Yerger Trucking

National Labor Relations Board - Board Decisions

May 15, 1992

307 N.L.R.B. 567 (N.L.R.B. 1992)

567
307 NLRB No. 97
YERGER TRUCKING
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 We deny the General Counsel’s motion to strike the Respond-
ent’s exception which is ‘‘directed . . . generally to the entire report
of the administrative law judge . . . .’’ We find no merit in that
general exception, however. In addition, on the unopposed request
of the General Counsel, we take notice of the order granting tem-
porary injunction in this case under Sec. 10(j) of the Act issued on
November 29, 1991, by Judge Edward N. Cahn of the U.S. District
Court for the Eastern District of Pennsylvania, and further take no-
tice of the General Counsel’s motion filed with that court to extend
the order granting temporary injunction until November 29, 1992.
3 We find meritless the Respondent’s three specific exceptions to
the recommended Order of the administrative law judge. First, the
Respondents contend that the order of reinstatement to employment
of the discriminatees is inappropriate because those individuals were
offered and declined reinstatement on or about December 19, 1991
(with the exception of Randall Frazer). The Respondents have failed
to present the Board with any evidence supporting its claim. The Re-
spondents will have an opportunity to do so in the compliance por-
tion of these proceedings, to which we accordingly leave resolution
of this issue.
Secondly, the Respondents contend that absent the return of the
prounion discriminatees, the remaining employee complement does
not desire union representation. The Respondents assert accordingly
that the impositon of a bargaining order pursuant to NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), is inappropriate. We disagree.
The Board’s well-established rule is that the validity of a bargaining
order depends on an evaluation of the circumstances as of the time
the unfair labor practices were committed and not, as suggested by
the Respondents, on the basis of employee turnover subsequent to
the unlawful conduct. F & R Meat Co., 296 NLRB 759 (1989);
Highland Plastics, 256 NLRB 146 (1981). In addition, the turnover
cited by the Respondent was caused by the very unfair labor prac-
tices sought to be remedied: the Respondents’ discharge of the entire
bargaining unit and its refusal to rehire the prounion employees. ‘‘It
would defy reason to permit an employer to deflect a Gissel bar-
gaining order on the ground of employee turnover when that turn-
over has resulted from the employer’s unlawful discharge of all the
members of the bargaining unit.’’ NLRB v. Balsam Village Manage-
ment Co., 792 F.2d 29, 34 (2d Cir. 1986), cert. denied 479 U.S. 931
(1986).
Thirdly, the Respondents argue that the portion of the rec-
ommended Order directing that the discriminatees be made whole
for any loss of earnings and other benefits resulting from the dis-
crimination against them fails to take into account earnings by the
discriminatees following their discharge. The judge did make provi-
sion for such earnings by citing F. W. Woolworth Co., 90 NLRB
289 (1950), which articulates the formula whereby an employer’s
backpay liability may be reduced by the discriminatees’ earnings fol-
lowing their unlawful discharge.
The judge found that the validity of the Respondent’s July 12 rein-
statement offer to Hermany, which Hermany declined, was under-
mined by Yerger’s continuing misconduct. We note that the Re-
spondent did not except to this finding.
1 The relevant docket entries are as follows: The unfair labor prac-
tice charge was filed on May 24, 1991, and amended on July 30.
The complaint issued on August 20, 1991, and the hearing was held
in Reading, Pennsylvania, on October 21–23, 1991.
2 All dates hereinafter mentioned refer to 1991, unless otherwise
stated.
Yerger Trucking, Inc. and Yerger Landscaping &
Paving, Inc. and Teamsters Local Union 429
a/w International Brotherhood of Teamsters,
AFL–CIO1
Yerger Trucking, Inc. and Teamsters Local Union
429. Cases 4–CA–19810 and 4–RC–17637
May 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 3, 1992, Administrative Law Judge
Benjamin Schlesinger issued the attached decision. The
Respondents filed exceptions to the judge’s decision,
and the General counsel filed an answering brief to the
Respondents’ exceptions.
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 brief and has de-
cided to affirm the judge’s rulings,2 findings, and con-
clusions and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Yerger Trucking, Inc. and
its alter ego, Yerger Landscaping & Paving, Inc., Sink-
ing Spring, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Carmen P. Cialino, Esq. and Mark E. Arbesfeld, Esq., for the
General Counsel.
John M. Stott, Esq. (Hustin, Boland, Connor, & Giorgi), of
Reading, Pennsylvania, for the Respondents.
Thomas H. Kohn, Esq. (Sagot, Jennings, & Sigmond), of
Philadelphia, Pennsylvania, for the Charging Party.
DECISION
BENJAMIN SCHLESINGER, Administrative Law Judge. Re-
spondents Yerger Trucking, Inc. (Trucking) and Yerger
Landscaping & Paving, Inc. (Landscaping; the two being
sometimes referred to collectively as Respondents or the
Corporations) are charged with being alter egos. The com-
plaint1 alleges that, when some of Trucking’s employees de-
cided to designate Teamsters Local Union 429, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO (the
Union) to represent them for purposes of collective bar-
gaining, Trucking threatened to close its trucking operations;
and that on July 3, 1991,2 Trucking did close its facility, but
Landscaping started to do the same trucking work 12 days
later, only with employees who were opposed to the Union.
The firing of the union supporters, as well as numerous other
violations, caused the General Counsel to ask for an order
requiring the Corporations to bargain with the Union, despite
the Union’s loss of a Board-conducted election on June 27.
Respondents denied that they violated the National Labor
Relations Act, 29 U.S.C. § 151 et seq. (the Act), in any man-
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The Union filed objections to the representation election and on
August 16, the Regional Director for Region 4 issued a Report on
Objections to Election in Case 4–RC–17637, finding that certain
conduct, which is also alleged in the unfair labor practice complaint,
best be resolved at a hearing. On September 26, the representation
and unfair labor practice cases were consolidated.
4 The Corporations meet the Board’s jurisdictional standards. They
are both in the business of intrastate and interstate transportation.
During the year preceding August 20, 1991, Trucking purchased and
received goods valued in excess of $50,000 directly from points out-
side Pennsylvania. In the same period Landscaping performed serv-
ices valued in excess of $50,000 for other enterprises within Penn-
sylvania, including Trucking and Rickel Home Centers, which enter-
prises are themselves directly engaged in interstate commerce. I con-
clude that Trucking and Landscaping are employers engaged in com-
merce within the meaning of Sec. 2(2), (6), and (7) of the Act. I
also conclude that the Union, as Respondents admit, is a labor orga-
nization within the meaning of Sec. 2(5) of the Act.
5 This description is based primarily on Yerger’s testimony, which
was often confused, internally contradictory, inconsistent, and at
odds with the precomplaint investigatory affidavit which he gave to
the Regional Office. As a result, my decision often reflects what I
find to be probable, given the choice of the many variations he of-
fered in his testimony.
6 Yerger testified that his lease with the bank was an oral one. Al-
though I recognize that there was no evidence contrary to this asser-
tion, except for Yerger’s precomplaint affidavit in which he claimed
that Trucking owned the 17 trucks, I find it remarkable that any
bank would permit property owned by it to be leased without a writ-
ten document. I do not believe him.
ner or that they committed objectionable conduct warranting
that the results of the election should be set aside.3 However,
after the hearing, Respondents filed no brief, so this decision
does not deal with Respondents’ positions, either on the facts
or the law, except as they are obvious from what their coun-
sel stated at the hearing.
Ronald Yerger has been in the trucking business for many
years. Until 1985 he operated his business as a sole propri-
etorship, doing business as Yerger Trucking, and his prin-
cipal business was the hauling of road building materials,
such as stone, sand, and blacktop. In 1985 he incorporated
Trucking, and he and his wife, Donna, are the sole share-
holders. In 1986 he incorporated Landscaping, and he is the
sole shareholder of that corporation. He is the president of
the Corporations, and Donna is vice president and secretary.4
There are no managers or supervisors employed by the Cor-
porations; and Yerger is the sole person who runs both enti-
ties, while Donna helps with the bookkeeping. Yerger con-
ceded that he is the sole person who deals with and has au-
thority over labor relations for the Corporations. Only he
hired and fired and disciplined employees.
