Palomar Transport, Inc.

National Labor Relations Board - Board Decisions

Jul 10, 1981

256 N.L.R.B. 1176 (N.L.R.B. 1981)

1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Palomar Transport, Inc. and Building Material &
Dump Truck Drivers Local 420, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America.
Case 31-CA-9738
July 10, 1981
DECISION AND ORDER
On March 17, 1981, Administrative Law Judge
Clifford H. Anderson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions 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, Palomar Trans-
port, Inc., Upland, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
i Member Jenkins would not rely on Wright Line, a Divivion of Wright
Line, Inc., 251 NLRB 1083 (1980), inasmuch as the Administrative Lasw
Judge found Respondent's asserted defenses to be specious and pretex-
tual, so that no real dual motive is involved.
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on backpay due
based on the formula set forth therein
DECISION
STATEIMENT OF THE CASE
CIIFFORD H. ANDERSON, Administrative Law Judge:
This case was heard before me on October 30 and No-
vember 12, 1980, in Los Angeles, California, pursuant to
a complaint and notice of hearing issued by the Regional
Director for Region 31 of the National Labor Relations
Board (hereinafter the Regional Director) on May 7,
1980, which was based upon a charge filed by Building
Material & Dump Truck Drivers Local 420, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (herein
the Charging Party) on January 30, 1980, against Palo-
mar Transport, Inc. (herein the Respondent).
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the National Labor Relations Act,
as amended (herein the Act), by: (I) delaying the imple-
mentation of certain employee benefits and so informing
employees in order to influence employee votes in an
election, (2) promulgating, maintaining, and enforcing a
rule restricting employee use of a bulletin board because
of employee union activities, and (3) reducing the
256 NLRB No. 177
amount of field and charter trips assigned to employees
Jenner, Miranda, and Schexnyder because of their union
activities. Respondent denies that it has violated the Act.
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to exam-
ine and cross-examine witnesses, to argue orally, and to
file post-hearing briefs.
Upon the entire record herein, including a post-hear-
ing brief filed by the General Counsel, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent has been at all relevant times a California
state corporation engaged at Upland, California, in the
business of providing buses and drivers to transport spe-
cial education students to and from school. In its business
operations Respondent annually enjoys a gross dollar
volume of business in excess of $500,000 and annually
purchases goods and services of a value in excess of
$10,000 from sellers or suppliers located in the State of
California, which sellers or suppliers received such
goods and services in substantially the same form direct-
ly from outside the State of California.
II. I.ABOR ORGANIZATION INVOLVED
The Charging Party is now, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background
Respondent contracts with school districts to deliver
special education students to and from school. It also
transports students on field trips to designated locations,
normally during school hours. Respondent also offers its
bus service to charter customers. Thus, Respondent
offers regular school route services, field trip services,
and charter services.
Respondent's corporate president, general manager,
and principal shareholder is Richard Harney. James
Gehle had been vice president and general manager of
Respondent until about January 1980, at which time he
left Respondent's employ. Thereafter, Harney assumed
the general manager responsibilities and Suzette Jo
Hubert became operations manager. Hubert also assumed
certain of Gehle's duties. These individuals, along with
Dennis Miranda, Respondent's driver-trainer and safety
officer, are admitted agents of Respondent.
fter the commencement of an organizational campaign
among Respondent's employees, the Charging Party filed
a representation petition on May 2, 1979, in Case 31-
RC-4500. An election was held on October 26, 1979,
and, following the resolution of challenges to certain bal-
lots and objections filed to the conduct of the election,
the Charging Party was certified on September 4, 1980,
as the exclusive representative of certain of Respondent's
employees.
PALOMAR TRANSPORT, INC. 1177
On May 19, 1980, Administrative Law Judge Joan
Wieder issued a Decision in Case 31-CA-9125 involving
Respondent and the Charging Party. That Decision was
adopted by the Board on June 24, 1980, in the absence of
exceptions filed by any party. The findings therein in-
cluded, inter alia, an illegal threat by Gehle to employee
Jacklyn Jenner that Respondent would use substitute
drivers if the employees "went union" and other interro-
gations, threats, and wrongful solicitations of employee
grievances by Respondent's agents.
