were required to accept a two man run Alexander an swered No if you don t accept your two man run you just probably won t work the day Alexander testified that the employees were told that the Company had to train four new drivers because it anticipated new busi ness He testified that the Company also discussed insur ance and the purchase of new equipment However Al exander did not deny Dana s testimony concerning the meeting or Alexander s prior statements I credit Dana I find in light of his testimony that the Company initiated two manning in reprisal for the employees union activi ty and that the Company led the drivers to believe that they were not required to accept a two man run but would at most lose a day s work The Company fired Dana on March 19 Dana testified that at that time Alexander told him that he was fired be cause he went to the union meeting and that the em ployees were all getting their just desserts Dana s tes timony is uncontradicted and I credit his testimony As indicated Dana s discharge is not an issue in this case However I find that Alexander s statement may proper ly be considered as evidence on the discharges of Rich and and Joseph which are at issue I find that the Company by Alexander violated Sec tion 8(a)(1) of the Act by threatening Dana and Joseph with plant closure if the employees chose a union as their representative Alexander did not make a carefully phrased prediction of the possible economic conse quences of specific union proposals Rather he flatly equated unionization with plant closure I further find that the Company by Calvin violated Section 8(a)(1) by threatening to fire employees including Richard because of their union activities and that the Company by Alex ander violated Section 8(a)(1) by threatening more oner ous working conditions including two manning because of the employees union activity I also find that the Company by Supervisors Alexander and Russell violat ed Section 8(a)(1) by engaging in surveillance of a union meeting I further find that the Company by Calvin un lawfully created the impression of company surveillance of union activity by indicating to employee Dana that he had a list of employees who attended the February 21 union meeting and by Alexander also unlawfully cre ated the impression of surveillance of union activity by telling Dana that he and Supervisor Russell watched to see who attended the union meeting In its brief (pp 16 19) the Company argues that threats and surveillance are unlawful only when the General Counsel demonstrates that such conduct had an actual effect on the exercise of employee rights This is a misstatement of the law Threats surveillance and the impression of surveillance like other alleged violations of Section 8(a)(1) (e g promises and grants of benefit) are unlawful because they have an inherent tendency to interfere with re strain and coerce employees in the exercise of their stat utory rights See NLRB v Gissel Packing Co 395 U S 575 618-619 (1969) NLRB v Exchange Parts Co 375 U S 405 409-410 (1964) I further find that the Compa ny by Alexander violated Section 8(a)(1) by interrogat ing Dana and Joseph about their union activities and the union activities of their fellow employees Alexander had no legitimate reason to question the employees He did not give them any assurance against reprisal Rather the interrogation took place in the context of unlawful threats and against a background of known employer hostility to unionization In light of subsequent develop ments it is evident that the Company was seeking infor mation and a basis for reprisal against the employees Therefore the interrogation was unlawful This leaves the discharges of Richard Roeder and Gary Joseph Calvin Roeder did not testify concerning either matter Thomas Eickholt who was shop foreman and Richard s immediate supervisor in 1987 testified that he recommended to Calvin that Richard be discharged Roy Alexander testified that he recommended to Calvin that Joseph be discharged In each instance Calvin made the actual decision In the absence of any testimony by Calvin the testimony of Eickholt and Alexander has lim ited evidentiary value NORTH DIXIE TRUCK & TRAILER With regard to Richard Eickholt testified in sum as follows In January 1987 the Company began a practice whereby Eickholt prepared and gave a wntten appraisal to each of the employees under his supervision Pursuant to this practice Eickholt gave Richard an appraisal dated January 19 Thereafter Richards performance did not improve On Friday February 20 Eickholt prepared a written appraisal in which he expressed his opinion that at this time Richard Roeder cannot be considered an asset to the company and appropriate actions should be taken The appraisal was dated February 19 Eick holt did not show the appraisal to Richard Instead on the evening of February 20 he told Calvin about the ap praisal As indicated on February 23 Calvin discharged Richard The January 19 appraisal which was presented in evi dence contained spaces for entry of ratings in various areas of performance e g attendance and quality of work ranging from poor to excellent Richard was rated in seven listed areas as fair satisfactory or good He was not rated as either poor or excellent in any area The text of Richards appraisal was mildly critical of his perform ance Eickholt stated in sum that Richard was capable of performing almost all phases of the work but that he did not achieve full performance in that he spent too many hours on the job because he visited with other