W.C. McQuaide, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1995

319 N.L.R.B. 756 (N.L.R.B. 1995)

756
319 NLRB No. 95
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 With regard to the judge’s conclusion that the Respondent se-
lected employee Ivan Wilson for layoff in violation of Sec. 8(a)(3)
and (1), we reject the Respondent’s contention that Wilson’s layoff
was not discriminatory because the Respondent also laid off other
employees who were not union supporters. See, e.g., Eddyleon Choc-
olate Co., 301 NLRB 887, 890 (1991) (in the face of intense union
animus and incredible explanations for the selection criteria, the fact
that employees who did not support the union were also laid off
does not preclude a finding of discrimination). 1 Certain errors of the transcript have been noted and corrected.
W. C. McQuaide, Inc. and Joseph Patula and Scott
Bodenschatz and Barry Michalides and Team-
sters Local Union 429 a/w International Broth-
erhood of Teamsters, AFL–CIO and Freight
Drivers, Dockworkers and Helpers, Local
Union No. 24 a/w International Brotherhood of
Teamsters, AFL–CIO and Thomas H. Boyes
and Randy L. Hunter and Raymond B. Webb
and David F. Rich and Timothy Wingard and
James C. Weatherholtz. Cases 6–CA–24491, 6–
CA–24500, 6–CA–24507, 6–CA–24636, 6–CA–
24968–1 (Formerly 8–CA–24068), 6–CA–24968–
2 (Formerly 8–CA–24272), 6–CA–24968–3 (For-
merly 8–CA–24334), 6–CA–24968–4 (Formerly
8–CA–24416), 6–CA–24968–5, (Formerly 8–CA–
24531), 6–CA–24968–6 (Formerly 8–CA–24606),
6–CA–24968–7 (Formerly 8–CA–24830), 6–CA–
24968–8 (Formerly 8–CA–25210), 6–CA–25113,
6–CA–25211, 6–CA–25289, 6–CA–25366, and 6–
CA–25503
November 30, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On March 31, 1995, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply to the General Counsel’s an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, W. C. McQuaide, Inc.,
Johnstown, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Sandra Beck Levine and Robin F. Wiegand, Esqs., for the
General Counsel.
Michael A. Taylor and Celeste M. Wasielewski, Esqs.
(Ogletree, Deakins, Nash, Smoke & Stewart), of Washing-
ton, D.C., for the Respondent.
G. Matt Matetich, of Reading, Pennsylvania, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Boardman, Ohio, on May 3 and 4, 1993;
in Reading, Pennsylvania, on June 22, 1993; and in Johns-
town, Pennsylvania, on May 25 and 26, July 12, 13, and 14,
and September 27 and 28, 1993. Seventeen charges were
filed on various dates in 1991, 1992, and 1993 by Teamsters
Local Union 429 a/w International Brotherhood of Team-
sters, AFL–CIO (Local 429); Freight Drivers, Dockworkers
and Helpers, Local Union No. 24 a/w International Brother-
hood of Teamsters, AFL–CIO (Local 24); and individuals Jo-
seph Patula, Scott Bodenschatz, Barry Michalides, Randy L.
Hunter, Raymond B. Webb, David F. Rich, Timothy
Wingard, and James C. Weatherholtz, alleging that Respond-
ent W. C. McQuaide (McQuaide) had interfered with, re-
strained, and coerced employees in the exercise of their right
to support a union and had discriminated against employees
in violation of Section 8(a)(3), (4), and (1) of the National
Labor Relations Act (the Act). Ultimately, on April 15, 1993,
the Regional Director for Region 6 issued a fourth order con-
solidating all but one of the charges. On June 22, 1993, on
the General Counsel’s unopposed motion, I consolidated the
complaint in Case 6–CA–25503 with the earlier cases. The
additional complaint alleged that McQuaide refused employ-
ment to James C. Weatherholtz in violation of Section
8(a)(4) and (1) of the Act. On the same date, over the oppo-
sition of McQuaide, I granted the General Counsel’s motion
to amend the original consolidated complaint issued by the
Regional Director for Region 6 on January 8, 1993, by add-
ing further alleged violations of Section 8(a)(1) of the Act.
McQuaide, by its answers to the complaints, denied commit-
ting the alleged unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs1
filed by the General Counsel and McQuaide, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
McQuaide, a Delaware corporation, with an office and
place of business in Johnstown, Pennsylvania, and with fa-
cilities at various places in Ohio and Pennsylvania, engages
in the interstate transportation of freight. During the 12
months ending March 31, 1992, McQuaide, in conducting its
757W. C. MCQUAIDE, INC.
business, derived gross revenues exceeding $50,000 for the
transportation of freight from Pennsylvania to points outside
of Pennsylvania. McQuaide admits and I find that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
McQuaide admitted, and I find, that Local 429 and Local
24 (the Union) are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues Presented
I find from the testimony of Stanley (Stan) McQuaide, its
vice president of operations, that McQuaide is primarily a
trucking concern operating in Pennsylvania and all the States
contiguous to that State, plus Virginia and ‘‘a little bit in
Connecticut.’’ McQuaide also has a warehousing operation
which is not involved in these cases. The firm was estab-
lished in 1936 by Stan’s father, W. C. McQuaide. Stan’s
brother Leland has been president of the firm since 1967.
William F. McQuaide, a third brother, has been McQuaide’s
executive vice president since 1962.
Over the years, McQuaide has been the target of between
six and eight unsuccessful organizing efforts by labor organi-
zations. Four organizing campaigns reached the representa-
tion election stage. According to Leland McQuaide,
McQuaide spent in the neighborhood of $4 or $5 million to
combat their organizing attempts. A union organizing drive
among McQuaide’s employees in 1974, then numbering
slightly less than 300, resulted in an employees’ strike in
support of the Union’s demand for recognition and unfair
labor practices by McQuaide in response, as found by the
Board in W. C. McQuaide, Inc., 220 NLRB 593 (1975), enf.
in pertinent part 552 F.2d 519 (3d Cir. 1977).
In that earlier case, the Board found that McQuaide had
violated Section 8(a)(1) of the Act by coercively interrogat-
ing employees about their union activities and sentiments,
conditioning reinstatement of strikers on their willingness ei-
ther to abandon the Union, or their willingness to inform
McQuaide about the union activities of other employees, and
threatening employees with reprisals to discourage union ac-
tivity. Id. at 611 and 612. President Leland McQuaide fig-
ured prominently in those unfair labor practices. Id. at 610–
611. The Board also found that McQuaide, by Leland
McQuaide’s conduct, had discriminated against strikers by
delaying or denying their reinstatement in an effort ‘‘to purge
his payroll of as many union adherents as possible.’’ Id. at
610.
In the 1975 decision, the Board found that Leland, Wil-
liam, and Stanley McQuaide, and their sister, Jean Walker,
owned and operated McQuaide. Id. at 596. The current
McQuaide board of directors consists of Leland, William,
Stanley, and Tim McQuaide and Jean Walker.
In the course of his testimony before me, Leland
McQuaide reminisced about 1974, as follows:
I lost in the ’74 strike, probably three million dollars.
They burnt a warehouse a million and a half dollars,
they burnt a new airplane and a hangar. They smashed
up thousands of dollars worth of our equipment. They
slashed tires, they slashed airlines. They beat—they
pulled a fellow out of a car down in Johnstown, Robert
McCue—Titus McCue and Robert Dietrich, two Union
Representatives, pulled one of my drivers out of his car
in broad daylight, beat him up, we had him arrested and
the Magistrate threw it out on a technicality.
Here was a guy who was hospitalized. The only
thing I know about the Teamsters, all their history has
been nothing but violence. Their history is notorious for
it. They shouldn’t even be allowed to represent any-
body.
In late August or early September 1991, two of
McQuaide’s Ohio based drivers visited Local 24, where they
obtained authorization cards. The two drivers solicited signa-
tures among McQuaide’s drivers both at its Richfield and
Columbiana, Ohio facilities. On September 26, 1991, after
receiving the necessary quantity of signed authorization
cards, Local 24 filed a petition in Case 8–RC–14639, seeking
an election among McQuaide’s drivers at its two Ohio loca-
tions. On October 18, 1991, the Board conducted a represen-
tation hearing on Local 24’s petition. Lee McQuaide attended
this proceeding. In October 1991, following the hearing,
Local 24, assisted by McQuaide’s drivers, sought to broaden
its organizing effort to include the employees at McQuaide’s
Johnstown and Bethel, Pennsylvania terminals.
In a Decision and Direction of Election issued on Novem-
ber 8, 1991, the Regional Director for Region 8, in agree-
ment with McQuaide, found the unit sought by Local 24 to
be inappropriate for purposes of collective bargaining and di-
rected an election in a systemwide unit consisting of
McQuaide’s ‘‘truck drivers, warehouse employees, mechan-
ics and dockmen, including fuel jockeys.’’ The Regional Di-
rector for Region 8 gave Local 24 an opportunity to provide
an additional showing of interest among McQuaide’s em-
ployees. On November 14, 1991, Local 24 provided an addi-
tional 129 signed authorization cards. Region 8 advised
Local 24 that some of the additional cards could not be in-
cluded in the showing of interest. Local 24 withdrew from
the organizing effort and was supplanted by Local 429, based
in Reading, Pennsylvania. At the time Local 429 took over
the organizing campaign, it had already discussed organizing
with some McQuaide employees based at Bethel.
On February 12, 1992, Local 429 filed a representation pe-
tition with Region 6, in Case 6–RC–10719, seeking an elec-
tion in a systemwide unit of McQuaide’s drivers, dock work-
ers, helpers, mechanics, and janitorial employees. The peti-
tion claimed that there were 360 employees in the proposed
bargaining unit. On May 14, 1992, following a hearing, the
Acting Regional Director for Region 6 directed an election
in a systemwide unit of McQuaide’s drivers, dock workers,
mechanics, jockeys, and warehousemen. Between June 11
and 27, 1992, Region 6 conducted a mixed mail and manual
election by secret ballot in the systemwide unit found appro-
priate by the Acting Regional Director.
On November 23, 1992, following the election, the Re-
gional Director for Region 6 issued his report on challenged
ballots, order directing hearing on objections, and notice of
hearing. The Regional Director found there were sufficient
challenged ballots to affect the results of the election. The
parties’ stipulations obviated the need for a hearing on the
determinative challenges, which were sustained. The Re-
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Sec. 7 of the Act provides in pertinent part:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
Sec. 8(a)(1) of the Act provides in pertinent part:
It shall be an unfair labor practice for an employer—
to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7.
3 Sec. 8(a)(3) of the Act provides in pertinent part:
It shall be an unfair labor practice for an employer—
by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or dis-
courage membership in any labor organization.
4 Sec. 8(a)(4) of the Act provides:
It shall be an unfair labor practice for an employer—
to discharge or otherwise discriminate against an employee be-
cause he has filed charges or given testimony under this Act.
5 I note from reading McQuaide’s pleadings and its brief that the
transcript of the testimony in these cases and the General Counsel’s
brief incorrectly refer to this individual as ‘‘Ron Locker.’’
6 I based my findings regarding Foreman Locker’s warnings on
John Pine’s and Jack Boyes’ uncontradicted testimony.
gional Director, however, directed a hearing on three of
Local 429’s objections. Thereafter, the Regional Director
consolidated the objections for hearing, ruling, and decision
with the cases in the instant proceeding.
By oral motion, on June 22, 1993, the Union sought to
withdraw its objections in Case 6–RC–10719. I granted the
motion and the General Counsel’s subsequent motion dated
July 9, 1993, to sever that case and remand it to the Regional
Director for action consistent with Local 429’s withdrawal of
its objections.
The issues presented in these cases are whether a prepon-
derance of the testimony shows that McQuaide responded to
Local 24’s and Local 429’s organizing efforts in violation of
Section 8(a)(1)2 of the Act by:
(a) Threatening shutdown of its operations if a union
succeeds in organizing its employees.
(b) Creating the impression among its employees that
their union activities were under its surveillance.
(c) Threatening an employee with bodily harm be-
cause he supported a union.
(d) Threatening unspecified reprisals because an em-
ployee assisted a union.
(e) Coercively interrogating employees regarding
their union membership, union activities, or sentiment
toward a union.
(f) Prohibiting an employee from participating in
union activity and showing support for a union by
wearing a hat.
(g) Threatening employees with discharge because
they supported the Union.
(h) Promising a wage increase if employees withheld
support for a union.
Section 8(a)(3)3 and (1) of the Act, by:
(a) Issuing warnings to employees John Pine, Jack
Boyes, and Randy Hunter.
(b) Suspending employees Jack Boyes, and Thomas
Boyes.
(c) Demoting employee Glenn Watts.
(d) Reducing the working hours of employees Thom-
as Boyes and Randy Hunter, and changing Randy Hunt-
er’s routes.
(e) Refusing to allow employee Jack Boyes to drive
and denying him wages for 1 day.
(f) Attempting to transfer employee Thomas Boyes
from Richfield, Ohio, to Johnstown, Pennsylvania.
(g) Laying off employees Thomas Boyes, Dale
Salsbury, David McGuigan, David Rich, Timothy
Wingard, Raymond Webb, Scott Bodenschatz, Joseph
Petula, Ivan Wilson, and Leon Martin.
(h) Denying wages to employee Thomas Boyes.
(i) Discharging employees Barry Michalides, Glen
Watts, Robert Marshall, James Weatherholtz, Jack
Boyes, Thomas Boyes, Dale Salsbury, and David
McGuigan.
and Section 8(a)(4)4 and (1) of the Act, by:
(a) Refusing to rehire employee James C. Weather-
holtz.
(b) Discharging employee Robert Marshall.
(c) Suspending Randy Hunter for 1 week.
B. Interference, Restraint, and Coercion
In September 1991, at McQuaide’s Johnstown dock office,
employees Jack Boyes and John Pine told Dock Foreman
Ronald (Ron) Locker5 that they thought a union would be
good for McQuaide. Jack Boyes also told Locker that he and
Pine were organizing the Union. Locker warned that if they
were thinking about organizing a union, they would be fired.
Continuing, Locker told the two employees that even if they
succeeded in bringing a union in, McQuaide would shut
down and reopen as a nonunion operation. Thereafter, until
May 1993, Foreman Locker advised Pine on several occa-
sions that if a union organized McQuaide, the employees
would strike and be replaced. Locker also repeatedly warned
Pine that he would lose his job, talking about the Union.6
Warnings by a supervisor to employees that their union ac-
tivity will lead to plant closure, discharge, or other reprisals
by their employer are likely to have a coercive impact on
them, and thus violate Section 8(a)(1).
The General Counsel contends and McQuaide denies that
Dock Foreman Ronald Locker and Dock Foremen Vallie
Baker and Anthony Kostyk are supervisors within the mean-
ing of Section 2(11) of the Act. As defined in Section 2(11)
of the Act, the term supervisor denotes:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
This section is to be read in the disjunctive; possession of
any one of the enumerated powers establishes supervisory
status. Warner Co. v. NLRB, 365 F.2d 435, 437 (3d Cir.
1966); Eastern Greyhound Lines v. NLRB, 337 F.2d 84, 87
(6th Cir. 1964). As the party contending that the disputed
Johnstown dock foremen are statutory supervisors, the Gen-
759W. C. MCQUAIDE, INC.
7 My findings of fact regarding the supervisory status of Dock
Foremen Locker, Kostyk, and Baker are based on Foremen Baker’s
and Robertson’s testimony.
eral Counsel bears the burden of proof on that issue. We
Can, Inc., 315 NLRB 170, 171 (1994).
At all times material to these cases, McQuaide employed
the disputed dock foremen at its Johnstown terminal. In addi-
tion to the disputed dock foremen, there were two others,
Don Smith and William Robertson. After disputing his sta-
tus, McQuaide, in its answer to the consolidated complaint,
conceded that Robertson was a supervisor within the mean-
ing of Section 2(11) of the Act.
The Johnstown terminal’s freight dock operates four shifts
during its 24-hour operation. The daylight shift ran from 7:30
a.m. until 5 p.m. The second shift ran from 5 p.m. until any-
where from 2 to 4 a.m., depending on the amount of work.
The third shift ran from 7:30 p.m. until approximately 5 a.m.
The fourth shift was from 10 p.m. until approximately 8 a.m.
Four of the dock foremen rotated shifts on a weekly basis.
They also rotated duty in the dock office, on a weekly basis.
One dock foreman is assigned to each shift, except that two
foremen worked on the third shift. Foreman Don Smith
worked exclusively on the fourth shift. The first and second
shifts each employed four to eight dock workers, depending
on the volume of freight. The night shifts had a maximum
of between 30 and 40 employees.
The dock foreman stationed in the dock office received the
bills of lading from the dispatch office on clip boards. The
dispatch office arranged the bills of lading on the clip boards
in the order in which they should be loaded, i.e., the ones
with the furthest destinations scheduled first. The other dock
foremen made the actual loading or unloading assignments,
taking into consideration the speed and accuracy of the avail-
able dock employees. A rush shipment would go to someone
‘‘you knew could get the work done.’’ The foremen would
decide in each case whether he should assign one or two em-
ployees to load a truck. The same considerations would arise
in regard to unloading a truck.
Before distributing the bills of lading, the foremen checked
a computer in the dock office to learn the door location of
the truck or trailer on the dock. If the computer showed that
a trailer was in the terminal parking lot, the foremen would
direct that it be backed up to a door. They would write the
appropriate door number on the bill of lading before handing
it off to a dock employee.
After making assignments, the dock foremen stationed on
the dock roamed around the dock noting trailer numbers as
they backed in, and watching the employees work. Dock
foremen spent approximately 5 percent of their worktime
doing manual labor.
The dock foremen, when stationed in the dock office, had
authority to grant time off to dock employees because of ill-
ness or other personal reasons. On granting such releases, the
dock foremen would initial the employee’s timecard and pro-
vide a written explanation for the early departure on the card.
Dock employees seeking 1 day off from work, or permission
to come to work 1 or 2 hours late, looked to the dock fore-
man stationed in the dock office for permission to do so. The
dock foreman in the dock office enjoyed additional authority
to determine, on his own, when employees on the evening
shift had completed enough loading so that the next shift
could comfortably perform their share, without interfering
with the drivers’ timely departures.
The dock foremen had authority to require dock employ-
ees to do work over. Foremen used their independent judg-
ment to decide if freight had been properly loaded to avoid
damage. After a truck was loaded, a dock foreman would
check the load against the documentation, approve it if it
checked out, and close the doors on the back of the truck
or trailer. Dock employees were not authorized to close those
doors. If he was not satisfied with the loading, the foreman
had authority to direct dock employees to take such correc-
tive action as he deemed necessary.
When Vice President Stan McQuaide and his son Mark
McQuaide, who was director of operations, were present at
the Johnstown terminal, they supervised the dock foremen.
At night, when Stan and Mark were not at the terminal, Dis-
patcher Tom Kring supervised the dock foremen.
Dock foremen regularly evaluated probationary employees
after 30 days, 45 days, 60 days, and 90 days. In 1989, 1990,
and 1991, the foremen provided McQuaide with annual eval-
uations of the dock employees. In 1991, Mark McQuaide re-
quired Foremen Val Baker, Anthony Kostyk, William Rob-
ertson, and Ron Locker to evaluate dock employees on a
written form. Relying on those evaluations, William
McQuaide decided which dock employees should be laid off
at the end of 1991. In 1992, Mark McQuaide asked one fore-
man, Ron Locker, and three nonsupervisory employees to
evaluate the dock employees.
From the foregoing, I find that the dock foremen’s duties
and responsibilities satisfy the requirements of Section 2(11)
of the Act. Thus, I find that they use their independent judg-
ment to direct employees to reload cargo. I also find that for
1 in 4 weeks they use independent judgment to decide how
long the night-shift employees must work before sending
them home. They also have discretion to grant employee re-
quests for time off. From these factors, I conclude that they
have the authority ‘‘responsibly to direct’’ the work of
McQuaide’s dock employees, using independent judgment,
and in the interest of McQuaide, as prescribed by Section
2(11) of the Act.
There are factors which suggest that at all times material
to these cases, McQuaide considered the dock foremen to be
supervisors. Thus, McQuaide required the dock foremen to
attend monthly supervisory meetings on a regular basis. Also
present at these meetings were department heads, dispatchers,
Operations Manager Mark McQuaide, and Vice President
Stan McQuaide. Further, during the union campaign involved
in the instant proceedings, McQuaide required Dock Foremen
Robertson, an admitted supervisor, and Val Baker to receive
instructions from its attorneys on how management officials
should act in the face of union activity. McQuaide’s practice
of asking them to evaluate employees and using such evalua-
tions to decide whether to retain the employees also suggests
that the dock foremen were part of management during the
period relevant to the violations of the Act alleged in these
cases.7
In sum, I find that the record shows that Dock Foremen
Locker, Kostyk, and Baker are supervisors within the mean-
ing of Section 2(11) of the Act. I further find that Locker’s
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Although I have found Foreman Locker was a statutory super-
visor, I also conclude that even absent such a finding, for purposes
of 8(a)(1) allegations, it was reasonable for employees to believe that
he was a member of and spoke for McQuaide’s management. Thus,
even if he were not a supervisor, I would attribute his remarks to
McQuaide and find them violative of Sec. 8(a)(1) of the Act. Debber
Electric, 313 NLRB 1094, 1095 (1994).
9 My findings of fact regarding Terminal Manager Gary’s remarks
to employee Brown are based on the latter’s uncontradicted testi-
mony.
10 According to Gary, he and Martin conversed in December 1991
about a union meeting. Gary also testified that all he could recall
of that exchange was that after Martin brought up the meeting Gary
jokingly asked if he could attend also. Gary also denied saying any-
thing about a wedding. Gary, however, did not deny expressing the
warning of his job loss and the shutting down of McQuaide. Gary
did not deny making the warnings attributed to him by Martin. Fur-
ther, Martin seemed to be giving his more detailed recollection in
a frank manner. Accordingly, I have credited Martin’s account of
their conversation, and his testimony that it occurred on November
1, 1991.
11 McQuaide contends that the amendment of the consolidated
complaint at the hearing to include Terminal Manager Gary’s re-
marks was barred by the 6-month limitation period prescribed by
Sec. 10(b) of the Act. I find, however, that these allegations are
closely related to other allegations of unlawful threats of economic
reprisals and other alleged violations of the Act in these cases, which
arose from McQuaide’s response to Local 429’s and Local 24’s
campaign to organize its employees in 1991 and 1992. Accordingly,
under Board policy, the allegations regarding Gary’s remarks were
not barred by Sec. 10(b) of the Act. Southwest Distributing Co., 301
NLRB 954, 956 (1991).
12 McMullen admitted talking to Meier about a union meeting in
January 1992. According to McMullen, Meier told him there would
be a union meeting and that he had no interest in being there and
really did not want to be there. Later, according to McMullen, he
came upon Meier and heard him say that he had attended the union
meeting. McMullen admitted saying that he was unhappy about
Meier’s lying about his intent to stay away from the union meeting.
McMullen also testified that this expression of displeasure was the
only conversation he had with Meier in their second encounter re-
garding the union meeting. McMullen also testified in substance that
on the first occasion Meier volunteered the information about the
union meeting. Meier testified about his encounters with McMullen
in a forthright manner and seemed more certain about his version
of their two conversations about the meeting. McMullen seemed to
be carefully choosing his words and uncertain about details of the
encounters. Yet, with all his care, McMullen did not flatly deny cre-
ating an impression of surveillance in his second conversation with
Meier, as alleged in the consolidated complaint. Accordingly, I have
credited Meier’s version of his conversations with McMullen about
the union meeting.
The consolidated complaint did not allege McMullen’s questioning
of Meier on January 10 and 12, 1992, about his attendance at the
union meeting, as violations of the Act. As the facts regarding these
two incidents of interrogation have been fully litigated, however, my
findings that they violated Sec. 8(a)(1) of the Act are warranted. St.
Joseph Hospital East, 236 NLRB 1450 fn. 5 (1978).
coercive remarks to employees Jack Boyes and John Pine
violated Section 8(a)(1) of the Act.8
In October 1991, word of the union campaign reached
Walter Brown Jr., a truckdriver employed at McQuaide’s
Bethel, Pennsylvania terminal. From October 1991, until he
quit his job, Brown handed out union authorization cards.
During that same month, Brown asked Terminal Manager
Jim Gary, a supervisor, what he thought of ‘‘the union busi-
ness that’s going on.’’ Gary replied that he had heard that
people were distributing cards, and warned that McQuaide
would shut down before allowing the Union to get in.
In a second conversation, in November 1991, Gary told
Brown of other companies having problems after a union
came in. Gary also told Brown that McQuaide would close
down rather than have a union among its employees.9
Terminal Manager Gary conversed with Bethel employee
Leon Martin on November 1, 1991. Gary asked Martin about
a union meeting involving some of McQuaide’s Ohio drivers.
When Martin invited him to attend, Gary replied that he had
a wedding to attend and could not. He went on to say that
if he could attend the meeting he would tell the Ohio drivers
about him losing his job and putting McQuaide out of busi-
ness because of the organizing drive.10
Gary’s warnings of a McQuaide shutdown in the wake of
a successful union organizing campaign came in the context
of an active union organizing drive. They were likely to
cause the listening employees to abandon their right under
Section 7 of the Act to support that drive. The message was
that rather than deal with a union selected by its employees
for purposes of collective bargaining, McQuaide would ter-
minate their employment by going out of business. I find that
Gary’s warnings violated Section 8(a)(1) of the Act. NLRB
v. Gissel Packing Co., 395 U.S. 575, 618 (1969); Indiana
Cal-Pro. v. NLRB, 863 F.2d 1292, 1301–1302 (6th Cir.
1988); and Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 9–
11 (3d Cir. 1969).11
On the evening of January 10, 1992, employee David
Meier visited his friend, Customer Service Manager Donald
McMullen, an admitted statutory supervisor, who, while dis-
cussing the union campaign, asked Meier about a Local 429
meeting scheduled for the following evening. Specifically,
McMullen asked if Meier planned to attend. Meier answered
that he was not going to the meeting. Meier, however, at-
tended the meeting.
On the day following the union meeting, McMullen ap-
proached Meier at the Johnstown terminal, and asked if he
had attended the Local 429 meeting. When Meier denied that
he had, McMullen accused him of lying. McMullen went on
to warn Meier that Mark McQuaide had a list of all the em-
ployees who had attended, and that Meier’s name and the
names of other employees, including employees Ray Webb,
Scott Bodenschatz, and Joe Patula were on the list.
McMullen asked Meier why he had attended the meeting.
Meier said he was curious, and wanted to see what the
Union had to offer him.12
In determining whether McMullen’s questioning of Meier
violated Section 8(a)(1) of the Act, as alleged, I have exam-
ined the surrounding circumstances, as required by Board
policy. Rossmore House, 269 NLRB 1176, 1178 fn. 20
(1984), enfd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006, 1007–1009 (9th Cir.
1985). Accord: Pepsi Cola Bottling Co., 301 NLRB 1008,
1011 (1991). I note that the initial questioning about whether
Meier intended to go to the union meeting occurred in
McMullen’s home. McMullen and Meier are friends, and
McMullen, though a supervisor, was not in the chain of au-
thority above Meier. Nor did McMullen accompany his ini-
tial questioning with any other coercive remarks. However,
I also noted factors which rendered all of McMullen’s ques-
tioning of Meier unlawful.
761W. C. MCQUAIDE, INC.
13 In his testimony on direct examination, Lee, in response to lead-
ing questions by McQuaide’s counsel, denied telling Hunter that he
knew Hunter was a union ringleader. Lee also denied saying he
would not sign a contract with the Teamsters, and that he would
punch Hunter in the nose if he found that Hunter was involved with
the Union. However, Lee’s testimony left much of Hunter’s detailed
testimony on direct examination unchallenged. Undisturbed was
Hunter’s testimony that Lee lectured him about why McQuaide did
not need a union, and the detailed testimony about Lee’s remarks
showing that he was keeping tabs on Hunter’s union activity. This
circumstance, and my impression that Hunter was earnestly search-
ing his memory, and giving a detailed account, induced me to credit
his testimony and reject Lee’s regarding their encounter on January
10, 1992.
An important factor in my assessment was the abundant
evidence of union animus, as reflected by McQuaide’s unfair
labor practices, both before and after McMullen’s question-
ing. These included threats of reprisal against employees
seeking union representation at McQuaide, and, as found
below, the infliction of reprisals such as discharges and lay-
offs on employees who supported either Local 24 or Local
429. A further consideration was, the absence from
McMullen’s questioning of any assurance that Meier would
not suffer any reprisal at McQuaide’s hands if he attended
the meeting.
I also noted that in the second round of interrogation, on
January 12, McMullen’s friendship with Meier was not re-
flected. It did not prevent him from calling Meier a liar,
when Meier denied attending the union meeting. McMullen
increased the coercive atmosphere by warning that Oper-
ations Manager Mark McQuaide had a list of those employ-
ees who had attended the meeting. This remark, likely to
convince Meier that McQuaide’s management was using sur-
veillance to identify employees engaged in union activity,
violated Section 8(a)(1) of the Act. I also find that on bal-
ance, the surrounding circumstances rendered McMullen’s
questions coercive in violation of Section 8(a)(1) of the Act.
On January 10, 1992, Leland McQuaide, referred to as Lee
in the transcript, summoned employee Randy Hunter to his
office initially to talk about a heated exchange of bad lan-
guage between Hunter and Dock Foreman Anthony Kostyk.
Lee remarked that he could not tolerate name calling and
would have to discharge Hunter. Thinking that discharge was
unwarranted for vulgar language, Hunter asked for an expla-
nation for the summons to Lee’s office.
Lee answered, ‘‘You ought to know, you and that f—king
union.’’ Hunter denied having anything to do with the
Union. Lee said at least 30 employees had told him that
Hunter was distributing authorization cards and talking for
the Union. Hunter challenged Lee to produce the employees.
Lee said he could not do so. He also accused Hunter of so-
liciting signatures on union cards over a CB radio in West
Virginia. Although he had used a CB radio to obtain one
signed card, Hunter denied that he had done so.
Hunter remained, as Lee told him why McQuaide did not
need a union and vowed never to sign a contract with the
Teamsters. Lee said, ‘‘I would never sign a contract with the
Union because they are f—king thieves.’’ As he spoke about
the Union, Lee became irate and fired Hunter ‘‘a couple of
times.’’ After each ‘‘firing,’’ Lee hired Hunter back. At last,
the conversation drew to a close. In parting, Lee warned
Hunter, ‘‘If I find out you had anything to do with this
Union, I’m going to punch you right in the nose.’’13
The General Counsel contends that Lee McQuaide coer-
cively interrogated Hunter on January 10, 1992. I find that
Lee designed his response to Hunter’s question regarding the
purpose of their confrontation to press the employee to admit
his part in the Union’s organizing campaign. Thus, when
Hunter asked his question, Lee shot back ‘‘you ought to
know, you and that f—king union.’’ Here, Lee was accusing
Hunter of actively allying himself with the Union. By this
accusation, I find that Lee was, in effect, interrogating
Hunter about his union activity.