The Corporations operated from a tract of land, wholly
owned by Yerger, next to his home at Goose Lane and
Chapel Hill, Sinking Spring, Pennsylvania, where he main-
tained the trucks utilized in his business. (Yerger’s insistence
that the Corporations had different addresses because they
had different post office box numbers is a patent charade.
Both entities existed at the same place, and Yerger’s pur-
chase of an additional post office box cannot change that
fact. However, although Yerger made this claim, his execu-
tion was sloppy, because an application for employment and
statements of earnings given by Trucking to its employees
had printed on them what Yerger alleged was Landscaping’s
post office box number.) There was only one sign which
would indicate who was doing business there, a sign for
Landscaping. However, all the dump trucks which were
parked and maintained there bore only one name on their
cabs, Trucking’s name. And it is obvious that both compa-
nies were doing business there, for Yerger was paid monthly
rent from Trucking ($2000) and Landscaping ($1000), and
another entity about which there was no other testimony,
Yerger’s Garage ($500). In addition to having the same ad-
dresses, the Corporations had the same telephone and fax
numbers.
With the two corporations in existence, until July 15,
1991, Yerger divided his business as follows:5 The Corpora-
tions had total receipts of $1.6 or $1.7 million in 1990. Start-
ing in March 1990, $600,000 or $700,000 was received by
Landscaping as a result of its exclusive contract with Com-
pass Quarry in Paradise, Pennsylvania, to haul dirt or cover
soil from the Quarry to the Chester Waste, a landfill in
Honey Brook, Pennsylvania. Landscaping’s only other work
was a minor landscaping job, to wit, mowing lawns, for
which it was paid an annual sum of $6000. Primarily, there-
fore, it was a hauler of dirt and soil by truck. The trucks that
it used came from two sources. First, Trucking had leased 17
triaxle dump trucks from the Hamilton Bank (Bank), with
Trucking having an option to buy them (leased trucks).6
These were driven by Trucking’s employees; and one reason
for that is that, until July 15, 1991, with the exception of one
6-month period in 1989, Landscaping did not employ truck-
drivers. The second source of trucks was from other trucking
companies, from whom Yerger subcontracted for the use of
their trucks, driven by employees of those companies (sub-
contracted trucks). These trucks worked solely on the Quarry
contract, but each of the Corporations paid for the subcon-
tracted trucks, in proportions that Yerger could not explain.
The leased trucks worked there, too, but also worked on
other jobs contracted by Yerger with some 44 other cus-
tomers, which resulted in Trucking’s direct receipt of $1 mil-
lion during 1990. In addition, all the work on the Quarry that
was performed by Trucking’s trucks was billed by Land-
scaping, which was paid $3 a ton for what was hauled; and
Landscaping then paid $2.75 per ton to Trucking, which
maintained the leased trucks and paid all rentals due the
Bank.
Trucking employed about 17 or 18 truckdrivers and me-
chanics. The employees’ attempt to become represented by
a union began on May 20, 1991, when the wife of employee
Merlin Ulrich called Arthur Kahl, the Union’s business
agent, to ask him to meet the next day at 5 p.m. with
Trucking’s employees at the parking lot outside of the Sears
Auto Center at Berkshire Mall, in Wyomissing, Pennsyl-
vania. Kahl agreed to do so and met the next day with
Ulrich, Donald DeCarr, David Paine, Marci Stoltz, Scott
Roboski, and Edward Nolan. The employees discussed their
problems with Trucking, and Kahl told them that they could
sign cards for membership in the Union. He distributed the
cards; and, as the employees were signing them, Yerger and
Linn Wartzenluft, one of Trucking’s mechanics, pulled up in
Yerger’s pickup truck. Yerger got out of the truck and ap-
proached the employees, and Ulrich said, ‘‘[H]ere comes
Ronnie.’’ (Obviously, he was not invited, and the employees
appeared shocked to see him. Yerger’s explanation as to how
569YERGER TRUCKING
7 Truckdriver Randall Frazer also came late to the union meeting,
but Yerger did not know that. However, when Frazer reported for
his assignment the next day, he volunteered to Yerger that he had
signed a union card.
he came to be there, some 7 or 8 miles away from Yerger’s
home and place of business, was that he had received a call
from an unidentified source at the union hall, notifying him
that his ‘‘guys’’ were having a meeting.)
Yerger was irate. He said that the employees were making
a big mistake if they thought that they were bringing in the
Union; and he threatened that, if the Union were successful,
he would close his shop and fire them. Stoltz said that that
was good: at least he would not steal from them anymore.
Kahl, identifying himself, told Yerger that he had just com-
mitted an unfair labor practice. Ulrich asked Yerger who his
‘‘fink’’ was, but Yerger did not reply. He did, however, re-
peat his threat, and Kahl told him that he had committed an-
other unfair labor practice. Yerger and his mechanic left.
Most of the employees signed cards for the Union that day.
By May 22 the Union had cards from 11 of Trucking’s 17
employees. It made a demand for recognition on Trucking
the next day, May 23, and filed a petition for a representa-
tion election with the Regional Office, supported by the 11
cards, the following day. On May 31, Yerger’s attorney (not
counsel in this proceeding) rejected the Union’s demand for
recognition.
The testimony of Kahl and the employees about the meet-
ing was not entirely consistent, but there was a basic agree-
ment about the tenor of Yerger’s threat. Yerger admitted that
he was mad that his employees were seeking help from the
Union and not coming directly to him. He was so mad that
he could not remember what he said. Nor could Wartzenluft,
who was not mad, and had no reason to be mad; yet he
could not recall what went on, either. Indeed, Wartzenluft
could recall little of the reasons they went to the Mall, why
Yerger invited him, how it came about that Yerger learned
of the meeting, or anything else. His recollections had to be
extracted with great difficulty on cross-examination, and they
were most unsatisfactory and lacking in candor. For
Wartzenluft to recall the color of Kahl’s jacket and to testify
later about the individual mechanical condition of three
trucks, out of all the repair jobs that he performed for years,
day after day, and not remember what Yerger said when he
exited the truck and interrupted the Union meeting, the first
of the alleged unfair labor practices in this proceeding,
strikes me as incredible. It evidences not simply a lack of re-
call, but a purposeful attempt to conceal facts which are of
the essence in this proceeding.
Accordingly, I do not credit his and Yerger’s denials that
they could not remember certain facts and find them gen-
erally untrustworthy, trying more to protect Yerger’s legal
position than attempting to state clearly what they observed
and heard. In addition, I discredit not only this first denial
made by Yerger but also all the rest of his denials of illegal
conduct because it is most probable that he did violate the
Act. The simple fact is that he followed this threat with addi-
tional ones and, finally, he took action. He closed Trucking
and shifted its work to Landscaping. He saw many of the
employees filling out cards on May 21, and he conceded that
he knew who favored the Union and who did not. Thus, he
hired in Landscaping only those whom he knew or had rea-
sonable assurance to believe were opposed to the Union, and
he ridded himself of those who were union adherents. That
was no mere coincidence. It was a part of a carefully cal-
culated plan, conceived in anger and desire for retribution
against those who had betrayed him. Thus, Yerger’s denials
are unworthy of belief, and so is his remaining testimony,
which was filled with misstatements of fact and inconsist-
encies and flights of fancy.
Driver Charles Riegel Jr. did not arrive at the union meet-
ing on time, but Yerger saw him on the way there as Yerger
was returning to his facility from the meeting. Yerger called
Riegel that night and asked whether he was late arriving at
the meeting. Riegel answered that he was. Yerger then asked
whether Riegel had signed a union card, and Riegel said that
he had. Yerger’s conduct violated Section 8(a)(1) of the Act.