B. The Incentive Plan and Daily Rate Allegations
1. The evidence
The General Counsel alleges, and Respondent in its
answer admits, that Respondent delayed implementation
of its incentive plan and the establishment of daily rates
for its route drivers until after the election held on Octo-
ber 26, 1979. In connection therewith, the General Coun-
sel alleges and Respondent denies that Richard Harney
(I) on or about October 12, 1979, told an employee that
Respondent would reinstitute the incentive plan "after
the whole union business is over with," and (2) on or
about October 22, 1979, told an employee that the incen-
tive plan would be reinstituted after the election.
The record is not crystal clear as the specifics of the
daily rate for route drivers. It appears that, after route
drivers have learned their new routes at the beginning of
the academic year, i.e., about the second week of the
school year, the hourly rate paid drivers is transformed
into a daily rate paid for completion of a particular
route. Thereafter, even if a driver spends less time on the
route, he or she receives the daily rate rather than an
hourly rate for time worked. Where, for example, a
school operates on a temporary abbreviated schedule, the
driver on a daily rate would receive a full day's pay
whereas, at an hourly rate, the driver's pay would be re-
duced.
Historically, the employee incentive plan was a system
providing for the organization of drivers into teams and
the monitoring of team attendance. Substantial dollar bo-
nuses were paid to employee teams that met the system's
attendance goals. According to the unchallenged testimo-
ny of employee Patricia Sinatra, an incentive program
had operated in academic years 1978-79 and 1980-81,
but was delayed for 2 months in academic year 1979-80.
Former employee Gerard Aubin testified that Richard
Harney initiated a conversation with him on October 22,
1980, in which Harney asked Aubin to vote in the up-
coming election and expressed general views in opposi-
tion to the Union. Harney asked Aubin if he knew any-
thing about Respondent's incentive plan. Harney said
that he would go into further detail about the incentive
plan at a driver meeting that he would schedule about a
month after the election. Aubin recalled under cross-ex-
amination that Harney also said that "after the whole
union business is over, the company's incentive plan was
to be reinstated." Aubin's memory of this conversation
was not complete or sure. His testimony was uncontra-
dicted, however, and his demeanor was convincing. I
credit his testimony.
Employee Patricia Sinatra testified to a conversation
with Harney at his initiative occurring 10 days to 2
weeks before the election; i.e., on or about October 12,
1979. Sinatra recalled that Harney mentioned the upcom-
ing election and expressed his opinion that the Union
was unnecessary. She also testified that Harney told her:
"After this union business is over, I plan to reinstate the
incentive plan." Sinatra, too, had a hazy recollection of
the conversation, but evinced a specific recollection of
the words quoted above. She impressed me as an honest
witness attempting to truthfully answer the questions
and, of course, her testimony was unchallenged by
Harney. I credit Sinatra.
2. Analysis and conclusions
It is undisputed that Respondent had previously imple-
mented employee incentive plans and daily rates soon
after the commencement of the new school year. It is ad-
mitted that both were delayed in October 1979 until after
the October 26 election. It is now axiomatic that employ-
er deviations from normal methods of employee remu-
neration during the period immediately preceding an
election are presumed to be intended to influence the
election and are violative of Section 8(a)(3) and (1) of
the Act unless explained by the employer. Respondent
has proffered no explanation here. I find, therefore, that
by delaying the customary implementation of the incen-
tive plan and the daily rate until after the election, Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
Respondent's statements through Harney to employees
Sinatra and Aubin are both corroborative of the above,
and each independently violate Section 8(a)(l) of the
Act. To inform employees that an incentive plan-per-
force of possible benefit to employees-would be held in
abeyance until after the election or "until this union busi-
ness is over" is to make it appear that benefits to which
employees are otherwise entitled are potentially contin-
gent upon the results of the election. Such statements
violate Section 8(a)(1) of the Act and I find such to be
the case here.
C. The Bulletin Board Allegations
1. The evidence
The General Counsel alleges, and Respondent in its
answer admits, (1) the creation and promulgation of a
rule on October 5, 1979, prohibiting employee posting of
materials on an employee bulletin board without express
approval of Respondent, (2) the written modification of
that rule on October 12, 1979, adding the requirement
that Respondent's approval of posting be stamped on the
item to be posted, and (3) the written restatement of the
rule on December 12, 1979, requiring that materials to be
posted be approved in writing, bear the name of the
posting employee, and be appropriately stamped by Re-
spondent's agent.
Respondent's defense to the allegation appears to be
primarily that union literature continued to be distributed
at the facility and that no employee asked to post union
literature after the above rules were put into effect.