In determining whether Lee’s implied question regarding
Hunter’s union activity was coercive, I have again applied
the Board’s policy set out in Rossmore House, supra at
1177–1178 fn. 20, to which I have referred above. In evalu-
ating the coercive impact of Lee’s effort to induce Hunter to
admit his involvement with Local 429, I have considered the
surrounding circumstances.
Here, McQuaide’s top executive, Lee McQuaide, singled
out Hunter, summoned him to the executive’s office, on
company property, and pressed him to reveal whether he had
been soliciting signatures on union authorization cards. When
Hunter flatly denied any involvement with the Union, Lee
presented the word of 30 employees to belie Hunter’s asser-
tion. Lee also made remarks about Hunter’s CB radio activ-
ity. These two components of Lee’s remarks certainly sug-
gested that McQuaide was keeping Hunter under surveil-
lance. They also were part of Lee’s effort to pressure Hunter
into coming forward with information about his union activ-
ity. Absent was any showing that Lee’s inquiry had any valid
purpose or that he had assured the employee against reprisal
at McQuaide’s hands.
The suggestion in Lee’s remarks that McQuaide was keep-
ing watch on Hunter’s union activity, Lee’s expressions of
hostility toward the Union, his hiring and firing of Hunter,
and his threat to inflict physical punishment on Hunter be-
cause of his union activity provided a strongly coercive over-
tone to the confrontation. I find that, with the addition of
McQuaide’s unfair labor practices, found elsewhere in this
decision, there can be no doubt of the initimidating effect of
the atmosphere surrounding Lee’s interrogation of Hunter.
Accordingly, I further find that Lee’s interrogation of Hunter
violated Section 8(a)(1) of the Act. Gerkin Co., 279 NLRB
1012 fn. 3 (1986).
Lee’s remarks included other violations of the Act. Thus,
I find that McQuaide violated Section 8(a)(1) of the Act by
Lee’s remarks that 30 employees had said that Hunter was
handing out cards, and by Lee’s comments about Hunter’s
CB radio activity on behalf of the Union. Such remarks were
likely to convince Hunter that McQuaide was keeping his
union activity under surveillance and thus impair his exercise
of rights guaranteed by Section 7 of the Act. Also violative
of Section 8(a)(1) of the Act was Lee’s threat to punch
Hunter in the nose if he ‘‘had anything to do with this
Union.’’
In April 1992, Lee telephoned McQuaide driver John Pine,
who was actively supporting Local 429’s campaign, and en-
joined Pine from putting ‘‘any f—king union decals’’ on
company equipment. Lee, speaking loudly, said he was hav-
ing ‘‘union problems’’ and believed Pine was one of the rea-
sons for them. Lee prohibited Pine from both passing out
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 I based my findings regarding the strictures which Lee
McQuaide imposed on John Pine in April 1992 were based on
Pine’s testimony. Lee admitted talking to Pine about not defacing
McQuaide’s equipment with union decals. Lee provided this testi-
mony in a frank manner, without the need for carefully cobbled
leading questions by McQuaide’s counsel. When it came to whether
he had prohibited Pine from passing out union hats or talking about
the Union in the presence of other employees, however, counsel first
asked him if he could ‘‘recall’’ issuing those instructions to Pine,
and then when I questioned the meaning of ‘‘recall,’’ as used in the
question, counsel amended his question and asked if Lee had done
so. Lee got the message and answered, ‘‘I did not say that.’’ In con-
trast with Lee, Pine seemed to be sincerely giving his full recollec-
tion of Lee McQuaide’s proscriptions. Accordingly, I have credited
Pine rather than Lee.
15 Plummer admitted that he ‘‘probably had quite a few conversa-
tions with Randy [Hunter] on the phone.’’ In response to leading
questions by McQuaide’s counsel, however, Plummer denied the un-
lawful remarks attributed to him by Hunter. Plummer sought to en-
hance the credibility of his denial by punctuating each denial with
a reason to believe him. Thus, when asked about making a remark
about a wage increase if the Union won the election, Plummer’s sug-
gested reason for accepting his denial was: ‘‘I have nothing to do
with wages.’’ When asked if he recalled any conversation with
Hunter where the Teamsters was a subject of the discussion, Plum-
mer explained. ‘‘We were instructed not to talk to the employees
about that—anything to do along those lines.’’ The denials and the
accompanying explanations, however, left much of Hunter’s recol-
lection of Plummer’s remarks undenied. This factor plus my impres-
sion that of the two, Hunter was the more conscientious about
searching his memory for the entire conversation, led me to credit
him rather than Plummer.
16 Mark McQuaide testified that he saw Webb’s union hat every
night before the election, but denied saying anything to Webb about
the hat. Mark’s demeanor, however, cast considerable doubt on the
reliability of his testimony in this regard. His defiant mien, as he
gave evasive responses to me regarding McQuaide’s attitude toward
the Union, and when counsel for the General Counsel questioned
him about about his instructions in connection with the 1992 evalua-
tion of dock employees, suggested that he had no respect for the
forum, and that he was a reluctant witness. Accordingly, I have re-
jected Mark’s testimony where it conflicts with Webb’s. Instead, I
union hats and talking about the Union around employees.
Further, Lee warned Pine of discipline if he did not stop
wearing a union hat. At the end of his diatribe, Lee asked:
‘‘[D]id you understand that?’’ and hung up.14 I find that
Lee’s proscriptions against distribution of union hats and dis-
cussion of the Union in the presence of other employees,
which he delivered to Pine by telephone, in a loud voice and
with a hostile manner, were likely to coerce and restrain the
listening employee in the exercise of his Section 7 right to
support the Union. I further find, therefore, that by this con-
duct McQuaide violated Section 8(a)(1) of the Act. I also
find that by Lee’s threat to discipline Pine if he continued
wearing a union hat, McQuaide again impaired Pine’s statu-
tory right to show support for a labor organization, and vio-
lated Section 8(a)(1) of the Act.
On or about June 9, 1992, 2 days before the start of the
combination mail and manual representation election, Randy
Hunter heard thoughts about the Union from McQuaide’s di-
rector of maintenance, John Plummer, a supervisor. Initially,
Hunter talked about his truck. However, Plummer interrupted
with: ‘‘What are you going to do?’’ Hunter asked, ‘‘What
do you mean?’’ Plummer explained: ‘‘You know we got
Lee’s attention now, if you do the right thing and vote this
out, we can get a raise, we can get some money out of
them.’’ At another point in the discussion, Plummer warned,
in substance, that if Local 429 won the election, Lee was
‘‘going to close the doors.’’15 I find that Plummer’s remarks
about a possible wage increase if the employees rejected
Local 429 and his warning of Lee McQuaide’s intention to
terminate McQuaide’s business if Local 429 won the election
were likely to chill employee support for the Union and,
thus, were violations of Section 8(a)(1) of the Act.
Employee Robert Maticic conversed with Plummer on
June 12, 1992, at McQuaide’s Johnstown terminal. Plummer
inquired if employee Raymond Webb was distributing cards
for Local 429. Maticic said he did not know. At this, Plum-
mer predicted: ‘‘Ray Webb, after this is all done, he’ll be
going down the road.’’
Plummer’s inquiry and prediction regarding employee Ray
Webb occurred on the second day of the Board-held rep-
resentation election among McQuaide’s employees. Hence,
when Plummer said ‘‘after this is all done,’’ I find he was
referring to the election and Local 429’s organizing cam-
paign. The sense of Plummer’s prediction was that once
those events were concluded, Webb’s employment at
McQuaide would also come to an end. In light of
McQuaide’s resort to discharges, and other adverse personnel
actions to punish union activists in late 1991 and during the
period of 1992 preceding June 12, 1992, as found below,
Plummer’s message was clear. McQuaide would lose no time
in finding a pretext to get rid of another union activist,
Webb. I find that by this prediction McQuaide coerced
Maticic, and thus violated Section 8(a)(1) of the Act.
Applying the Board’s policy in Rossmore House, supra at
1178 fn. 20, I find that Plummer’s interrogation of Maticic
was coercive and violated the Act. Here, a supervisor, Plum-
mer, at McQuaide’s Johnstown terminal, asked an employee
about another employee’s union activity and then quickly de-
livered a message to his listener that as soon as Local 429’s
campaign and the representation election are over McQuaide
will punish the suspected union activist for helping the
Union by discharging him. In this context, the listening em-
ployee, Maticic, would likely infer that his own support for
Local 429 would provoke McQuaide to deal similarly with
him. Viewing this incident against the backdrop of
McQuaide’s unfair labor practices, including discharges of
union activists, as found elsewhere in this decision, I find
that Plummer’s inquiry about Webb’s union activity re-
strained and coerced Maticic in the exercise of his right to
support Local 429, and thus violated Section 8(a)(1) of the
Act.
During the week of June 22, 1992, during his working
hours at McQuaide’s Johnstown terminal, employee Ray-
mond Webb wore a hat with a Teamsters logo on it. On the
night of June 24, 1992, while Webb was working with his
Teamsters hat on, Director of Operations Mark McQuaide
caught a glimpse of it and approached Webb. McQuaide
commented to Webb, using the employee’s nickname, ‘‘Nice
hat you have on, Frog.’’ Webb expressed agreement. Con-
tinuing, Mark said, ‘‘You don’t have the balls to wear that
in front of Stan McQuaide.’’ Webb responded that he didn’t
‘‘need the hassle.’’ Mark McQuaide concluded with the
warning: ‘‘You better hope the Union comes in because if
it doesn’t, I will remember you.’’16
763W. C. MCQUAIDE, INC.
have credited Webb’s frank testimony regarding Mark’s reaction on
seeing Webb’s Teamsters hat on June 24, 1992.
17 Lee McQuaide admitted interviewing McGuigan for employ-
ment. However, Lee denied questioning McGuigan about his union
sentiment or enjoining him from having anything to do with union
supporters. Lee also denied saying that Tom Boyes and Dale
Salsbury would not be with McQuaide much longer because they
were Local 429 supporters. Lee testified that he could not recall off-
hand whether McGuigan had a history of working for union employ-
ers. Lee also speculated that he ‘‘would have probably told him that
we were a nonunion company and I want to stay nonunion and if
it would ever come to an election or something, I might look for
his support, that would be as far as I would go.’’ In contrast with
Lee’s imperfect recollection, his speculation as to what he said, and
his responses to leading questions, McGuigan seemed to have a
vivid recollection of what Lee said to him. Also, Lee seemed to be
going out of his way to show that he was indifferent to McGuigan’s
attitude toward the Union. This effort casts doubt on the reliability
of Lee’s testimony. For his strong expressions of antiunion senti-
ment, as found earlier in this decision and in his testimony as quoted
above, point to the probability that Lee would concern himself with
a prospective employee’s union sentiment and that he would be hos-
tile toward prounion employees. Accordingly, I have credited
McGuigan’s testimony regarding Lee’s remarks to him on September
21, 1992.
18 I would also find this interrogation violative of Sec. 8(a)(1) of
the Act under the Board’s policy expressed in Rossmore House, 269
NLRB at 1178 fn. 20.
19 In making my findings of fact regarding William McQuaide’s
responses to employee questions about a wage increase, I relied on
Randy Hunter’s testimony. On direct examination, counsel for
McQuaide asked William ‘‘tell us what you said at this meeting?’’
At first, William was evasive, as he fenced with the question, and
came up with a nonresponsive answer. I prodded William to give
his ‘‘best recollection.’’ Counsel for McQuaide took over the ques-
tioning again. William admitted that he strayed from a typed set of
remarks by reading ‘‘the current unfair labor practices which were
pending.’’ He also conceded that he departed from the typed remarks
to announce the initial hearing date for this proceeding. The printed
remarks included the statement, ‘‘Because of legal uncertainties—we
can not discuss any changes in wages or discuss the Union.’’ Wil-
liam’s penchant for straying from the typed remarks, and my impres-
sion that he was not giving his full recollection cast doubt on
McQuaide’s denial that William McQuaide made the unlawful re-
marks attributed to him by Hunter. Moreover, of the two, Hunter
seemed to be the more candid witness. Accordingly, I have credited
Hunter, where their testimony differed.
In light of McQuaide’s unfair labor practices both before
and after this encounter, Mark’s remarks in response to
Webb’s Teamsters hat carried sinister meaning. Mark’s re-
marks to the effect that Webb did not have the courage to
wear his Teamsters hat in front of Stan McQuaide amounted
to a warning that Mark’s father would respond by inflicting
some reprisal on Webb. Similarly, the warning that if the
Union lost the election Mark would ‘‘remember’’ Webb
strongly suggested that the director of operations would in-
flict some harsh treatment on Webb in retaliation for his
union activity. I find that by these remarks McQuaide vio-
lated Section 8(a)(1) of the Act. Honeycomb Plastics Corp.,
288 NLRB 413, 419 (1988).
On September 24, 1992, while interviewing prospective
employee David McGuigan at the Johnstown terminal for a
job at McQuaide, Lee gave vent to his antiunion sentiment.
Lee McQuaide asked if McGuigan knew employees Dale
Salsbury and Tom Boyes. McGuigan denied knowing the
two employees, and answered no, when Lee asked if he was
a union plant. Lee questioned McGuigan about his union
sentiment. McGuigan admitted that he had been a union
member, but said that he was no longer, and had a with-
drawal card. Lee predicted that Tom Boyes and Dale
Salsbury would not be there much longer because they sup-
ported Local 429. Lee also said he wanted nothing to do
with ‘‘their f—king unions in Youngstown or Ohio’’ and
that he did not want anything to do with anyone supporting
a union.17 Soon after this interview, McQuaide hired
McGuigan.
The Board has long recognized that ‘‘questions concerning
union preference, in the context of job application interviews,
are inherently coercive and unlawful even when the applicant
is hired.’’ Gilberton Coal Co., 291 NLRB 344, 348 (1988).
Applying that policy here, I find that Lee McQuaide’s inter-
rogation of McGuigan was coercive, and thus violated Sec-
tion 8(a)(1) of the Act.18
I also find that the warning that union supporters Tom
Boyes and Dale Salsbury would not be there much longer
because of their support for the Union was likely to restrain
and coerce McGuigan in the exercise of his right to assist
Local 429. For, he was likely to conclude from that remark
that President McQuaide was about to discharge the two em-
ployees to punish them for helping Local 429. At this point,
McGuigan could reasonably fear that the same fate would
befall him, if he opted to support a union at McQuaide.
Lee’s further statement that he did not want anything to do
with ‘‘anyone who is supporting any union,’’ would confirm
McGuigan’s fear. I find that by Lee’s warning and this addi-
tional remark, McQuaide again violated Section 8(a)(1) of
the Act.
On January 9, 1993, employee Hunter and 150 to 200
McQuaide employees attended a vacation pick meeting at a
restaurant near McQuaide’s Johnstown terminal. In the
course of the meeting, Executive Vice President William
McQuaide read aloud some unfair labor practice charges
which had been filed against McQuaide. After he had
stopped reading, an employee asked him when the employees
would receive a wage increase. William answered: ‘‘As long
as these labor charges are hanging over our heads, we can’t
even discuss wages.’’ When asked how long it would take
to clear up the unfair labor charges, William told the assem-
bled employees that it was up to the men who filed them.19
The Board has recognized that an employer violates Sec-
tion 8(a)(1) of the Act by conditioning the granting of eco-
nomic benefits to its employees upon the withdrawal of un-
fair labor practice charges. Arrow Molded Plastics, 243
NLRB 1211, 1218 (1979), enfd. in pertinent part 653 F.2d
280 (6th Cir. 1981). Here, Executive Vice President
McQuaide suggested to McQuaide employees that pending
unfair labor practice charges were interfering with their pos-
sible wage increase and that fellow employees, who filed the
charges were to blame for this interference. Thus, William
was holding out the prospect of a wage increase conditioned
upon the withdrawal of pending unfair labor practice charges
against McQuaide. By this attempt to interfere with its em-
ployees’ right to utilize Board remedies, McQuaide violated
Section 8(a)(1) of the Act.
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 I based my findings regarding Pine’s employment and his union
activity on his and Jack Boyes’ testimony.
21 My findings of fact regarding Pine’s activity on the night of
January 13 and 14, 1992, are based on his uncontradicted testimony.
C. The Alleged Discrimination
1. John Pine
a. The facts
McQuaide has employed John Pine as a shuttle driver out
of its Columbiana, Ohio facility since 1988. His duties in-
clude hauling, normally, two 8-foot trailers referred to as
‘‘pups’’ between Columbiana and McQuaide’s Johnstown
terminal. Once he arrives at Johnstown, Pine breaks up the
pups, backs them into a dock, does his paperwork, and re-
fuels his tractor. After turning his paperwork in at the dis-
patch window, Pine sometimes takes his tractor to the garage
for servicing or repair.
In September 1991, Pine became aware of Local 24’s or-
ganizing campaign from fellow employees Robert Marshall
and Thomas Boyes, who were actively supporting the cam-
paign. Marshall and Boyes gave union authorization cards to
Pine for distribution to other Ohio drivers. Pine signed one
of the cards for Local 24 and passed the remainder to other
employees.
As found above, in September 1991, Pine, in conversation
with Dock Foreman Locker, spoke out in favor having a
union at McQuaide. Locker warned Pine that organizing a
union would provoke McQuaide into shutting down. Further,
Locker warned that if Pine engaged in union activity, he
would be fired. Over the months between September 1991,
on about 12 occasions, Locker warned repeatedly warned
that Pine would lose his job, talking about the Union.
Despite Locker’s warnings, Pine actively assisted Local
24’s and Local 429’s organizing campaign at McQuaide’s
Johnstown terminal. After September 1991, until November
of that year, Pine passed out authorization cards which he re-
ceived from employees Jack Boyes and Robert Marshall.
Pine gave cards to mechanics, dock workers, and drivers. He
obtained approximately 60 signed authorization cards, which
he turned back to either Jack Boyes or Robert Marshall. Pine
attended a union meeting, in the vicinity of Johnstown, on
January 11, 1992, where he signed an authorization card for
Local 429. He attended a second union meeting in June
1992, at Windber, Pennsylvania, also near Johnstown.20
Before October 30, 1991, Pine’s job duties required him
to work on the dock at Johnstown, helping to load and un-
load trailers. I find from the testimony of John Pine and Jack
Boyes that on or about that date, two supervisors, Dock
Foremen Vallie Baker and Anthony Kostyk, approached
them and, without explanation, instructed Pine and Boyes to
stay off the dock and wait either in their trucks or at the dis-
patch office. I find from Johnstown employee Joseph
Patula’s testimony that in early December of the same year,
Foreman Kostyk told Patula and another employee not to
talk to either John Pine or Jack Boyes, and that Pine and
Boyes were restricted from the dock. When Patula asked the
reason for this order, Kostyk said he was only telling what
he was told ‘‘from upstairs.’’
At approximately 10 p.m., on January 13, 1992, Pine ar-
rived at McQuaide’s Johnstown terminal driving a tractor
hauling two pups from Columbiana. Pine carried out his
usual tasks in about 1 hour. He broke up his pups, backed
them into the dock, did his paperwork, fueled the tractor, left
his paperwork at dispatch, and drove the vehicle to the ga-
rage service area, arriving at about 11 p.m. Approximately
90 minutes later, Pine moved the tractor to another service
bay for the repair of tail lights and a front-end check, all of
which consumed about 1 hour.21
Pine drove his tractor to the dock area, where his trailers
were being loaded. He left the tractor, went into the dock
building, where he remained for approximately 15 minutes,
while the tractor’s engine was idling. On learning that his
load was not ready, he drove his tractor across the yard to
a fence near the dispatch office, shut the engine off, dis-
mounted, and went into the cafeteria. After approximately 30
minutes’ wait in the cafeteria, Pine’s trailers were ready. He
hooked them to his tractor and returned to Columbiana,
Ohio.
On the following evening, Pine reported to Johnstown dis-
patch, where he received an employee warning notice for
idling on the previous night. Pine left the warning at the dis-
patch office, went to the cafeteria for approximately 15 min-
utes, and returned. When he picked up the warning, he noted
that the inscription ‘‘idling for hours’’ had been added above
the original statement alleging Pine’s misconduct. Mark
McQuaide issued the warning, which carried Stan
McQuaide’s approving signature.
I find from Stan McQuaide’s testimony and McQuaide’s
‘‘Company Rules and Regulations For Company Drivers’’
that at all times material to these cases, McQuaide has pro-
hibited its drivers from idling truck engines except in certain
circumstances not present when Pine let his truck idle on the
night of January 13, 1991. Further, McQuaide has shown en-
forcement of that policy against employees whose union sen-
timent were unknown to it. Thus, McQuaide introduced into
evidenced three employee warning notices, which it issued to
employees for ‘‘Idling truck while checking out.’’ I also re-
ceived in evidence, a fourth warning notice charging an em-
ployee with: ‘‘Idling your truck at Bethel when getting un-
loaded.’’
However, the credited uncontradicted testimony of former
employee James Moore shows that during his employment at
McQuaide, which extended from 1988 until March 1992, the
no-idling rule was not consistently enforced. I also find from
Moore’s testimony that on the night Pine received his written
warning, several other vehicles were idling in front of
McQuaide’s Johnstown dispatch office, where Moore
worked. Yet, as far as Moore knew, no one was disciplined
for that idling.
b. Analysis and conclusions
The General Counsel argued that McQuaide issued a writ-
ten warning to Pine on January 14, 1992, because of his
union activity, and that the reason offered by McQuaide was
pretextual. McQuaide seeks to avoid a finding that the warn-
ing issued to Pine was not in response to union activity or
prounion sentiment, by showing that the employee violated
a longstanding company policy and was treated no worse
than other employees whose union sentiment was unknown
to McQuaide when it disciplined them.
765W. C. MCQUAIDE, INC.
Under Board policy, if the record shows that McQuaide’s
hostility toward union activity was a motivating factor in a
decision to take adverse action against an employee, the ad-
verse action will be found unlawful unless McQuaide shows,
as an affirmative defense, that it would have taken the ad-
verse action even in the absence of the protected activity.
NLRB v. Transportation Management Corp., 462 U.S. 393,
402–403 (1983), affg. Wright Line, 251 NLRB 1083 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Where it is shown that the busi-
ness reason or reasons advanced by McQuaide for its actions
were a pretext—that is, that the reasons either do not exist
or were not in fact relied on—it necessarily follows that
McQuaide has not met its burden and the inquiry is logically
at an end. Wright Line, supra at 1084.
Pine’s prounion sentiment came to McQuaide’s attention
in September 1991, when he told Foreman Locker that a
union would be good of McQuaide. Given Lee’s dem-
onstrated anxiety about, and hostility toward, union organiz-
ing among his employees, and his active role in McQuaide’s
daily operations, I find that Locker quickly informed his su-
periors, including Lee, about Pine’s prounion sentiment. Fur-
ther, during the next 2 months, Pine distributed union author-
ization cards at Johnstown, McQuaide’s headquarters.
McQuaide’s hostile reaction to Pine’s expressed support
for the Union was immediate. In September 1991, Foreman
Locker unlawfully warned Pine repeatedly of economic re-
prisals by McQuaide, including shutting down the Company
if the Union succeeded in organizing its employees, and dis-
charging Pine, because he talked about the Union. After Sep-
tember 1991, and until 1993, Locker repeatedly showed
McQuaide’s willingness to resort to unlawful reprisals by
warning Pine that his prounion talk would cost him his job.
Locker’s repeated threats showed that McQuaide was an-
noyed by Pine’s open support for the Union.
Lee’s phone call to John Pine in April 1992, as found
above, included an unlawful threat to discipline Pine, if he
continued to wear a Teamsters hat. Thus, did Lee show that
McQuaide’s top leadership was likely to seek a pretext to
discourage Pine from openly assisting the Union.
Comparison of the language in the employee warning no-
tice issued to Pine on January 14, 1992, with what he actu-
ally did, suggests that McQuaide was anxious to inflate the
gravity of Pine’s alleged misconduct. Pine’s credited testi-
mony showed that he idled his tractor for about 15 minutes
on the night of January 13, 1992. There was no showing in
the record before me that Pine idled his truck for hours or
even 1 hour. McQuaide presented no eyewitness to support
its claim that Pine idled his truck on January 13, 1992, for
1 hour or any hours. Nor was there any showing that Mark
McQuaide, Stan McQuaide, or any other member of
McQuaide’s management or employee complement said any-
thing to Pine on or since the night of January 13, 1992,
about his idling on that night.
Indeed, I find from Pine’s testimony that McQuaide origi-
nally treated his idling as a routine violation of its rules. On
the night of January 14, 1992, after he saw the warning at
McQuaide’s Johnstown dispatch office, however, Pine left it
there briefly as he visited the cafeteria on the premises, and
returned to pick it up. When Pine returned to the dispatch
office, he saw that someone in that office had added ‘‘Idling
for Hours.’’ McQuaide has not offered any explanation of
how the added verbiage came to be on Pine’s warning no-
tice. McQuaide’s dispatchers, however, are admitted super-
visors. Further, the Johnstown dispatchers’ office is under
management’s control. Given McQuaide’s knowledge of
Pine’s prounion sentiment and it’s demonstrated union ani-
mus both before and after January 14, 1992, I find, from
these circumstances, that a member of McQuaide’s manage-
ment wrote the additional language on Pine’s warning notice
on the night of January 14, 1992, to claim a more serious
violation, which might be used to justify more severe dis-
cipline if he engaged in further misconduct.
McQuaide contended that the record did not show that
Pine suffered disparate treatment for his misconduct of Janu-
ary 13, 1992. I do not agree.
In support of its position, McQuaide provided employee
warning notices for four employees, which it issued to them
for idling their respective trucks. Indeed, one of the four in
this group, Fred Bradley, idled his truck on January 13,
1992, and received a warning notice on the following day.
None of the four warning notices in this group, however, car-
ries the embellishment ‘‘Idling for hours’’ or any other sug-
gestion that someone in management had sought to increase
the seriousness of the alleged misconduct. Thus, far from as-
sisting McQuaide’s defense, the four warning notices show
that Pine suffered disparate treatment.
Moreover, I find from the uncontradicted testimony of
former McQuaide employee James Moore, who worked for
McQuaide from 1988 until he quit in March 1992, that the
no-idling rule was not consistently enforced. Indeed, on the
night Pine received his warning, several vehicles were idling
in front of Moore’s office, at the Johnstown terminal, and to
Moore’s knowledge, none of the drivers of those vehicles re-
ceived any discipline from McQuaide. I find that Pine also
suffered disparate treatment when McQuaide enforced its no-
idling rule against him. Pepsi Cola Bottling Co., 301 NLRB
1008, 1050 (1991).
In sum, I find that McQuaide seized on Pine’s brief inter-
lude of idling on the night of September 13, 1992, as a pre-
text for burdening his personnel record with a warning for
a serious violation of company rules. I also find that
McQuaide acted against Pine in this manner to punish him
for, and discourage him from, engaging in union activity and
supporting the Union, and thereby violated Section 8(a)(3)
and (1) of the Act. Id. at 1024.
2. Robert Marshall
a. The facts
At the time McQuaide discharged him on November 5,
1991, Robert Marshall had been a city truckdriver, working
out of its Columbiana, Ohio facility for 3 years. His work
took him to Akron, Cleveland, Youngstown, and other points
in Ohio. He delivered and picked up freight using a tractor
and a pup trailer.
In 1991, prior to his involvement with the Union,
McQuaide disciplined Marshall twice. On April 23, 1991,
Marshall, contrary to his orders, did not make deliveries to
11 of the 18 Dairy Mart stores in the Akron/Canton area of
Ohio. Further, contrary to company rules, he did not notify
the dispatcher that he had not made the 11 deliveries. Stan
McQuaide warned Marshall that he was not to bring a ship-
ment back unless he had authorization from a dispatcher.
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 My findings regarding the Dairy Mart incident are based on
Stan McQuaide’s detailed testimony, which found corroboration in
McQuaide’s written report of the misconduct and the verbal warning.
In response to a leading question, Marshall denied that McQuaide
had disciplined him prior to October 31, 1991. As Stan McQuaide
did not seem to be embellishing the written report, and otherwise
seemed to be testifying frankly, I have credited his testimony in this
regard.
23 According to Marshall, he cannot recall that prior to October 31,
1991, any McQuaide official ever threatened to fire him. However,
I have rejected that denial and have credited Stan McQuaide’s de-
tailed and frank testimony regarding the fax incident.
24 On direct examination, counsel for McQuaide asked Dispatcher
Instone if he could recall any conversation with Marshall ‘‘prior to
the time that he got to Little Tykes where the topic was how much
load he had.’’ Instone answered: ‘‘No.’’ However, he did not deny
speaking to Marshall after the Ohio Chemical pickup. On cross-ex-
amination, Instone conceded that he has approximately 500 tele-
phone and radio conversations per day, that he tries to put each
day’s calls out of his mind and that he doesn’t remember what was
said in each conversation. In these circumstances, I find it likely that
Instone would not remember at the hearing before me, on July 13,
1993, whatever Marshall might have said on October 31, 1991,
about the extent of his load on leaving Ohio Chemical. This doubt
as to the reliability of Instone’s recollection plus my impression that
Marshall testified candidly, and with certainty, about his own work
on that date caused me to reject Instone’s testimony where it con-
flicted with Marshall’s.
25 I find from John Pine’s testimony that at all times material to
these cases, McQuaide has had a sign posted at its Johnstown termi-
nal directing employees not to walk on freight. Stan’s testimony was
to the effect that McQuaide permitted employees to walk on freight
when necessary. He, however, admitted on cross-examination that
drivers should not walk on envelopes, and that the stacking of one
type of freight on top of another was a matter of judgment.
Stan also warned him about not telling a dispatcher the truth
that he had not made all of his assigned deliveries.22
In the spring of the same year, McQuaide directed all of
its Columbiana drivers to fax their paperwork to Johnstown.
Shortly after this direction was in effect, Stan learned that
one driver, Marshall, was not faxing his paperwork. He sent
word that Marshall was to contact him. In their conversation,
Stan instructed Marshall to fax. Marshall agreed to do so.
A few days later, Stan learned that Marshall had not been
faxing, as promised. In a telephone conversation, which soon
followed, Stan explained the purpose of having the fax ma-
chine, and again requested that he use it. A week went by,
and Marshall had not used the fax machine. Stan repeated his
request and Marshall again agreed to use it. Two days later,
Stan learned that Marshall was not faxing. Stan spoke to him
again, warning Marshall that unless he faxed his bills in
every day ‘‘you’re fired.’’23
Marshall was one of the original union activists among the
Ohio drivers. He visited Local 24 in September 1991, where
he obtained union authorization cards. He distributed cards to
his colleagues, John and Ron Pine, who signed and returned
them to Marshall, who, in turn, returned them to Local 24.
Marshall signed an authorization card for Local 24 on Sep-
tember 10, 1991. In October 1991, he signed an authorization
card for Local 429.