Both questions had the necessary consequence of indicating
that Yerger knew that Riegel was going to the union meeting
and that one of the events that was going to happen at the
meeting was the signing of union cards. The second question
constituted illegal interrogation. The Board instructed in
Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom.
Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985), that an interrogation is illegal when,
under all the circumstances, the interrogation reasonably
tends to restrain, coerce, or interfere with rights guaranteed
by the Act. Evidence of the coercive nature of Yerger’s in-
terrogation is ample. Yerger was effectively Trucking’s only
operating officer. Riegel was not an open and active union
supporter. The questioning of Riegel ‘‘had no legitimate pur-
pose and the questions . . . were designed to determine [the
employee’s] involvement in protected activities.’’ Hunter
Douglas, Inc., 277 NLRB 1179, 1181 (1985), enfd. 804 F.2d
808 (3d Cir. 1986). Yerger not only tried to find out whether
Riegel and the other employees were involved in the Union’s
organization effort but also appeared to have intended to use
that information to defeat the Union by conduct which, I find
below, violated the Act. Thus, the interrogation was not an
isolated event, but must be considered in the context of
Yerger’s scheme to find out definitely which employees were
involved and what they were doing and to crush those activi-
ties quickly. Great Dane Trailers, 293 NLRB 384 (1989). I
conclude that the interrogation violated Section 8(a)(1) of the
Act.7 Timsco Inc. v. NLRB, 819 F.2d 1173 (D.C. Cir. 1987).
Yerger remained, by his own admission, ‘‘upset’’ and
‘‘pretty hot’’ for several days. The testimony of the General
Counsel’s witnesses, sometimes admitted and sometimes not
rebutted by Yerger, evidenced his continuing bad temper.
When he saw Riegel the next day, he said that he would tell
Riegel what he had told the other drivers: If they went with
the Union, ‘‘I will shut the fucking doors or sell the busi-
ness.’’ (This corroborates my finding that Yerger threatened
the drivers at the Union’s meeting.) Yerger repeated to
Ulrich that he had told the employees that, if they tried to
unionize, he was going to close the doors; told Ulrich that
he was the one who had made the phone call ‘‘that got
things started’’ and that he had heard Ulrich and other em-
ployees talking about the Union that morning; and directed
him not to pass out any more union cards on ‘‘company
property.’’ Yerger also told DeCarr that he had heard him
and others in the breakroom threatening drivers to sign union
cards, accused DeCarr of being one of the leaders of the
union movement, and said that the Union ‘‘wouldn’t even
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 I have repeated this ugly expression throughout this decision be-
cause other employees also testified that Yerger said it, and Yerger
admitted that the expression was one that he used, albeit not in the
context that the employees testified.
9 Nolan had been involved in an accident resulting in a fatality,
and Yerger had been helpful and supportive.
get through the door’’ to talk to him. Yerger told him that
the employees ‘‘were basically putting [their] dicks up [their]
ass and doing [themselves] out of a job.’’8 He also told
DeCarr to remove the CB radio in his tractor because he had
heard ‘‘us’’ threaten other drivers over the CB radio. (Two
days later, Riegel testified, Yerger said that someone had
made threats on the CB about throwing nails and cutting air
lines. Riegel denied that he was the employee who made the
threats. Most of the drivers removed their radios, both those
which were owned by Trucking and those which were their
personal property, by about June 1. However, Fox and Jay
Seitzinger, two of the employees who opposed the Union,
were permitted to reinstall their CB radios early the fol-
lowing week.) Yerger then asked DeCarr how he felt about
the situation, and DeCarr answered that, whatever the other
employees decided to do, he was with them 100 percent.
Later that day Yerger approached Nolan and said that he
could not believe that he had seen Nolan at the union meet-
ing after all the things that Yerger had done for him.9 Nolan
replied that he appreciated what Yerger had done, but a man
could only take so much, and Yerger was unfairly lowering
the amounts that the drivers could earn. Yerger told him that
he ‘‘had a dick up [his] ass and was fucking [himself] out
of a job.’’ That afternoon, Nolan had a hearing to determine
whether he would retain his driver’s license, because he had
received a substantial number of points for various viola-
tions. After that, he called Trucking to get his assignment for
the next day and was told by Donna that he was staying
home. However, later, Yerger called and asked what his sta-
tus was, and Nolan said that he had kept his license. Yerger
told him to come to work the next day.
Yerger’s statements to Ulrich and DeCarr that he had
overheard their union activities in the breakroom and to
DeCarr that he was one of the Union’s leaders created un-
lawful impressions that he was spying on their union activi-
ties. I do not find, however, the same violation regarding
Yerger’s statement about Nolan’s presence at the meeting the
day before. That statement did not indicate any impression
of surveillance, because Yerger was there and Nolan saw
him. Although the complaint might have alleged that Yerger
surveilled the union meeting at the Berkshire Mall, it did not;
and I will dismiss this allegation. His threats to close the
doors, sell the facility, or take such other implied action as
would cause the employees to lose their jobs resulted from
their attempts to seek help from the Union and violated Sec-
tion 8(a)(1) of the Act. His questioning of DeCarr was in-
tended to elicit DeCarr’s feeling about the Union and con-
stituted illegal interrogation. His telling Nolan that, in es-
sence, he was upset and hurt that Nolan had gone to the
union meeting tends to discourage an employee from sup-
porting a labor organization and violates Section 8(a)(1) of
the Act. Downtown Toyota, 276 NLRB 999, 1019 (1985).
Yerger’s direction to Ulrich not to pass out union cards on
company property prohibited an employee from passing out
cards even during nonworking time, in clear violation of
Board law. Baddour, Inc., 281 NLRB 546, 547 (1986), enfd.
mem. 848 F.2d 193 (6th Cir. 1988), cert. denied 488 U.S.
944 (1988).
The General Counsel asserts that Yerger also threatened to
remove DeCarr’s CB radio, in violation of the Act, because
that was a threat to change working conditions. DeCarr testi-
fied only that Yerger directed him to remove the CB radios,
a direction that was followed by all the employees. That is
not a threat, but a direction that working conditions were
changed, in violation of the Act, assuming that the change
was caused by the employees’ union activities and not some
legitimate business need. That it was an 8(a)(1) violation was
supported by Ulrich, who testified that Yerger told him the
following day that he had heard Ulrich talking on his CB
about ‘‘union business’’—asking Roboski and Stoltz whether
they would be interested in becoming union stewards if the
Union successfully organized Trucking’s employees—and
that Yerger directed him and all the other employees to re-
move the CB radios from their trucks. The linkage of
Yerger’s direction to his having heard employees discuss
union activities is sufficient to sustain the General Counsel’s
burden of proving a prima facie case under Wright Line, 251
NLRB 1083 (1980), enfd. as modified 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983),
which provides that Yerger may then prove by a preponder-
ance of the evidence that he would have taken the same ac-
tion, regardless of whether he was also illegally motivated by
the employees’ union or otherwise protected activities.
Respondents’ proof came in part from employee Warren
Ressler, who refused to sign a union card and later overheard
on the CB radio other employees making threats to harm him
if he did not vote for the Union. He complained to Yerger,
mentioning the threats and his thought that talking about the
Union over the CB radio was illegal. Yerger testified that he
ordered the removal of the radios because of the threats. That
is consistent with what he told Riegel but contrary to what
he told Ulrich; and Ulrich’s testimony is consistent with
Yerger’s desire to cut off all means of communication about
the Union, as evidenced by Yerger’s order that cards were
not to be solicited at the premises of his companies, his ad-
vice to employees that he was aware of all their conversa-
tions, and his later direction to Ulrich not to call his fellow
drivers at their homes. Furthermore, Respondents’ answer to
the complaint in this proceeding contradicted their position
at the hearing. Respondents denied the allegation that Yerger
had directed that the radios be removed and further: ‘‘Any
CB radios that were removed were done so for repair pur-
poses.’’ If the radios were removed only for repairs, they
could not have been removed because Yerger heard threats.