employees and had an attitude problem (Richards attitude was rated as fair) According to the appraisal the attitude problem stemmed from a family conflict and the fact that Richard wanted a raise Eickholt commented that Dick must improve on job results per man hours spent on a job within time frame set by North Dixie Management The time frame was not defined However the ap praisal was designated as an annual appraisal The Company did not give Richard any warning disciplinary notice or action or admonition other than the appraisal itself Eickholt initially testified that we talked to Richard many times but subsequently admitted that he first talked to Richard in January 1987 Eickholt had been Richards supervisor since January or February 1986 Eickholt s version of the events leading to Richard s termination is incredible Richard worked for the Com pany for a total of more than 4 years He quit twice and was rehired twice and worked continuously for the Company for nearly 2 years until his discharge The Company never gave him a written warning or other disciplinary action In the absence of a discriminatory motive it is unlikely in these circumstances that Calvin would summarily discharge his brother simply on the basis of a supervisors appraisal of his performance Moreover assuming that Richard was discharged for in adequate work performance his discharge would be in consistent with the Company s usual procedure in such cases Testimony and the Company s records indicate that such discharges would normally follow written warning or other disciplinary action The Company s records show that employee Terry Murphy who began working in early 1986 was discharged on July 10 1987 for poor work (leaving trailer dirty) The records also in dicate that Murphy was given numerous warnings and a 2 day suspension on June 22 for such poor performance 161 Calvin who was called only as a General Counsel wit ness testified that he knew nothing about the suspen sion However Eickholt testified that Calvin approved the suspension (Eickholt subsequently attempted to avoid responsibility for Murphy s suspension by contradicting his earlier testimony and asserting that he was a supervi sor on June 22) The Company s records also show that employee Anthony Van Winter was hired on October 1 1986 and discharged on October 19 1987 On January 20 or February 20 Eickholt gave Van Winter a ntten ap praisal that indicated his work was satisfatory but he was hesitant in making decisions Thereafter according to the Company s records Van Winter s work and atti tude deteriorated Nevertheless unlike Richard he was kept on the job Van Winter was given a written warn ing for absenteeism on July 9 and another warning on September 20 Calvin testified that he did not know why Eickholt did not give Richard any warning or disciple nary suspension I do not credit Eickholt Calvin made clear to Dana the real reason for Richards discharge I find in light of Calvin s statements the timing of the discharge the pre textural reason given by the Company for the discharge the demonstrated lack of credibility of Eickholt and Calvin and the absence of any testimony by Calvin con cerning the discharge that Calvin fired Richard because of his union activity and for no other reason I find that the alleged February 19 appraisal was probably prepared on the morning of February 23 as a pretext for the dis charge after Calvin learned that his brother attended the union meeting Therefore the Company violated Section 8(a)(1) and (3) of the Act by discharging Richard Roeder Gary Joseph worked for the Company as a truckdriv er He was employed by the Company from 1976 to 1979 quit was rehired in 1982 and worked continuously for the Company until his discharge on March 2 The Company prior to February 26 never gave Joseph a reprimand or other disciplinary action In November 1986 Chief Dispatcher Alexander asked Joseph to take a two man run They argued Joseph agreed to take the run but said that from then on he wanted another truck specifically another truck that was not suitable for two man runs Alexander switched Joseph to another run gave him an old truck and thereafter until March 1 Joseph was never assigned a second driver During the week following the union organizational meeting Joseph was running a tanker truck On Tuesday or Wednesday he found the inside of his cab covered with grease He cleaned the cab and proceeded on his run Each day Joseph called the dispatch office to get his assignment Alexander did not object to this procedure However on Friday when Joseph picked up his pay check the check was accompanied by a wntten warning notice to Joseph dated February 26 admonishing him for needless late night or early morning calls to dispatcher for reasons that do not require his or her notification Joseph protested to Alexander but Alexander offered no explanation and he did not testify about the matter As indicated Joseph did not attend the February 28 safety meeting Joseph testified in sum concerning the 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD events of March 1 and 2 as follows On Sunday evening March 1 Alexander called Joseph to assign him a run Alexander said that Joseph had to take a new driver with him Joseph answered that he would not two man Alexander insisted that Joseph had to take the run and said that he would get back to Joseph About 15 minutes later Alexander called again saying that Calvin said he had to take the run or be terminated Joseph an swered that he was not quitting and that Calvin could do whatever