On October 18, 1991, Marshall attended the entire Board
hearing in Case 8–RC–14639, regarding Local 24’s represen-
tation petition. Local 24 called Marshall as a witness on its
behalf. Marshall testified regarding McQuaide’s management,
operations, and employment policies. Lee McQuaide also
was present. In his testimony before me, Lee admitted that
at least by October 18, 1991, he knew that Bob Marshall was
a union supporter.
Following the representation hearing, Marshall began pass-
ing authorization cards out to Columbiana driver John Pine
and to Johnstown-based drivers Randy and Pat Hunter. Dur-
ing the next few weeks leading up to his discharge, Marshall
continued to solicit signatures on authorization cards from
McQuaide employees.
Prior to October 31, 1991, Bob Marshall made pickups
and deliveries for McQuaide at Little Tykes, in Stow, Ohio.
During 1990 and 1991, he stopped at Little Tykes four or
five times weekly. On October 31, 1991, his duties included
a pickup at Little Tykes.
Marshall picked up his trailer at Columbiana on October
31, and proceeded to Leetonia, Ohio, where he picked up
three or four skids of plastic products, which he placed in
the front of his trailer. His next pickups were at N & D, at
Queensburg, Ohio, and at Ohio Distribution, in Akron. At
Ohio Distribution, Marshall loaded shrink-wrapped skids of
envelopes. The skids used on Marshall’s loads were each 4
by 4 feet. Marshall moved the skids of envelopes, which
were 5 or 6 feet high, to the middle of his trailer. He made
a pickup of three or four skids of pails of carwash soap at
Ohio Chemical, in Akron, which he placed in the back of the
trailer.
After his Ohio Chemical pickup, Marshall telephoned Dis-
patcher Jack Instone, who directed him to a pickup at Little
Tykes. Marshall told Instone that he had room for only two
or three skids. Instone advised Marshall to do the best he
could.24
Marshall proceeded to Little Tykes, where he found at
least 100 pieces of loose freight in boxes of varying sizes.
He used his judgment to load the Little Tykes freight so that
he would not walk on a load of envelopes in the middle of
his trailer.25 He had no room in the front of the trailer, where
he had a shipment of plastic products. He loaded all but 25
or 30 pieces on the rear portion of his trailer and decided
that he had no space for them. Marshall phoned, said he was
full, and received Instone’s permission to return to
Columbiana.
According to Customer Service Manager Donald
McMullen, on the afternoon of October 31, 1991, he re-
ceived a telephone call from ‘‘Doc,’’ the shipping manager
from Little Tykes, who complained that a McQuaide driver
was refusing to load all the freight. McMullen testified that
when he asked why the driver was refusing, ‘‘Doc,’’ whose
name is Thomas Dougherty, answered: ‘‘Because he’s a lazy
son-of-a-bitch.’’ McMullen testified that he assured Dough-
erty that he would look into the matter.
I find from McMullen’s uncontradicted testimony that he
checked with the dispatcher, learned that Marshall had re-
ported a full trailer, and that Instone had told Marshall to
bring the trailer in. I also find from McMullen’s testimony
that he quickly reported the complaint to Stan McQuaide.
McMullen testified that on the same afternoon, he called
Dougherty back to assure him of McQuaide’s concern about
the pickup. In response, according to McMullen, Dougherty
said in substance that ‘‘this man has screwed McQuaide’s in
767W. C. MCQUAIDE, INC.
26 Dougherty seemed to be giving his best recollection of his con-
versation with McMullen on October 31, 1991. McMullen was not
as careful when it came to the details of Dougherty’s remarks.
McMullen used ‘‘lazy son-of-a-bitch’’ and ‘‘screwed’’ to summarize
portions of Dougherty’s remarks. Also, McMullen seemed anxious
to put a bad light on Marshall’s conduct. In contrast, Dougherty tes-
tified in a detached manner. Accordingly, I have credited
Dougherty’s version of his remarks to McMullen.
27 Stan McQuaide testified that there are signs on the Johnstown
dock asking employees not to walk on freight ‘‘unnecessarily.’’ At
first, Stan testified that the signs were there for only the dock work-
ers. However, he later testified that the policy applied to drivers as
well.
28 Marshall testified, in substance, that as far as he could remem-
ber he did not have any conversation with Stan McQuaide on No-
vember 1, 1991. However, Stan provided a detailed and plausible ac-
count of such a conversation. Accordingly, I have credited Stan’s
testimony in this regard.
29 According to Marshall’s testimony on direct examination, Lee
discharged him without giving any reason. On cross-examination,
Marshall admitted that on November 4, Lee told him that
McQuaide’s opinion was that he did not load enough freight at Little
Tykes on October 31. Marshall also testified that he told Lee that
he did the best he could. Marshall’s sparse recollection of admitted
confrontations with Stan and Lee during early November 1991, and
Continued
the past, but now he was screwing Little Tykes and he
couldn’t live with that.’’
Dougherty’s testimony regarding his conversations showed
that his remarks were much more restrained than
McMullen’s testimony had portrayed. Dougherty testified
that he called McQuaide, spoke to someone at customer serv-
ice about the freight left on Little Tikes’ dock, suggested that
the man could have found room for it on his truck, and
asked for a pickup. Absent from Dougherty’s version of his
remarks, was any reference to Marshall as a ‘‘lazy son-of-
a-bitch.’’ Nor did Dougherty’s testimony show that his re-
marks to McMullen included, any allegation that Marshall
had screwed McQuaide and Little Tykes, or the statement
that Dougherty could not live with Marshall’s asserted faulty
performance.26
On the night of October 31, 1991, John Pine hauled two
pups, including Robert Marshall’s trailer, on the shuttle run
to Johnstown. After Pine broke up the two pups and backed
them into the dock, he noticed Dock Foreman Val Baker
opening the rear door of Marshall’s trailer, with a camera in
hand.
Pine jumped up onto the dock and looked into the rear of
the open trailer. Pine saw loosely packed boxes extending
across the trailer’s rear, and stacked about 1 foot or 1-1/2
feet from its ceiling.
Foreman Baker did not take a picture of the trailer or its
load, as it appeared when he first opened the trailer’s door.
Baker took a picture of back of the trailer load, only after
he and Pine had pulled anywhere from 6 to 10 boxes from
the trailer’s rear and set them on the dock. In his testimony,
Baker admitted removing about 10 boxes from the rear of the
trailer ‘‘to get a picture because they were all stacked up so
high and we wanted to get a picture of the rest of the pup.’’
After moving a few more boxes out of the way in the back
of the trailer, Baker then went into the trailer, and, in pos-
sible violation of McQuaide’s posted policy, walked on
freight to get to the middle of the trailer, where he took a
second picture.27 Finally Baker, again walking on freight,
moved to the front of the trailer, where he took another pic-
ture of the freight.
I have reviewed Val Baker’s three clear pictures. The pic-
tures all show space for more freight. However, I cannot de-
termine whether the space shown would have accommodated
some or all of the freight which Marshall left at Little Tykes
on October 31, 1991. Neither Val Baker nor any other
McQuaide supervisor or employee testified that those pic-
tures showed that Marshall could have taken the entire Little
Tykes shipment on that date.
On November 1, 1991, Stan McQuaide looked at Val
Baker’s pictures, concluded that ‘‘if you moved a few car-
tons, three-quarters of the truck more than halfway up was
empty.’’ Without more, he confronted Marshall later that
day, asserting that he ‘‘had pictures that clearly showed that
[Marshall] wasn’t full, and with a little bit of effort [Mar-
shall] could have very easily put those cartons on.’’
Marshall defended his decision to leave the cartons at Lit-
tle Tykes, first arguing that the truck was full. When Stan
said he had pictures refuting that claim, Marshall claimed
that he had no help to load the freight. Stan rejected that ex-
cuse, on the ground that it was Marshall’s responsibility to
load the freight, which was made up of light plastic toys.
Stan stated that the only reason he knew about the freight
being left at Little Tykes was because the shipper, Little
Tykes, had called.28
Stan telephoned Lee McQuaide and explained what had
happened. He said, ‘‘You and I both know that Bob Mar-
shall, who he is and what he’s done.’’ Stan testified that he
and Lee ‘‘wanted to be very careful that we handled it prop-
erly, and it was my suggestion that before we did something
in discipline that we would contact our attorney and get
some advice.’’ Lee agreed.
On Monday, November 4, 1991, Marshall reported for
work at Columbiana and, finding no pup trailer assigned to
him, called in to the Johnstown dispatcher, who told him to
call back at 9 a.m. Marshall called back at 9 a.m., and spoke
to Stan McQuaide, who told him to call Lee McQuaide. Mar-
shall contacted Lee, who told him to call back the next day.
When Marshall called back, Lee asked him why he had
not made the pickup at Little Tykes. Marshall answered that
he was full. Lee rejected that, answer adding that he had pic-
tures showing Marshall’s trailer ‘‘was two thirds empty’’ Lee
then went on:
You could put Little Tykes on top of the material
that you had in the trailer, which covered about a third
of the floor space, and in addition to that, you had two-
thirds left that you could stack the material.
Conceding that he might have had space, Marshall argued
that Little Tykes would not help him load. Lee said it was
Marshall’s job to load the freight, not the shipper’s. Marshall
complained that he couldn’t stack the shipment because it
was too heavy. Lee rejected that assertion, pointing out that
the cargo was ‘‘very, very light’’ toys.
Marshall argued that he was doing the best job for
McQuaide that he could. Lee answered, ‘‘Well, I don’t call
that doing the best job by far.’’ Lee then terminated Mar-
shall.29
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
my impression that he was not conscienteously searching his mem-
ory cast doubt on his testimony regarding their remarks to him dur-
ing those interludes.
Lee testified in a frank manner, and gave a detailed account of his
conversations with Marshall on November 4 and 5. Accordingly, my
findings of fact regarding those conversations rest on Lee’s testi-
mony.
b. Analysis and conclusions
The General Counsel argues that Marshall’s union activity
and participation as a witness in the representation proceed-
ing on October 18, 1991, motivated Lee to discharge him on
November 5, 1991. McQuaide urges dismissal of those alle-
gations on the ground that the employee’s job performance
was Lee’s only consideration when he confronted Marshall
on that occasion. I find merit in the General Counsel’s con-
tentions.
By October 18, 1991, Lee McQuaide and his brother Stan
were aware of Marshall’s union activity. On that same date,
Lee attended a Board hearing on the Union’s petition for a
representation election among McQuaide’s drivers. Marshall
testified at that hearing as a witness for the Union. In light
of Lee’s animosity toward the Teamsters, I find it likely that
Marshall’s active support for the Union irked President
McQuaide and his brother, Stan. I also find it likely that
Marshall’s union activity and testimony at the Board hearing
further aroused Lee’s and Stan’s hostility.
Before learning of Marshall’s support for the Union,
McQuaide tolerated his shortcomings. In late April 1991,
when he failed to make 11 of the 18 deliveries to Dairy Mart
stores, and neglected to tell a dispatcher the truth about the
returned freight, Stan gave Marshall a verbal warning. How-
ever, Stan did not expressly warn of discharge if Marshall
repeated such conduct.
Also, in the spring of 1991, Stan McQuaide did not dis-
charge Marshall for ignoring repeated instructions to fax his
daily paperwork to Johnstown. Marshall had twice failed to
carry out promises to fax his paperwork to Johnstown. Stan
spoke to him a third time and threatened to fire Marshall if
he did not fax that day and everyday thereafter.
Thirteen days after Lee McQuaide saw Marshall helping
the Union’s organizing effort, McQuaide lost patience with
him. A telephone call from Dougherty, a leadman, at Little
Tykes to Customer Service Manager McMullen gave
McQuaide an opportunity to discipline Marshall.
By the time Pine arrived at Johnstown, Foreman Val
Baker was ready with a camera. Baker did not take a picture
of the rear of the trailer, which was piled high with cargo.
He saw to it that several boxes were removed to show more
empty space. He took a picture of the space over a cargo of
envelopes where company rules discouraged walking or pil-
ing cargo. He took a third picture of space in the front of
the trailer, where Marshall could not have placed Little
Tykes’ cargo without walking on the envelopes. From those
three pictures, and Dougherty’s complaint, Lee and Stan
McQuaide determined that there was more than enough room
to accommodate the 30 unseen boxes which were left on Lit-
tle Tykes’ dock. Stan looked at the the three pictures and tes-
tified: ‘‘[I]f you moved a few cartons, three-quarters of the
truck more than halfway up was empty.’’
Lee also concluded from those three pictures, alone, that
Marshall had covered only one-third of the trailer’s floor
space with cargo and ‘‘had two-thirds left that you could
stack the material.’’ McQuaide did not show how Lee ar-
rived at his estimates of open space. Nor did McQuaide ever
show on the record that the 30 containers of Little Tykes
products which Marshall did not load would have fit in his
pup.
McQuaide was anxious to punish Marshall. Stan and Lee
were willing to rely on an incomplete investigation. Stan and
Lee relied on three sketchy photos to estimate available
cargo space, without regard for the possible impact of load-
ing cartons of toys on top of the envelopes, or of Marshall’s
walking on the envelopes. Neither Stan nor Lee explained
how Marshall could have loaded the entire Little Tykes ship-
ment on his pup without harming the envelopes.
According to Stan McQuaide, one of the reasons for Mar-
shall’s discharge was that McQuaide had to send another
truck to pick up the remainder of the Little Tykes shipment.
However, the record shows that McQuaide warned dock em-
ployee Joe Sodano twice, once in 1990 and once in 1991,
for loading errors which resulted in the dispatch of another
truck to make a delivery. In 1989 and 1991, respectively,
dock employees Neff and Reese each received a written
warning after their mistakes in loading resulted in the dis-
patch of a truck on a special run. Stan testified that the dif-
ference between the dock workers’ misconduct and Mar-
shall’s was that the dock workers forgot and Marshall ‘‘de-
liberately didn’t load the freight.’’
However, earlier in the year, when Marshall ‘‘delib-
erately’’ made only 7 of 18 scheduled deliveries, had not dis-
closed this fact to the dispatcher, and had buried freight, Stan
was not provoked to discharge him or even threaten to dis-
charge him. In October, after Stan and Lee had satisfied
themselves that he was a union supporter, and had decided
that the good of the Company required them to get rid of
Marshall, his departure from one pickup where he ‘‘delib-
erately’’ left some 30 boxes was enough to provide a reason
for discharge.
Given Lee’s and Stan’s union animus, this harsher re-
sponse to Marshall’s failure to pick up 30 boxes at Little
Tykes suggests that the employee’s union activity and sup-
port for Local 24’s election petition were the catalysts.
At the hearing, Stan McQuaide testified that a further rea-
son for Marshall’s discharge was that he lied to the dis-
patcher on October 31, when he claimed that his truck was
full. Lee testified that he fired Marshall because he ‘‘just
didn’t do his job and he didn’t seem too concerned about it
either, that he didn’t do it.’’ Lee then added that Marshall
had lied to him in three respects in their terminal conversa-
tion on November 5. Lee did not mention any lie to the dis-
patcher. Instead, he characterized as lies Marshall’s asser-
tions that ‘‘he didn’t have room’’; that Little Tykes wouldn’t
give him any help; and that ‘‘he couldn’t stack it up high.’’
This inconsistent testimony by the two company officials
who decided to discharge Marshall cast doubt on their claim
that Marshall’s lying was a reason for his discharge.
In view of the other factors, which I have recited above,
I find that McQuaide’s explanation of Marshall’s discharge
on November 5 was pretextual, and that his support for the
Union, including his presence at the Board’s representation
hearing on October 10, motivated Stan and Lee McQuaide.
769W. C. MCQUAIDE, INC.
30 My findings that Marshall’s testimony, under oath, in this pro-
ceeding was false did not disqualify him from receiving backpay or
an offer of reinstatement under a Board remedial order. ABF Freight
System v. NLRB, 114 S. Ct. 835, 839 (1994).
31 Lee McQuaide testified that he did not recall his conversation
with Thomas Boyes. However, Lee conceded that as a matter of
practice, during the hiring process, he tells new drivers that
McQuade is a nonunion company and that he wants it to stay that
way. This admission and Lee’s anti-Teamsters comments at the hear-
ing before me lend support to Thomas Boyes’ testimony about that
conversation, which I have credited.
Accordingly, I find that by discharging Marshall, McQuaide
violated Section 8(a)(4), (3), and (1) of the Act.30
3. Thomas Boyes, Jack Boyes, Dale Salsbury, and
David McGuigan
a. The facts
McQuaide hired Dale Salsbury on March 4, 1991. He
worked out of McQuaide’s Richfield, Ohio terminal, deliver-
ing and picking up freight in the Cleveland, Ohio area.
During the same month, McQuaide hired Thomas Boyes
(Tom) as a driver to work with Dale Salsbury and another
driver named Al. Lee McQuaide interviewed Thomas and
gave a driving test to him before hiring him in 1991. During
the driving test, Lee said that McQuaide was not ‘‘a union
outfit’’ and warned that he would never employ a union driv-
er behind the wheel of his truck.31
During his employment at Richfield, Tom picked up and
delivered freight around Cleveland and northeast Ohio, and
drove the shuttle run between the Richfield terminal and
McQuaide’s Johnstown terminal. The shuttle consisted of
two 28-foot trailers and a tractor. A Richfield-based driver
would drive the two pups to Johnstown in the evening, load-
ed with Ohio freight and return early the next morning with
freight for distribution in Ohio.
In April 1991, Tom’s son, Jack Boyes, replaced Al as a
driver at the Richfield terminal. Jack became the primary
shuttle driver between Richfield and Johnstown.
The three Richfield drivers became involved in Local 24’s
campaign in September 1991. Tom was one of the McQuaide
drivers who contacted Local 24 in early September 1991.
Tom went with employee Robert Marshall to visit Local 24
President John Mozena to discuss organizing McQuaide’s
Ohio drivers. Tom received a quantity of Local 24’s author-
ization cards from Mozena, and distributed some of them to
Jack Boyes and Dale Salsbury. Tom solicited and obtained
signed authorization cards from McQuaide employees. Tom
signed a union card on September 11, 1991, and turned it
over to Mozena along with Dale’s signed card. On October
18, 1991, Tom attended the Board’s representation hearing
along with Bob Marshall and Lee McQuaide. Tom did not
testify at the representation hearing.
On October 18, 1991, Mozena suggested that Marshall and
Tom begin organizing McQuaide’s Pennsylvania drivers.
Tom and his son Jack took authorization cards from Local
24 to McQuaide’s Bethel and Johnstown terminals. By No-
vember 14, 1991, they had obtained approximately 129
signed cards from the employees at those locations. Tom ob-
tained 50 or 60 of those signatures. Tom and Jack gave
union authorization cards to Johnstown employees Randy
Hunter, Ray Webb, and Barry Michalides for distribution and
signatures. Tom turned the signed cards over to John
Mozena, who submitted them to the Regional Director for
Region 8. Tom and his son Jack held a meeting with
McQuaide’s Bethel drivers in November 1991, where the
two distributed authorization cards and obtained a number of
signatures. Jack also attended two union meetings in the
Johnstown-Windber, Pennsylvania vicinity in November
1991. He wore a hat with Local 24’s name on it.
Beginning in December 1991, and thereafter, Tom sup-
ported Local 429. On January 11, 1992, Tom signed an au-
thorization card for Local 429. Tom continued to hand out
Local 429’s authorization cards to McQuaide employees. As
he drove the shuttle, McQuaide employees would occasion-
ally give him signed cards, which he mailed to Local 429.
Jack Boyes supported the union campaign, first among
McQuaide’s Ohio drivers, and later among both the Ohio
drivers and McQuaide’s Pennsylvania drivers. Tom obtained
a signed authorization card for Local 24 from his son, Jack,
on October 11, 1991. Jack distributed 70 or 80 authorization
cards for Local 24 and obtained signatures on them from
dock workers, truckdrivers, and mechanics at McQuaide’s
Johnstown terminal. He wore a baseball cap with ‘‘Local
24’’ on it.
When Local 429 took over the campaign, Jack remained
a union activist. On January 11, 1992, he signed an author-
ization card for Local 429. Jack also passed out 70 to 100
cards for Local 429. He received them by mail, from a dock
worker, and from Tom. Jack wore a baseball cap with the
Teamsters’ logo on it. Jack attended meetings which Local
429 held for McQuaide’s employees. At the Board-held elec-
tion, on June 27, 1992, Jack was Local 429’s observer.
On September 10, 1991, Dale Salsbury signed a card for
Local 24, which he had received from Tom Boyes. In the au-
tumn of 1991, Dale wore a Teamsters hat and a pin that said:
‘‘Stop Scabs.’’ On December 26, 1991, Dale signed a card
for Local 429 and returned it to Tom Boyes. He attended
meetings called by Local 429 in April 1992. Dale distributed
cards for Local 429 to McQuaide drivers from Pennsylvania,
who came to the vicinity of Cleveland. He returned signed
authorization cards to either Tom or to Jack.
Salsbury found opportunity to express support for the
Union. During the preelection campaign, he jokingly urged
Dispatcher Jack Instone to vote union. Salsbury took advan-
tage of the company radio in his cab to discuss the Union
with other McQuaide drivers. On occasion his radio was au-
dible at McQuaide’s Johnstown facility.
McQuaide’s management perceived Dale and Tom as lead-
ing union activists. On January 20, 1992, Robert Wernli, a
McQuaide sales representative, told Lee and Stan McQuaide,
and McQuaide’s vice president of sales, Gary Brennan, that
Dale and Tom wanted to discuss the Ohio operations with
Stan. Lee responded that he considered them to be the union
instigators and he had nothing to say to them.
A few weeks prior to the Board-held manual election, on
June 27, 1992, during a phone conversation with Dale, Lee
McQuaide spoke of the Union in uncomplimentary terms.
Lee said the Union was no good, that it would not work, and
that it would be harmful for McQuaide.
As found above, in September 1991, Jack Boyes and John
Pine told Dock Foreman Ron Locker that they were organiz-
ing for Local 24. Locker warned them that McQuaide would
discharge them for engaging in such activity and that even
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 According to Dispatcher Horner’s testimony, Jack’s contact on
the night of January 15, 1992, had been with Dispatcher Rhoades.
Horner also testified about his efforts to contact Jack, first, by call-
ing the shuttle and then by calling Jack’s home, and then Tom, by
calling Tom’s home. Horner’s testimony also shows that he knew
that Jack had called off because his wife went into labor. Thus, his
testimony about an attempt to call Jack on the shuttle radio seems
illogical. I also noted that Horner seemed tentative as he testified
about Dispatcher Rhoades’ receipt of a call from Jack, and Horner’s
efforts to get in touch with Jack. In contrast, Jack Boyes seemed to
be reliving the events of January 15 and 16, 1992, as he testified.
Accordingly, I have credited his testimony that he called off to
Horner and explained that he would make an effort to reach Tom
and get him to drive the shuttle.
33 I based my findings regarding Sepety’s efforts to obtain the ac-
cident report, on his uncontradicted testimony, which he gave in a
full and forthright manner.
if they organized successfully McQuaide would shut down
and open up later as nonunion.
The two employees distributed union cards openly at
McQuaide’s Johnstown facility. On October 31, 1991, Dock
Foremen Val Baker and Tony Kostyk enjoined Boyes and
Pine from being on the Johnstown dock. After about 2
months, however, they were again on the dock.
In early January 1992, while Jack Boyes’ tractor was in
the Johnstown garage for an oil change, a quantity of union
authorization cards fell from the cab and scattered on the
work floor. The lubrication supervisor, his assistant, and the
body shop foreman picked some of them up.
In April or May 1992, Lee McQuaide, in a telephone con-
versation with Tom Boyes, gave vent to his sentiment toward
the Ohio drivers. Lee said they were ‘‘nothing but union
trouble,’’ and that ‘‘you are all organizers over there and
cause nothing but union trouble.’’
On the night of January 13, 1992, Jack kept his truck
idling at McQuaide’s Johnstown terminal for 45 minutes. On
the following day, McQuaide issued a written warning notice
to Jack for violating its prohibition of idling. At the time his
truck was idling, Jack noticed another truck idling. He cau-
tioned Tim, the driver of that truck, that he would get into
trouble for idling. Tim replied that he always idled. Tim con-
sulted Dispatcher Barry Horner, who allowed him to idle.
The record did not disclose how long Tim idled his truck
that night.
Beginning in January 1992, Tom, Jack, and Dale suffered
a succession of layoffs and suspensions from their employ-
ment at McQuaide. On January 15, 1992, Jack notified
McQuaide’s Johnstown dispatcher that he would be unable to
drive the shuttle that evening because his pregnant wife was
not feeling well and had a fever. Jack said he would try to
get his father, Tom, to drive the shuttle. In the meantime,
Tom had called the same dispatcher to report off for the rest
of the day, and was driving home through a snowstorm. Jack
attempted to reach Tom, who was not home. Jack left a mes-
sage with his sister, Becky, at Tom’s home that he should
call Jack when he came home. After about 1 hour, Jack
called again, learned that Tom had not returned, and again
asked Becky to have Tom return his call. At the same time,
Jack’s wife began to have pains again. As she was 7 days
overdue, Jack took his wife to the hospital, where they re-
mained until 2 or 2:30 a.m. on January 16.32
Tom did not arrive home on January 15, until late evening.
He found a note telling him that Jack’s wife had gone into
labor and that Tom’s family had gone to the hospital. He re-
ceived no message to call Jack. Nor did Tom receive any
word that McQuaide’s dispatcher, Barry Horner, had called
him earlier that same evening.
At about 7 a.m., on January 16, 1992, Tom learned from
McQuaide Dispatcher Jack Instone that there had been no
shuttle run during the night. Instone told Tom to call back
later in the morning. When Tom called back, Stan McQuaide
asked him to explain what had happened on the previous
night. Tom said he didn’t know and went on to explain his
whereabouts and the plight of Jack’s wife. Stan said he
would investigate the matter.
Later, on the evening of the same day, after he had re-
turned from making pickups, Tom phoned Johnstown. Barry
Horner reported that Stan did not believe Tom’s story and
that he was suspended for 2 days. On the second day, Horner
extended the suspension for 1 more day.
Jack also phoned Horner on January 16, and told about the
previous night’s problem with his wife and trying to get to
Jack. The result was the same. Jack also received a 3-day
suspension.
On Wednesday, February 5, 1992, four drums of liquid in
a trailer which Tom had hauled from Richfield to Cleveland
had frozen en route. Arriving at his Cleveland destination,
Tom backed the trailer into an inside dock which had a hot
airblower. When his trailer door was opened, Tom discov-
ered that the drums had burst and were leaking. The instruc-
tions on the cargo and its bills of lading were to protect it
from freezing. Tom reported the loss of cargo to McQuaide’s
Johnstown office.
McQuaide’s cargo claims manager, Joseph Sepety, di-
rected Tom to prepare an accident report. Tom testified that
Sepety asked him to submit it in 12 days. Sepety testified
that he asked that Tom submit the report as soon as possible.
In any event, on February 10, when Sepety had not received
the report, he became concerned. He advised Stan and Lee
McQuaide of Tom’s neglect to file the report. At Sepety’s
request, Dispatcher Instone reminded Tom ‘‘numerous
times’’ about the report.33
As of February 17, Tom had not submitted the accident
report. Instone told Lee that Tom had not yet filed a report.
I find from Lee’s uncontradicted testimony that he ordered
Instone to tell Tom that Lee McQuaide had to have that re-
port. After a few more days, on learning that the report had
not arrived, Lee directed that Tom be deprived of work until
the report was submitted.
McQuaide withheld work from Tom on February 27. On
that same day, he submitted the requested report on notebook
paper, and was assigned work thereafter.
According to Jack Boyes, on the evening of March 18,
1992, he observed snow and icy road conditions in the vicin-
ity of McQuaide’s Richfield, Ohio terminal. Jack also testi-
fied that on the same evening, he observed a wreck blocking
the intersection he would use to get on the turnpike with the
shuttle to Johnstown.
He called the Johnstown dispatcher, Tom Rhoades, and
described bad road conditions and blockage. Rhoades advised
him to wait about an hour and call back. While Boyes wait-
ed, he testified that the intersection was cleared, but road
conditions had worsened. Jack called the dispatcher and said
771W. C. MCQUAIDE, INC.
34 I based my findings regarding Jack’s conversation with Stan, on
Jack’s uncontradicted testimony.
35 According to Jack, Lee also accused him of leaving the truck
idling with its lights on and credit cards on the dashboard. I find
it unlikely that Lee would accuse Jack of not being at the Richfield
terminal and at the same time charge him with leaving a tractor
idling, with credit cards on its dashboard, at the same terminal. I
also find from Lee’s credited testimony that he never accused Jack
of allowing the tractor to idle on the night of March 18–19, 1992.
36 According to Lee McQuaide’s testimony, the only Richfield
driver to whom he spoke about this incident was Dale Salsbury. Ac-
cording to Lee, Salsbury said he knew nothing about the coupling
of the pups.
37 I find from Stan McQuaide’s testimony, corroborated by
McQuaide’s records, that Thomas was suspended for 1 day. I also
find from Jack’s testimony that he was suspended for 2 days.
38 Lee McQuaide denied that he had given any instructions to have
Tom pick up the tractor. Lee also testified that he did not know of
any other source of such instructions. However, Tom seemed to be
giving his best recollection of a conversation, in which Stan author-
ized him to ride in to Johnstown, on a McQuaide truck to retrieve
the tractor which Jack had driven on March 27. Tom’s account
stands unchallenged by Stan. As Tom gave his recollection of the
conversation in a frank manner, I have credited his testimony.
that the tractor was stuck and that he was not bringing the
shuttle in because of bad road conditions. Jack assumed re-
sponsibility for explaining his decision to Stan McQuaide.
That same evening, Dispatcher Rhoades reported Jack’s
decision to Stan McQuaide. The vice president instructed the
dispatcher to send Johnstown drivers out to Ohio on the fol-
lowing morning to make deliveries and pickups, and to bring
in the shuttle.
Early on the following morning, Jack telephoned Stan and
offered to bring the shuttle to Johnstown. Stan said that Jack
had ‘‘messed up the flow,’’ that he should call Lee, and that
another driver had already picked up the shuttle.34
On the afternoon of March 19, Dispatcher Instone reported
to Stan McQuaide that a Johnstown driver had found the
shuttle truck with the pups attached, the engine running, the
cab door open, and turnpike credit cards on the console. Stan
concluded that Jack had not attempted to bring the shuttle in.
Stan reasoned that had Jack gone to the Richfield terminal
he would have shut off the idling and closed the cab door.
Stan also concluded that Tom and Dale had hooked the
two pups to the shuttle tractor and had left the tractor idling.
Stan believed that Tom and Dale normally left the tractor
running with the expectation that Jack would shortly begin
his shuttle run to Johnstown.
Following instructions, Jack called Lee, who said he did
not believe that Jack ever went to Richfield on the previous
day.35 Jack insisted that he had. I find from Lee’s uncon-
tradicted testimony that he knew of ‘‘a couple of other in-
stances where [Jack] wouldn’t come in whenever the roads
were a little bad.’’