Harney testified that a new bulletin board was purchased
PALOMAR TRANSPORT, NC.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in early October 1979 which, unlike the old rather simple
board, was covered with glass and was lockable. He tes-
tified that one reason for purchasing this enclosed board
was the fact that notices posted previously had been de-
faced.
2. Analysis and conclusions
As noted previously, a presumption exists in Board
law that actions taken during the immediate preelection
period which change employee conditions of employ-
ment are presumed to be undertaken for purposes of in-
fluencing the election unless they are justified by the em-
ployer. Here the changes clearly commenced in the im-
mediate preelection period. Respondent's argument that
its limitation on posting did not affect distribution in
other areas of the facility is immaterial. The rules were
likely to and did reduce posting of such literature on the
bulletin board. The Board has found the promulgation of
rules requiring approval of postings in the context of an
organizational campaign to violate Section 8(a)(l) of the
Act. Liberty Nursing Homes, Inc., d/b/a Liberty House
Nursing Home, 236 NLRB 456 (1978). I so find here. In
so finding, I do not reject the defense that under certain
circumstances an employer may limit bulletin board use.
Respondent's argument that postings were previously de-
faced is insufficient, however, to support any finding of a
temporal relationship between the change to a locking or
sealed board and the fact that notices had been defaced
in the unspecified past.
D. Allegation of Denial of Field Trips and Charters to
Employees Schexnyder, Jenner, and Miranda
The General Counsel contends that Respondent retali-
ated against its employees by eliminating their opportuni-
ties to work field and charter trips in addition to regular
school route driving. Respondent denies the allegation.
1. The evidence
a. The General Counsel's case
The parties stipulated that employees Schexnyder,
Jenner, and Miranda were the primary union organizers
actively urging other employees to support the Charging
Party and that Respondent had knowledge of their activ-
ities beginning in April 1979. Jenner had been credited
by Administrative Law Judge Wieder in her testimony in
the earlier proceeding that, in late April 1979, Harney
and Gehle met with her and interrogated her about her
union activities. Gehle told her that, if the Charging
Party organized Respondent, it might utilize "sub-
drivers" to employees' detriment. Harney added that if
employees wanted a union, he could bring in replace-
ments who did not want a union. Schexnyder was also
credited by Administrative Law Judge Wieder, who
found additional violations based on her testimony attrib-
uting certain remarks made to her by Harney. Miranda
was challenged as a voter in the election by Respondent
as a relative of a union employee. Miranda's husband is
the Charging Party's business representative.
The General Counsel adduced the unchallenged fact
that each of the employees had been a satisfactory
schoolbus route driver for Respondent at all relevant
times. Further, he showed that employees Jenner and
Miranda had availed themselves of the opportunity to
work as field trip and charter drivers regularly until May
1979 when such trips stopped. Schexnyder worked field
and charter trips until June 27, 1979, but did not thereaf-
ter have such an opportunity, with a single exception,
until May 1980.
Jenner and Schexnyder each credibly testified that she
had asked Gehle why she was no longer receiving field
trips. Jenner was told by Gehle in December 1979 that
she could have a particular route the next time it was
available but she never received it. Schexnyder had
asked Gehle why she had received no field trip assign-
ments in September 1979 and had received no response.
Gehle did not testify.
b. Respondent s asserted defnses
Respondent suggested several economic factors which
caused a redistribution of field trip and charter opportu-
nities among its staff in recent years. First, Respondent
noted that California's Proposition 13, which passed in
November 1978, caused a revenue squeeze on school dis-
tricts which substantially reduced the amount of school
field trips. Respondent also suggests that its loss of a
major busing contract at the end of academic year 1978-
79 eliminated work that had occupied 6 full-time route
drivers and the part-time participation of 13 to 14 others.
Respondent also noted that it had been admonished by
state authorities in June 1979 to comply with regulations
restricting the amount of time that a driver could drive a
bus in a given period. Thereafter, Respondent argues it
took additional steps to avoid assigning drivers an excess
of hours in a given day thus violating the state require-
ment. This, argues Respondent, also contributed to a re-
duction in the additional assignments given to school
route drivers.
Respondent also asserted that over time it has in-
creased the staff of its charter drivers-as opposed to
route drivers-from 6 in 1977-79 to 9 in 1978-79 and to
II in 1979-80. These charter drivers had preference, Re-
spondent argues, in available charter work so that as
their numbers increased there was less work available for
assignment to school route drivers.
c. The records
Respondent introduced, without objection from the
Charging Party or the General Counsel, voluminous
business record summaries concerning field and charter
trips detailing driver identity, hours spent, dates, and
type of trip taken in the years 1978, 1979, and part of
1980. These records are, in my view, superior evidence
to recollections of the drivers as to hours and time
worked and I credit them over any contrary evidence.'