he wanted Joseph next called Union Bu sines Agent Rhinock who advised him to take the run About 30 minutes after his second conversation with Al exander Joseph called Alexander and said he would take the run Alexander answered that the run was covered and Joseph should bung in his truck on Monday When Joseph came in the next day he was summoned to the office where supervisors Alexander and Russell told him that he had voluntarily quit Joseph denied that he quit and refused to sign a resignation form Chief Dispatcher Alexander testified that Joseph was discharged on March 1 for refusing a dispatch Alexan der testified that on the evening of March 1 he called drivers to assign runs proceeding in order of seniority he first called Don Armer and assigned him a training run which Armer accepted Alexander next called Joseph to assign him a training run although Joseph was fifth in seniority among the Company s 16 to 18 drivers According to Alexander no driver with higher seniority was available for a training run As found Armer initiat ed the union campaign and Calvin in his conversation with Dana explained that he was hurt by the presence of Armer and Joseph at the union meeting Alexander testified that Joseph answered that he would not go be cause he was not going to put his life in someone else s hands Alexander said he was not doing that and that Joseph previously went on training runs He asked if Joseph was sure he would not make the run and Joseph said he was According to Alexander he said if Joseph did not go he was terminating himself whereupon Joseph answered that he was not going to quit However in his investigatory affidavit Alexander did not indicate any other driver and that the supervisors would always confer with Calvin before terminating an employee On being confronted with his affidavit Alexander testified that he was not sure what he said in this first conversa tion Alexander testified that he next called Calvin who agreed that Joseph should be terminated Alexander again called Joseph who again declined the run Alexan der admitted in his testimony that he could have assigned Joseph a single run Instead of offering Joseph an alter native run he proceeded down his list until he complet ed all assignments No other driver refused a run Alex ander testified that some 60 to 75 minutes after his second conversation Joseph called and said he changed his mind Alexander answered that Joseph was too late and that the dispatch was completed Alexander testified that he could not recall whether he knew at the time that Joseph was involved with the Union In view of Al exander s surveillance of the union meeting his assertion is incredible Joseph testified that when he previously ran training runs he was put on half pay Alexander testified that on training runs the trainer gets full pay If this was true then the Company could have produced payroll records to substantiate Alexander s testimony However the Company did not do so Alexander s testimony is uncor roborated Between Joseph and Alexander I credit Josepn As indicated I have problems with Alexander s credibility I have no comparable problems with Joseph s testimony I credit his testimony concerning the events of March 1 After Joseph attended the union organiza tional meeting the Company proceeded to harass him giving him an unwarranted disciplinary warning On March 1 the Company assigned training runs to Armer and Joseph in reprisal for their union activity When Joseph refused to accept the run Calvin used his refusal as a pretext to fire him Because the assignment itself was discriminatory it follows that the discharge was also un lawful Even if the assignment were not discriminatory the Company would not absent a discriminatory motive have discharged Joseph for refusing to take the run In stead the Company would have assigned Joseph to a single run (in accordance with their standing arrange ment) or simply denied him a run that day in accord ance with company policy as stated at the February 28 safety meeting I find that the Company discharged Joseph because of his union activity and for no other reason and thereby violated Section 8(a)(1) and (3) of the Act Regarding both Richard and Joseph the Getter al Counsel presented a prima facie case that the Compa ny discharged them because of their union activity and the Company failed to meet its burden of establishing that it would have discharged them in the absence of such activity 4 CONCLUSIONS OF LAW 1 Respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 By interfering with restraining and coercing its em ployees in the exercise of the rights guaranteed in Sec tion 7 of the Act the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 By discriminating in regard to the tenure of employ ment of Richard Roeder and Gary Joseph thereby dis couraging membership in the Union the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 4 Following their terminations Richard and Joseph each applied for un employment compensation The Company contested both claims Both initially and on review the Ohio Department of Unemployment Compen sahon sustained Richards claim and denied that of Joseph The depart ment concluded that Richard was discharged without just cause and that Joseph was discharged for just cause because he refused a reasonable as signment from his Employer Both determinations were substantially based on an overall appraisal of the evidence rather than on any finding or findings concerning disputed operative facts As the department did not in either proceeding