I find from Lee’s testimony that on the morning after Jack
had refused to drive the evening shuttle Dispatcher Jack
Instone told Lee that on that same evening Tom Boyes had
coupled the pups for Jack and had left the truck running.36
That same day, when Lee approached him about the idling,
Dale Salsbury said he knew nothing about it.
On March 19, Stan and Lee conferred and exchanged their
views as to what Jack and Tom had done on the previous
evening. The McQuaides rejected discharges as the appro-
priate discipline in this instance because Jack and Tom were
involved with the Union. Instead, Stan and Lee settled on
brief suspensions as the appropriate punishment.
According to Lee, he suspended Jack for 2 days, March
19 and 20, 1992, for failing to go to the Richfield terminal
and attempt to drive the shuttle. Lee also testified that he
suspended Tom for 1 day on March 20, 1992, for idling
Jack’s truck.37 I find from Lee’s uncontradicted and credible
testimony that he feared that the idling of a tractor overnight
could result in serious harm to the vehicle.
Under Federal law, all of McQuaide’s drivers were re-
quired to have a commercial driver’s license by April 1,
1992. McQuaide set March 28, 1992, as its own deadline. To
qualify, a driver had to pass a driving skills test and a writ-
ten examination. Under a grandfather provision, the skills
test was not required for a driver with at least 2 years’ expe-
rience operating the type of vehicle for which he was seeking
the CDL. The law required that all drivers, regardless of ex-
perience, take the written examination.
Tom had his CDL at the time McQuaide hired him. As
of March 28, 1992, Jack Boyes and Dale Salsbury had not
obtained their CDLs. Jack needed a grandfathering form to
waive the skills test. He submitted his form to Mark
McQuaide on March 8 or 10, 1992. Dispatcher Rhodes ob-
tained the completed form from Mark and returned it to Jack
on March 27, 1992. Jack Boyes had arranged to take the
written test on March 30, 1992, the first day of his vacation.
On March 27, Lee McQuaide telephoned Jack and in-
structed him to drive the shuttle over to Johnstown that
evening, as usual, and then ride back with driver John Pine.
When Jack questioned the motive for leaving his tractor in
Johnstown and riding back with Pine, Lee said it was be-
cause Jack did not have a CDL. McQuaide paid Jack only
for the 5-1/2 hours of driving and the time he spent at the
Johnstown terminal. He received no compensation for the 5-
1/2 hours he spent riding with John Pine. Jack took the test
and obtained his CDL during his vacation, which began on
March 30.
Tom, Jack, and Dale had arranged that, pending Jack’s re-
ceipt of a CDL, Tom would drive the shuttle and Jack and
Dale would work in Ohio. Dispatcher Jack Instone rejected
that plan and said neither Jack nor Dale would work. Instead,
for 1 week until Jack’s return, Tom would work 1 day and
Dale would work the next. McQuaide’s records show that
Tom did not work on March 31 and April 2, 1992, during
Jack’s vacation. Thus, did Tom lose 2 days’ pay.
On April 3, 1992, Stan McQuaide authorized Tom to ride
to the Johnstown terminal on one of McQuaide’s trucks to
pick up the tractor Jack had driven on March 27, 1992. Tom
took the ride and drove the tractor back to Richfield.
McQuaide paid him for the 5-1/2 hours’ allowance for his
drive to Richfield and his delay there. However, McQuaide
did not pay him for the hours he spent riding to Johnstown
with another McQuaide driver.38 At the hearing, Lee testified
that McQuaide did not pay Tom for his trip to Johnstown be-
cause ‘‘they had goofed it up, per se, and it was up to them
to straighten it out.’’
On the night of August 12–13, 1992, Jack Boyes was
scheduled to drive the shuttle to Johnstown. However, he did
not do so, assertedly because he felt ill. Nor did he notify
the Johnstown dispatcher that he would not be driving the
shuttle on that night. Instead, after midnight, on August 13,
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 According to Jack Boyes’ testimony, on the night of August 12,
1992, he notified Horner that he would not be driving the shuttle
because he was ill, and said he would explain his absence to Stan
McQuaide. Jack also testified that he telephoned Stan later that
evening and that, on hearing Jack’s explanation, Stan fired him for
too many absences. Telephone records covering the evening of Au-
gust 12, 1992, however, did not corroborate Jack’s testimony. Fur-
ther, both Stan’s and Barry Horner’s testimony contradicted Jack’s
in this regard. Finally, before the Pennsylvania Unemployment Com-
pensation Board of Review, Jack testified, under oath, that on in-
struction from Horner he tried unsuccessfully to get in touch with
Stan McQuaide on August 13 and that Thomas, his father, told him
that he was fired. These contradictions, the telephone records, and
my impression that Barry Horner was a frank witness, compelled me
to credit him rather than Jack with respect to what happened on the
night of August 12–13.
Tom’s credited testimony shows that he telephoned Jack on Au-
gust 13, after learning of Jack’s discharge. However, Tom neither af-
firmed nor denied telling Jack about it. Nevertheless, I find from this
testimony and Jack’s admission on cross-examination that Tom told
him about the discharge.
40 See fn. 39.
41 I based my findings regarding Barry Horner’s and Stan
McQuaide’s remarks about Jack, on Thomas’ and Dale Salsbury’s
testimony, respectively.
42 See fn. 17, where I have dealt with the conflict between
McGuigan’s and Lee’s testimony regarding this interview.
Barry Horner, upon noting that the shuttle had not arrived,
tried unsuccessfully to contact Jack by telephone and radio.
When he clocked out at 3:40 a.m., on August 13, Horner left
a note of explanation for Stan McQuaide.39
Tom drove the shuttle to Johnstown on the night of Au-
gust 12–13. While there, he encountered Barry Horner, who
remarked that ‘‘it looks like they are going to let Jack go.’’
Tom returned to Ohio, as a passenger in another McQuaide
truck on August 13, 1992. He carried back paychecks for
Jack and Salsbury, which he distributed to them. On return-
ing to Ohio, Tom called Jack and told him, about his check
and his discharge.40
On August 14,1992, Stan McQuaide told Tom that Jack
had been terminated and that McQuaide would have to hire
another driver for Richfield. Three days later, Stan told Dale
Salsbury that Richfield could not operate with only two driv-
ers. Stan went on to reveal that Jack had been terminated be-
cause he did not call in.41 In its answer to consolidated com-
plaint, dated January 19, 1993, McQuaide admitted that it
discharged Jack Boyes on about August 13, 1992.
At the time he told Tom of Jack’s discharge, Stan offered
Tom the choice of a transfer to Johnstown or a layoff. Tom
who lived at Ravenna, Ohio, concluded that it would have
been ‘‘financially impossible’’ for him to accept employment
at Johnstown. Tom chose the layoff.
On August 17, 1992, Stan told Dale Salsbury that the
Richfield terminal could not operate with only two drivers.
Salsbury differed with Stan, insisting that McQuaide had op-
erated Richfield with only two drivers in the past. Stan laid
Salsbury off.
In late September 1992, after a prehire interview, in which
his attitude toward unions came up, McQuaide hired David
McGuigan to drive the shuttle between Richfield and Johns-
town. I have discussed this interview above. However, I find
it necessary to set it out here in connection with the cir-
cumstances leading up to the alleged discrimination against
McGuigan.
During the prehire interview, on September 24, 1992,
President Lee McQuaide asked McGuigan if he knew Dale
Salsbury and Tom Boyes. When McGuigan said no, Lee
asked if McGuigan was a union plant. McGuigan answered
no. Lee asked McGuigan how he felt about unions.
McGuigan disclosed that he had belonged to a union, but had
a withdrawal card. Lee warned him that Tom Boyes and
Dale Salsbury would not be around much longer because
they were union supporters. Lee also said he wanted nothing
to do with ‘‘their f—king unions in Youngstown or Ohio or
. . . with anyone that is supporting any unions.’’42
After McGuigan’s arrival at its Richfield operation,
McQuaide, in early October 1992, recalled Tom Boyes and
Dale Salsbury. Until early February 1993, Tom Boyes and
Dale Salsbury did pickups and deliveries out of Richfield and
McGuigan drove the shuttle.
McGuigan became an active union supporter after he
began working for McQuaide. He received about five author-
ization cards from Tom Boyes, which he distributed while
driving out of the Johnstown terminal. On occasion,
McGuigian wore a union hat at Richfield and at Johnstown.
In January 1993, McGuigan expressed prounion sentiment
in a discussion with employee John Pine, in the McQuaide
lunchroom, at Johnstown. McGuigan complained that
McQuaide was not treating the drivers right and suggested
that they needed a union. At the same time, about 5 feet be-
hind McGuigan was Ron Plumber whose father, Director of
Maintenance John Plummer, was at all times material to
these cases a supervisor.
On February 3, 1993, Dispatcher Barry Horner told Tom
Boyes and Dale Salsbury that McQuaide was moving the
Richfield operation to Columbiana, Ohio. Tom complained
that Columbiana was a long way from his house. In fact, the
distance was approximately 63 miles. Salsbury asked why
they were moving. Horner answered that Lee decided to
make the change because the trucks were being sabotaged at
Richfield. Salsbury complained that the new location was
over 100 miles from his home.
At the time Horner announced the move, Salsbury was
driving a truck that had a hole in its radiator. According to
Salsbury, a piece of welding rod, which dropped out of his
radiator in Cleveland, caused the damage. He did not believe
that the damage occurred at the Richfield yard. However,
Lee told Salsbury that a screwdriver had caused the damage.
When McGuigan arrived at Johnstown, driving the shuttle,
on February 3, 1993, he heard about the change in oper-
ations. Dispatcher Dusty Rhodes told him that Richfield ter-
minal was closed, and instructed McGuigan to take his truck
back to Columbiana. For McGuigan, the change meant an in-
crease of 64 or 65 miles in distance between his residence
in Cuyahoga Falls, Ohio, and his work station. McGuigan
completed his run to Columbiana on February 3, and went
home. On the following day, he telephoned Stanley
McQuaide and complained that the new commuting distance
was ‘‘entirely too far for [him] to travel back and forth to
work, from Cuyahoga Falls to Columbiana.’’ McGuigan did
not drive for McQuaide again until February 10.
The three Richfield drivers were each laid off for approxi-
mately 1 week. McGuigan’s layoff began on February 4,
1993. Tom and Salsbury drove tractors to Columbiana on
that same day. Salsbury told Dispatcher Horner that he
773W. C. MCQUAIDE, INC.
43 Lee McQuaide denied that he terminated McGuigan during their
telephone conversation on February 18. Also, contrary to McGuigan,
Lee testified about a conversation between them on February 19, in
which McGuigan said he would come in with that night’s shuttle.
According to Lee, he said that McGuigan could come in with the
Richfield shuttle, but that Lee could not see him until Saturday
morning, February 20. However, there was no Richfield shuttle on
February 18 or 19, because McQuaide had discontinued it in early
February, I find it unlikely that McGuigan would have talked about
the Richfield shuttle on February 18 or 19. This error together with
Lee’s casual attitude as he testified about conversations with
McGuigan and whether he had any idea about McGuigan’s union
sentiment at the time of these conversations caused me to doubt the
reliability of Lee’s testimony regarding these matters of fact. His
casual air contrasted sharply with his expressions of hostility toward
the Teamsters and his demonstrated intention to prevent the Union
from organizing his employees. Accordingly, I have not credited
Lee’s testimony either regarding a conversation on February 19, or
where such testimony was inconsistent with McGuigan’s in these re-
gards. Of the two, McGuigan seemed to be more concerned about
providing his best recollection.
would not drive 100 miles one way to work at Columbiana.
Six days later, Salsbury returned to work, after Stan
McQuaide told him that the Richfield drivers would be work-
ing out of Norton, Ohio.
On February 5, 1993, Lee McQuaide and Tom discussed
the layoff of the three Richfield drivers. Lee blamed the
move to Columbiana on the sabotaging of McQuaide’s trucks
at Richfield. Tom’s truck did not suffer damage. However,
he was aware of the leak in Dale Salsbury’s truck radiator
at Richfield. He also told Lee that the commuting distance
between his home in Ravenna, Ohio, to Columbiana was too
great. On the same date, Tom made a similar complaint to
Dispatcher Horner. On February 9, 1993, Tom filed an unfair
labor practice charge in Case 8–CA–25210, which later be-
came Case 6–CA–24968–8 and was included in the instant
proceedings. In his charge, Tom alleged that since on or
about February 4, 1993, he, Salsbury, and McGuigan had
been transferred to Columbiana, and thereby constructively
discharged because of their union activity and membership.
On the same day, Stan told Tom of the move to Norton. On
February 10, Tom began driving out of Norton, Ohio, for
McQuaide.
In the meantime, on February 8, 1993, Tom had applied
for employment as a driver at Putnam & Storage Co. In his
application, he told Putnam that McQuaide was his current
employer, and that he was leaving his current employment
because of the move to Columbiana. Tom worked for Put-
nam as a casual driver at its Richfield, Ohio facility, begin-
ning on February 19, 1993. His timecards and testimony
show Tom’s casual employment at Putnam in February and
March 1993.
On February 16, 1993, McGuigan reached Dispatcher Jack
Instone and said he would drive the shuttle to Johnstown
‘‘one way or the other.’’ When McGuigan left Norton at 6
or 6:30 p.m., the weather was snowy and the roads were dif-
ficult. McGuigan notified Dispatcher Dusty Rhodes, by radio,
that the going was bad and that he would pull over until the
salt trucks arrived. McGuigan’s trip to Johnstown that night
took about 9 hours, instead of the 4-1/2 hours he normally
needed to make the run.
Once at McQuaide’s Johnstown terminal, McGuigan ex-
changed pups and had maintenance attend to some defective
lights on one of the pups. He left Johnstown at 5:20 a.m.,
on February 17. The weather and road conditions were win-
try, with wind and ice impeding his progress. He pulled over
to the side of the turnpike for about 20 minutes to allow
plows and the salt truck to pass him. He arrived at Norton
at about 10:30 or 10:40 a.m.
That same day, soon after arriving home, McGuigan re-
ceived a phone call from President Lee McQuaide. Lee
scolded McGuigan about returning late to Norton and for
being the reason deliveries to Cleveland were late. McGuigan
yelled back that McGuigan’s support for the Union didn’t
allow Lee to call him and harass him.
At the time Lee called, McGuigan had worked for about
17 hours, and was very tired. Nevertheless, Lee asked
McGuigan to get into his pickup truck, drive to Johnstown,
and discuss ‘‘this whole situation’’ with Lee. McGuigan said
he was ‘‘really tired’’ and noted that the trip would be al-
most 400 miles. He said he would try to get to Johnstown
on the next day.
On February 18, McGuigan attempted to reach Johnstown
in his pickup truck. As he reached Youngstown, his truck
broke down. He arranged for towing back to his hometown,
Cuyahoga Falls, Ohio. McGuigan phoned Lee and reported
the breakdown.
Lee suggested that McGuigan rent a car to drive over to
Johnstown. McGuigan rejected the suggestion as too costly.
Instead, McGuigan offered to ride in that evening, with
Salsbury, on the shuttle. Lee did not offer to pay for the car
rental. Instead, Lee said he had an 11:30 p.m. appointment
with an eye doctor, and refused to see McGuigan that
evening.
In the same conversation, Lee warned that McGuigan
would not receive any work if he did not come in and see
Lee. McGuigan replied that that he had done the best he
could to get to Johnstown, but could not do so. Lee ended
the exchange, saying he expected to let McGuigan go.43
By letter dated February 24, 1993, Lee McQuaide advised
McGuigan as follows:
I spoke to you by telephone on 2/17/93, 2/18/93 and
2/19/93. In each of these conversations I told you that
you had to come to Johnstown for a meeting concern-
ing your job requirements and each time you agreed to
come. During the last conversation you asked for per-
mission to ride in with the shuttle truck and I said that
you could. However, you still have not come in.
Since you have not reported or called, I can only as-
sume you have quit. I am marking your records: Quit
without notice.
On February 18, 1993, Tom drove McQuaide’s city run all
day. On that same day, Dispatcher Dusty Rhodes instructed
Tom to go to Norton and assist a Johnstown driver. Tom
went to Norton, where he opened the gate and helped a
Johnstown driver to hook up two pups. That night, when
McQuaide’s dispatch asked him to drive the shuttle, Tom re-
fused.
On the morning of the following day, Tom called Dis-
patcher Jack Instone and asked him if there was any work.
Instone said he had nothing for Tom. Instone told Tom to
call later and talk to the night dispatcher about work. When
he heard from Instone that there was no work, Tom took a
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 I based my findings regarding Thomas’ call on February 19 on
his testimony at the hearing in these cases, on July 12, 1993, when
he conceded that he had made only one call to McQuaide on Feb-
ruary 19.
45 On direct examination, Thomas testified that he called Dusty
Rhodes at about 1 a.m. and Dispatcher Instone, later on the same
morning and again later in the day. On further examination by
McQuaide’s counsel, however, Thomas conceded that he called
Johnstown dispatch only once on February 19, at about 6 a.m. On
cross-examination, Thomas also testified that he called Instone on
Monday, February 22, and learned that there would not be any
freight coming out to Norton. On further examination by
McQuaide’s counsel, later in the trial, Thomas conceded that he
might not have made such a call from his home or from any place
else. Accordingly, I have not credited Thomas’ initial assertion re-
garding a call to Instone on February 22.
46 I find from Jack Instone’s testimony that he made one call to
Thomas’ home on February 23, 1993. Absent from Barry Horner’s
testimony is any assertion that he made a call to Thomas’ home on
February 22 or 23. Thus, Stan McQuaide’s letter erred as to which
dispatcher called Thomas’ home and as to when the dispatcher made
the call.
47 I based my findings regarding Salsbury’s conduct and conversa-
tions from February 18 on his testimony. Salsbury seemed to be giv-
ing his best recollection in an objective manner, on both direct and
cross-examination.
driving assignment at Putnam.44 Tom did not call McQuaide
after February 19, 1993.45 I also find from Tom’s testimony
that he did not receive any communication from McQuaide
after that date.
Tom has not worked for McQuaide since February 18. Nor
has McQuaide offered him any work since that date. On or
about February 25, 1993, Tom received a letter from
McQuaide, signed by Stan McQuaide, which announced that
Tom had quit without notice. The letter, dated February 24,
read as follows:
You were scheduled to report for work at 5 p.m. on
Monday 2/22/93. You did not report as scheduled. You
did not report off as required. Barry Horner called your
home at 7:45 p.m. 2/22/93 and left a message with your
wife to have you return his call.
Since you have not called, I am mailing your
records: Quit without notice.46
McQuaide’s records included a ‘‘Notice of Employment
Change’’ showing that Tom resigned. In its comments sec-
tion, the form reported that he ‘‘quit without notice.’’ The
form was dated March 2, 1993. Stan McQuaide’s secretary
wrote Stan’s initials on the bottom of the form.
Dale Salsbury last reported for work at McQuaide’s Nor-
ton facility at 7 a.m. on February 19, 1993. The weather was
very cold and Salsbury’s truck would not start. He tele-
phoned McQuaide Director of Maintenance John Plumber at
Johnstown and explained the situation. Plumber told Salsbury
to go home. That night, Salsbury was scheduled to run the
shuttle to Johnstown. During the afternoon, Salsbury did not
feel well. He called Johnstown and told Stan McQuaide that
he could not run the shuttle because he did not feel well.
Stan said okay.
On the evening of the following day, Salsbury telephoned
Johnstown and asked Dispatcher Dusty Rhodes what was
going on. Rhodes replied that Johnstown was not sending
any freight out to Norton. Neither Rhodes nor any other
McQuaide employee or supervisor instructed Salsbury to call
in on Monday, February 22, 1993, to Dispatcher Jack
Instone. From his conversation with Rhodes, Salsbury con-
cluded that McQuaide was shutting down its operations at
Norton.
Salsbury was out of town from February 23 until February
27, 1993, visiting his daughter, near Chicago. When he re-
turned to Ohio, he found a notice that there was a certified
letter for him at the post office. In conversation with Tom,
Salsbury learned of the letter dated February 24, 1993, which
Tom had received from McQuaide. Salsbury concluded that
his letter was similar to Tom’s, and did not bother to pick
it up.47
McQuaide’s records show that Tom and Salsbury were
scheduled to work on February 22. With McGuigan’s termi-
nation, only Tom and Salsbury were left to do pickup and
delivery, and the shuttle. Tom was scheduled to do the pick-
up and delivery, and Salsbury was listed for the shuttle. Nei-
ther Tom nor Salsbury contacted McQuaide on February 22.
I find from Stan McQuaide’s testimony that on the morn-
ing of February 23, 1993, he told Dispatcher Jack Instone:
‘‘Let’s make sure we make an attempt to get a hold of [Tom
and Salsbury], so they can’t say we didn’t try to call them.’’
Following Stan’s instructions, Instone telephoned Tom’s
home. When an unidentified ‘‘female’’ answered, Instone
asked for Tom. Tom was not home. Instone left a message
asking Tom to return Instone’s call at McQuaide. The un-
identified ‘‘female’’ said that Tom would not be home ‘‘until
real late.’’ Instone said ‘‘just have him give us a call.’’ Tom
never returned Instone’s call.
Also, on February 23, 1993, Instone tried unsuccessfully
to reach Salsbury. Instone left a message on Salsbury’s an-
swering machine. Instone’s recorded message asked Salsbury
to give McQuaide a call as soon as he could. Salsbury did
not return Instone’s call. McQuaide has not made any further
efforts to employ Salsbury.
b. Analyses and conclusions
The General Counsel contends that McQuaide violated
Section 8 (a)(3) and (1) of the Act by:
1. Issuing a warning to Jack Boyes on January 14,
1992.
2. Suspending Jack Boyes and Tom Boyes for 3 days
on January 16, 1992.
3. Suspending Tom Boyes for 2 days on March 5,
1992.
4. Suspending Jack Boyes and Tom Boyes for 2 days
on March 19, 1992.
5. Refusing to assign work to Tom Boyes on March
31, and April 2, 1992.
6. Denying wages to Jack Boyes for 5-1/2 hours, on
March 28, 1992.
7. Denying wages to Tom Boyes for 5-1/2 hours, on
April 3, 1992.
8. Terminating Jack Boyes on August 13, 1992.
9. Offering Dale Salsbury and Tom Boyes transfers
to Johnstown, Pennsylvania, on or about August 17,
1992, and laying them off from that date until October
1992.
775W. C. MCQUAIDE, INC.
10. Laying off Dale Salsbury, Tom Boyes, and
David McGuigan from February 4 until February 10,
1993.
11. Terminating Dale Salsbury, Tom Boyes, and
David McGuigan in February 1993.
McQuaide disputes the General Counsel’s contentions. Ac-
cording to McQuaide, it imposed the listed adverse actions
on the employees because of faulty performance, violations
of its rules, or other reasons unrelated to union activity or
prounion sentiment. In short, McQuaide, in each instance,
urges me to find that it would have taken the adverse action
even if the employee had not supported the Union. There is
ample evidence to support an inference that Tom and Jack
Boyes’, Dale Salsbury’s, and David McGuigan’s union activ-
ity was a motivating factor in McQuaide’s decisions to im-
pose the above-listed adverse actions on them.
In his testimony before me, Lee McQuaide expressed
strong animosity toward the Union’s parent, the International
Brotherhood of Teamsters. He asserted that as far as he
knew, ‘‘all their history has been nothing but violence. Their
history is notorious for it. They shouldn’t even be allowed
to represent anybody.’’
Lee’s strong dislike of the Teamsters translated into his
stated desire to maintain McQuaide’s nonunion status. Dur-
ing a prehire driving test, in March 1991, Lee told Tom that
McQuaide was not ‘‘a union outfit’’ and warned that he
would never employ a union driver behind the wheel of his
truck. A few weeks prior to the Board-held election of June
27, 1972, Lee told Dale Salsbury that the Union was no
good, that it would not work, and that it would be harmful
for McQuaide.
Despite Lee’s warning, Tom, along with Tom’s son, Jack
Boyes, and Dale Salsbury began distributing Local 24’s au-
thorization cards among McQuaide’s employees in Septem-
ber 1991. On September 11, Tom signed a union card, which
he handed over to Local 24, along with Salsbury’s signed
cards. One month later, Jack signed a card for Local 24.
Tom and Jack openly sought signatures on behalf of Local
24 at McQuaide’s Ohio and Pennsylvania facilities. By No-
vember 14, 1991, Tom and Jack had about 129 signed cards.
Tom and Jack held a meeting with McQuaide’s Bethel driv-
ers, where they distributed cards for Local 24 and obtained
signatures.
The three employees openly showed support for Local 24.
Tom and Jack wore headgear with Local 24’s name on it.
Salsbury wore a Teamsters hat and a pin, which said ‘‘Stop
Scabs.’’ Salsbury used his truck’s radio to discuss the Union
with other drivers. His remarks were occasionally audible at
McQuaide’s Johnstown headquarters.
Beginning in December 1991, Tom, Jack, and Salsbury
supported Local 429’s organizing drive. They signed cards
for Local 429. Tom handed out Local 429’s cards to fellow
McQuaide employees. He received their signed cards, which
he turned over to Local 429. Jack passed out between 70 and
100 Local 429 cards. Employees sent their signed union
cards to him for return to Local 429. Salsbury distributed
Local 429’s cards to McQuaide’s Pennsylvania drivers, when
he found them in the vicinity Cleveland.
McQuaide’s management quickly learned of the union ac-
tivity among its employees and gave vent to its animosity to-
ward the Ohio-based union activists. In September 1991,
Jack joined with John Pine in urging the merit of having a
union at McQuaide, in a discussion with Dock Foreman
Locker. Jack also told Locker that the employees were orga-
nizing the Union. Locker warned that if they were thinking
about having a union McQuaide would fire them. Locker
also warned that even if a union succeeded in organizing its
employees, McQuaide would shut down and reopen non-
union. As found above, Locker’s warnings violated Section
8(a)(1) of the Act. When Jack and John Pine persisted in dis-
tributing cards openly at Johnstown, Foremen Baker and
Kostyk banished them from its loading dock.
Lee McQuaide was alert to identify the union activists
among McQuaide’s employees. On January 20, 1992, he told
a McQuaide sales representative that he considered Tom and
Salsbury to be ‘‘the union instigators.’’ In April or May of
the same year, Lee told Tom that the Ohio drivers were
‘‘nothing but union trouble,’’ and that ‘‘you are all organiz-
ers over there and cause nothing but union trouble.’’
During David McGuigan’s prehire interview in September
1992, Lee expressed hostility toward unions and employees
who supported them. Lee asked McGuigan if he was a union
plant. McGuigan answered no. Continuing, Lee asked
McGuigan about his sentiment toward unions. When
McGuigan said he had belonged to a union, Lee warned that
Tom Boyes and Dale Salsbury would not be around much
longer because they were union supporters. Finally, Lee
added that he wanted nothing to do with ‘‘their f—king
unions in Youngstown or Ohio . . . with anyone that is sup-
porting any unions.’’
I have considered Lee’s prehire questioning of McGuigan
above, and have found it violative of Section 8(a)(1) of the
Act. I note here that Lee’s questions regarding the possibility
that McGuigan was a union plant, and McGuigan’s union
sentiment were mingled with thinly veiled warnings that he
would soon rid McQuaide of Tom Boyes and Dale Salsbury
because of their union activity and that any employee associ-
ated with a union would suffer a similar fate. I have found
above, that these warnings interfered with, restrained, and co-
erced McGuigan in the exercise of his right to assist the
Union, and thereby violated Section 8(a)(1) of the Act. I also
find that Lee’s warnings provided strong support for the
General Counsel’s prima facie showing that the four employ-
ees’ support for the Union was a motivating factor in
McQuaide’s imposition of the adverse actions listed above
on Tom, Jack, Dale, and David.
Despite Lee’s coercive questioning and warnings,
McGuigan became an active Local 429 supporter, soon after
he joined Tom and Salsbury as a McQuaide driver at its
Richfield terminal. McGuigan handed out five authorization
cards, which he had received from Tom. While visiting
McQuaide’s Johnstown, he occasionally displayed a union
hat, which he also wore at times at the Richfield terminal.
In January 1993, McGuigan expressed prounion sentiments
to fellow employee John Pine, while the two were in
McQuaide’s lunchroom at Johnstown. As McGuigan com-
plained that McQuaide was mistreating its drivers and ex-
pressed prounion sentiment, Ron Plummer, whose father,
John, is a supervisor, was seated a few feet away.
Lee’s and Stan’s concern about keeping McQuaide free of
a union was no secret. His warnings to McGuigan regarding
Tom and Salsbury show that Lee was well informed about
their union activity. Lee’s subordinates in McQuaide’s man-
agement were also quick to warn employees that they would
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suffer discharge if they supported the Union. Thus, the
record strongly suggests that McQuaide’s management was
alert to any manifestation of prounion sentiment among their
employees. Here, I find McGuigan suffering a layoff and 2
weeks later a discharge, after he had he had evidenced
prounion sentiment by wearing a union hat, handing out au-
thorization cards, and expressing it within earshot of Super-
visor Plummer’s son.
Also significant in assessing the evidence of motivation
was Lee’s remarks in 1992, showing that he regarded the
Ohio drivers as a hotbed of union support. From these cir-
cumstances, I find that by the end of January 1993, Lee at
least suspected that David McGuigan had joined Tom and
Salsbury as a union activist.
McQuaide’s willingness to resort to adverse action against
prounion employees, as expressed by Lee’s warnings to
McGuigan, and shown by its unlawful treatment of Pine and
Marshall, provides strong support for the General Counsel’s
prima facie showing that McGuigan’s layoff on February 4,
1993, and his termination 2 weeks later were motivated by
hostility to union activity. Further support for that showing
arises from the concurrence of McGuigan’s termination with
those of Tom Boyes and Dale Salsbury. For in September
1992, Lee had warned McGuigan of Tom’s and Dale’s im-
pending terminations in reprisal for their union activity. In
sum, I find that the record strongly suggests that Lee
McQuaide targeted Tom Boyes, Jack Boyes, Dale Salsbury,
and David McGuigan as union supporters and that he was
likely to use adverse personnel actions against them in re-
sponse.
McQuaide argues that its motive in issuing a written warn-
ing to Jack Boyes on January 14, 1992, was to discipline him
for idling his tractor on the previous night. Jack conceded at
the hearing that he idled his truck for 45 minutes. As found
above, however, from 1988 until March 1992 McQuaide did
not enforce its no-idling rule consistently. Indeed, on the
night Jack was idling his tractor, he noticed another truck
idling. He cautioned Tim, the driver of that truck, that he
would get into trouble for idling. Tim replied that he always
idled. Tim consulted Dispatcher Barry Horner, who allowed
him to idle. The record did not disclose how long Tim idled
his truck that night. As the record shows that McQuaide’s
enforcement of its no-idling rule was inconsistent, I find that
the written warning issued to Jack Boyes on January 14,
1992, was disparate treatment. Pepsi Cola Bottling Co., 301
NLRB 1008, 1050 (1991).