Respondent's records indicate that Schexnyder under-
took extra trips once each month in January, February,
i Respondent also entered into he record without objection, supple-
mental records derived from the above summaries submitted I find these
to he in the nature of argument based on the raw data submitted and rely
onl them only where iot inconrsistenlt ibth Ihe summaries noted, upra
PALOMAR TRANSPORT. INC. I 1 79
and May, 1978 and then commenced a far heavier sched-
ule of extra trips in July, August, and September, 1978
averaging about five trips per month. She did no further
extra work until February 1979. In February through
June 1979, she averaged about four trips per month.
Save for a single trip in December 1979, she did not
work extra trips until May 1980. In May, June, July, and
August, 1980 she was working at a rate of three or more
extra trips per month. Her trips were primarily charter
trips, with but four field trips taken in 1978 and 1979 and
a single field trip taken in the noted months in 1980.
Ruth Miranda undertook 12 extra trips in 1978, of
which 4 were charters. Nine of these trips occurred from
February 27 through May 29, 1978, with the remaining
trips occurring on August 24, November 11, and Decem-
ber 8. In 1979, Miranda worked but three charter trips:
on February 16, April 27, and May 18. She has not
worked extra trips since.
Jackie Jenner drove 11 extra trips in 1978 with her
extra trips spaced roughly equally through the regular
school months. She took four trips in 1979 on February
16, April 26, April 27, and May 18, respectively. Her
nine trips during academic year 1978-79 were all charter
trips but for a single field trip. Jenner has not taken an
extra trip since May 18, 1979.
Respondent had increasing annual revenues from
charters in the relevant period. The total number of
record field and charter trips taken was as follows: 1,115
in 1978, 704 in 1979, and 1,192 in the noted portion of
1980.
2. Analysis and conclusions
a. Ruth Miranda
The General Counsel's case as to Miranda consists of:
(1) the animus noted, (2) the fact that she was challenged
as a voter based on her relation to an official in the
Charging Party, and (3) that after May 18, 1979, she
ceased being assigned field and charter trips.
While Miranda testified that she enjoyed a regular and
substantial extra trip schedule which ended precipitously
in May 1978, Respondent's records do not bear her out.
Consistent with my earlier determination, I discredit Mir-
anda where her testimony is in conflict with the business
record summaries which were received into the record
from Respondent without objection by the General
Counsel or the Charging Party. These records indicate
that Miranda worked no field trips after academic year
1977-78 and that she drove but five trips in academic
year 1978-79. Miranda testified that she regularly drove
a particular group of senior citizens. Respondent's re-
cords indicate that from January to June 1979 Miranda
drove at most three of these trips, while almost twice
that number were taken by other drivers. In the period
of September through December 1979, the record indi-
cates there were but two similar trips taken involving
these senior citizens and in each case a full-time charter
driver drove the assignment.
Respondent's agent assigning field/charter trips from
May and June 1979 into early 1980 was Gehle. After he
left Respondent's employ, the assignments were under-
taken by Hubert and Harney. Harney and Hubert denied
any impermissible considerations in making work assign-
ments. Gehle was not called to testify. 2
I find that the General Counsel's proof with respect to
Miranda is insufficient to sustain his burden. At the
threshold, animus as to Miranda is derivative. She re-
ceived no direct threats from Respondent's agents.
Second, and more importantly, the pattern of extra trip
reduction established by Respondent's records does not
sustain a finding that Miranda's work assignments were
suddenly denied at the end of academic year 1978-79 be-
cause of her union or protected concerted activity.
Respondent has established the various factors noted,
supra, justifying the decrease in extra work assignments
among route drivers. Miranda's trips in academic year
1977-78 were essentially limited to charters and were
substantially reduced in academic year 1978-79. Miranda
testified that the trip she lost was the senior citizen route
noted above. The evidence credibly shows that others
took the bulk of these runs in academic year 1978-79. In
the first half of academic year 1979-80, which is the time
Miranda lost all extra work, these runs were taken over
exclusively-so far as the records reflect-by charter
drivers, not route drivers. Thus, under Gehle's period of
responsibility, only charter drivers took the work the
General Counsel claims was illegally denied Miranda.