On balance, I find it more probable that the defense proposed
by Yerger at the hearing was pretextual. I find that Trucking
did not meet its burden of proof, but merely wanted to take
away from the employees their privilege of using their CB
radios—to punish them for and stop them from engaging in
union activities. I conclude that there was a violation.
On May 23 Yerger told Riegel that, if the employees went
with the Union, ‘‘we were all screwing ourselves, walking
around with our dicks up our ass, fucking ourselves out of
a job.’’ Yerger told Ulrich that the employees (I infer those
who favored the Union) were in for a ‘‘bloody battle.’’
Yerger’s threat to Riegel, just one of many, involved loss of
his job because of the employees’ union activities, in viola-
571YERGER TRUCKING
10 This designation may not be accurate. The number of all the
trucks began with ‘‘37’’ and Ulrich testified that he also was trans-
ferred to truck 10. There is no dispute that each of the three employ-
ees were transferred to older trucks, and I find that someone made
a mistake about the number of the truck to which he was assigned.
tion of Section 8(a)(1) of the Act. His threat to Ulrich of a
‘‘bloody battle’’ implied some threat of unspecified reprisals
for the employees’ protected activities, also in violation of
the Act. His comment that he had heard Ulrich talking on
his CB radio about ‘‘union business’’ clearly implied that
Yerger was listening to Ulrich’s private conversations about
the Union, and Yerger never explained why it was necessary
for him to be spying on his employees’ conversations on the
CB radio. I conclude that he engaged in illegal surveillance.
On May 24, Yerger told Riegel, as found above, that
threats had been made on the CB radio. Yerger then threat-
ened Riegel that, if the employees ever tried to picket, they
had better know which part of the property was Trucking’s
and which was Landscaping’s because, if he caught anyone
‘‘messing’’ with his vehicles or equipment, Yerger would
shoot at them. He would not kill them, but he would maim
them so that they would not be able to work ‘‘or collect.’’
I understood this threat was directed at the employees’
threats of illegal activities, and that Yerger was merely say-
ing that, if the employees engaged in tampering with and de-
stroying his property, he would take matters into his own
hands. Although Yerger may not have been wise to make
such a threat, he was not attempting to discourage the em-
ployees from engaging in legal and protected activities but
was threatening them only if they should engage in unpro-
tected vandalism and sabotage. I, therefore, find no violation
of the Act. I will also recommend the dismissal of the allega-
tion that Yerger illegally accused Riegel of making threats
over the CB radio in order to discourage his union activities.
Yerger did not accuse Riegel of making the threats, and his
statement was not in the form of a question, looking for
Riegel’s response. Rather, the statement was merely prefa-
tory to his threat that he would take severe, if not criminal,
action to counter any illegal activities by his employees.
On May 31 Yerger told Ulrich that he knew that there was
going to be a union meeting the next day at 2 p.m., and there
was. This comment violates the Act, because it would tend
to give Ulrich the impression that the employees’ union ac-
tivities were being surveilled. On June 1 Yerger advised
DeCarr that work was probably going to be slow for the next
3 weeks and that the employees would not be working on
Monday, June 3. On that day, the first business day after the
union meeting, for the very first time other than days of
snow, ice, and sleet, some of the regular drivers (Ulrich and
those with less seniority, such as DeCarr) were told that
there was no work. They spent their time off by going to the
Quarry, where they saw and videotaped about five or six of
Trucking’s leased trucks and numerous subcontracted trucks
which were doing the work that Trucking’s employees nor-
mally would have done, but for their day’s layoff. Ulrich
called Yerger to ask why they had been laid off that day, and
Yerger replied that there was no work. Riegel testified that
it was unusual that there would be many subcontracted trucks
in the Quarry, and some of Trucking’s leased trucks in the
yard. It was common for Trucking to subcontract only after
all its trucks were in use.
Yerger explained that he had made advance arrangements
to subcontract trucks from others and that he did not have
sufficient work for his regular drivers to perform. However,
I do not believe him. I find it strange that the only time that
a layoff ever occurred was, according to Yerger, during a
‘‘boom’’ month. It cannot be coincidental that the employees
were attempting to organize and that the layoff happened the
first business day after the second union meeting and while
the union activities were going on. Those who were laid off
were at the bottom of the seniority list; and, of the six driv-
ers who worked, only one was a union supporter. It is likely
that Yerger retained the drivers who favored the Union. By
this time, in fact much earlier, he was aware of the identity
of the strong union supporters. He saw them at the meeting;
he interrogated and threatened them; and one, Frazer, told
him that he had signed a union card. In any event, Yerger
gave no believable explanation why the leases with other
trucking companies could not have been cancelled. Indeed, at
one point in his testimony, he stated that he used the subcon-
tracted trucks ‘‘instead of going through all that trouble’’ to
cancel them. I find, if there were any trouble, that was mere-
ly a convenient excuse to punish his employees for their
union activities. I conclude that Yerger violated Section
8(a)(3) and (1) of the Act.
On the next day Yerger complained to Ulrich that two
drivers had quit because the prounion employees were trying
to get them to join the Union. Yerger told him that he did
not want him calling employees at home and harassing them
about the Union. Yerger said that he knew that Ulrich was
the leader of the union movement and then asked him why
he had lied about Nolan being fired. The original unfair labor
practice alleged that Nolan had been fired, although he never
was. Nolan thought he had been discharged, however, as a
result of Yerger’s threat at the union meeting to fire all the
union supporters and then Donna’s refusal the next day to as-
sign him to a trip. Ulrich said that he had no comment.
Yerger then said that he had a buyer for the business, and
the new buyer did not want ‘‘any of us guys’’ driving for
him. Ulrich replied that, if the Union got in, the buyer would
have to hire the employees. Yerger countered that he would
have Trucking sold before the Union got in.
Yerger committed numerous 8(a)(1) violations in this con-
versation. First, he told Ulrich to stop telephoning other em-
ployees to talk about the Union, a direction not to engage
in protected and concerted activities, with an implied but
unstated threat that Ulrich would be disciplined if he did.
When Yerger restated Ulrich’s role in the union drive, he
again created the impression that Ulrich’s union activities
were under surveillance. He illegally interrogated Ulrich
about the reason he had lied in telling the Board’s Regional
Office that Nolan had been fired. He illegally threatened to
sell his business and assured Ulrich that the new owner
would not hire anyone who supported the Union. I find that
there was no buyer for Yerger’s business and that he threat-
ened to sell his business merely to discourage the employees
from engaging in their Section 7 right to self-organize.
On June 4 Yerger told DeCarr not to drive his truck 3701.
DeCarr was given an older truck (No. 3710)10 to drive, one
that did not run as well, had less power, and had no air-con-
ditioning; and he drove this truck from that day. His old
truck was given to Frazer, who had more seniority; but
Yerger never explained to DeCarr why his truck was
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The complaint alleges that Respondents illegally threatened to
take away Ulrich’s truck, but I conclude that a statement that Ulrich
was being reassigned was not a threat to reassign him, but was the
actual reassignment.
switched. On June 10 Ulrich’s truck (No. 8), which he had
been driving for 1-1/2 years, was allegedly taken out of serv-
ice for a few days for maintenance; but Ulrich testified that
he had never been advised that his truck was being repaired.