In light of the General Counsel’s strong prima facie show-
ing, as set forth above, I find that idling was a pretext. In-
stead, I find that Jack’s union activity motivated McQuaide’s
decision to issue the written warning notice to him on Janu-
ary 14, 1992. Accordingly, I find that by inflicting that dis-
cipline on Jack Boyes, McQuaide violated Section 8(a)(3)
and (1) of the Act.
On January 16, 1992, Stan and Lee decided to give Tom
and Jack Boyes time off. I find from McQuaide’s records
and Stan’s testimony that he and Lee suspended Tom and
Jack for 3 days, January 17, 20, and 21. According to Stan,
the reason for these suspensions was that they did not meet
their obligation to cover the shuttle and that ‘‘the real prob-
lem was that they led us to believe that they were covering
it, and only after it was too late did we finally figure out that
they weren’t going to be able to do what they said they’d
do, or they weren’t doing what they said they would do.’’
I find that Stan’s explanation is pretextual.
The first infirmity in Stan McQuaide’s explanation is his
assertion that Tom and Jack failed to ‘‘meet their obligation
to cover the shuttle.’’ For, on cross-examination, Stan admit-
ted that when a driver calls off it is the dispatcher’s respon-
sibility to cover the route with another driver. Further,
McQuaide did not show that its management ever apprised
Tom or Jack that their responsibilities included making cer-
tain that the shuttle was covered when one of them called
off. On January 15, 1992, when Jack called off because of
his wife’s labor pains, the dispatcher neglected his duty and
left it to Jack to cover the shuttle. Jack had not guaranteed
that he would get Tom to cover the shuttle. Rather, Jack had
told Dispatcher Barry Horner that he would try to reach Tom
and ask him to drive the shuttle in, but that he could not
‘‘speak for him.’’ Thus, Jack had not obligated himself to do
more than try. There was no showing that Horner insisted
that Jack either cover the shuttle if he could not reach Tom
or get Tom’s agreement to cover it.
The second defect in Stan’s explanation is that on the
night of January 15–16, 1992, McQuaide did not afford Tom
an opportunity to obligate himself to drive the shuttle. Dis-
patcher Horner’s testimony shows that he never talked to
Tom that night. There was no evidence that on that night any
of McQuaide’s dispatchers or other supervisors received any
undertaking by Tom to drive the shuttle. Thus, on two
counts, Stan’s complaint that Jack and Tom ‘‘led us to be-
lieve that they were covering’’ does not withstand scrutiny.
In sum, I find that McQuaide has failed to rebut the Gen-
eral Counsel’s prima facie showing that union activity moti-
vated Stan and Lee when they suspended Tom and Jack for
3 days on January 16, 1992. I further find, therefore that by
these suspensions McQuaide violated Section 8(a)(3) and (1)
of the Act.
I find merit in McQuaide’s claim that it suspended Tom
for the day, on February 27, 1992, for failing to submit a
timely accident report covering his loss of cargo on February
5, 1992. In this instance, McQuaide Cargo Claims Manager
Joseph Sepety requested a written report from Tom. Sepety
testified that he asked Tom to submit the report as soon as
possible. According to Tom, Sepety asked that the report be
submitted by February 17. Whichever testimony is credited
is immaterial. For Tom did not turn the report in until Feb-
ruary 27, 10 days late, even if I credit his testimony.
Sepety’s uncontradicted and credited testimony showed
that he had legitimate business reasons for asking Tom to
provide a report in timely fashion. Sepety and Instone made
a reasonable effort to obtain the report from Tom. I also find
that Lee showed forbearance before he imposed punishment
on Tom for neglecting to submit the report. For his part,
Tom waited until the withholding of work to comply with
Sepety’s request.
I find that with respect to Tom’s loss of work on February
27, 1992, McQuaide has rebutted the General Counsel’s
prima facie showing. Accordingly, I shall recommend dis-
missal of the allegation that McQuaide’s withholding of
work from Tom Boyes on February 27, 1992, violated Sec-
tion 8(a)(3) and (1) of the Act.
Lee McQuaide testified that he and Stan decided to sus-
pend Tom and Jack rather than discharge them for their mis-
conduct on the night of March 18, because the two employ-
777W. C. MCQUAIDE, INC.
48 On direct examination at the hearing, Stan insisted that the CDL
requirement, rather than Jack’s or Tom’s union activity, was the
cause of Tom’s loss of 2 days’ pay. However, I have found that it
was McQuaide’s design which caused Tom’s loss of 2 days of work.
McQuaide dispatched Jack when Stan knew that he had not obtained
a CDL. I also find from the General Counsel’s prima facie showing
that Stan shared Lee’s hostility toward the Richfield drivers because
they supported the Union. In light of these circumstances, I did not
credit either Stan’s denial or his assertion that Jack’s lacking a CDL
was the cause of Tom’s loss of 2 days’ wages.
ees were involved with the Union. Lee and Stan had received
information, which led them to believe that on March 18
Tom had left a tractor idling all night at the Richfield termi-
nal, with the cab door open, and Ohio and Pennsylvania turn-
pike credit cards sitting open on the console. They also had
concluded from this report that Jack had not gone to the
Richfield terminal and attempted to drive to Johnstown
Tom’s testimony showed that he could not recollect what
he had done about the tractor on the evening of March 18,
1992. However, he conceded that he had left the tractor
idling for Jack on occasion. There was no showing that he
attempted to convince Stan and Lee of his innocence.
I find that Stan and Lee had ample ground for concluding
that Jack had not been at the Richfield terminal on the night
of March 18. Granted, Jack had telephoned the dispatcher
and reported bad road conditions and that the tractor was
stuck. Yet, Stan’s testimony showed that on the following
day he received a report from an eyewitness that the tractor
was idling and apparently had been sitting at the Richfield
terminal all night with its engine running, its cab door open,
and credit cards lying on its console on that occasion. Stan
reasonably assumed that had Jack been at the Richfield ter-
minal on the evening of March 18 and decided against driv-
ing the shuttle he would have shut down the tractor’s engine
and secured the cab door. In light of the unchallenged report
of the idling tractor, Jack’s account of his effort to move it
and the road conditions near the Richfield terminal did not
ring true.
I cannot find that union activity was a motivating factor
in McQuaide’s decision on March 19, 1992, to punish Jack
and Tom. The two employees engaged in misconduct on the
previous evening, which was serious enough to warrant dis-
ciplinary action. There was no showing that McQuaide had
shown indifference to such misconduct by other employees
who were not known or suspected union supporters. Nor
does it appear that either the 1-day suspension imposed on
Tom or the 2-day suspension given to Jack were excessive.
I shall, therefore, recommend dismissal of the allegations that
these two suspensions violated Section 8(a)(3) and (1) of the
Act.
McQuaide’s explanation of its motive for withholding pay
from Jack on March 28, 1992, was pretextual. McQuaide in-
sists that Jack Boyes was not on companytime when he rode
back to Ohio with John Pine on March 28. According to
McQuaide, Jack had not obtained his CDL by that date and
thus, under its rule, could not drive its trucks. However,
McQuaide has not shown any written or unwritten company
rule expressing the policy it now urges before me. Nor has
McQuaide shown that it warned Jack or any other employee
that they would lose wages if they were on the road on
March 28 without a CDL.
Jack was at work when the deadline became effective. He
went to Johnstown on McQuaide’s orders and was under
McQuaide’s orders when he rode back with Pine. Also,
McQuaide had the option of waiving its rule without running
afoul of the April 1 deadline imposed by Federal law. Even
without the exercise of that option, I find that Jack was in
McQuaide’s employ during his return trip to Ohio and thus
entitled to pay for 5-1/2 hours, under McQuaide’s zone pay
scale.
McQuaide has failed to rebut the General Counsel’s show-
ing that Jack’s union activity was a factor in McQuaide’s de-
cision to withhold 5-1/2 hours’ pay from Jack because he
rode back to Ohio on March 28, 1992. I find, therefore, that
by withholding that pay McQuaide violated Section 8(a)(3)
and (1) of the Act.
McQuaide places the blame for Tom’s loss of work on
March 31 and April 2, 1992, on Jack’s neglect to obtain a
CDL prior to its deadline. According to this explanation,
Jack left the tractor at Johnstown on March 28, when he
drove back to Ohio with John Pine. Thus, McQuaide sug-
gests that it had no way to return that tractor and attached
trailers to Richfield.
McQuaide’s effort to escape responsibility for Tom’s loss
of 2 days’ wages falls short of the mark on two grounds.
First, I note that McQuaide sent Jack to Johnstown, knowing
that he had no chance of meeting its March 28 deadline.
McQuaide also knew that Tom had his CDL and could have
made the round trip. These circumstances suggest that
McQuaide engineered the situation to provide an excuse for
depriving two union supporters of wages.48 I find that by de-
priving Tom of 2 days’ wages on March 31 and April 2,
1992, McQuaide violated Section 8(a)(3) and (1) of the Act.
A discriminatory motive is also suggested by McQuaide’s
treatment of the interruption of Richfield’s operations result-
ing from the presence of Jack’s tractor at Johnstown on and
after March 28, 1992. Earlier on March, 19, 1992, when the
Richfield drivers were not available to drive the shuttle to
Johnstown, Stan did not hesitate to dispatch Johnstown driv-
ers to Ohio to cover their work. He sent Johnstown drivers
to pick up and deliver in Ohio, and to drive the shuttle from
Richfield to Johnstown. On March 28, Stan took no action.
He sent no drivers to cover the Richfield operations. Nor did
McQuaide take any action before April 3, 1992.
According to Lee, McQuaide did not pay Tom for his trip
to Johnstown on April 3, 1992, because the Richfield drivers
had ‘‘goofed [the shuttle] up and it was up to them to
straighten it out.’’ This excuse does not help McQuaide’s de-
fense. McQuaide has not shown in this record that Tom had
anything to do with the discontinuance of the shuttle and the
breakdown of the Richfield operation between March 27 and
April 3, 1992. Tom had his CDL. Further, McQuaide, not
Tom, engineered that breakdown and maintained it in reprisal
for his and son Jack’s union activity.
Nor is there any merit to McQuaide’s suggestion, in its
brief, that Tom’s trip to Johnstown on April 3, 1992, was
‘‘of his own volition.’’ When Stan authorized Tom to ride
to Johnstown on a McQuaide truck to pick up the tractor
Jack had driven on March 27, Stan, on McQuaide’s behalf,
was dispatching Tom. When Tom complied with that author-
ization, he was working for McQuaide as one of its regularly
employed drivers and was entitled to be paid for the trip.
In sum, I find that McQuaide was motivated by Tom’s
union activity when it decided not to pay the 5-1/2 hours’
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wages to which he was entitled by his trip to Johnstown. Ac-
cordingly, I further find that by failing to pay those wages
to Tom, McQuaide violated Section 8(a)(3) and (1) of the
Act.
According to Stan’s testimony and McQuaide’s brief, after
hearing nothing from Jack for 10 days, they assumed that he
had abandoned his job and considered him to have quit. The
notion that Jack quit, however, did not square with
McQuaide’s answer to the consolidated complaint dated Jan-
uary 8, 1993. There, McQuaide admits that it discharged
Jack about August 13, 1992. Stan’s testimony and
McQuaide’s brief also conflict with Dispatcher Horner’s re-
marks to Tom on August 13, 1992, and with Stan’s asser-
tions to Tom and Dale Salsbury during the next few days
that McQuaide had let Jack go.
The substantial change in McQuaide’s description of the
termination of Jack’s employment suggests that Stan and Lee
wanted to avoid having to explain the discharge of a leading
union activist, only a few weeks after the Board-held election
among its employees. If Jack had quit, McQuaide would not
be required to provide an excuse that might prove inadequate
in an NLRB proceeding. Thus, I find this shift fosters the
suspicion that McQuaide first seized on Jack’s failure to
phone the dispatcher on the night of August 12–13, 1992, as
a pretext for getting rid of a union activist. Then, on further
review of the situation, Stan and Lee decided to camouflage
Jack’s termination by trying to show that he quit. I find,
however, that McQuaide discharged Jack on August 13,
1992.
From the foregoing, I find that McQuaide discharged Jack
Boyes on August 13, 1992, in retaliation for his active role
in the Union’s organizing drive among its employees. I also
find, that by discharging Jack, McQuaide violated Section
8(a)(3) and (1) of the Act.
According to McQuaide, it laid Tom Boyes and Dale
Salsbury off on August 17, 1992, because it could not oper-
ate the Richfield terminal with only the two drivers remain-
ing there after Jack quit. Contrary to McQuaide’s position,
however, it was Jack’s unlawful discharge which diminished
the Richfield crew by one. Thus, I find no merit in
McQuaide’s excuse. Instead, I find that McQuaide laid Tom
and Dale off as part of an effort to encourage them to quit.
A further ground for my rejection of McQuaide’s excuse
is its failure to substantiate its asserted inability to operate
Richfield after Jack’s departure. There was no showing that
McQuaide lacked the resources to sustain the Richfield oper-
ation. On the contrary, Stan’s testimony showed that he eas-
ily found Johnstown drivers to drive the shuttle and cover the
Cleveland area pickups and deliveries in March 1992, when
Jack did not drive the shuttle. I also note from Tom’s cred-
ited testimony that a Johnstown driver, operating in Cleve-
land, picked Tom up on the way back to Johnstown. Thus,
the record suggests that McQuaide could have operated the
Richfield terminal by assigning a Johnstown driver to the
shuttle.
Contrary to the General Counsel’s contention, I do not
find that Stan attempted to transfer Tom or Dale to Johns-
town, before laying them off on August 17, 1992. Instead,
I find that he asked them if they were interested in moving
their work station from Richfield to Johnstown, about 5
hours driving from their respective homes. He posed this
question with no reasonable expectation that either employee
would make the move. Stan used this question as a ploy to
mask McQuaide’s unlawful effort to get rid of two more
union supporters.
In sum, I find that McQuaide laid Tom Boyes and Dale
Salsbury off on August 17, 1992, in reprisal for their union
activity. I further find that by that conduct, McQuaide vio-
lated Section 8(a)(3) and (1 of the Act.
However, I do not find an attempt to transfer them to
Johnstown. Accordingly, I shall recommend dismissal of the
allegation that McQuaide made an unlawful attempt to trans-
fer Tom and Dale to Johnstown.
McQuaide contends that apparent sabotage of two tractors
and insufficient security against its recurrence, not union ani-
mus, caused it to close its Richfield terminal on February 4,
1993, and move its activity to Columbiana. McQuaide con-
cedes that the distance between Richfield and Columbiana
was too great to permit Tom Boyes, Dale Salsbury, or David
McGuigan to commute between their respective homes and
Columbiana. However, McQuaide points out that it made a
reasonable effort to find, and did find, a convenient location
to accommodate the three employees.
I find that McQuaide has adequately substantiated its con-
tention. On or about January 5, 1993, a shop foreman’s re-
port and Lee’s inspection showed that contrary to Salsbury’s
opinion, his tractor suffered radiator damage due to sabotage.
Salsbury had reported that a segment of welding rod had
caused the damage.
Lee and the shop foreman found two punctures of the radi-
ator core, one puncture of the radiator’s screen and scratches
on the radiator’s shutters, which prevent leakage of the radi-
ator’s heat. Lee and the foreman concluded that a hand—
held screwdriver had caused the damage.
According to Stan, the cost of repairing a tractor’s radiator
core ‘‘can run well over a thousand dollars.’’ In addition,
Stan testified, without contradiction, that the costs of towing
Salsbury’s tractor from Richfield to Johnstown for inspection
and the repair of the radiator added up to thousands of dol-
lars of expense. I also find from Stan’s and Lee’s testimony
that they agreed that if another incident of sabotage occurred
at Richfield they ‘‘would have to take some drastic steps to
stop it.’’
Lee’s undisputed testimony shows that a few weeks later
a second radiator puncture occurred at Richfield. The Johns-
town garage reported to Lee and Stan that it was sabotage
again. On further consideration, Stan and Lee concluded that
they could not afford to keep equipment at Richfield, that the
security there was ‘‘not good enough.’’ They decided that
their Columbiana terminal was ‘‘a quick fix.’’ There was no
showing that McQuaide had any other available facility to
accommodate the Richfield operation and the three drivers.
When Tom Boyes, Dale Salsbury, and David McGuigan
refused to work out of Columbiana because it was too far
for commuting, McQuaide did not jump at this opportunity
to get rid of the three union supporters. Instead, I find, from
Stan’s unchallenged testimony, that McQuaide installed them
at a location in Norton, Ohio, only 15 or 20 miles from
Richfield. McQuaide made no secret of this new location.
Dispatcher Jack Instone called McGuigan and asked him to
work out of Norton. About 1 week after the Columbiana
move, Stan told Salsbury and Tom about Norton and invited
them to work there. It is undisputed that on or about Feb-
779W. C. MCQUAIDE, INC.
ruary 10, 1993, the three drivers began operating out of Nor-
ton, Ohio.
I find that McQuaide has shown that its explanation for
the brief layoff of the three Richfield drivers in early Feb-
ruary 1993 was not pretextual. Lee and Stan did not seize
on one isolated incident as an excuse for shutting their Rich-
field terminal. Within a brief period, there were two incidents
which caused Stan and Lee to fear reasonably for the safety
of their equipment at Richfield. The attempt to move the
three drivers to Columbiana raised some suspicion that Stan
and Lee were trying to get rid of them. The second choice,
however, Norton, came quickly after the three employees had
registered their refusals to commute so far. This circumstance
dissolved that suspicion. In sum, McQuaide’s explanation
overcame the General Counsel’s prima facie showing that
antiunion sentiment was a motivating factor in this brief lay-
off. Accordingly, I shall recommend dismissal of the allega-
tion that this layoff violated the Act.
I find no merit in McQuaide’s contention that McGuigan
quit. This contention rests on Lee’s self-serving letter of Feb-
ruary 24, 1993, to McGuigan and Lee’s rejected testimony.
I find from McGuigan’s testimony that Lee fired him on
February 18, 1993, at the end of their last telephone con-
versation.
Lee’s effort to explain why he wanted to have a meeting
with McGuigan added to my suspicion that Lee was worried
about having to explain the discharge of another union sup-
porter. Lee’s testimony painted a dismal picture of David
McGuigan’s performance. According to Lee, McGuigan was
getting the twin trailers to Richfield late every day. Further,
Lee charged that McGuigan had constant problems with the
garage, was forever sleeping on the job, didn’t check loads,
had spills, ran low on oil and water, and on an unspecified
number of weekends did not plug his tractor in to keep it
warm so that it would start on Monday morning. Lee testi-
fied that McGuigan’s failure to plug in his tractor resulted
in a cost ranging from $150 to $200, on each occasion. Lee
testified that McGuigan’s ‘‘work performance deteriorated to
the point that there wasn’t anything at all that he did right.’’
Yet, with all these asserted shortcomings, McQuaide showed
only one verbal warning issued to McGuigan in early Feb-
ruary 1993, and a written warning 2 weeks later for not plug-
ging his tractor in to keep it warm. Both warnings came
from Director of Maintenance John Plummer. Aside from
Plummer’s warnings, McQuaide did not show any other dis-
cipline imposed on McGuigan prior to February 18, 1993,
for misdeeds or neglect in his performance. Nor did
McQuaide provide any particulars beyond Plummer’s testi-
mony and his warnings.
More important, Lee did not explain why, with all these
asserted faults impairing his value as an employee,
McQuaide concerned itself with McGuigan’s convenience in
its decision to move its former Richfield operations to Nor-
ton and then invited him to return to work as late as Feb-
ruary 10. After all, by that date the claimed deterioration in
McGuigan’s performance would have become evident. Lee
has not shown that he or Stan was hesitant about recalling
McGuigan from layoff on or about February 10. These cir-
cumstances suggest that at first Lee seized on McGuigan’s
late arrival at Johnstown and his late return to Norton on the
night of February 16 as an opportunity to discharge
McGuigan. After some reflection, Lee sought to bolster his
excuse by coming up with a list of McGuigan’s short-
comings which now became important.
McGuigan’s difficulty in coming to Johnstown on Feb-
ruary 18 gave Lee a more immediate pretext for firing
McGuigan. It will be recalled, however, that Lee and Stan
had suspended Tom and Jack Boyes on March 19, 1992, in-
stead of discharging them because they were union activists.
On February 18, 1993, Lee at least suspected that McGuigan
was a union activist when he fired him. Six days later, after
further reflection on McGuigan’s discharge, Lee prepared a
self-serving letter, which told McGuigan, and anyone else
who might read it, that David McGuigan had quit. Thus, did
Lee attempt to avoid a finding that his reason for discharging
McGuigan was pretextual. For if McGuigan had voluntarily
quit, McQuaide would have nothing to explain.
In sum, I do not credit Lee’s explanation of McGuigan’s
termination. The circumstances recited above and his offhand
manner, as he testified about his dealings with, and com-
plaints against, McGuigan, suggested that Lee was using his
ingenuity to come up with an explanation to defeat the Gen-
eral Counsel’s case. Accordingly, I find that the General
Counsel has shown by more than a preponderance of the
record evidence that McQuaide discharge David McGuigan
on February 18, 1993, because of his suspected activity on
the Union’s behalf. I further find that by discharging
McGuigan, McQuaide violated Section 8(a)(3) and (1) of the
Act.
Also without merit is McQuaide’s claim that Tom Boyes
and Dale Salsbury quit its employ on or about February 19,
1993. Stan McQuaide’s testimony shows that he intended to
‘‘make an attempt to get a hold of [Tom and Salsbury] so
they can’t say we didn’t try to call them.’’ Dispatcher
Instone made one call to each of those employees. As luck
would have it, he did not reach either of them. Instone spoke
to a woman at Tom’s home and to an answering machine at
Salsbury’s. Instone made no further calls to either Tom or
Salsbury. Nor did anyone else from McQuaide try to get in
touch with Tom or Salsbury. Stan’s instructions suggest that
he was hopeful that the discontinuance of the flow of freight
to Norton had encouraged the two surviving union activists
to quit. This was the desired result envisioned by Lee on
September 24, 1992, when he told McGuigan that Tom
Boyes and Dale Salsbury would not be around much longer
because of their support for the Union.
Stan’s perfunctory effort to contact Tom and Dale con-
trasts sharply with McQuaide’s earlier efforts to contact Tom
and Jack. Thus, in January 1992, when Barry Horner was un-
able to reach the shuttle, he called Jack Boyes home three
or four times before placing a call to Tom’s home. When
Horner found that Tom was not home, he called Salsbury.
Again, in August 1992, Dispatcher Horner made two or
three fruitless calls to Jack’s home to locate him. Then,
Horner called Tom to try to locate Jack. Tom could not help
Horner. According to Horner’s testimony, he ‘‘probably tried
to call Jack one more time with no answer at his residence.’’
I also note that when Instone left messages in February
1993 he did not suggest that if Tom Boyes and Dale
Salsbury failed to respond by a designated date McQuaide
would conclude that they were quitting. In sum, I find that
after telling Tom there was no work, and telling Salsbury
that Johnstown was not sending any freight to Norton, Stan
McQuaide made a pretense of contacting them. He gave each
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
49 Unless otherwise stated all dates regarding Barry Michalides’
employment, union activity, and discharge occurred in 1991.
50 My findings regarding his employment, union activity, and dis-
cussions with Foreman Baker are based on Michalides’ testimony.
51 According to Mark McQuaide, on November 15, he did not in-
tend to discharge Michalides, but wanted to discuss Michalides’
shortcomings and suspend him for 2 days. Mark McQuaide also tes-
tified that when he began explaining his latest error, Michalides said,
‘‘I don’t have f—king time for this. Are you going to give me time
off or what?’’ Michalides flatly denied saying anything of the sort.
In contrast with Michalides, who gave his testimony in a bland ob-
jective manner, Mark embellished his account with histrionics. Mark
was trying to ‘‘sell’’ his story. Thus, Mark’s demeanor cast doubt
on the reliability of his testimony in this regard.
I find further reasons for doubting the reliability of Mark’s testi-
mony. Thus, Mark also testified that he did not consult with his fa-
ther, Stan, about discharging Michalides. Yet, Stan testified that the
of the two employees one call on February 23. The next day,
he sent a letter to each saying that the addressee had quit
without notice. I find, however, that Stan had constructively
discharged Tom Boyes and Dale Salsbury, respectively, on
February 19 and 20, 1993, when McQuaide withheld work
from them. I further find that Stan resorted to these tactics
in an effort to conceal his antiunion motive in ridding
McQuaide of two employees, who had assisted the Union’s
organizing campaign among its employees. By this conduct,
I find that McQuaide violated Section 8(a)(3) and (1) of the
Act.
4. Barry Michalides
a. The facts
In August 1989, Barry Michalides began working as a
dockman at McQuaide’s Johnstown, Pennsylvania terminal.
He loaded and unloaded freight, counted it, and occasionally
drove a forklift. His immediate supervisors during his em-
ployment were Dock Foremen Bill Robertson, Tony Kostyk,
Vallie Baker, and Ron Locker. McQuaide terminated
Michalides on November 15, 1991.49
Employees John Pine and Jack Boyes made Michalides
aware of Local 24’s organizing campaign in September. Pine
and Boyes told Michalides about the organizing in Ohio and
asked him to sound out McQuaides’ Johnstown employees
about supporting Local 24. Michalides found a good re-
sponse when he spoke to fellow employees about having a
union.
From September to November, Michalides obtained union
literature from Pine and distributed it to interested employ-
ees. He passed out various quantities of four different
prounion pamphlets to McQuaide employees on the loading
dock and in the terminal’s lunchroom.
In mid-September, Michalides began receiving and distrib-
uting union authorization cards for Local 24. He gave a
quantity to employee Joseph Patula. From September to early
November, Michalides handed out 15 or 20 union cards at
McQuaides Johnstown terminal, in its lunchroom and on its
dock. On October 23, Michalides signed a union card. Dur-
ing this same period, he returned his signed card and the 15
or 20 signed cards he had received from other McQuaide
employees to Pine and Boyes.
During October and November, Michalides had three or
four conversations about Local 24 with Dock Foreman Vallie
Baker. The discussions concerned Local 24’s support, and
how Baker felt about it. In one such discussion, Michalides
offered a union signature card to Baker. In response, Baker
said he supported the Union but did not want to sign a card.
He said he wanted to see how everyone else felt and what
the outcome would be.50
In the course of his employment, Michalides became fa-
miliar with McQuaide’s policies regarding the proper proce-
dure on discovering a freight shortage, an overage, or dam-
age. The proper procedure was to mark the shortage, over-
age, or damage on a load/unload sheet and leave it near the
dock office. McQuaide also required dockmen to notify a
dock foreman of freight shortages, overages, and damage.
During the first 2 months of his employment at McQuaide,
Michalides discovered a freight shortage and reported it to
Foreman Bill Robertson. Robertson instructed Michalides to
mark the unload sheet, put it where it belongs in the dock
office, and place the affected load near the same office and
not bother the foreman. Thereafter, Michalides complied with
Robertson’s instructions whenever he encountered a shortage.
During his last year of employment at McQuaide,
Michalides encountered shortages in counting freight, four or
five times per week. In each instance, he followed Robert-
son’s instructions. He did not report a shortage to a foreman.
Prior to November 1991, McQuaide did not discipline him
for failing to report a shortage to a foreman.
On July 8, McQuaide issued a written disciplinary warning
to Michalides for faulty work. The warning noted that he
now had six written warnings and cautioned that if he re-
ceived one more, McQuaide would give him ‘‘time off.’’
Michalides began work at 5 p.m. on November 11, and
worked until 2 a.m. on November 12. He and his partner un-
loaded a truck full of Eveready batteries that night and came
up six boxes short on their count. Michalides marked the un-
load sheet ‘‘NF’’ showing that the six boxes were not on the
truck.
When Michalides returned to work on Wednesday, No-
vember 13, he received a written warning for mishandling
the Eveready batteries on the night of November 12. The
warning asserted that the six boxes that were to be routed
to three Hechinger locations in Pittsburgh and vicinity had
gone to Value Drug in Altoona. Michalides worked on No-
vember 13.
Michalides reported for work on November 14. He could
not find his timecard. Foreman Tony Kostyk came out of the
office and said he could not let Michalides work, and that
Michalides should call Operations Manager Mark McQuaide
on November 15.
Michalides went to the Johnstown terminal on November
15 and asked to speak to Mark McQuaide. Mark appeared
with Michalides’ folder, and the two sat down at a table.
Mark said he had to let Michalides go. Michalides did not
comprehend and asked for an explanation. Mark said, ‘‘We
have to let you go.’’ Michalides asked, ‘‘How many days am
I getting off?’’ Mark said, ‘‘No, we have to let you go.’’
Michalides did not understand. He asked if he was fired.
Mark answered, ‘‘Yes you are.’’ Michalides asked whose de-
cision it was. Mark said it was everyone’s decision, ‘‘OS&D,
dispatch, everyone’s decision.’’ Michalides ended the con-
frontation and picked up his paycheck.51
781W. C. MCQUAIDE, INC.
two had conferred prior to November 15, and had agreed on a dis-
charge for Michalides because of his poor performance. Although I
do not credit Stan’s testimony as to McQuaide’s motive for dis-
charging Michalides, I have credited his assertion that he and his son
decided on Michalides’ discharge after the Eveready battery incident,
just prior to November 15. As vice president of operations, Stan’s
responsibility included the operation of the Johnstown dock. There-
fore, I find it likely that Mark consulted with him before discharging
dock employee Michalides.
Further, Mark testified that as of November 15, ‘‘I didn’t know
that the union was going on.’’ The record casts serious doubt on the
reliability of this denial. On September 26, after about 3 weeks of
union activity at McQuaide’s Ohio facilities, Local 24 had filed a
petition for an election with the Board. Uncle Lee had attended the
Board’s hearing on that petition in October, and on November 8, the
Regional Director for Region 8 issued a Decision and Direction of
Election, finding that the appropriate unit for bargaining was all of
McQuaide’s dockmen, mechanics, and drivers. The record also
makes clear that Mark’s father and uncle were hostile to, and well
informed about, Local 24’s and the Union’s active employee support
during the autumn of 1991. As a member of the McQuaide family,
I find it likely that Mark knew ‘‘that the union was going on’’ by
October 10, the date of the hearing. Thus, I have not credited Mark’s
denial of knowledge of the Union and of union activity among
McQuaide’s employees.
Michalides’ employment record at McQuaide was blem-
ished. Prior to November 15, McQuaide suspended
Michalides once. On that occasion Michalides was absent
due to his father-in-law’s death. During his approximately 2
years and 3 months in its employ, however, McQuaide
issued 19 warnings to Michalides because of faulty work.
The last of these issued on November 14. On August 22, and
again, on November 5, McQuaide issued a warning to
Michalides, each for a mistake in loading. Despite the warn-
ing about time off issued to him in July, however, he re-
ceived no time off for these loading mistakes.
b. Analysis and conclusions
The General Counsel contended that McQuaide discharged
Michalides because of his involvement with Local 24’s orga-
nizing campaign. McQuaide argues that the General Counsel
has not shown that Michalides’ union activity was a motivat-
ing factor in its decision to discharge him.
From September until November, Michalides openly sup-
ported Local 24’s organizing campaign at McQuaide’s Johns-
town terminal. He distributed its campaign literature to
McQuaide’s employees on the dock and in the lunchroom.