Given the defense concerning charter drivers, noted
supra, this record is simply not sufficient to sustain the
General Counsel's case.
Based upon all of the above, I find the evidence of
animus too weak, the evidence of a pattern of work un-
dertaken by Miranda too uncertain, and the evidence of
a diminution of charter work by route drivers, and Mir-
anda in particular, too clear to find a violation here. I
shall therefore dismiss this aspect of the complaint.3
b. Kathy Schexnyder
Schexnyder, a very senior route driver, sought extra
work and received it on a regular basis through 1978 and
until June 1979. Thereafter, she received but a single
extra trip in December 1979 until May 1980, whereupon
she was again assigned extra trips until the end of the
summer season.
Gehle, as previously noted, interrogated and threat-
ened Schexnyder in April 1979. Her loss of hours in June
was precipitous and not credibly explained by Respond-
ent's records or its other asserted defenses. Schexnyder
asked about her lost work, as noted supra, but did not re-
2 No adverse inference mav he drawn from this fact for, at the time of
the hearing. Gehle 'was not in Respondent's employ and assumedly was
available to any party
3 In reaching the above conclusion. I have also considered the testimo-
ny Hubert that she had a conversation with Miranda in late January or
early February 1979 in which Hubert asked Miranda if she wished to
have extra field trips or charters. Hubert testified that Miranda answered
that she did not desire extra trips at this time but would let Hubert know
if she did Miranda denied ever having had such a conversation with
Hubert and denied she ever had declined an opportunity for extra work.
I found each witness credible. The) appeared equally honest and forth-
right. I credit Miranda, however, that she did not assert to Hubert that
she did not desire additional work I find that if Hubert did ask such a
question, it was either misundcrstoxd by Miranda--and hence her answer
was not responsive an was misunderstood-or that Hubert had confused
Miranda with another employee in this regard
PALOMAR TRANSPORT. INC I 1)
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceive a response from Gehle. Respondent's defense that
it lost a significant "ROP" contract is not relevant here,
for Harney testified that the contract was lost in June
1978 and Schexnyder credibly testified that she did not
drive the routes in question in academic year 1978-79.4
Unlike Miranda, supra, the record as to Schexnyder
shows affirmative attempts to gain work and violative
threats directed at her by management agents. This is
substantial evidence, and the General Counsel has ac-
cordingly met its burden of proof with respect to Schex-
nyder. Respondent has not met its obligation to meet this
prima facie case. Wright Line, a Division of Wright Line,
Inc., 251 NLRB 1083 (1980). I find that by cutting
Schexnyder's extra trips beginning in June 1979, Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
I shall defer any quantification of lost hours to the com-
pliance stage of these proceedings.
c. Jackie Jenner
Jackie Jenner worked extra trips at about a monthly
rate through all of 1978 and in academic year 1978-79
until May 1979. Thereafter, she did not receive any
charter or field trip work. In April 1980, she experienced
an unspecified on-the-job injury and left Respondent's
employ.
Jenner was directly threatened in April 1979 by
Harney and Gehle with, inter alia, threats of adverse
consequences to employees if a union came in and
threats to use substitute drivers to adversely affect em-
ployees. Animus is thus clearly indicated. Jenner also tes-
tified without contradiction that she had asked Gehle in
December 1979 if her normal monthly charter trip in-
volving senior citizens from San Antone Garden and
Claremont Manor was still in existence. Gehle said it
was. She then asked for the next such trip and Gehle
said she could have it. Despite this conversation she did
not receive the next or any subsequent trip.
Unlike the circumstances of Miranda, supra, Jenner
had not experienced a reduction in her charter assign-
ments prior to their sudden elimination in May 1979.
Further, there is uncontradicted evidence, which I
credit, that Gehle was asked about Jenner's charter work
and told her that the work continued to exist and that
she could have the next assignment. Here, as with Schex-
nyder, there were direct threats and a precipitous loss of
extra work. Here, Gehle told her the work previously as-
signed could be hers. Such evidence is sufficient to sus-
tain the General Counsel's burden. Respondent's defenses
clearly fail to meet its burden here. Wright Line, supra.
Based upon all the above, I find that Respondent vio-
lated Section 8(a)(3) and () in withholding extra trips
from Jenner, commencing in May 1979 and continuing
through her employment with Respondent.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
I Respondent presumably would have introduced records to discredit
Schexnyder in this regard if those records existed.