Ulrich was assigned to drive truck 10, which was older, ran
worse, and had no air-conditioning. (That same day Yerger
told Ulrich that someone had called Yerger’s home and
threatened to burn his house and shop down. Yerger said that
he could do the same to Ulrich, a threat made to discourage
him from his union adherence in violation of Section 8(a)(1)
of the Act.) When Ulrich’s old truck had allegedly been re-
paired, he was not reassigned to it. Rather, it was given to
an employee with less seniority and one who, perhaps not
coincidentally, was opposed to the Union. Nolan also lost his
truck (No. 5), which broke an axle and was repaired starting
on May 24. Yerger told him to take truck 9 until his truck
was fixed, but he never got his original truck back although
the truck had been repaired and Nolan had asked Yerger for
it on May 29.
The complaint alleges that the reassignment of the trucks
of Ulrich, DeCarr, and Nolan constituted more onerous work-
ing assignments. Although DeCarr’s truck was given to an-
other union supporter, I still agree. Wartzenluft conceded that
trucks were normally returned to the drivers after the trucks
were repaired, and there is nothing in this record which indi-
cates that, prior to the employees’ attempt to organize, there
was any exception to this practice. It was only after the
union campaign began that Respondents took away the
trucks of three of the union supporters. Ulrich’s reassignment
from truck 8 to truck 10 may have been proper while his
truck was being repaired, a fact which Ulrich denied know-
ing anything about.11 But no credible explanation was given
for the reasons that he was not reassigned his old truck when
it was repaired and that an employee with less seniority was
given the better truck.
Rather, Wartzenluft told of an intricate plot by the em-
ployees to vandalize the trucks (particularly Ulrich, who re-
peatedly broke lift axle springs) and to fail to tell him about
any problems with the trucks, despite the employees’ obliga-
tion to file reports each day concerning the condition of their
vehicles. The employees testified, however, that they contin-
ued to file their reports, with all problems noted. Respond-
ents failed to produce those reports and failed to issue
warnings to the employees for abuse of their equipment, al-
though Trucking had issued warnings for such conduct to
other employees. Further, Ulrich testified that he had never
been advised that he was not driving his truck properly. I
previously found that Wartzenluft was not a credible witness,
and the failure to back up his story merely adds to the
unbelievability of his testimony. I find that the permanent
reassignments were made because of the employees’ support
of the Union, and for no other reason. I conclude, therefore,
that the reassignments violated Section 8(a)(3) and (1) of the
Act.
Another result of the reassignments occurred on June 3,
the date that some union supporters did not work at the
Quarry, although subcontracted trucks did. When Nolan
called in for a new assignment on June 3, Yerger said that
he had spoken to someone from the Board’s Regional Office
and had found that the unfair labor practice charge had not
been taken care of. If it were not straightened out, Nolan
would be unemployed, a threat that Yerger had made before.
Yerger apparently then gave Nolan an assignment, and Nolan
asked him which truck he would be driving. When Yerger
answered that he would be driving truck 9, Nolan asked why,
because that truck had traditionally been assigned to new
employees, when it was not left idle, and whether this re-
flected a new policy. Yerger said that it did and that there
would be a lot of new policies, adding that Nolan had ‘‘start-
ed this shit.’’
The complaint alleges that Yerger violated Section 8(a)(4)
and (1) of the Act by assigning him the truck, which was
the truck he drove when he had the accident that resulted in
the fatality, not only because of Nolan’s union activities but
also because Nolan had not disposed of the unfair labor prac-
tice charge. There is enough in Yerger’s remarks to sustain
this allegation. That Nolan had ‘‘started this shit’’ might well
refer to the filing of the charge about his discharge and
Yerger’s displeasure that it had not been withdrawn.
The next day or perhaps June 9, Yerger complained that
Nolan’s accident cost $20,000 in increased insurance pre-
miums. Nolan testified that Yerger asked whether Nolan
knew where the money was going to come from and an-
swered his own question: ‘‘Youse [sic] guys’ benefits.’’
Yerger testified that he said only: ‘‘What do you suggest? I
take it from your premiums?’’ If I were to credit Yerger,
there is the suggestion, clearly implied, that, because Yerger
contributed half of the premiums for the employees’ medical
insurance, that he would make Nolan pay the entire pre-
mium. Nolan’s accident occurred on October 4, 1990, about
8 months before, and Yerger had never mentioned that the
employees would be responsible to pay him back for any in-
surance premium adjustment that he surely must have known
would result. Yerger claimed that he had just found out that
his insurance premium was going to be increased; but, when
he testified about why he switched his operations from
Trucking to Landscaping and told of avoiding certain costs,
he never mentioned the saving of liability insurance that
would result from the transfer. Furthermore, in light of my
low regard for Yerger’s truthfulness and because Yerger did
not supply documentary proof, I doubt that he was telling
Nolan the truth. In particular, I note that $20,000 was the
same amount that Yerger also claimed that he would save in
unemployment and workmen’s compensation insurance, dis-
cussed below, and that amount was not proved to my satis-
faction either. I thus find that he threatened that he would
no longer contribute to the employees’ health insurance to
punish them for their support of the Union and conclude that
there has been a violation.
The General Counsel also contends that Yerger caused the
rejection of Nolan’s application for a mortgage, which Nolan
had filed several weeks before the union campaign began.
On May 17, 4 days before the first union meeting, Donna
answered an inquiry from the United States Department of
Agriculture, Farmers Home Administration (USDA), that
Nolan was a truckdriver employed by Trucking and that the
probability of his continued employment was ‘‘good.’’ Don-
na’s answers explained that the amount that he had thus far
earned resulted from the fact that the first quarter was always
573YERGER TRUCKING
Trucking’s slow time and it was likely that Nolan would
continue to receive overtime and bonuses. On June 10, how-
ever, Trucking wrote to the USDA:
Since we returned your Verification of Employment
form on one of our employees Edward J. Nolan Jr. in-
formation on this employee has changed to the point
which we felt in your best interest to inform you about.
We recently ran an MVR report up on Mr. Nolan to
find the present information on his driving record
shows that Mr. Nolan only needs to receive one more
minor violation to have his license suspended. Being a
truck driver this could result in loss of employment.
Based in part on this letter, Nolan’s application for a mort-
gage was denied. Nolan’s last moving violation was his Oc-
tober 1990 accident, and that occurred long before Donna’s
initial reply. There is no indication that Yerger was unaware
of Nolan’s driving record, when Trucking made its initial
recommendation. Indeed, Nolan testified that he was able,
even if his license were suspended, to obtain a ‘‘bread and
butter’’ license, issued to drivers who rely on their licenses
for their livelihoods. Although Yerger denied that there was
any such thing, Trucking still entered on its initial reply that
Nolan’s opportunity for continued employment was good.
Even the above-quoted letter states only that Nolan ‘‘could’’
lose his job, and not that the result was predestined. These
facts indicate that Yerger was well aware that Nolan had a
fair chance of continuing in Yerger’s employ. (Even without
these facts, Yerger attempted to defend against the allegation
that he had not rehired Nolan when Landscaping later began
its trucking business by insisting that he was ready and will-
ing to offer Nolan employment as a mechanic. If he thought
so much of Nolan’s abilities, he certainly made it appear to
the USDA that Nolan did not have a reasonable chance to
continue as an employee. It should go without saying, how-
ever, that I believe not one bit of Yerger’s defense that he
was suddenly going to hire Nolan, a truckdriver, as a me-
chanic, especially because he fired everyone else who voted
for the Union.)
Nothing happened between May 17 and Nolan’s hearing
on the possibility of the suspension of his license which
would indicate that Nolan’s continuing employment was un-
certain. If anything, the result of the hearing was favorable
to Nolan, not discouraging. In other words, the probability of
Nolan’s continued employment was even better on June 10
than it was when Trucking initially replied. The only event
that occurred between the first and second responses and that
would have prompted Yerger to send the letter was Nolan’s
participation in union activities. In fact, the date of the Motor
Vehicle report on which Yerger relied was May 23, 1991,
issued just 2 days after the first union meeting. Yerger could
not get his story straight about how he came into possession
of the report. At the hearing, he testified that the reports on
all the drivers had been sent to him by his insurer. But the
above-quoted letter stated that he received the motor vehicle
report (‘‘We recently ran an MVR report up’’). I find the let-
ter accurate, because at the same time that he wrote this, no
unfair labor practice complaint had issued; and Yerger would
have had little incentive to fabricate. The next question is
why he felt it necessary to obtain the report. Lacking any
credible reason given by Yerger, I find that he was looking
for any information which might help him to defeat his em-
ployees’ union activities. He used the report to change his
recommendation. That resulted only from spite, because the
union campaign began and because Nolan supported the
Union and not Yerger, even after all that Yerger had done
for Nolan. I conclude that Yerger violated the Act.