During the same period, he openly distributed signature cards
for Local 24 at the same locations.
Michalides did not keep his prounion sentiments a secret
from McQuaides’ management. During October and Novem-
ber, he discussed Local 24 and its support with Foreman
Vallie Baker. During these discussions, Michalides dem-
onstrated his active support for Local 24. He asked Baker to
sign a card for Local 24.
While Michalides was busy assisting Local 24, Region 8
was processing Local 24’s petition for an election among
McQuaide’s Ohio drivers. Following a hearing on October
18, the Regional Director, on November 8, issued a Decision
and Direction of Election, in which he found that the appro-
priate bargaining unit for Local 24 included McQuaide’s
Johnstown and Bethel, Pennsylvania facilities. In any event,
Lee McQuaide was concerned enough about Local 24’s peti-
tion to have attended the hearing.
Lee’s concern that Local 24 might succeed in organizing
at least some of McQuaide’s employees provoked him to at-
tend the hearing on October 18. This same concern caused
him to find out who among the Ohio drivers were trying to
bring in Local 24 and later, Local 429. I find it likely that
Lee was equally anxious in October and November to iden-
tify the union activists among his Johnstown-based employ-
ees. After all, McQuaide was urging that only a systemwide
unit of its employees was appropriate for bargaining. If there
was to be an election in that unit, Lee wanted to defeat
whichever union would be involved.
I also find it likely that Lee used his foremen, including
Baker, to find out who among McQuaide’s employees were
helping Local 24. Thus, when Michalides asked Baker to
sign a card for Local 24, Lee soon heard about it. In turn,
Stan, who had frequent contact with Lee, and Stan’s son,
Mark, quickly learned that Michalides was an active union
supporter.
The record makes clear that McQuaide’s management was
hostile toward employees who supported Locals 24 and 429.
As found above, in September 1991, at Johnstown, Dock
Foreman Locker unlawfully warned employees Jack Boyes
and John Pine that McQuaide would fire them if they at-
tempted to organize for a union. This warning gained sub-
stance when McQuaide unlawfully terminated Jack Boyes in
August 1992, and when Lee resorted to a pretext to dis-
charge union activist Robert Marshall on November 5, 1991,
in violation of Section 8(a)(4), (3), and (1) of the Act. There-
after, as found above, McQuaide repeatedly used unlawful
terminations to rid itself of union activists among its Ohio
employees. Thus, Michalides’ union activity, if known to, or
suspected by, the McQuaides might well have provoked their
antiunion sentiment.
The timing of Michalides’ discharge suggests that
McQuaide was motivated by his union activity. November
15, the date of Michalides’ discharge, was only 1 week after
the issuance of the Regional Director’s Decision and Direc-
tion of Election. Also, the discharge followed in the wake of
a series of conversations about Local 24 between Michalides
and Foreman Baker, in which the employee had asked the
foreman to sign a union card.
In sum, the evidence shows that prior to Michalides’ dis-
charge McQuaide’s management knew of his active support
for Local 24, and had shown by repeated violations of the
Act that it was hostile to employees who engaged in union
activity. I also noted that McQuaide discharged Michalides
soon after he had asked a supervisor to sign a union card and
only 1 week after the Regional Director’s Decision and Di-
rection of election, which included Michalides and his fellow
Johnstown employees in the voting unit. From these cir-
cumstances, I find that the General Counsel has made a
prima facie showing that union activity was a motivating fac-
tor in McQuaide’s decision to discharge Michalides on No-
vember 15.
In its brief, McQuaide argues that the evidence shows that
it discharged Michalides because he violated McQuaide’s
rules and had a poor work attitude. Stan flatly denied that
union activity played any role in his decision to approve
Mark’s recommendation that Michalides be discharged on
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
52 Unless otherwise stated, all dates regarding Randy Hunter’s oc-
curred in 1991.
53 My findings of fact regarding Hunter’s employment and union
activity are based on his uncontradicted testimony.
54 Mark McQuaide, in response to a leading question, denied mak-
ing the quoted remarks. However, as Joe Patula and Randy Hunter
November 15. Mark denied that he even knew there was any
union activity going on when he discharged Michalides.
At the outset, the record is uncertain as to the source of
the decision to discharge Michalides. On November 15,
Mark McQuaide told Michalides that it was not Stan’s deci-
sion to fire him, but that ‘‘it was everyone’s decision,
OS&D, dispatch, everyone’s decision.’’ In his testimony,
Mark takes credit for the decision to discharge Michalides.
McQuaide’s brief asserts that this was the first time that
Mark had discharged anyone ‘‘on the spot.’’ According to
Stan, he agreed with Mark’s recommendation that Michalides
be discharged prior to its implementation.
Shifting and inconsistent reasons cast further doubt on
McQuaide’s explanation for Michalides’ discharge. Stan tes-
tified that Mark accompanied his recommendation that
Michalides be discharged with the following remarks:
That he had just accumulated so many mistakes and
errors that it was evident to him that [Michalides] just
had a poor attitude and that he wasn’t going to get any
better, and he just didn’t see any place to go with him,
and he thought we should terminate him.
Mark testified that he began his encounter with Michalides
on November 15, with a discussion of the Eveready battery
error and would not have discharged Michalides on that oc-
casion. Instead, according to Mark, he ‘‘would have gave
him two days off.’’ But when Michalides said, ‘‘I don’t have
f—king time for this. Are you going to give me time off or
what?’’ Mark felt compelled to discharge him. Mark did not
mention anything about Michalides’ earlier written warnings
as playing any part in his decision to fire the employee. Yet
McQuaide’s brief claims that Michalides was terminated for
‘‘a poor work attitude and violation of Company rules.’’ The
inconsistencies in McQuaides’ attempt to support its defense
suggest that it is improvising and that the real explanation in-
volves union activity.
McQuaide‘s brief points to the eight written warnings
Michalides had received in 1991, prior to the Eveready bat-
tery incident, as evidence of a poor work attitude warranting
discharge. There was no showing that, however, Mark or
Stan had warned Michalides of termination when he received
the eighth warning on November 5. Indeed, when McQuaide
issued the sixth warning to Michalides on July 8, it added
a written declaration that the next warning notice would re-
sult in ‘‘time off. ‘‘ Despite that declaration, McQuaide
issued warnings to Michalides on August 22 and again on
November 5, both for errors in his work, without giving him
any time off. Thus, on November 15, McQuaide’s changed
attitude resulted in punishment far exceeding what had been
threatened in July. McQuaide’s brief and Mark conceded that
the Eveready incident warranted only 2 days off. Their effort
to justify the discharge rests on their claim that Michalides
precipitated it when he employed insubordinate language in
his confrontation with Mark. However, I have found that
Michalides did not use such language on November 15.
Thus, McQuaide’s explanation lacks substance.
In sum, I find that McQuaide has failed to rebut the Gen-
eral Counsel’s strong showing that union activity was a fac-
tor in McQuaide’s decision to discharge Michalides on No-
vember 15. I find, instead, that McQuaide seized on the
Eveready incident and added the fiction of insubordination to
mask the real reason for the discharge. The real reason was
Michalides’ solicitation of signed cards for Local 24. Getting
rid of Michalides was likely to damage union organizing at
Johnstown and help McQuaide in the election which the Re-
gional Director for Region 8 had directed on November 8.
Accordingly, I further find that by discharging Michalides on
November 15, McQuaide violated Section 8(a)(3) and (1) of
the Act.
5. Randy Hunter
a. The facts
McQuaide has employed Randy Hunter as a truckdriver at
its Johnstown terminal since 1987. In a conversation with
employee Robert Marshall, Hunter first learned of Local 24’s
campaign in September or October 1991.52 Marshall told
Hunter that McQuaide’s Ohio drivers were trying to have a
union. On October 22, Hunter signed an authorization card
for Local 24.
In November, Hunter became active in Local 24’s organiz-
ing campaign. At that time, Marshall and Tom Boyes told
Hunter that Local 24 was trying to organize the entire
McQuaide system. Hunter agreed to help the local by passing
out authorization cards. He collected at least 50 cards from
McQuaide employees and turned them in to Local 24, in
Akron, Ohio. He wore union hats and pins while working on
the road, and at the Johnstown terminal including the dis-
patch office.
Hunter’s interest in the organizing drive continued when
Local 429 displaced Local 24. On January 11, 1992, Hunter
signed an authorization card for the Union. He also helped
set up Local 429’s meeting with McQuaide employees at the
Scalp Level Fire Hall, near Johnstown, which took place on
that same date. He attended a second meeting with Local
429, in June 1992, at the nearby Windber American Le-
gion.53
In a confrontation on January 10, 1992, described in detail
above, Lee McQuaide coercively interrogated Hunter about
his union activity, gave Hunter the impression that his union
activity was under surveillance, and threatened Hunter with
a punch in the nose if he had anything to do with the Union.
As I found, above, John Plummer, another member of
McQuaide’s management, singled Hunter out to warn against
supporting Local 429. On June 9, 1992, 2 days before the
beginning of the mixed mail and manual representation elec-
tion among McQuaide’s employees, Plummer held out the
possibility of a wage increase if the employees rejected Local
429. He also warned that Lee would shut down McQuaide
if Local 429 won.
On June 27, 1992, Hunter and employee Joseph Patula
served as Local 429’s morning observers at the manual rep-
resentation election. After the polls closed, Hunter and Patula
were standing in the election area. Operations Manager Mark
McQuaide, while talking to someone, looked right at them,
as they stood, and said: ‘‘Over there is the two assholes that
started all of this.’’54
783W. C. MCQUAIDE, INC.
impressed me as being more forthright witnesses than Mark, I have
credited their testimony in this regard.
55 My findings of fact regarding the conversation between Stan and
Hunter on October 12, 1992, are based on their testimony. Stan did
not deny Hunter’s credited testimony regarding the exchange in
which Hunter asked why he had to be at WESCO at 7 a.m.
56 I based my findings regarding Hunter’s Ambridge deliver on
Ronald Kim’s testimony where it differs from Hunter’s. Of the two,
Kim seemed to be more careful in recounting the incident. Hunter
seemed to be staying away from those portions of the incident which
might reflect poorly on his conduct. I also note that Kim’s testimony
is largely corroborated by a memorandum dated November 10, 1992,
which I refer to in the next paragraph.
On October 8, 1992, Westinghouse Supply Company
(WESCO) employee Martin Richie was very unhappy with
the service he was receiving from McQuaide that week. He
called Lee McQuaide. Richie complained and asked that the
next day’s delivery be made to WESCO between 7:30 and
8 a.m. Lee instructed dispatch to schedule the delivery to
WESCO for a 7 a.m. delivery. On the evening of October
8, 1992, Hunter learned from Dispatcher Paul Swartz that he
was scheduled to make that delivery at 7 a.m., on the follow-
ing morning.
At 3:30 am on October 9, 1992, Hunter received a tele-
phone call from McQuaide’s Johnstown terminal reminding
him of his WESCO delivery and advising him to: ‘‘Make
sure you are on time.’’ Hunter knew that WESCO’s gate
opened at 8 a.m. By 5:30 a.m. that same day, Hunter was
outside McQuaide’s gate, headed for WESCO, 113 miles
away. He arrived at his destination at 8 a.m. or a few min-
utes after, and found Richie just opening the gate. Hunter
backed straight in through the open gate. Hunter went to an
office at WESCO, where he heard Richie telephone Lee
McQuaide and thank him for the timely delivery.
Later, on the same day, Hunter arrived at Johnstown’s dis-
patch and found a warning notice dated October 10, 1992,
in his mailbox, which reported that he had been tardy in
making a delivery to WESCO on the latter date and had per-
formed substandard work. The notice said that WESCO had
made a special request for a 7 a.m. delivery, that Hunter was
scheduled to leave Johnstown at 4 a.m., that Hunter was re-
minded again at 3 a.m., that Hunter did not report for work
until 6:30 a.m., and that he ‘‘did not deliver until 8:05 a.m.’’
Stan McQuaide’s signature showed that he had issued this
warning
Hunter took the warning and phoned Stan on October 12,
1992, to complain about it’s inaccuracies. Stan said he would
look into the matter. In passing, Hunter asked why he had
to be at WESCO at 7 a.m., ‘‘when the place don’t open until
8.’’ Stan replied, ‘‘Because we wanted you to.’’55
On the following day, Stan provided Hunter with a revised
warning notice stating that Hunter was ‘‘scheduled to deliver
to WESCO . . . at 7 a.m. 10–09–92.’’ This notice also stated
that Hunter was reminded ‘‘at 3:30 a.m. 10–10–92; yet you
did not report to work until 5:15 a.m. and did not arrive at
WESCO until 8:05 a.m.’’ The warning stated that Hunter
had performed substandard work and had been tardy.
On receiving the revised warning, Hunter approached
Mark McQuaide and asked why he should sign it, as he had
arrived at WESCO on time. Mark replied in substance that
unless Hunter signed it, McQuaide would not line him up for
work. Hunter signed the warning.
Hunter made his next delivery at WESCO on February 15,
1992. As instructed by Stan, he arrived there at 7 a.m. only
to find the gates locked. Hunter contacted Johnstown dis-
patch and advised that the gates were locked and that he had
parked his tractor and trailer on the street. Hunter expressed
concern about receiving a parking citation and asked for per-
mission to remain parked. The dispatcher, Roger Locher, re-
plied that he could not grant such permission. Locher added
that Stan was not expected at work before 8 a.m. The gate
opened at 8 a.m. and Hunter backed in.
At about midday, on November 4, 1992, Hunter made a
delivery of Haskel furniture to the Commonwealth of Penn-
sylvania’s Job Center, at Ambridge, Pennsylvania. Ronald
Kim, the acting manager of the job center, was in his office
when Hunter arrived to make the delivery. Kim directed that
the furniture be delivered to a conference room in the build-
ing. After Kim issued his instructions, he heard a discussion
between Hunter and a clerical employee, Johanna DiCiccio,
about the delivery. Kim heard DiCiccio asking ‘‘what’s the
purpose in having inside delivery—why are we paying for
inside delivery?’’
Kim came into the discussion in time to hear Hunter say:
‘‘We don’t do inside deliveries.’’ Hunter added that he did
not have a dollie on his truck. As Kim began following
Hunter out to the truck to accept the furniture and carry it
to the conference room, three other job center employees
joined in the project.
When the four job center employees and Hunter arrived at
the truck, Kim saw that it was blocking the egress of em-
ployees who might want to go out for lunch. He asked
Hunter to move the truck close to a storage room to alleviate
the blockage and complete the delivery. Hunter complied
with Kim’s request. Then, from the back of his truck, Hunter
pushed the furniture off of the truck into the hands of the
waiting job center employees. The four men moved the fur-
niture to the storage room’s door and left it there.
Hunter and Kim returned to the job center office. Kim
signed the bill of lading which had the notation ‘‘inside de-
livery charge.’’ Hunter told him that the bill included an in-
side delivery charge which McQuaide might remove if Kim
were to call McQuaide. Neither Kim nor any of his col-
leagues complained to Hunter about his performance on the
day of the delivery.56
By memorandum to a state agency, dated November 10,
1992, James Mackin, manager of the Ambridge Job Center,
complained about Hunter’s delivery on November 4, 1992.
The letter reported that he refused to make the inside deliv-
ery called for in the bill of lading. The letter also disclosed
Hunter’s assertions that ‘‘we don’t do inside deliveries’’ and
that he did not have a dolly on his truck. McQuaide received
a copy of the memorandum at some time prior to December
8, 1992. I find from Stan’s uncontradicted testimony that a
representative of Supply Source, the vendor of the furniture
delivered on November 4, also complained to him in a phone
call, sometime prior to December 8.
On November 23, 1992, Local 429 filed an amended un-
fair labor practice charge against McQuaide, in Case 6–CA–
24636, alleging, inter alia, that McQuaide had discriminated
against Hunter in January 1992 because of his membership
in and activity on behalf of Local 429 and Local 24. This
was the first mention of Hunter in the charges filed against
McQuaide by the Charging Parties in this proceeding. On
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
57 My findings regarding Hunter’s earnings at McQuaide for 1990–
1993 are based on his uncontradicted testimony.
58 In response to leading questions, Rhodes denied telling Hunter
that Lee had directed a reduction in his and brother Pat’s work.
However, employee Alan Mickey was a convincing witness as he
corroborated Hunter’s recollection of a conversation on or about Jan-
uary 31, 1992, in which Rhodes threatened Hunter and his brother
with a loss of work. Accordingly, I have credited Mickey and
Hunter regarding Rhodes’ threat.
59 The record does not explain the terms ‘‘driving hours’’ or ‘‘in-
centive hours’’ as used in McQuaide’s records.
November 24, 1992, Region 6 served a copy of the amended
charge on McQuaide by mail, at its Johnstown address.
When Hunter called in to Johnstown dispatch for an as-
signment, on December 7, 1992, Dispatcher Barry Horner
said there would be none and that Hunter had to meet with
Lee. Hunter pressed Horner for a reason. Horner answered
that the rumor in dispatch was that it had something to do
with the filing of charges.
The following day, Hunter walked into Lee’s office. Lee
tried to shut the office door, but Hunter pushed it open. Lee
wrested the door from Hunter and closed it. Hunter insisted
that the door be opened, as the two did not trust each other.
Hunter also said that there would be no more of Lee ‘‘moth-
er f—king him or threatening to kick his ass.’’ Hunter said
the door would remain open or he would record the con-
versation. Lee said, ‘‘I don’t give a f—k what you do.’’
Hunter did not record the conversation.
Lee said he had problems with Hunter’s Westinghouse
(WESCO) and Haskel (Ambridge) deliveries and would give
him 1 week off. Hunter said: ‘‘That’s a pretty damn poor ex-
cuse. I know why I’m in here. Why don’t you just fire me?
Why don’t you just get rid of me? Get it over with. That’s
what you are going to do anyhow. Why don’t you just fire
me?’’ Lee said he would do as he pleased and that he had
problems with the two deliveries. Lee gave Hunter a 1-week
suspension and ended the conversation.
For 1990, Hunter earned a little more than $35,000 in
McQuaide’s employ. In 1991 and 1992, respectively, he
made $32,000, working for McQuaide. When he testified on
May 25, 1993, in these cases, Hunter estimated that he
would be lucky to make $28,000 from McQuaide for the
year.57
At the end of January 1992, Dispatcher Thomas Rhodes,
in the presence of employee Alan Mickey, announced to
Hunter that Lee had directed the dispatchers to cut back the
work of Randy Hunter and his brother Pat because they were
‘‘union trouble.’’58
McQuaide’s records show that for 1991, it assigned 191
trips to Hunter, with a variety of Ohio and Pennsylvania des-
tinations. McQuaide’s records also show that it assigned 200
trips to Hunter for 1992 to various destinations in Ohio and
Pennsylvania. I also find from McQuaide’s records that 1992
showed a total decrease of 14.2 driving and incentive hours59
in comparing Hunter’s 1991 driving with his 1992 driving.
The record does not include any figures for Hunter’s driving
in 1993.
b. Analysis and conclusions
The General Counsel has made a prima facie showing to
support his contention that McQuaide issued disciplinary
warnings to Hunter as punishment for his union activity. The
record shows that by January 10, 1992, Hunter’s suspected
union activity had provoked Lee McQuaide into having a
confrontation with him on that date. In abrasive remarks dur-
ing that meeting, Lee lumped Hunter with the Union and an
expletive. Lee dismissed Hunter’s denial of having anything
to do with it, remarking that at least 30 employees had told
him that Hunter was passing out union cards and talking
union. Lee also said he knew that Hunter was using his
truck’s CB radio to obtain signed union cards. Lee ended the
conversation with a threat of physical assault on Hunter if
Lee confirmed Hunter’s part in the Union’s organizing. How-
ever, I find that Hunter’s open support for Local 429 was
known to Lee by the date of this confrontation.
Hunter provided further evidence of his support for Local
429 on June 27, 1992, when he served as one of its observ-
ers at the representation election among McQuaide’s employ-
ees. Lee’s nephew Mark spotted Hunter and referred to him
and another union supporter as ‘‘the two assholes that started
all of this.’’ Stan’s and Lee’s demonstrated interest in ferret-
ing out union activists and their concern about defeating
Local 429 must have been known to Mark. As one who
shared his father’s and uncle’s hostility toward Hunter’s
union activity, Mark was likely to report to them that he had
seen Hunter acting as one of Local 429’s observers at the
election.
The record is replete with evidence of McQuaide’s will-
ingness to resort to economic reprisals against union activ-
ists. Stan and Lee repeatedly used discipline or discharge to
punish employees for supporting Local 24 or Local 429.
Thus, in light of Lee’s verbal assault on Hunter on January
10, 1992, and Mark’s unfriendly reference on June 27, 1992,
to his union activity, Hunter was a likely candidate for pun-
ishment at McQuaide’s hands.
The WESCO incident, on October 9, 1992, presented Lee
and Stan with an opportunity to punish Hunter for his active
support for Local 429. The speed with which Stan acted to
greet Hunter at the end of that day with a carelessly drawn
warning notice, accusing him of being late at WESCO, was
but one more ingredient in the General Counsel’s strong
showing of unlawful motive.
McQuaide contends that Hunter’s failure to follow instruc-
tions on October 9, 1992, was the only reason for the warn-
ing notices it issued to him in connection with the WESCO
incident. However, there is credited testimony which impairs
this explanation and adds support to the General Counsel’s
contention. For, I find from the uncontradicted testimony of
former McQuaide employee John Snyder that McQuaide
treated Hunter disparately. Thus, according to Snyder, during
his employment at Johnstown’s dispatch, from September
1989 until January 1993, he observed that McQuaide did not
punish ‘‘quite a few’’ drivers who had made late deliveries.
Snyder also named employees Ross Miller Jr. and Paul
Wingert as examples of drivers who made late deliveries and
did not receive written warning notices.
Had Hunter not been a persistent union activist, I have no
doubt that Lee or Stan would have scolded him for failing
to follow instructions. I find contrary to Stan’s testimony,
however, that his haste to issue a warning to Hunter was not
motivated by that failure.
Instead, I find from the evidence recited above, that
McQuaide’s hostility toward Hunter arose from his insistence
on supporting Local 429. This hostility motivated Stan to
785W. C. MCQUAIDE, INC.
60 Unless otherwise stated, all dates regarding Ivan Wilson oc-
curred in 1992.
61 According to John Plummer’s testimony, he believes that em-
ployee Dave Brennan, who has since quit, was the only employee
who spoke to him about the Teamsters fringe benefit plans. Plummer
was not sure that Ivan Wilson was present when Brennan discussed
the Teamsters fringe benefits. Plummer seemed uncertain about this
incident. In contrast, Ivan Wilson testified with certainty and in an
objective manner about the conversations he recalled having with
Plummer. As Wilson struck me as being the more reliable witness,
I have credited his testimony about his conversations with Plummer.
seize on Hunter’s deviation from Lee’s instructions as a pre-
text for inflicting a written warning on an annoying union ac-
tivist. Accordingly, I find that by the issuance of the two
written warnings to Hunter, on October 9 and 13, 1992, re-
spectively, McQuaide violated Section 8(a)(3) and (1) of the
Act.
The General Counsel has alleged that McQuaide violated
Section 8(a)(4), (3), and (1) of the Act by suspending Hunter
for 1 week on December 8, 1992. McQuaide denies that the
suspension violated the Act as alleged and claims that his
failure to make an inside delivery at the Ambridge Job Cen-
ter caused Lee to suspend Hunter for 1 week. I find that the
record supports the General Counsel’s allegations.
The same prima facie showing of unlawful motive, which
I have recited in connection with the October 1992 discipli-
nary warnings, supports the contention that the 1-week sus-
pension in December was motivated by Hunter’s union activ-
ity. However, my findings that McQuaide issued the discipli-
nary warnings to punish Hunter for assisting Local 429 rein-
forces the prima facie showing with respect to the suspen-
sion.
McQuaide argues that Hunter’s refusal to make an inside
delivery on November 4, 1992, at Ambridge, not union activ-
ity, motivated Stan and Lee to suspend him for 1 week on
December 8, 1992. Unexplained is why they waited until De-
cember 8 to punish Hunter for his misdeed on November 4.
The Job Center’s internal memorandum complaining about
Hunter’s performance was dated November 10. McQuaide
has not provided any date for its receipt of a copy of that
memorandum or of the telephoned complaint from Supply
Source.
The one intervening significant date which has been
ascertained is November 23, 1992. For on that date, Local
429 filed an amended unfair labor practice charge, which for
the first time, named Hunter as a union activist, who had suf-
fered discrimination at McQuaide’s hand. On November 24,
1992, a copy of that charge was mailed to McQuaide’s
Johnstown office. Then, on December 7, 1992, Dispatcher
Barry Horner withheld work from Hunter. When Hunter
asked why, Horner said there was a rumor in dispatch that
it had something to do with Hunter’s filing unfair labor prac-
tice charges. On the following day Lee suspended Hunter for
1 week.
Local 429’s amended charge alleging that Hunter had suf-
fered a loss of work on January 26, 1992, because of his ac-
tivities on behalf of Locals 24 and 429 must have annoyed
Lee. Back on January 10, 1992, Lee had accused Hunter of
helping the union organizing drive and, in a rage because he
believed that Hunter was a union activist, had threatened to
punch him in the nose. Thus, I find Lee was motivated by
his hostility toward Hunter for helping Locals 24 and 429
and his belief that Hunter had allied himself with them in fil-
ing an unfair labor practice charge when he punished Hunter
on December 8 with a 1-week suspension. I further find,
therefore, that Lee seized on the Ambridge incident as a pre-
text for the suspension and thereby violated Section 8(a)(4),
(3), and (1) of the Act.
The General Counsel’s allegation that beginning on Janu-
ary 26, 1992, Hunter suffered a change in his routes and a
loss of working hours lack’s adequate evidentiary support.
The record shows that 1992 did not show any reduction in
either Hunter’s total trips or his hours of work at McQuaide.
As for 1993, the parties did not offer any records to allow
either a comparison of any portion of 1993 with comparable
portions of 1991 or 1992 or to permit a projection for 1993.
Hunter testified on May 25, 1993, that he would be lucky
to make $28,000 from his employment at McQuaide for the
year 1993. The record does not show how many trips Hunter
took for McQuaide in 1993. Nor does it show how his 5
months’ earnings from McQuaide in 1993 compare with
those of other McQuaide drivers. Hunter’s estimate of his
1993 earnings is too slender a reed upon which to base a
finding that McQuaide reduced his hours of work in 1993.
Thus, I find that the General Counsel has not shown by a
preponderance of the evidence that McQuaide reduced either
Hunter’s trips or his working hours beginning on January 26,
1992.
However, Dusty Rhodes’ remark that Lee had told the dis-
patchers to cut back Randy and Pat Hunter’s work because
they were union trouble was likely to interfere with, restrain,
and coerce McQuaide’s employees in the exercise of their
right under Section 7 of the Act to support a union. I find
therefore that by that remark McQuaide violated Section
8(a)(1) of the Act.
6. Ivan Wilson
a. The facts
McQuaide employed Ivan Wilson as a power unit me-
chanic for 9 years. He performed general maintenance on all
of McQuaide’s trucks. Wilson worked under alternating su-
pervisors, Foremen Russ Gaston and Harry Claycomb. Direc-
tor of Maintenance John Plummer was Gaston’s and
Claycomb’s superior and was in charge of the entire garage.
Plummer laid off Wilson on January 9, 1992.
In December 1991,60 Wilson asked Plummer if it wouldn’t
be better for the employees to let the Union take charge of
their insurance, instead of taking so much out of the employ-
ees’ paycheck, and just pay union dues. Plummer said he
would check on it. On the following day Plummer told Wil-
son that Safety Director Randy McQuaide said it probably
would be easier to let the Union handle the employees’ in-
surance. Plummer made some negative remarks about the
Union. Plummer also said, in substance, that for younger
people in the Union, the Union was not standing behind their
insurance.61
Wilson did not sign a union card. Nor did he engage in
union activity.
When Wilson reported for his shift on January 9, he was
told not to punch in, but to see Plummer. Plummer laid off
Wilson along with employees Curt Livingston and Joe
Vinisky. The three asked Plummer why he was laying them
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
62 My findings regarding Plummer’s explanation to the three em-
ployees are based on Wilson’s uncontradicted testimony. Plummer’s
testimony did not include any assertions regarding a discussion with
the three employees on January 10.
off. He replied that they did not look as busy as other people
and were more capable of finding another job.62
Plummer laid off a fourth mechanic, his son John Plum-
mer Jr. John Jr. worked on air-conditioning and heating. Of
the four, McQuaide recalled only one, John Jr. John Plum-
mer Sr. recalled his son at the end of March or the beginning
of April 1992 to meet the need for air-conditioning repairs.
On January 10, Wilson sought further explanation from
Lee McQuaide. When Wilson asked why McQuaide had not
picked younger employees to lay off, Lee answered that Wil-
son, Livingston, and Vinisky did not look as busy as the
other people and there was a lack of work. Lee added that
McQuaide had evaluated them.
At the time of these layoffs, Plummer’s Johnstown mainte-
nance shop employed 35 mechanics with different skills. Of
these, 13 were power unit mechanics. At the end of Septem-
ber 1993, when Plummer testified in these proceedings, he
supervised between 50 and 60 mechanics. McQuaide has not
offered reinstatement to Ivan Wilson.
b. Analysis and conclusions
Plummer testified in substance he was not aware that Wil-
son had anything to do with the Union, and that in his opin-
ion Wilson ‘‘would be the last one’’ to prefer or support the
Union. However, the record does not support Plummer’s gra-
tuitous comment about Wilson being ‘‘the last one.’’ For, I
have found from Wilson’s testimony that in December he
suggested to Plummer that it might be a good idea for the
employees to have a union for insurance benefits. In the
strong antiunion climate which gripped McQuaide’s system
at that time, a member of its management was likely to be
alert to such expression of interest in having the Teamsters
or any union as bargaining representative. The same member
of management would be likely to remember that suggestion
of prounion sentiment when called on to select employees for
layoff.
As its director of maintenance, Plummer was aware of
McQuaide’s strong hostility toward employees who sup-
ported Locals 24 and 429. For by January, McQuaide’s man-
agement was combating its employees’ union activity with
threats of reprisal, coercive interrogation, the impression of
surveillance, and the discriminatory discharge of employee
Marshall. Much of this and subsequent unlawful conduct oc-
curred at Johnstown, where Plummer’s maintenance shop
was located. His testimony shows that in January Lee con-
tacted him directly about reducing the employee complement
in the maintenance department. Thus, I find that by the time
he selected four employees for layoff in January, Plummer
was aware of McQuaide’s desire to prevent a union from or-
ganizing its employees and knew that resort to economic re-
prisal was acceptable to his superiors. In sum, I find that the
General Counsel has made a prima facie showing that Plum-
mer selected Ivan Wilson for layoff because he expected
Wilson to support Local 429.