consider whether the employees were dis charged because of their union activity the determinations have minimal evidentiary value in the present case However I have considered both determinations in making this decision NORTH DIXIE TRUCK & TRAILER 163 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act THE REMEDY Having found that the Company has committed viola tions of Section 8(a)(1) and (3) of the Act I shall recom mend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the Company discriminatorily ter minated Richard Roeder and Gary Joseph it will be rec ommended that the Company be ordered to offer each of them immediate and full reinstatement to his former job or if it no longer exists to a substantially equivalent po sition without prejudice to his seniority or other rights and privileges previously enjoyed and make him whole for any loss of earnings and benefits that he may have suffered from the time of his discharge to the date of the Company s offer or reinstatement I shall also recom mend that the Company be ordered to expunge from its records any reference to the unlawful discharges of Roeder and Joseph to give written notice of such ex punction to each of them and to inform each of them that its unlawful conduct will not be used as a basis for future personnel actions against them See Sterling Sugars 261 NLRB 472 (1982) Backpay shall be comput ed in accordance with the formula approved in F W Woolworth Co 90 NLRB 289 (1950) with interest as computed in New Horizons for the Retarded 283 NLRB 1173 (1987) 5 It will also be recommended that the Com pany be required to preserve and make available to the Board or its agents on request payroll and othe records to facilitate the computation of backpay due On these findings of fact and conclusions of law and on the entire record I issue the following recommend ede ORDER The Respondents North Dixie Truck & Trailer Cal s Trucking Inc and Roeder Cartage Company Inc their officers agents successors and assigns shall 1 Cease and desist from (a) Discouraging membership in Teamsters Local Union No 908 a/w International Brotherhood of Team sters Chauffeurs Warehousemen and Helpers of Amer ica AFL-CIO or any other labor organization by dis criminatonly terminating employees or in any other manner discriminating against them with regard to their hire or tenure of employment or any term or condition of employment (b) Threatening to discharge employees because of their union activity 5 Under New Horizons interest on and after January 1 1987 is comput ed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 6 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses (c) Threatening employees with plant closure more onerous working conditions or other reprisal because of their union activity (d) Interrogating employees about their union attitude or activities or those of their fellow employees (e) Engaging in surveillance of union activities (f) Creating the impression of surveillance of union meetings or other union activity by telling employees that the Company engaged in such surveillance or by in dicating that the Company knows who attended union meetings (g) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Richard Roeder and Gary Joseph immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision (b) Remove from their files any reference to the dis charges of Richard Roeder and Gary Joseph and notify each of them in writing that this has been done and that evidence of the unlawful discharges will not be used as a basis for future personnel actions against them (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at their Lima Ohio office and place of busi ness copies of the attached notice marked Appendix 7 Copies of the notice on forms provided by the Regional Director for Region 8 after being signed by the Re spondent s authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the national Labor Relations Board 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT discourage membership in Teamsters Local Union No 908 a/w International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO or any other labor organization by discriminatorily terminating employees or in any other manner discriminating against them with regard to their hire or tenure of employment or any term or condition of employment WE WILL NOT threaten to discharge employees be cause of their union activity WE WILL NOT threaten employees with plant closure more onerous working conditions or other reprisal be cause of their union activity WE WILL NOT interrogate employees about their union attitude or activities or those of their fellow employees WE WILL NOT engage in surveillance of union activi ties WE WILL NOT create the impression of surveillance of union meetings or other union activity by telling employ ees that we engaged in such surveillance or by indicating that we know who attended union meetings 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 Richard Roeder and Gary Joseph im mediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent po sitions without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other ben efits resulting from their discharge less any net interim earnings plus interest WE WILL remove from our files any reference to the discharges of Richard Roeder and Gary Joseph and notify them in writing that this has been done and that evidence of the unlawful discharges will not be used as a basis for future personnel actions against them NORTH DIXIE TRUCK & TRAILER CAL S TRUCKING INC AND ROEDER CARTAGE COMPANY INC