3. Respondent has violated Section 8(a)(1) or the Act
by informing employees that their wage reorganization,
known as the daily rate, and the reinstitution of an em-
ployee incentive plan would be delayed by, and, by im-
plication, be at risk depending on the result of, the union
election.
4. Respondent has violated Section 8(a)(3) and (1) by
taking the following action because of employees' union
activities:
(a) delaying the implementation of employee incentive
and daily rate plans.
(b) promulgating, maintaining, and enforcing rules re-
stricting employee access to and use of the bulletin
board.
(c) restricting and/or denying the assignment of field
trips and charter opportunities to employees Jackie
Jenner and Kathie Schexnyder.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except as noted above Respondent has not violated
the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
Having found that Respondent wrongfully delayed the
implementation of its incentive and daily rate plans until
after the election, I shall order Respondent to make
whole any and all employees who have suffered a loss of
wages or other bonuses or benefits becauee of the
wrongful delay in implementation of the plans.
Having found that Respondent promulgated, main-
tained, and enforced rules restricting access to its bulletin
board, I shall order Respondent to rescind said rules.
Having found that Respondent wrongfully withheld
extra trip assignments from employees Jackie Jenner and
Kathy Schexnyder, I shall order Respondent to restore
said extra trip assignments to employee Schexnyder and
to make Jenner and Schexnyder whole for their loss of
wages and other benefits they would have received had
they been assigned the extra trips wrongfully withheld
from them.
All of the above losses shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest calculated in accordance with
the policy of the Board set forth in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See also Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Based upon the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
PALOMAR TRANSPORT, INC. 1181
ORDER s
The Respondent, Palomar Transport, Inc., Upland,
California, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Threatening to delay or postpone employee incen-
tive and daily rate plans until after the union election.
(b) Delaying or postponing employee incentive and
daily rate plans until after the union election.
(c) Promulgating, maintaining, and enforcing rules re-
stricting employee access to and use of the bulletin
board.
(d) Denying employees field trips or charter driving
assignments because of their union activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make whole those employees who have lost wages
or other benefits as a result of the delay in the implemen-
tation of the incentive and daily wage plan, with appro-
priate interest, in accordance with the portion of this De-
cision entitled "The Remedy."
(b) Rescind the rules found violative herein restricting
employee bulletin board access and use.
(c) Assign to employee Schexnyder those field trips
and charter trips she would have received but for the il-
legal discrimination against her.
(d) Make whole employees Schexnyder and Jenner for
any loss of wages and other benefits they may have suf-
fered because of the discrimination against them, with
appropriate interest, in accordance with the portion of
this Decision entitled "The Remedy."
(e) Post at its Upland, California, facility copies of the
attached notice marked "Appendix."6 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by its authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
s 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 find-
ings, conclusions, and recommended Order herein shall, as prosided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Hoard and
become its findings. conclusions. and Order and all objections, thereto
shall be deemed waived for all purposes
s In the event that the Boards, Order is enforced by a Judgnielnt of a
United States Court of Appeals, the wiords in the notice reading "Posted
by Order of the National Labor Relations Hoard" shall read "Posted P'ur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
(g) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
3. All allegations of the complaint not found to have
merit herein and all motions inconsistent with the above
are dimmissed.
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 opportunity 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 or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WIll. NOT threaten to delay employee incen-
tive plans and daily rate changes because of a union
election.
WE WIll. NOT delay employee incentive plan or
daily rate implementation because of a union elec-
tion.
WE WILL. NOr put into effect rules restricting em-
ployee use or access to our bulletin board because
of employees' union activities.
WE WII.l NOT deny our employees opportunity
to drive field trips or charters because of their
union activity.
WE Wll.I. NO'I' in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
WE WII.l make employees whole for any loss of
wages and benefits they may have suffered as a
reslut of our delay in implementing our incentive
and daily rate plan and we will also pay employees
appropriate interest on the amounts due them.
Wli wit.l rescind the rules restricting employee
use of or access to our bulletin board.
WE Wlli., make employees Kathy Schexnyder
and Jackie Jenner whole for any loss of wages and
benefits they may have suffered as a result of our
withholding opportunity to drive field trips and
charter trips and we will also pay to them appropri-
ate interest on the amounts due.
W will cease withholding charter and field trip
assignments from Kathy Schexnyder and will offer
PALOMAR TRANSPORT, INC. 81
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her those field trips and charter assignments which discrimination against her based on her union activi-
we would have offered her but for our wrongful ties.
PALOMAR TRANSPORT, INC.