McQuaide contends that the General Counsel has failed to
show that unlawful motivation caused Plummer to select
Wilson for layoff. Instead, according to McQuaide’s brief,
Plummer’s testimony shows that he selected Wilson because
of faulty work performance. However, I find no merit in
McQuaide’s explanation.
Plummer’s testimony did not square with the explanation
he gave Wilson on January 9. On that date, Plummer told
Wilson, Vinisky, and Livingston that he was laying them off
because they did not look as busy as other employees and
they were more capable of finding other employment. Nor
was Plummer’s testimony consistent with Lee’s explanation
on January 10. On that occasion, Lee mentioned an evalua-
tion together with a lack of work and that the three employ-
ees did not look as busy as the other mechanics. Before me,
Plummer abandoned those explanations. He testified that the
only reason he selected Wilson was ‘‘[h]is job perform-
ance.’’ These shifting and inconsistent reasons for Wilson’s
layoff suggest that Lee McQuaide and John Plummer were
trying to come up with a plausible excuse. Thus, have Lee
and Plummer cast serious doubt on the reliability of their tes-
timony in support of McQuaide’s defense.
In its haste to explain, McQuaide did not adequately sub-
stantiate its proffered explanations for selecting Wilson rather
than another of the 13 power mechanics in its employ. Plum-
mer testified that he laid off Wilson for poor work probably
1 year earlier and that he and Lee withdrew that layoff when
Wilson agreed to improve. Then Plummer went on to assert
that, thereafter, Wilson’s performance did not meet his and
Lee’s expectation. Plummer did not disclose what that expec-
tation was. Plummer testified that Wilson’s weakness was
that ‘‘[h]e had to be working with somebody. He couldn’t
do anything by himself.’’ Plummer did not provide any ex-
amples or any explanation of how that asserted shortcoming
impaired Wilson’s value as a power unit mechanic.
There is a further suggestion that McQuaide was using a
hastily contrived explanation to escape a finding of a viola-
tion of the Act. There was no showing that Plummer or any
other member of McQuaide’s management ever warned Wil-
son in 1990 or in January 1991, prior to his layoff, that his
performance was faulty or that he was not busy enough. Nor
did McQuaide present any testimony or evidence to flesh out
its claim that Wilson was less busy than other mechanics,
who were retained as employees in January 1992. On the
contrary, I find from Wilson’s testimony that McQuaide
never issued an evaluation to him and that his immediate su-
pervisors praised his work. Also, at the time of his layoff,
Wilson observed only a reduction in backlog work, i.e.,
‘‘work that was piled up.’’
In sum, I find that McQuaide has failed to come up with
a credible explanation to rebut the strong showing that hos-
tility toward Local 429 motivated Plummer’s selection of
Ivan Wilson for layoff on January 9, only a few weeks after
the employee had shown interest in union representation. I
find, therefore that by Plummer’s conduct in this regard,
McQuaide violated Section 8(a)(3) and (1) of the Act.
7. The layoffs at Johnstown’s dock (Raymond Webb,
David Rich, Timothy Wingard, Scott Bodenschatz, and
Joe Patula)
a. The facts
McQuaide employed Scott Bodenschatz, Joe Patula, Ray-
mond Webb, David Rich, and Timothy Wingard on its
Johnstown dock. The following were their hiring dates at
787W. C. MCQUAIDE, INC.
63 My findings of fact regarding the employment history and union
activity of these five Johnstown terminal employees are based on
their uncontradicted testimony.
64 I have credited Bodenschatz’ uncontradicted testimony regarding
conversations with Foremen Baker and Locker about the Union.
65 I have credited Patula’s testimony regarding his conversations
with supervisors about Local 429, and his expressions of support for
the Union.
66 My findings regarding Webb’s offer of a union card to Foreman
Vallie Baker are based on Webb’s testimony.
McQuaide: Bodenschatz—July 1988; Patula—September
1987; Webb—September 1981; Rich—August 1990; and
Wingard—May 1989.63
Beginning with Bodenschatz, all five were active in Local
24’s and Local 429’s organizing campaign at McQuaide’s
Johnstown facility. In late and mid-October, Bodenschatz
distributed 10 to 15 blank union authorization cards at Johns-
town, on the dock, inside trucks, and in the lunchroom. He
collected 10 to 15 signed union cards, which he turned over
to Barry Michalides, for Local 24. Bodenschatz signed a
union card on October 22, 1991. In late October and early
November 1991, he passed out 20 copies of a prounion pam-
phlet on the Johnstown dock, in the breakroom, in the lunch-
room, and in trucks. In mid-December 1991, Bodenschatz
passed out 20 to 25 cards for Local 429 and gave stacks of
similar cards to other employees, including Joseph Patula, for
distribution at McQuaide. Bodenschatz left the blank cards
on the dock, inside trailers, in the lunchroom, and on the
parking lot near the terminal. In the same month,
Bodenschatz helped Local 429 organize a union meeting
with McQuaide’s Johnstown employees.
In October 1991, dock employee Joseph Patula handed out
between 70 and 100 union cards to dock workers and truck-
drivers at McQuaide’s Johnstown terminal. During the same
month, Patula spoke in support of the Union to 15 to 20 em-
ployees at Johnstown. He also handed out union literature to
fellow employees. He received about 25 signed union cards
from McQuaide employees, which he gave to employees
John Pine and Jack Boyes for Local 24. On October 23,
Patula signed a union card for Local 24. Two months later,
he signed a card for Local 429, and mailed it to the local’s
Reading office. In February 1992, Patula distributed a quan-
tity of Local 429’s cards to employee Timothy Wingard.
Patula served as an observer for Local 429 at the representa-
tion election, on June 27, 1992.
Raymond Webb passed out 5 to 10 union cards at Johns-
town in September and October 1991. He also received five
signed cards during that period, and signed one for Local 24
on October 23, 1991. Webb also signed a card for Local 429
on January 11, 1992. During January 1992, he attended a
union meeting and handed out 35 to 40 cards for Local 429.
In the same month, Webb received about 35 signed cards,
which he turned in to Local 429. Webb also attended a union
meeting in June 1992. During the week of June 22, 1992,
Webb showed support for Local 429 by wearing a Teamsters
hat on the Johnstown dock. At the election on June 27, 1992,
he assisted Local 429 as an observer.
David Rich signed a card for Local 24 on October 23,
1991, and a second card for Local 429 on January 11, 1992.
Rich asked eight McQuaide employees to sign cards. He
handed out five cards and received five signed authorization
cards which he turned over to another employee, who was
assisting the union campaign. Rich also attended two union
meetings in 1992, one at the Scalp Level Fire Hall, and the
second at the Windber American Legion.
On October 23, 1991, Timothy Wingard signed a card for
Local 24. In January 1992, he signed a card for Local 429.
In February 1992, Wingard received a quantity of cards from
Patula to obtain signatures for Local 429. As his home was
near the Johnstown terminal, Wingard invited McQuaide em-
ployees there to sign cards for Local 429. Five or ten em-
ployees signed cards at Wingard’s home.
Bodenschatz, Patula, Webb, Rich, and Wingard revealed
their union sentiment in confrontations with McQuaide’s
Johnstown management. In late October or early November
1991, Bodenschatz, in remarks to Foreman Ron Locker, said
he thought ‘‘things would be straightened out if we could get
organized and get a union in [McQuaide].’’ During the same
period, Bodenschatz spoke of his support for the Union to
Foreman Vallie Baker, and asked him if he wanted a union
card. Bodenschatz said he would put a union card on a skid
so Baker could pick it up if he wanted to. Baker smiled,
laughed, and walked away.
In a second encounter, about 2 weeks later, on the Johns-
town dock, Baker asked Bodenschatz how the union drive
was going. Bodenschatz answered, ‘‘Really well.’’ He went
on to explain that many employees favored the Union and
that he believed that the ‘‘prounion employees had [a] good
chance at voting the union in.’’64
In November 1991, Patula gave a union authorization card
to Foreman Vallie Baker. In response, Baker said he would
like to be a shop steward if the Union came in. Baker did
not sign the card in Patula’s presence.
Patula spoke to Foreman Kostyk about Local 429 in De-
cember 1991 at the Johnstown dock office. Patula disclosed
that he and other employees expected Local 429 to succeed
in organizing McQuaide’s employees, which would mean
more money for the employees. Kostyk answered that such
an increase would mean more money for supervisors as well.
In December 1991, Patula told Kostyk that there was a
rumor on the dock that Kostyk had accepted a union card.
Patula went on to ask the foreman if he had filled it out and
sent it to Local 429. When Kostyk did not answer, Patula
told him he could mail it to the address shown at the top
of the card.65
In January 1992, Webb gave one of Local 429’s authoriza-
tion cards to Foreman Baker. Webb told Baker he could sign
the card and send it to Local 429, or he could throw it away.
Baker took the card from Webb.66
As found above, employee Robert Maticic conversed with
Director of Maintenance Plummer on June 12, 1992, at
McQuaide’s Johnstown terminal. Plummer inquired if em-
ployee Raymond Webb was distributing cards for Local 429.
Maticic said he did not know. At this, Plummer predicted:
‘‘Ray Webb, after this is all done, he’ll be going down the
road.’’
Webb wore his Teamsters hat in the presence of Foremen
Ron Locker and Vallie Baker, during the week of June 22,
1992. On the night of June 24, 1992, Webb wore his Team-
sters hat, while working on the Johnstown terminal dock. As
found above, the following confrontation occurred: Mark
McQuaide saw the hat and approached Webb, saying, ‘‘Nice
hat you have on, Frog.’’ Webb said, ‘‘Yeah, it is.’’ Mark
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
67 I have credited Rich’s testimony regarding conversations with
Foremen Locher and Baker about the Union.
68 I have credited Wingard’s testimony regarding his conversations
with foremen regarding the Union.
69 My findings regarding Kostyk’s remarks about Wingard’s layoff
are based on Pritt’s testimony.
continued, ‘‘You don’t have the balls to wear that in front
of Stan McQuaide.’’ Webb responded, ‘‘I just don’t need the
hassle.’’ Mark ended the exchange with, ‘‘You better hope
the Union comes in because if it doesn’t, I will remember
you.’’
A few days before the Board’s representation election
dock employee David Rich expressed prounion sentiment to
Foremen Baker and Locker. Rich told Locker that he sup-
ported the Union and expected Local 429 to win. Locker said
the employees would be pretty stupid if they did not vote
Local 429 in. Conversing with Baker, Rich expressed support
for the Union and predicted its victory. Baker said he did not
think the Union would succeed.67
In three or four conversations with Foreman Kostyk in the
spring of 1992, Timothy Wingard expressed prounion senti-
ment. Wingard asserted a need for a union to help the em-
ployees obtain improved conditions of employment and
fringe benefits. Kostyk agreed that the Johnstown employees
needed a union.
Wingard had three or four discussions with Foreman
Baker about the employees’ need for a union. In one in-
stance, Wingard invited Baker to his home after work, and
the two discussed the need for a union at McQuaide. Baker’s
opinion was that Local 429 would not succeed in organizing
McQuaide’s employees.
Locker and Wingard discussed the Union three or four
times in the spring of 1992. These exchanges occurred in the
dock office, or in a truck. Wingard mentioned the need for
a union. On occasion, Locker asked what was going on with
the Union and agreed with Wingard that the employees need-
ed a union.68
McQuaide laid off Bodenschatz and Patula on January 2,
1992. At the end of his shift, at 7 a.m., on January 3,
Bodenschatz was instructed to call Mark McQuaide. He
called Mark later that morning. Mark told Bodenschatz he
was being laid off due to lack of work and evaluations.
Bodenschatz asked, ‘‘Is this anything personal?’’ Mark an-
swered no and the conversation ended without further com-
ment. Mark filled out an employment termination report for
Bodenschatz, giving lack of work as the reason for the lay-
off. Mark also indicated on the report that the lack of work
was temporary. McQuaide has not recalled Bodenschatz.
At the end of his shift, on December 31, 1991, Foreman
Vallie Baker gave a note to Patula directing him to contact
Stan McQuaide. On January 2, 1992, Patula came to
McQuaide’s Johnstown terminal and spoke to Mark
McQuaide. Mark laid off Patula after telling him that things
were getting slow. Also, Mark assured Patula that his layoff
would be only temporary. Mark gave his office telephone
number to Patula and advised him to call it every other week
and learn from Mark if the freight flow was picking up.
Marked fill out an employment termination form for Patula,
noting that this layoff was for a temporary lack of work.
After January 2 and until April 20, 1992, Patula phoned
Mark every other week. Each time Mark answered that the
freight had not picked up, but that he would keep Patula in
mind.
On April 20, Patula filed an unfair labor practice charge
in Case 6–CA–24491, alleging that McQuaide had laid him
off on January 2, 1992, because of his union activity, and
had thereby violated Section 8(a)(3) and (1) of the Act. On
April 21, 1992, McQuaide received a copy of Patula’s
charge. A few days after he filed his charge, Patula called
Mark and asked if the freight was picking up. Mark replied
that freight had picked up a little bit. He added that
McQuaide could not hire Patula back at that point because
he had an unfair labor practice charge pending against
McQuaide. Patula has not received any recall notice from
McQuaide.
On June 27, 1992, Patula was present for the ballot count
during the Board-held election among the Johnstown em-
ployees. During the tally, employees Patula and Hunter were
standing together. As found above, Mark McQuaide stood
nearby and in audible conversation, referred to them as ‘‘two
of the assholes that started this.’’
On December 29, 1992, Mark McQuaide laid Raymond
Webb off. Mark said he hated to lay Webb off, but things
were slow. McQuaide’s notice of employment change form
states that on December 29, 1992, it laid Webb off for lack
of work. An employment termination report prepared by
McQuaide gives the same reason for Webb’s layoff.
In late November 1991 or early December 1992, Foreman
Ron Locker told employee Webb that David Rich would be
one of the next ones to go. On December 28, 1992,
McQuaide laid off Rich and has not recalled him.
McQuaide also laid off Timothy Wingard on December
28, 1992. Two or three days after Wingard’s layoff,
McQuaide employee Darl Pritt asked Foreman Kostyk why
Wingard had been laid off. Kostyk answered that Wingard
was a good worker, but it had to be on account of the
Union.69
b. Analysis and conclusions
The General Counsel urges that McQuaide laid off the five
dock employees, discussed above, because of their union ac-
tivity. McQuaide contends that union activity had nothing to
do with any of the five layoffs. There is considerable evi-
dence suggesting that union activity was a factor in Mark
McQuaide’s selection of dock employees Bodenschatz,
Patula, Webb, Rich, and Wingard for layoff.
All five employees demonstrated and expressed support
for Local 24, or Local 429, or for both well before their re-
spective layoffs. They solicited support from other employees
on behalf of the union organizing effort at McQuaide’s
Johnstown facility. Each revealed his prounion sentiment to
management well before Mark selected him for layoff.
The record shows Mark McQuaide’s persistent hostility to-
ward employees who supported the union organizing effort.
That hostility caused Mark to violate the Act. Indeed, on No-
vember 15, 1991, he seized on a pretext to rid McQuaide of
union activist Barry Michalides. During the week of June 22,
1992, 6 months before he laid Webb off, Mark again showed
his strong antiunion sentiment. He saw Webb’s Teamsters
hat and violated Section 8(a)(1) of the Act by warning:
‘‘You better hope the Union comes in because if it doesn’t,
I will remember you.’’ The implication in this warning is
789W. C. MCQUAIDE, INC.
70 On cross-examination, when asked if unfair labor practice
charges had already been filed when he threw away the underlying
documents for the 1992 evaluations, Mark was evasive. First, he an-
swered, ‘‘Nobody said anything to me.’’ When asked again, he testi-
fied, somewhat annoyed, ‘‘I never read any charges.’’ When I asked
him if he knew anything about them, Mark, in an irked tone, an-
swered, ‘‘No, I didn’t.’’ Mark’s flip attitude toward my questions
and his evasive answers convinced me that he knew about
Bodenschatz’ and Patula’s unfair labor practice charges when he dis-
carded the underlying documents for the 1992 evaluations of the
Johnstown dock employees.
that if Local 429 does not win the election on June 27, 1992,
Mark intends to punish Webb because he openly supported
the Union. Local 429 did not win the election.
Fifteen days before the manual election, Maintenance Di-
rector Plummer predicted that when the organizing campaign
had ended Webb would be leaving his employment. This
prediction came after he asked employee Maticic if Webb
was handing out union cards. In fact, Webb was. But Webb
did more than hand out cards. He was flaunting his prounion
sentiment by wearing a Teamsters hat in front of McQuaide’s
management. Mark made good on Plummer’s prediction.
On June 27, 1992, Mark again showed his anger toward
those who assisted the union organizing campaign. For, dur-
ing the tally of ballots, he audibly described employees
Patula and Hunter as ‘‘two of the assholes that started this.’’
Mark’s hostility reflected the antiunion sentiments of Lee
and Stan McQuaide. Lee and Stan, by their conduct, also
provided Mark with guidance in how to combat the enthu-
siasm of prounion employees with the unlawful discharges
and suspensions recorded in this decision. These discharges
and suspensions spanned the period from late 1991 until
early 1993. Mark, who shared Lee’s and Stan’s animosity to-
ward Locals 24 and 429, carried out the layoffs of the five
Johnstown union activists in that atmosphere. I find that the
General Counsel has made a prima facie showing that ani-
mosity toward Locals 24 and 429 provoked Mark to lay off
those five employees.
McQuaide contends that it selected Bodenschatz, Patula,
Webb, Rich, and Wingard as a result of an annual evaluation
of their attitude, performance, attendance, and dependability
by foremen and selected employees. Thus, according to
McQuaide, Mark laid them off after collecting and scoring
the independent evaluations of the foremen and selected em-
ployees.
McQuaide claims that it laid off Bodenschatz, Patula,
Webb, Rich, and Wingard because each received a low score
in an annual evaluation of their attitude, performance, attend-
ance, and dependability. In late 1991, Foremen Vallie Baker,
Bill Robertson, Tony Kostyk, and Ron Locker evaluated the
50 or 60 Johnstown dock employees, including Bodenschatz
and Patula. The foremen used an evaluation form for each
of the dock employees and rated their attitude, performance,
attendance, dependability, and leadership. The form permitted
the foremen to rate each factor as excellent, good, fair, or
poor. Work on the dock had slowed and Mark wanted to se-
lect five dock employees for layoff.
It is undisputed that the foremen used their own, individ-
ual, subjective impressions to grade the employees. Mark
McQuaide provided them with neither guidance nor company
records. Foreman Baker, for example, completed his forms at
home. He did not check any records for attendance or dis-
cipline. He testified that, ‘‘It is just like a personal evaluation
on his work. If you [are] around a guy long enough, you
know how he is going to work. There is nothing for me to
check.’’ There was no showing that Foremen Locker and
Kostyk followed any procedure different from Baker’s.
Former Foreman Robertson, who participated in the 1991
evaluation, testified that before checking the appropriate rat-
ing box, he consulted McQuaide’s records for attendance, but
used subjective judgment for the other four factors. The fore-
men turned their rating sheets in to Mark McQuaide.
According to Mark McQuaide, he set up a scoring system
to rate each dock employee. Excellent received three points,
good was worth two points, fair was worth one point, and
poor received a zero. Mark did not complete a rating form.
Nor did he tell the foremen how he scored their rating
sheets. According to Mark’s scoring, Bodenschatz and Patula
were among the five lowest rated dock employees in the late
1991 evaluation.
In late 1992, Mark asked Foreman Ron Locker and em-
ployees Mark Dixon, David Roles, and Rodney Jennings to
evaluate the approximately 50 dock employees, using the
same procedure described above for the 1991 evaluation.
Mark testified that he used the same scoring system to iden-
tify employees for layoff. According to Mark’s scoring,
Webb, Rich, and Wingard were among the nine dock em-
ployees with the lowest evaluations, all of whom Mark laid
off in late December 1992. Again, Mark provided neither
guidance nor records to the evaluators. Mark admitted that
he had discarded the underlying evaluation forms in 1991
and in 1992, immediately after he had completed scoring.
The absence of the completed forms which the evaluators
had turned over to Mark in late 1991 and late 1992 casts
doubt on Mark’s explanation of the selection of the five al-
leged discriminates. For, given his hostility toward their
union activities, the discarding of those documents would
permit him to rig the scores of the union activists and thus
get rid of them in the planned layoffs, without implicating
evidence to worry about.
Further cause for doubt of Mark’s explanation is that he
discarded the 1992 evaluations after McQuaide had received
the unfair labor practice charges arising out of his earlier lay-
offs. Bodenschatz and Patula filed charges against McQuaide
in April 1992, in Cases 6–CA–24491 and 6–CA–24500.
McQuaide received a copy of Patula’s charge on April 21,
1992, and a copy of Bodenschatz’ charge on or about April
25, 1992. I find, contrary to Mark’s denial, that he was
aware of those charges when he discarded the 1992 evalua-
tions.70
Mark cast further doubt on his credibility, when he sought
to explain why he discarded the completed evaluation forms
in 1991 and 1992. On cross-examination, Mark McQuaide
asserted first that he had no place to store the underlying
documents, which for each year would have created a stack
of paper ‘‘six or seven inches high.’’ On further cross-exam-
ination, Mark conceded that each year’s underlying docu-
ments would amount to about 200 sheets of paper one-half
inch high. Thus, Mark’s explanation for discarding the 1991
and the 1992 evaluation forms does not withstand scrutiny.
Instead, I find the explanation in Foreman Kostyk’s remark
to employee Pritt that Wingard’s layoff ‘‘had to be on ac-
count of the union.’’
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
71 Unless otherwise stated, all dates concerning Watts occurred in
1992.
72 Robert Renninger was a vocal union supporter. At some undis-
closed time, McQuait asked him about Local 429’s campaign. How-
On direct examination, Mark denied changing any of the
numbers after scoring the evaluations in 1991 and 1992.
However, Mark’s false explanation of the absence of the un-
derlying documents compelled me to reject his denial.
In its brief and at the hearing, McQuaide sought to rely
on its records to justify the five layoffs. However,
McQuaide’s own brief (Br. 103) admitted that ‘‘subjective
judgment’’ not records was the basis for the evaluations.
Thus, I find such belated reliance to be an afterthought, de-
signed to camouflage the real motive for the five layoffs.
In sum, I find that Mark McQuaide laid off Scott
Bodenschatz, Joe Patula, Raymond Webb, David Rich, and
Timothy Wingard in reprisal for their union activity and
prounion sentiment. By these five layoffs, I further find that
McQuaide violated Section 8(a)(3) and (1) of the Act.
8. Glen Watts
a. The facts
McQuaide hired Glen Watts at its Bethel, Pennsylvania
terminal on June 1, 1989. For the first year, Watts worked
at Bethel in the grease pit, servicing trucks. His duties in-
cluded changing oil and greasing. The following year,
McQuaide reassigned him as a mechanic on the third shift,
11 p.m. to 7:30 a.m., with hourly pay of $8.75. He worked
under the immediate supervision of Burnell Moyer. Watts
was one of eight mechanics at McQuaide’s Bethel facility.
In 1990, he trained employee Robert Renninger to replace
him as a greaser.
In about November 1991,71 Watts heard about a union or-
ganizing drive among McQuaide’s Ohio drivers. A few
weeks later, in November 1991, Watts attended a meeting
which Lee, Stan, and Bill McQuaide conducted at Bethel.
The McQuaides told the Bethel employees about the Ohio
union activity. Lee expressed his feelings toward the Union
and told of companies which had gone union and then went
out of business.
In December 1991, Watts met with Local 429 Organizer
and Business Agent Matt Matetich, who explained plans for
organizing McQuaide’s employees. Watts received authoriza-
tion cards from Matetich. On December 15, 1991, Watts
signed an authorization card for Local 429. During the same
month, Watts distributed six or seven cards for Local 429 to
his fellow mechanics at work. Employees Robert Renninger,
Rodney Spancake, and Leon Martin saw Watts distributing
cards at work.
Foreman Burnell Moyer saw Watts pass out union cards
to employees at Bethel. At all times material to Watts’ em-
ployment, Moyer had authority to discipline employees, to
give them time off for sickness or an appointment, and to
require them to do work over, if he deems it necessary.
Moyer also assigned work to the mechanics on his shift. I
find that at all times material to Watts’ employment, Moyer
was a supervisor within the meaning of Section 2(11) of the
Act.
On December 20, 1991, Watts handed out the last of his
union cards at work, and then left on a road call. Watts was
gone about 3 hours. When Watts returned to the Bethel facil-
ity, Garage Foreman Robert McQuait told him that
McQuaide had dismissed employee Herb Felty and that
Watts would be demoted to replace him as a greaser on the
5 p.m. to 1:30 a.m. shift, with a reduction in hourly pay from
$8.75 to $6.50. At the time of Watts’ demotion, there were
two Bethel mechanics who were junior to him, Robert
Renninger and Steve Stuble.
On February 20, Watts reported for work at Bethel. Soon
after he had arrived, Garage Foreman McQuait approached
him and asked if he had lost pieces to the pneumatic grease
gun. Watts said he had not taken it apart and did not know
what pieces McQuait was talking about. McQuait then ac-
cused Watts of trashing the restroom with grease in the deep
sink and paper all over the bathroom. The foreman said
Watts should have used industrial solvent to remove the
grease from his hands before going into the bathroom. Watts
answered that the solvent would cause the skin on his hands
to crack, chap, and then bleed. McQuait went on to complain
that Watts had slandered the Company by writing ‘‘AFU’’
on a work order on the previous day. McQuait told Watts
not to punch in, that he was fired, and not to ‘‘be hanging
around here.’’
b. Analysis and conclusions
The General Counsel argues that McQuaide demoted
Watts and reduced his salary on December 20, 1991, in re-
sponse to his union activity. McQuaide’s position is that
union activity had nothing to do with its decision to send
Watts back to the grease pit and cut his hourly wage by
$2.25. I find ample support for the General Counsel’s con-
tention.
Watts’ demotion and wage reduction occurred without
warning on December 20, 1991, little more than 3 hours after
he had openly distributed an authorization card for Local 429
at the Bethel garage. Indeed, Watts had been engaged in such
conduct openly since December 15, 1991. Foreman Moyer
had seen Watts handing out cards. The timing of Foreman
McQuait’s announcement of these changes raises the thought
that Watts’ distribution of his last union card had something
to do with his misfortune.
McQuait testified that as of the time of Watt’s demotion
he did not know of any union activity by Watts. However,
McQuait did not deny suspecting Watts of supporting Local
429. Nor did McQuait deny hearing about Watts’ union ac-
tivity from either Terminal Manager Gary, Foreman Moyer,
or any other source. I have found, above, that in October
1991 McQuait’s boss, Terminal Manager Jim Gary, knew of
employees passing out union cards. As a member of
McQuaide’s management, Gary was likely to share his
knowledge and suspicions of union activity and union activ-
ists with McQuait and Director of Maintenance Plummer. I
also find it likely that Foreman Moyer quickly told McQuait
about seeing Watts’ union activity.
The timing of McQuait’s announcement of Watts’ demo-
tion and wage loss also suggests that McQuait, Plummer, and
other members of McQuaide’s management regarded Watts
as an active supporter of Local 429. Thus, I find that in De-
cember 1991, prior to the decision to demote Watts,
McQuait, Gary, and Plummer at least suspected him of being
a union activist.72
791W. C. MCQUAIDE, INC.
ever, Renninger did not hand out any union cards during Local 429’s
campaign. After Watts’ discharge Renninger handed out union
bumper stickers and hats. There was no showing that any of the
other Bethel mechanics handed out union cards.
There are other factors which suggest that Watts’ distribu-
tion of union cards provoked McQuaide’s management. As
found, above, in October and November 1991, Bethel Termi-
nal Manager Jim Gary told a Bethel driver that he had heard
that employees were distributing union cards and, in viola-
tion of Section 8(a)(1) of the Act, warned that McQuaide
would shut down rather than allow the Union to succeed in
organizing its employees. As found above, in November,
Gary again violated Section 8(a)(1) of the Act, when he
warned Bethel employee Martin that McQuaide would shut
down rather than deal with a union. Also, in November
1991, Lee, Stan, and William McQuaide conducted a meet-
ing at which Lee spoke against having a union represent
McQuaide’s employees. In sum, the record makes clear that
the Bethel manager and his superiors in Johnstown were anx-
ious to keep Local 429 from organizing McQuaide’s employ-
ees. Further, there is ample showing that McQuaide’s man-
agement was willing to use unlawful economic reprisals to
punish union activists and supporters. Thus, the General
Counsel has made a strong showing that on December 20
McQuaide demoted Watts and reduced his hourly wage to
punish him for handing out cards to his fellow employees for
Local 429.
In support of its contention that union activity played no
part in the decision to reduce Watts, McQuaide offered the
testimony of Foreman McQuait and Director of Maintenance
John Plummer. Their conflicting versions of how the deci-
sion to select Watts for demotion, however, came about un-
dermines McQuaide’s position. According to McQuait, in
late 1991, after greaseman Felty’s dismissal, Plummer con-
sulted McQuait about a replacement. In his pretrial state-
ment, McQuait asserted that the decision to demote Watts
was just up to Plummer. Before me, McQuait testified that
he and Plummer made that decision. Plummer testified, in
substance, that he made the decision to replace Felty with
Watts. In light of the inconsistency between McQuait’s affi-
davit and his testimony before me, I find that Plummer made
the decision.
McQuait also testified that he told Plummer that employee
Reninger did a better job on the floor than Glenn Watts did,
and thus he would use Watts in the grease pit. Plummer’s
testimony did not mention any comparison of McQuait with
Reninger. Instead, Plummer testified that he decided to trans-
fer Watts to the ‘‘important job’’ of greaser and oil changer
because they ‘‘needed somebody who was capable of han-
dling the job as well as getting the jobs done.’’ This conflict
between McQuait’s and Plummer’s testimony suggests that
Watts’ workmanship was not the topic which they discussed
when Plummer was deciding his fate. Instead, it suggests that
each hastened to come up with an explanation which would
shield McQuaide from a finding that Watts’ demotion was
unlawful.
Another flaw in the defense is that McQuaide did not ex-
plain why it reduced Watts’ hourly wage by $2.25, when
Plummer testified, in substance, that Watts was a capable
employee, who could get the work done in an ‘‘important
job.’’ Instead of rewarding Watts’ ability, McQuaide reduced
his wages. Such a wage policy is not likely to encourage ex-
cellence. In any event, Watts’ loss of wages provides further
support for my finding that Plummer’s stated reason for
moving him to the grease pit was pretextual. I further find,
therefore, that by transferring Watts to the grease pit and re-
ducing his wages on December 20, 1991, McQuaide violated
Section 8(a)(3) and (1) of the Act.
McQuaide claims it discharged Watts on February 20 for
misconduct; including throwing a grease gun, throwing a
jack handle, trashing a bathroom at the Bethel facility, and
writing ‘‘slack adjuster f—ked up’’ on an internal work
order. Analysis of the testimony and exhibits relevant to
these asserted grounds for Watts’ discharge shows that they
were pretexts.