On June 27, the representation election was held, and the
Union lost, 10 to 7. Two weeks before, Yerger threatened
Riegel once again. He said: ‘‘[I]f you have any job applica-
tions in, or have any job offers, [you] better take them be-
cause no matter which way the vote went, [I] would either
sell, or there was going to be some big changes made.’’ I
conclude that Yerger’s threats, rather typical of his conduct,
violated Section 8(a)(1) of the Act as threats to sell his busi-
ness or, alternatively, to make changes in the employees’
terms and conditions of employment resulting from the
Union’s petition for a representation election.
About the same time, Yerger assigned Riegel to the
DEMCO (Dover Equipment and Machine Corporation) run,
which was not favored by the drivers and thus was rotated
among them and assigned for only 5 days. This time, Yerger
announced to Riegel that: ‘‘You have got DEMCO starting
Monday. You are going to go on it for a long, long, long,
long, long, long time.’’ (Actually, however, because
DEMCO’s needs were less, Riegel worked on the run only
3 days.) The complaint alleges that this conduct constituted
the imposition of more onerous working conditions because
of Riegel’s union adherence. I so conclude. Also at this time,
Yerger asked Keith Hotzman, a newly hired driver, whether
anybody had been harassing him; if so, Hotzman should let
him know. Yerger then threatened that, if the Union won the
election, he would close the doors. If the Union lost,
‘‘[S]ome heads were going to roll.’’ In addition, shortly be-
fore the election, Yerger told Frazer that there were some
people who were interested in buying the company (he did
not distinguish between Trucking and Landscaping) and that,
if the Union were voted in, he would sell the company.
Yerger scheduled a meeting of the truckdrivers for 5 p.m.
on July 3. Before the meeting he told another newly hired
driver, Steve Hermany, that whatever happened at the meet-
ing did not pertain to him. The meeting was intended to get
rid of some of the ‘‘troublemakers.’’ Hotzman, a friend of
Hermany’s and the person who had told Hermany of a pos-
sible opening, was apparently one of the troublemakers, be-
cause Yerger specifically told Hermany not to tell Hotzman
what he had said. The employees gathered in the shop. The
union supporters, Ulrich, DeCarr, Frazer, Riegel, and prob-
ably Roboski, were sitting together at a table. All the wit-
nesses agreed that Yerger announced that as of 5 p.m., July
3, Trucking was no longer in business. According to Ulrich,
Yerger added to the prounion employees: ‘‘I told you you’d
end up with your dicks up your ass.’’ DeCarr recalled that
Yerger said that the Union had forced him into retirement,
and otherwise generally agreed with Ulrich’s recollections.
Riegel recalled Yerger’s remarks differently. He looked at
the employees sitting at the table and said: ‘‘You did this,
I didn’t, yous made me do this.’’ According to Hotzman,
Yerger said: ‘‘Don’t look at me. You guys are the guys that
done it.’’
The employees who opposed the Union uniformly denied
that Yerger said something separately to the prounion em-
ployees. They testified that Yerger left the meeting imme-
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
diately after his announcement that he was closing Trucking
and went outside, although their testimony was inconsistent
about whether Yerger then stayed outside or returned to his
home. The determination of credibility is somewhat difficult
to gauge because Respondents’ group of witnesses was so
strongly opposed to the Union and to the employees who fa-
vored the Union. The General Counsel’s witnesses were
equally very strong union sympathizers and very opposed to
the other employees. But the motive for closing Trucking is
evident from what preceded Yerger’s announcement on July
3, and I would have found a violation even if Yerger had
not made his intent so clear in the comments that the
prounion drivers attributed to him. His words merely bol-
stered the fact that his grand plan had been completed. The
employees hurt themselves by seeking help from the Union:
their actions forced Yerger to terminate them. That is, I find,
what he said to them, because that is what Yerger thought
and that is what he had threatened from the very first day
that he found out about their union activities. Furthermore,
contrary to the denials of all Respondents’ witnesses who
said that Yerger left the meeting immediately after his an-
nouncement and never returned, Yerger testified that he re-
turned and told the employees to clean out their trucks before
they left. The only witnesses who corroborated his testimony
that he returned were the prounion employees, and they, I
find, were more truthful than the other witnesses. Accord-
ingly, I find that Yerger returned to the meeting, not for the
purpose of ensuring the condition of the trucks, but for the
purpose of gloating to the union adherents that it was their
conduct which caused them to lose their jobs.
From July 3 until 15, Trucking did no hauling. Yerger
continued to work at the Quarry, but only with 8 to 10 sub-
contracted trucks. He had other offers of work for his 17
trucks, but he ‘‘just pushed them off,’’ which meant that he
could have employed drivers during this self-made hiatus,
but he created the hiatus in an attempt to make it appear that
Trucking had discontinued its hauling operations and Land-
scaping later commenced business. Thus, the 17 trucks, still
bearing Trucking’s name on their sides, lay idle for this pe-
riod. On July 15, Yerger began to use them again, but he
never changed the names on the sides. So, although Trucking
was allegedly no longer in the hauling business, and only
Landscaping was conducting that business, the trucks with
Trucking’s name, still leased from the bank, continued to do
the very same business as they did before.
They even had the same drivers, at least up to a point.
None of the drivers who voted for the Union drove them, but
the drivers who voted against the Union did. They were re-
hired, and the ‘‘troublemakers’’ were no longer employed.
Furthermore, the drivers who drove for Trucking had the
same seniority with Landscaping, another strange coincidence
if Landscaping were truly a new firm and not merely the
alter ego of the other, as it is apparent that it is. (Yerger ex-
plained that the same order of seniority did not result from
his assumption of Trucking’s seniority list. Rather, he denied
that he had followed Trucking’s seniority list, but based his
new seniority list on the drivers’ prior experience and driving
records when they were employed by Trucking. When asked
what driving records he was talking about, he answered the
drivers’ numbers of accidents; but on further examination, he
admitted that no one had had an accident, so that accidents
played no role in determining the order of seniority. When
confronted with the same order on both lists, he continued
to refuse to concede that he assumed Trucking’s seniority list
but insisted that it was the drivers’ ‘‘experience’’ with
Trucking that caused him to prepare the list as he did. His
testimony was errant nonsense.)
The only other change—and none of these changes would
be seen by a member of the public, because no external
change had been made—is that the method of paying Truck-
ing for the maintenance of the trucks changed. Now, accord-
ing to Yerger, Landscaping paid Trucking $35 per hour for
each truck, which was sufficient to pay the Bank on
Trucking’s lease, plus the cost of the maintenance of the
trucks, including the cost of the wages of Trucking’s two
maintenance employees, Wartzenluft and his brother, who
were eligible voters in the election, as well as Donna and
himself, and the rent, which was also paid to Yerger. The
General Counsel correctly contends that Yerger could not
have accurately described the payments by Landscaping for
Trucking’s trucks, because, based on the hours worked, the
payments were much too low. What is to be gleaned from
that finding, other than further support for the proposition
that Yerger often misstated facts, I am not sure. I am certain,
however, that the amounts of transfers were substantial:
$102,827 in May; $121,852 in June; $17,370 in July; and
$30,100 in early September.