According to Maintenance Director Plummer, he, not
McQuait, decided to discharge Watts. Plummer also testified
that he based his decision on McQuait’s report of Watts’
misconduct. McQuait’s testimony shows that he told Plum-
mer that he intended to fire Watts for misconduct after re-
porting the ‘‘situation,’’ and that Plummer said he was doing
the right thing. I find that McQuait believed that he had
made the decision subject to his superior’s approval. For his
part, Plummer’s testimony shows that he believed that it was
his decision. I find it unnecessary to resolve the question of
who made the final decision.
According to McQuait, on the morning of February 20,
Foreman Burnell Moyer reported to McQuait that Watts had
thrown a grease gun out of the grease pit against the garage
door and a jack handle out of the pit area. Also, according
to McQuait, Moyer told him that Watts ‘‘had the men’s
room sink all greased up with fresh grease.’’ Moyer’s testi-
mony was that he could not recall telling McQuait of these
incidents. Also, on February 20, Moyer provided McQuait
with a written statement which did not say anything about
throwing a grease gun any further than the grease pit. Nor
did the statement accuse Watts of putting fresh grease in the
men’s room. A written statement from employee Renninger,
who was working on the same shift with Watts, accused
Watts only of throwing a jack handle in front of a service
vehicle.
McQuaide offered the written statements of Moyer and
Renninger to corroborate McQuait’s testimony regarding
what he knew of Watts’ misconduct on the night shift on
February 20. The contents of Moyer’s statement did, how-
ever, not corroborate important parts of McQuait’s testimony.
The assertions that the grease gun hit the garage door and
that Watts was responsible for putting fresh grease in the
bathroom sink do not appear either in Moyer’s testimony or
in the statement he gave to McQuait on February 20. That
McQuait accepted Moyer’s statement without suggesting re-
vision suggests that it was accurate. That McQuait felt the
need to embellish it by having the grease gun hit a garage
door, and by claiming that Watts used fresh grease to trash
the bathroom shows an intent to bolster the excuse for firing
Watts.
Moyer’s statement did not identify who had put grease
into the bathroom sink. Renninger and other employees had
access to that sink. Yet McQuait did not look further than
Watts. Without any investigation, he attributed the misdeed
to Watts and made it more serious by claiming that Watts
had put fresh grease in the sink. McQuaide’s resort to harsh
economic reprisals against Watts only 2 months earlier be-
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
73 Unless otherwise stated, the dates relevant to Leon Martin oc-
curred in 1991.
74 I credited Martin’s uncontradicted account of his conversation
with Gary in mid-December about an authorization card.
75 Lee McQuaide testified that he contacted Bethel to find out who
would be ‘‘easiest to replace.’’ However, Terminal Manager Gary’s
testimony was that Lee called up to tell him to lay off Martin be-
cause he had less seniority. Lee’s offhand manner as he explained
how he had to get rid of ‘‘deadwood’’ (Martin) suggested that he
was improvising as he went along. As Gary’s testimony was more
concise and he seemed more respectful toward the proceeding, I
have credited his testimony regarding his conversation with Lee
McQuaide.
76 I based my findings regarding Gary’s remarks when he issued
the layoff slip on Martin’s testimony. In response to a leading ques-
tion, Gary denied telling Martin that Lee’s decision to lay Martin off
did not make sense to Gary. However, Gary did not deny the bal-
ance of Martin’s recollection of the layoff confrontation. As Martin
seemed to be the more forthright witness regarding this incident, and
as his version seems logical, given that Terminal Manager Gary had
cause of his union activity suggests that McQuaide was inter-
ested in getting Watts to quit. The events of February 20
provided an opportunity for McQuaide to diminish Local
429’s support by discharging Watts.
McQuait’s initial testimony suggests that he did not con-
sider Watts’ use of obscene language in the work order of
February 19 as a ground for discharge. McQuait’s account of
his remarks to Watts on February 20 shows no mention of
a work order or its contents. McQuait restricted his expla-
nation to Watts’ conduct on the third shift on the previous
night. Later, on direct examination, when counsel asked if
the work order played any role in his decision to terminate
Watts, McQuait answered, ‘‘I was very unhappy with this
type of writing from the work orders.’’ Counsel then asked,
‘‘So, my question is was this part of the consideration when
you decided to terminate him?’’ McQuait answered yes. I
find from McQuait’s evasive response and his initial testi-
mony that he did not rely on the obscene language when he
decided to discharge Watts on February 20.
McQuait also conceded that irritated truckdrivers write
work orders up ‘‘in the same manner.’’ Yet, McQuaide did
not show that it discharged or otherwise disciplined any
truckdriver, or any other employee for using obscene lan-
guage in a work order. I find from Robert Renninger’s testi-
mony that in 1991 and 1992 when he was a mechanic at
Bethel he used ‘‘no f—king good’’ on work orders to de-
scribe parts. McQuaide did not discipline Renninger for
using that obscene language. Again, the record shows that
Watts’ use of obscene language was a pretext which
McQuaide seized on after February 20 to counter the General
Counsel’s strong showing of unlawful motive.
I find, contrary to McQuait’s denial, that McQuaide dis-
charged Watts on February 20 because it wanted to rid itself
of a union activist, who was assisting Local 429’s organizing
campaign. I find that by this discharge, McQuaide violated
Section 8(a)(3) and (1) of the Act.
9. Leon Martin
a. The facts
McQuaide employed Leon Martin from May 10, 1982,
until it laid him off on January 9, 1992,73 During his 10
years at McQuaide’s Bethel Terminal, Martin was, in succes-
sion, a part-time dock worker, a full-time dock worker,
straight truckdriver, tractor trailer driver, and finally yard
jockey. For about a year prior to his layoff, he and the other
Bethel yard jockey, Gary Emerick, worked either the 4 p.m.
to midnight shift or the midnight to 8 a.m. shift on a rotating
basis. Jim Gary supervised their work. The yard jockeys
move trailers and straight trucks to the dock, remove trailers
from the dock, and fuel trucks and tractors.
A flier in the Bethel Terminal, in October, was Martin’s
first inkling of union activity. The flier announced that Lee
McQuaide would come to Bethel and talk to the employees.
In mid-October, Martin attended a meeting at which Lee
spoke about the union activity at McQuaide’s Ohio oper-
ations.
As found above, on November 1, Terminal Manager Gary
asked Martin about a union meeting involving some of
McQuaide’s Ohio drivers. When Martin invited him to at-
tend, Gary said he could not attend because of a wedding.
Gary went on to say that if he could attend the meeting, he
would tell the Ohio drivers about him losing his job and put-
ting McQuaide out of business because of the organizing
drive.
In early November, Martin met with Ohio drivers Jack and
Tom Boyes at the Midway Diner. At this meeting, Martin
signed a union card for Local 429, which he gave to Tom
Boyes. Martin also received union cards which he distributed
to McQuaide drivers at Bethel. He gave stacks of union
cards to employees Glenn Watts and Dave Mardonis. Martin
received sign authorization cards, which he sent to Tom
Boyes in envelopes carried by shuttle drivers. Randy Hunter
was Martin’s Johnstown contact for union activity.
Martin assumed a leading role in Local 429’s organizing
effort. He organized a meeting between 2 of its officials and
25 or 30 of McQuaide’s Bethel employees, at the Midway
Diner, on December 15. At this meeting, he signed a second
card for Local 429. Martin obtained a quantity of Local
429’s cards. He gave some to Glenn Watts. Martin kept the
remainder, which he distributed to employees at McQuaide’s
Bethel Terminal. He distributed up to 40 cards among the
Bethel employees.
In mid-December, Bethel Terminal Manager Gary asked
Martin for an authorization card. Martin said he would make
sure that Gary received one. Gary said no, he could not sign
a card because he was management.74
On January 9, 1992, Terminal Manager Gary issued a lay-
off slip to Martin. According to the slip, ‘‘lack of work’’ was
the reason for Martin’s sudden, unheralded layoff. Indeed,
prior to issuing this slip Gary had not reduced Martin’s
hours. Nor had Martin experienced any reduction in the work
he was doing. This was the first layoff of which he was
aware in the 10 years he worked for McQuaide.
Gary admitted that he played no part in the decision to lay
off Martin. Lee McQuaide telephoned Gary and ordered him
to lay off Martin. Lee told Gary that Martin had less time
than Gary Emerich.75 According to Gary and McQuaide’s
posthearing brief, McQuaide has a policy ‘‘of not according
any weight’’ to seniority. When he handed the layoff slip to
Martin, Gary said he didn’t understand why Martin was
being laid off, but that was what Lee McQuaide wanted, and
it made no sense.76
793W. C. MCQUAIDE, INC.
no part in the decision, I have credited Martin’s testimony in this
regard.
After his layoff, Martin returned to McQuaide’s Bethel fa-
cility once to retrieve some of his belongings. Thereafter, by
letter of February 20, 1992, Lee prohibited Martin from en-
tering onto McQuaide property, and warned that Martin
would be charged with trespassing if he ignored Lee’s notice.
b. Analysis and conclusions
The General Counsel urges a finding that McQuaide se-
lected Martin for layoff for engaging in union activity.
McQuaide counters with a contention that union activity had
nothing to do with Martin’s layoff. I find merit in the Gen-
eral Counsel’s position.
The General Counsel has shown that Martin was an active
supporter of Local 429 and that Bethel’s management was
aware of his union activity. In November, and again in De-
cember, Bethel Manager Gary singled Martin out to ask him
first about a union meeting, and later about a union card. In
both instances, Martin identified himself as a union activist.
Martin invited Gary to the meeting and, in the second en-
counter, offered to obtain a union card for Gary. I find from
employee James Weatherholtz’ testimony that in December
he told Gary that Martin had given him a union card.
Gary also showed strong hostility toward Martin’s union
activity when he violated Section 8(a)(1) of the Act by warn-
ing Martin that McQuaide would shut down rather than put
up with a union. I have no doubt that Gary informed his su-
periors in Johnstown, who were manifestly interested, that
Martin was helping Local 429. As I have found repeatedly,
Lee and Stan McQuaide knew how to deal with union activ-
ists among their employees.
Lee McQuaide’s phone call directing Gary to lay off Mar-
tin came only about 2 weeks after the employee had offered
to obtain a union card for Gary. Gary was not the source of
the thought that Martin should be laid off. That idea came
from Lee, in Johnstown, without any consultation with the
manager of Bethel. Indeed, Gary told Martin that he did not
understand why Martin was being laid off. Gary’s remarks
and the fact that the impetus for the layoff came from Lee
support the General Counsel’s view that Lee McQuaide se-
lected Martin to get rid of one of Local 429’s advocates.
In the same phone call, Lee told Gary that Martin was se-
lected because he had less seniority than Gary Emerick, the
other yard jockey. Lee’s reliance on seniority suggests that
he was hard pressed to come up with an excuse for getting
rid of a union activist. For, as McQuaide’s brief showed, this
was a departure from its policy of ignoring seniority. This
abandonment of policy was but one more ingredient in the
General Counsel’s prima facie showing that Martin’s union
activity was a factor in McQuaide’s decision to select him
for layoff on January 9, 1992.
McQuaide’s defense is in disarray. According to Lee
McQuaide, he contacted the Bethel Terminal and asked Man-
ager Gary who would be ‘‘easiest to replace.’’ Lee testified
that Gary advised that one of the jockeys could be laid off
without need of a replacement and after reflecting on the
matter he decided that as Gary Emerich was hauling fuel in
addition to jockeying, Martin was expendable as ‘‘dead-
wood.’’ Lee’s testimony omits any reference to seniority as
a factor. Yet McQuaide’s brief insists: ‘‘The decision was
based in part on the fact that Mr. Martin was the least senior
jockey.’’ This assertion also flies in the face of the admission
89 pages later, in the same brief, that McQuaide ignores se-
niority. This disagreement between the brief and Lee and the
brief’s own internal discord suggest an effort to contrive a
suitable explanation in the face of a strong prima facie case.
As found above, the conversation between Lee and Man-
ager Gary did not consist of an inquiry about who would be
‘‘easiest to replace.’’ Instead, it was an order from Lee to
get rid of Martin on the excuse that he was less senior to
Emerich. In light of Lee’s false account of his selection proc-
ess and Gary’s credited account of their conversation, I do
not credit Lee’s further testimony that Emerich’s driving mo-
tivated him to get rid of Martin. In his conversation with
Gary, Lee never mentioned Emerich’s driving. Emerich’s
driving was an afterthought which played no part in Lee’s
decision to select Martin for layoff.
I find that McQuaide selected Leon Martin for layoff on
January 9, 1992, in reprisal for Martin’s assistance to Local
429. Accordingly, I further find that by laying off Martin,
McQuaide violated Section 8(a)(3) and (1) of the Act.
10. James Weatherholtz
a. The facts
In November 1989, McQuaide hired James Weatherholtz
as a straight truckdriver at Bethel. His routes included Dela-
ware, Maryland, New York, New Jersey, and Pennsylvania.
Terminal Manager Jim Gary was his immediate supervisor.
Weatherholtz first learned of the union campaign in late
October 1991 from Leon Martin. On November 3, 1991,
Weatherholtz received a union card from Leon Martin and
signed it in the Bethel Terminal’s lunchroom. On December
18, 1991, Weatherholtz received and signed a card for Local
429. He signed it at the fuel island at the Bethel Terminal
and returned it immediately to Leon Martin, who had given
it to Weatherholtz.
In December 1991, before Christmas, Weatherholtz told
Terminal Manager Gary that he had received a card from
Leon Martin, and had signed it. Weatherholtz expressed
prounion sentiment to Gary, suggesting that a union could
only make the Company better. Gary did not respond to
Weatherholtz.
On April 16, 1991, while driving for McQuaide,
Weatherholtz received a speeding ticket on interstate 78,
Berks County, Pennsylvania. He pleaded not guilty and re-
tained Attorney Michael Fiorillo to represent him in the re-
sulting litigation. Fiorillo’s records show that on January 13,
1992, he and Weatherholtz had a phone conversation regard-
ing the preparation of an appeal in this matter. The district
justice found Weatherholtz guilty. The Court of Common
Pleas for Berks County found him not guilty.
At approximately 8:50 a.m., on January 13, 1992,
Weatherholtz called the Johnstown Terminal from his home,
using McQuaide’s 800 telephone number. In the course of
his employment, Weatherholtz became acquainted with
McQuaide’s 800 number, which he and the other McQuaide
drivers regularly used in connection with their pickup and
delivery activities. On this occasion, Weatherholtz told
McQuaide’s switchboard operator, Judith Ann Kabler, of his
need to talk to his attorney regarding his speeding ticket, and
asked her to patch him through to Fiorillo, at 717–622–6880.
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
77 I have based my findings regarding Weatherholtz’ efforts to call
his attorney on January 13, 1992, on his and Kabler’s testimony, ex-
cept for her testimony that he called New Jersey. As Attorney
Fiorello’s records corroborate Weatherholtz’ testimony that he called
a Pennsylvania number, I have credited his testimony in this regard.
78 As Kabler seemed to be a forthright witness, I have credited her
testimony regarding her encounters with Mark and Lee McQuaide on
January 13, 1992.
79 My findings regarding Weatherholtz’ conversations on January
13, and 14, 1992, are based on his uncontradicted testimony.
80 My findings regarding his conversation with Lee McQuaide in
January 1993 are based on Weatherholtz’ testimony. Lee denied say-
ing that he could not hire Weatherholtz as long as he had the unfair
labor practice charge against McQuaide pending. As Weatherholtz
impressed me as being the more forthright witness of the two, I have
credited his testimony in this regard.
Kabler placed the call, and remained on the line while the
phone rang. There was no answer and Kabler told
Weatherholtz to try the number later.
Before Weatherholtz called again, Kabler learned that he
was not working that day. When Weatherholtz called again
and asked to be patched to 717–622–6880, Kabler refused to
put his call through. Weatherholtz explained that he had to
call his lawyer about a speeding ticket he received when he
was driving a McQuaide truck. Kabler said she could not be-
cause the ticket was his own personal problem. Later that
morning, Weatherholtz telephoned his attorney directly and
conversed with him for a half hour.77
In the meantime Kabler told Mark McQuaide about
Weatherholtz’ request for her assistance in placing a call.
She pointed out that Weatherholtz was not working. Mark
said, ‘‘I’ll take care of it.’’ Later in the day, Kabler checked
with Lee to ascertain if her response to Weatherholtz’ second
request had been correct. Lee said she had done the right
thing.78
On the afternoon of January 13, 1992, Jim Gary tele-
phoned Weatherholtz the news that he was terminated and
that ‘‘it had to do with something about the telephone.’’
Gary also told Weatherholtz to get in touch with Lee
McQuaide.
In a telephone conversation with Lee on the next day,
Weatherholtz asked why he had been fired. Lee answered
that he could not have the drivers using the 800 number like
that. Weatherholtz explained that he had been trying to get
through to his lawyer regarding a license suspension. Lee did
not want to hear the explanation and cut Weatherholtz off.
Lee said he considered Weatherholtz’ use of the 800 number
to be stealing and that he was terminated.
McQuaide has not maintained a written policy regarding
the use of its 800 telephone number.79 Further, with the ex-
ception of Weatherholtz, from 1990 until July 12, 1993,
McQuaide did not take any disciplinary action against any
employee for allegedly misusing its 800 number.
Following his termination, Weatherholtz obtained a class
A commercial driver’s license, which permitted him to drive
a tractor-trailer. In January 1993, Weatherholtz telephoned
Lee McQuaide seeking employment as a driver.
Weatherholtz identified himself as ‘‘the guy a year ago that
was fired for asking to use the telephone.’’ Lee asked why
Weatherholtz was calling. Weatherholtz said he wanted to
talk about a job. Lee replied that Weatherholtz’ name now
rang a bell’’ and he knew who Weatherholtz was. Lee re-
called that Weatherholtz had some kind of litigation against
McQuaide with the National Labor Relations Board. Finally,
Lee said he could not employ Weatherholtz as long as there
was that pending litigation.80
b. Analysis and conclusions
The General Counsel seeks a finding that Weatherholtz’
discharge violated Section 8(a)(3) and (1) of the Act, and a
further finding that Lee McQuaide’s refusal to rehire
Weatherholtz ran afoul of Section 8(a)(4) and (1) of the Act.
Lee said he considered Weatherholtz’ attempt to use
McQuaide’s 800 number to be stealing and for that reason
alone he fired Weatherholtz. I have not credited Lee’s denial
that he had refused to rehire Weatherholtz in January 1993
unless Weatherholtz withdrew unfair labor practice charges
against McQuaide.
The record shows that Weatherholtz openly supported
Local 429’s organizing effort among McQuaide’s Bethel em-
ployees. In December 1991, before Christmas, he told Termi-
nal Manager Gary that he had signed a card for Local 429
and that he thought a union would be good for McQuaide.
In fact, Weatherholtz signed such a card on December 18,
1991.
Within a few weeks of Weatherholtz’ admission of
prounion sentiment, Lee McQuaide discharged him for steal-
ing. Lee’s repeated resort to termination and other economic
reprisals against other union supporters plus this timing
raises the specter of another instance of such discriminatory
treatment.
When asked at the hearing in these cases, if he had any
idea whether Weatherholtz was a union activist or a union
supporter, Lee quickly answered, ‘‘No, I wouldn’t.’’ How-
ever, the record shows that Lee was constantly alert to evi-
dence that an employee was supporting Local 24 or Local
429. Further, his subordinate supervisors were aware of his
hostility toward the Teamsters, as reflected in their unlawful
threats. In November 1991, Terminal Manager Gary made
such an unlawful threat to employee Martin. These factors
together with my impression that at this point in his testi-
mony, Lee had little respect for the forum, persuaded me to
reject his denial.
I also find no merit in Lee’s explanation of Weatherholtz’
discharge. His claim that Weatherholtz’ attempt to use
McQuaide’s 800 number was stealing is unfounded. Accord-
ing to The American Heritage Dictionary, New College Edi-
tion, the definition of steal, as Lee McQuaide used it against
Weatherholtz, is: ‘‘To take without right or permission, gen-
erally in a surreptitious way.’’ There is no showing that
Weatherholtz did anything like that. Instead, the record
shows that he asked McQuaide’s switchboard operator to
permit him to use its 800 number. He did not make any
claim to be on duty and he was honest about the reason for
his call. Kabler could have said no initially, and that would
have been the end of the matter. Instead, she attempted to
put Weatherholtz in touch with his lawyer. When
Weatherholtz called back, he did so at Kabler’s invitation.
When she refused to put his call through because he was not
on duty, he explained the purpose of his call truthfully.
Kabler did not honor Weatherholtz’ request. Kabler ex-
plained all this to Lee. Yet Lee seized on Weatherholtz’ in-
genuous request and labeled it ‘‘stealing.’’ This was the first
time since 1990, when McQuaide began providing an 800
795W. C. MCQUAIDE, INC.
number for its drivers, that the McQuaide fired an employee
for trying to use it. WeatherhoItz’ request was not mis-
conduct entitling him to be fired. Lee was anxious to get rid
of him. The General Counsel has provided the reason for this
anxiety.
I find that McQuaide has not rebutted the General Coun-
sel’s strong showing that Lee fired Weatherholtz in reprisal
for his support for Local 429. Accordingly, I find that by ter-
minating Weatherholtz on January 13, 1992, McQuaide vio-
lated Section 8(a)(3) and (1) of the Act.
I also find that McQuaide refused to rehire Weatherholtz
because Lee believed that he was behind the unfair labor
practice charges in Case 6–CA–24636, filed on November
23, 1992, by Local 429. By this refusal, I further find that
McQuaide violated Section 8(a)(4) and (1) of the Act. Mem-
phis Truck & Trailer, 284 NLRB 900, 911 (1987).
McQuaide argues that Weatherholtz is not entitled to rein-
statement for misconduct. Thus, according to McQuaide,
while in its employee, Weatherholtz drove while his license
was suspended and thus violated Federal law and its own
policy. The record does not show that McQuaide actually
discharged other drivers who engaged in such misconduct.
However, as this matter was not fully litigated before me, I
find that this matter should be deferred to the compliance
stage of these proceedings.
CONCLUSIONS OF LAW
1. By threatening shutdown of its operations if a union
succeeds in organizing its employees; creating the impression
among its employees that their union activities were under
surveillance; telling employees that other employees lost
hours of employment because of their union activity; threat-
ening an employee with bodily harm because he supported
a union; threatening unspecified reprisals because an em-
ployee supported a union; coercively interrogating employees
regarding their union membership, activity, or sentiment to-
ward a union; prohibiting an employee from participating in
union activity; threatening employees with discharge because
they supported the Union; and promising a wage increase if
employees’ unfair labor practice charges filed with the
Board, Respondent McQuaide has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
2. The Respondent violated Section 8(a)(3) and (1) of the
Act by:
(a) Issuing warnings to John Pine, Jack Boyes, and Randy
Hunter.
(b) Suspending Jack Boyes and Thomas Boyes on January
16, 1992.
(c) Suspending Randy Hunter on December 8, 1992.
(d) Demoting Glenn Watts.
(e) Reducing the working hours of Thomas Boyes.
(f) Refusing to allow Jack Boyes to drive and denying him
wages for 5-1/2 hours on March 28, 1992.
(g) Withholding wages for 5–1/2 hours from Thomas
Boyes on April 3, 1992.
(h) Laying off Thomas Boyes, Dale Salsbury, David Rich,
Timothy Wingard, Raymond Webb, Scott Bodenschatz, Jo-
seph Petula, Ivan Wilson, and Leon Martin.
(i) Denying wages to Thomas Boyes.
(j) Discharging Barry Michalides, Glenn Watts, Robert
Marshall, James Weatherholtz, Jack Boyes, Thomas Boyes,
Dale Salsbury, and David McGuigan.
3. The Respondent violated Section 8(a)(4) and (1) of the
Act by:
(a) Refusing to rehire James Weatherholtz.
(b) Suspending Randy Hunter.
(c) Discharging Robert Marshall.
4. The Respondent did not violate Section 8(a)(3) and (1)
of the Act by:
(a) Withholding work from Thomas Boyes on February
27, 1992.
(b) Suspending Jack Boyes for 2 days and Thomas Boyes
for 1 day on or about March 19, 1992.
(c) Attempting to transfer Thomas Boyes and Dale
Salsbury to Johnstown, Pennsylvania, on or about February
4, 1993.
(d) Laying off Thomas Boyes, Dale Salsbury, and David
McGuigan in early February 1993.
(e) Reducing Randy Hunter’s routes and hours beginning
on January 26, 1992.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having discriminatorily
discharged and laid off employees, the Respondent must
offer them reinstatement and make them whole for any loss
of earnings and other benefits, computed on a quarterly basis
from the date of the discharge or layoff to the date of proper
offer of reinstatement, less any net interim earnings as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Having unlawfully suspended Randy Hunter, Thomas
Boyes, and Jack Boyes; having unlawfully demoted Glen
Watts and reduced his hourly wage; and having unlawfully
deprived Thomas and Jack Boyes, respectively, of 5-1/2
hours’ pay, Respondent must restore Watts to his former po-
sition as mechanic, and make all four whole for their losses
of pay, plus interest as computed in New Horizons for the
Retarded, above.
I shall also recommend that Respondent be required to re-
scind the unlawful warnings issued to John Pine, Jack Boyes,
and Randy Hunter; the suspensions imposed on Jack Boyes,
Thomas Boyes, and Randy Hunter; and the demotion im-
posed on Glenn Watts; and remove from its files any ref-
erences to these warnings, suspensions, and Glenn Watts’ de-
motion, the unlawful discharges of Barry Michalides, Glenn
Watts, Robert Marshall, James Weatherholtz, Jack Boyes,
Thomas Boyes, Dale Salsbury, Robert Marshall, and David
McGuigan, and the unlawful layoffs of Thomas Boyes, Dale
Salsbury, David Rich, Timothy Wingard, Raymond Webb,
Scott Bodenschatz, Joseph Petula, Ivan Wilson, and Leon
Martin and notify these employees that it has done so and
that it will not use these adverse actions against them in any
way.
Because the Respondent has a proclivity for violating the
Act and has, by its egregious unfair labor practices, dem-
onstrated a general disregard for the employees’ fundamental
rights, I find it necessary to issue a broad order requiring Re-
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
81 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
82 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
spondent to cease and desist from infringing in any other
manner on the rights guaranteed employees by Section 7 of
the Act. Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended81
ORDER
The Respondent, W. C. McQuaide, Inc., Johnstown, Penn-
sylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, disciplining, demoting, sus-
pending, withholding wages from, or otherwise discriminat-
ing against any employee for supporting Locals 24 or 429,
a/w International Brotherhood of Teamsters, AFL–CIO or
any other union.
(b) Discharging, laying off, suspending, refusing to rehire,
or otherwise discriminating against employees because they
filed unfair labor practice charges with the National Labor
Relations Board or appeared and gave testimony at a Board
hearing.
(c) Threatening employees with a shutdown of Respond-
ent’s business, discharge, acts of physical violence, or other
specified or unspecified reprisals because they assist or sup-
port Locals 24 or 429, a/w International Brotherhood of
Teamsters, AFL–CIO or any other union.
(d) Telling employees that their wages have been reduced
because they support Locals 24 or 429, or any other union.
(e) Coercively interrogating employees regarding their
union activities or sentiment or regarding the union activities
or sentiment of other employees.
(f) Creating the impression that its employees’ union ac-
tivities or other concerted activities protected by Section 7 of
the Act is under surveillance.
(g) Prohibiting employees from engaging in activity in
support of Locals 24 or 429 or any other union.
(h) Prohibiting employees from wearing hats, jackets, or
other garments showing that the wearer supports Locals 24
or 429 or any other union.
(i) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Barry Michalides, Robert Marshall, James
Weatherholtz, Jack Boyes, Thomas Boyes, Dale Salsbury,
David McGuigan, David Rich, Timothy Wingard, Raymond
Webb, Scott Bodenschatz, Joseph Petula, Ivan Wilson, and
Leon Martin immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent 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) Offer Glenn Watts immediate and full reinstatement to
his former job as a mechanic at Respondent’s Bethel, Penn-
sylvania facility or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(c) Make Thomas Boyes, Jack Boyes, and Randy Hunter
whole for any loss of earnings and other benefits suffered as
a result of their unlawful suspensions in the manner set forth
in the remedy section of the decision.
(d) Remove from its files any reference to the unlawful
layoffs, demotion, warnings, suspensions, or discharges and
notify the employees in writing that this has been done and
that the layoffs, demotion, warnings, suspensions, or dis-
charges will not be used against them in any way.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its Johnstown and Bethel, Pennsylvania facili-
ties and at its Ohio facilities copies of the attached notice
marked ‘‘Appendix.’’82 Copies of the notice, on forms pro-
vided by the Regional Director for Region 6, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency fo the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
797W. C. MCQUAIDE, INC.
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge, lay off, suspend, discipline, de-
mote, withhold wages from, or otherwise discriminate against
any employee for supporting Locals 24 or 429, a/w Inter-
national Brotherhood of Teamsters, AFL–CIO or any other
union.
WE WILL NOT discharge, lay off, suspend, refuse to rehire,
or otherwise discriminate against our employees because they
filed unfair labor practice charges with the National Labor
Relations Board, or appeared and gave testimony at a Na-
tional Labor Relations Board hearing.
WE WILL NOT threaten our employees with a shutdown of
our business, discharge, acts of physical violence, or other
specified or unspecified reprisals because they assist or sup-
port Locals 24 or 429, a/w International Brotherhood of
Teamsters, AFL–CIO or any other union.
WE WILL NOT tell employees that their wages have been
reduced because of their activity on behalf Locals 24 or 429,
or any other union.
WE WILL NOT coercively interrogate our employees re-
garding their union activities or sentiment or regarding the
union activities or sentiment of other employees.
WE WILL NOT create the impression that our employees’
union activities or other concerted activities protected by
Section 7 of the Act are under surveillance.
WE WILL NOT prohibit our employees from engaging in
activity in support of Locals 24 or 429 or any other union.
WE WILL NOT prohibit our employees from wearing hats,
jackets, or other garments showing that the wearer supports
Locals 24 or 429 or any other union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer Barry Michalides, Robert Marshall, James
Weatherholtz, Jack Boyes, Thomas Boyes, David McGuigan,
Dale Salsbury, David Rich, Timothy Wingard, Raymond
Webb, Scott Bodenschatz, Joseph Petula, Ivan Wilson, and
Leon Martin immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent 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, less any net in-
terim earnings, plus interest.
WE WILL offer Glenn Watts immediate and full reinstate-
ment to his former job as a mechanic at our Bethel, Pennsyl-
vania facility or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, less
any net interim earnings, plus interest.
WE WILL make whole Thomas Boyes, Jack Boyes, and
Randy Hunter whole for any loss of earnings and other bene-
fits suffered as a result of their discriminatory suspensions.
WE WILL remove from our files any reference to the un-
lawful layoffs, demotion, warnings, suspensions, and dis-
charges and notify the employees in writing that this has
been done and that the layoffs, demotion, warnings, suspen-
sions, and discharges will not be used against them in any
way.
W. C. MCQUAIDE, INC.