The complaint alleges that Trucking and Landscaping are
alter egos. In determining whether an alter ego relationship
exists, the Board holds that each case must turn on its own
facts, but generally an alter ego is found where two entities
have substantially identical ownership, management, business
purpose, operation, equipment, customers, and supervision.
Advance Electric, 268 NLRB 1001, 1002 (1984); Crawford
Door Sales Co., 226 NLRB 1144 (1976). Not all these indi-
cia, however, must be satisfied to support such a finding.
Blake Construction Co., 245 NLRB 630, 634 (1979), enfd.
in relevant part 663 F.2d 272 (D.C. Cir. 1981).
Here, there is nothing which separates the two entities,
other than their names. Yerger was the sole owner of Land-
scaping, and he and his wife owned Trucking. Although a
‘‘finding of substantially identical ownership is not com-
pelled merely because a close familial relationship is present
between the owners of two companies,’’ the Board ‘‘focuses
on whether the owners of one company retained financial
control over the operations of the other.’’ First Class Mainte-
nance, 289 NLRB 484 (1988); Adanac Coal Co., 293 NLRB
290 (1989). Here, Yerger had sole control over Landscaping;
and he was the manager of both and was the sole supervisor
of the employees. He was the sole moving force in both
companies, and this supports a finding of common owner-
ship, Haley & Haley, Inc., 289 NLRB 649, 653 (1988), even
if the ownership of the Corporations was not wholly iden-
tical. Hawg-N-Action, Inc., 281 NLRB 56 fn. 2 (1986).
The business purpose of the two was the hauling of dirt
and soil. The operation was exactly the same. The dirt was
hauled in the same trucks that had been leased by Trucking
and the same trucks that had been subcontracted by Yerger.
The customers remained the same, at least up until several
months after Landscaping took over the majority of the haul-
ing. Yerger testified that customers frequently asked him to
give estimates on jobs they were bidding on and that the
work would often not be requested until a year later; and so
it is likely that some of Landscaping’s work was performed
575YERGER TRUCKING
for customers whose work had been bid by Trucking. The
fact that there was a loss of some of Trucking’s customers
after July 3 may have been caused by some customers’ dis-
satisfaction with Yerger’s refusal to take any work until he
reopened as Landscaping, and the fact that Landscaping at
the time of the hearing had some new customers does not
mean that Trucking would not have gained those same cus-
tomers had it remained in business. After all, a new customer
would have called the same telephone number or gone to the
same location and spoken to the same person, Yerger, who
would have given estimates based on the use of the same
trucks and many of the same drivers and other of the same
factors that he had relied on for years.
There appears in most alter ego cases an element of fraud
or deceit. Shield Pacific, Ltd., 245 NLRB 409, 415 (1979),
enfd. mem. 647 F.2d 172 (9th Cir. 1981). As stated by the
United States Supreme Court in Howard Johnson Co. v.
Hotel Employees, 417 U.S. 249, 259 fn. 5 (1974), alter ego
cases involve ‘‘a mere technical change in the structure or
identity of the employing entity, frequently to avoid the ef-
fect of the labor laws, without any substantial change in its
ownership or management.’’ Yerger claims that his switching
of the business from Trucking to Landscaping was not in-
tended to avoid the Union. That does not relieve Land-
scaping from liability as Trucking’s alter ego, because a
showing of unlawful motivation is not essential to the find-
ing of an alter ego status. Hiysota Fuel Co., 280 NLRB 763
fn. 2 (1986). Yerger’s claim, however, is not without interest,
because he stated in his investigatory affidavit that the reason
that he closed Trucking was that he could not hire enough
drivers. There was no proof for this assertion, and it clearly
appears to be untrue, because Yerger never advertised for
drivers for Trucking. Instead, within a week of the start of
the employees’ union activities, from May 28 to June 3,
Yerger ran an advertisement in the local newspaper for truck-
drivers to be employed by Landscaping, at a time when
Landscaping did not own or operate any trucks. Hotzman an-
swered the advertisement; and, despite the fact that he had
answered Landscaping’s advertisement, he was given and
filled out an application bearing Trucking’s name, and he
was hired by Trucking and paid by Trucking. Hermany, too,
filled out Landscaping’s application form, but was hired by
Trucking. There was no proof submitted, and, especially in
the absence of Respondent’s brief, I find no reason that I can
think of, why prospective drivers would have rather replied
to Landscaping’s advertisements rather than Trucking’s. Fi-
nally, Trucking had 17 employees at the time that it alleg-
edly went out of business. When Landscaping started in busi-
ness, it had 17 employees. There was no shortage of drivers.
I discredit this alleged reason in its entirety. Yerger merely
concocted it, as he did much of his testimony.
Yerger also testified that the reason that he switched all
his business from one firm to the other was that Trucking
was having financial troubles, another assertion supported by
not one iota of documentary evidence, such as tax returns or
certified profit-and-loss statements. Rather, Yerger projected
increased revenues, stated that his business would be profit-
able, and spoke of his ‘‘boom’’ months of April through
June, hardly evidence of financial troubles. In any event, it
was his alleged aim to reduce his obligations for workmen’s
compensation and unemployment insurance by tens of thou-
sands of dollars. The way he did that was to avoid advising
the Commonwealth of Pennsylvania or his insurer that his
company, now Landscaping, was the same as Trucking and
was essentially a trucker, a business which was assessed at
almost twice the rate as a landscaper. Instead, he advised that
he was now in the landscaping and paving business, despite
the facts that he was doing the same business on July 15 as
he did on July 3, and that his gross income was about $1.7
million, of which only $6000 resulted from landscaping, and
the remainder consisted of trucking proceeds.
Thus, if I were to believe Yerger, the change of the busi-
ness entities, even if not motivated to avoid the Union, was
accomplished to misstate the nature of Landscaping’s busi-
ness and defraud the Commonwealth and the insurer. How-
ever, I am convinced that Yerger’s actual purpose was to de-
fraud the Union and the Union’s adherents by creating this
fictional transfer. The ‘‘new business’’ of Landscaping was
an obvious device intended to discourage Yerger’s employ-
ees from ever engaging in union activity and to get rid of
the ‘‘troublemakers.’’ When Yerger announced the closing of
Trucking, he knew that he was going to resume his trucking
operations, and he never intended to go out of business. Just
2 days before he announced the closing of Trucking, on July
1, he entered into a 3-year agreement to haul from the Quar-
ry. A week before, he met with his tire salesman and dis-
cussed his needs for new tires, with no sign that he was
going out of business. In fact, the salesman thought that
Trucking was still in business, a reaction which I find was
utterly justified from all that he could observe. In mid-May
Yerger reported to the USDA that the probability of Nolan’s
continued employment was good and that Nolan would con-
tinue to receive overtime, clearly an indication that Yerger
planned to continue in business. Had it not been for the em-
ployees’ attempt to organize, Trucking would still be the
hauler of soil, not Landscaping. I conclude that the two enti-
ties are alter egos, and Yerger made use of Landscaping only
to rid himself of the union supporters.
Yerger could not miss who the union supporters were.
They were at the union meeting. They gathered after the
election. They gathered at and after the meeting at which
Yerger announced that he was closing Trucking. Yerger did
not call these union supporters back to work when he re-
opened as Landscaping; but all the antiunion drivers re-
turned. The layoff and then termination of the prounion driv-
ers violated Section 8(a)(3) and (1) of the Act. Landscaping
was obligated to offer reinstatement to them and failed to do
so. Contrary to Respondents’ defense that the discriminatees
did not fill out applications for employment, Landscaping
may not require Trucking’s employees to file new job appli-
cations as a condition of employment. Denzil S. Alkire, 259
NLRB 1323, 1325 (1982), enf. denied on other grounds 716
F.2d 1014 (4th Cir. 1983).
In any event, Yerger did not require new applications from
any of Trucking’s employees. In response to a subpoena
issued by the General Counsel, Respondents produced a list
of the employees hired by Landscaping and the dates of their
applications. Three were dated after Landscaping allegedly
started its business, one was dated as early as April 1, 1990,
and another was dated before June 1991, when, according to
Yerger, he first prepared an application form for employment
with Landscaping. Thus, some employees did not fill out
Landscaping’s applications before being employed by Land-
scaping. Yerger testified, however, that some of these dates
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 I reject the General Counsel’s contention that Yerger’s offer was
invalid because it was made only 2 days before Hermany was to re-
port to work. Hermany had the right to respond that he needed addi-
tional time to return to work, but he never claimed that Yerger’s
offer gave him insufficient time. Esterline Electronics Corp., 290
NLRB 834 (1988).
were wrong: the employees actually signed applications be-
fore they were hired by Landscaping but their applications
had to be recopied on manilla files. When they were copied,
they were again signed by the employees, who put on the
dates they signed the new copies. The original applications
were then destroyed.
I do not believe him. His answers were unintelligible pop-
pycock. Yerger gave no cogent reason for recopying the ap-
plications after Landscaping started in business and throwing
out the earlier applications. If that were necessary, there
would have been no records reflecting older applications re-
maining in his files, and Yerger would not have been able
to respond as he did to the General Counsel’s subpoena. I
find that there were no other applications and Yerger’s story
was made up to explain away the damaging evidence that he
supplied. The applications were prepared on the dates shown
in the record evidence, and the applications that were dated
after Landscaping resumed business were prepared in an at-
tempt to persuade me that applications were needed.
They were not. The antiunion drivers did not have to sign
applications to retain their jobs with Landscaping. Yerger
called Fox on July 9 and told him that he was going into
business. Although Fox alleged that he then signed an appli-
cation, it is apparent that Yerger encouraged him and the
antiunion drivers to return and told some of them to sign ap-
plications even after they had already returned. Yerger appar-
ently thought that Hermany was not in favor of the Union,
and so Yerger merely asked him to return to work and did
not require that he fill out an application. Those who were
‘‘troublemakers’’ were not asked to return or informed that
he was resuming his operations. They were simply not con-
tacted—in effect, terminated, with no prospect of reemploy-
ment, in violation of the Act.
The unfair labor practices found here, occurring in connec-
tion with Respondent’s business, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce within the meaning of
Section 2(6) and (7) of the Act.
Some of the unfair labor practices found above were al-
leged by the Union as objections to the Board-conducted rep-
resentation election. There is only one, the reassignment of
the trucks, that was committed between the date of the filing
for and the date of the election. Ideal Electric & Mfg. Co.,
134 NLRB 1275 (1961). That constitutes conduct affecting
the result of the election.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. From July 3 to 15
Yerger closed Trucking in order to discourage the employees
from ever again involving themselves with any organizing
effort. All the employees are entitled to be made whole for
their losses during this period. In addition, the prounion em-
ployees were never rehired by Respondents, and they are en-
titled to be reinstated and made whole for all their losses
from July 3 until they are reinstated. Accordingly, I shall
order Respondents to offer immediate and full reinstatement
to Donald DeCarr, Edward Nolan, Randall Frazer, Charles
Riegel Jr., Steve Hermany, Scott Roboski, Keith Hotzman,
and Merlin Ulrich to their former positions or, if those posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, displacing, if necessary, any
newly hired, reassigned or transferred employees, and to
make them and Edwin Beck Jr., Jay Seitzinger, Luther Engle
Jr., Kenneth Spayd, John Fox, Solon Weidenhammer, Mi-
chael Hoch, Garth Wartzenluft, Warren Ressler, and Linn
Wartzenluft whole for any loss of wages and other benefits
they may have suffered by reason of Respondents’ discrimi-
nation against them, in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Included in my recommendation for reinstatement is
Hermany, despite the fact that he has been offered reinstate-
ment. Yerger telephoned Hermany on July 12 and offered
him not only a job but told him that he would be driving
truck 3701, which was air-conditioned and newer than the
truck that he had been assigned to before. Hermany accepted;
but he later talked with his friend, Hotzman, and found that
Hotzman had not been offered a job. Yerger’s offer to rein-
state Hermany was made only after Yerger had said that he
was going to get rid of the ‘‘troublemakers’’ and had told
Hermany that whatever happened as a result of the closure
of Trucking did not apply to him. Hermany turned down
Yerger’s offer because he was not going to continue to work
for someone who violated the Act in this blatant manner. In
these circumstances, Hermany had the right to fear that he
would be treated in the same illegal manner if he returned
to work and engaged in protected activities. Yerger’s con-
tinuing misconduct served to undermine the validity of his
offer to Hermany, who was not required to forgo his union
activities in order to regain employment with Yerger.12
Certain employees missed work on June 3. The complaint
alleges that only three—DeCarr, Roboski, and Ulrich—
missed work; but the General Counsel claims that eight driv-
ers were denied work. The only difficulty was that this was
not fully litigated. To show that eight employees were denied
work would require proof that Yerger engaged at least eight
subcontracted trucks, which performed the work that the
eight drivers were capable of performing. I concluded above
that Yerger deliberately only used subcontracted trucks to do
the jobs of his employees to discourage them from engaging
in union activities. That ought to be remedied, but counsel
for the parties stipulated that Trucking leased five or more
trucks from independent contractors to work at the Quarry
while five trucks from Trucking were not performing the
work. The record supports the remedy, therefore, for only
five employees. However, my finding that only five were
discriminated against does not exclude the possibility that
more drivers were denied work. In order to remedy the viola-
tion, I will recommend that all employees who were denied
work by reason of Yerger’s subcontracting trucks before put-
ting Trucking’s employees to work be made whole for their
loss of 1 day’s pay, together with interest as computed
577YERGER TRUCKING
above. The number of employees over five shall be deter-
mined in the compliance stage of this proceeding.
Regarding Nolan’s application for a mortgage, I have con-
cluded that Yerger spitefully sent information about the sta-
tus of Nolan’s driving license in order to punish him for his
union support. Nolan appealed from USDA’s denial of his
mortgage, and his appeal was turned down on the sole
ground that he had lost his employment, which I have con-
cluded resulted from yet another of Respondents’ unfair labor
practices. The purpose of the remedies granted herein is to
place the discriminatees in the position that they would have
been in, had there been no violations. The General Counsel
requests that Respondents should be ordered to write to the
USDA enclosing the Board Decision and Order to explain
that their letter to USDA on June 10 and discharge of Nolan
were found to be in violation of the Act and informing the
USDA that Nolan had been reinstated to his former position.
He further requests that copies of this notification should be
sent to Nolan and that Nolan should be reimbursed for the
cost of filing a new mortgage application. The General
Counsel was requested by me to submit to Respondents, a
week before the briefs had to be filed, a proposed order and
brief supporting any unusual remedy he sought, so that Re-
spondents could reply in its principal brief. As noted above,
Respondents filed no brief, and so I have no idea what their
position is. I conclude that the requested remedy is fair in
all respects, because it permits Nolan to file a new applica-
tion, while employed, and permits him to clarify the status
of his driver’s license and his ability to obtain a ‘‘bread and
butter’’ license. Frostberg Village of Allegheny County Nurs-
ing Home, 263 NLRB 651, 670 (1982).
Because of the serious nature of the unfair labor practices
found here, the General Counsel seeks a bargaining order
under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). I
conclude that the following employees of Respondents con-
stitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time drivers and mechanics employed by
Yerger Trucking, Inc. and Yerger Landscaping & Pav-
ing, Inc., Sinking Spring, Pennsylvania, excluding all
clerical employees, guards, and supervisors as defined
in the Act.
This is the unit stipulated by Trucking and the Union in the
representation proceeding, with the exception of the addition
of Landscaping because it is Trucking’s alter ego. In addi-
tion, it is obvious that Respondents also constitute a single
employer because of their common ownership, common
management, centralized control of labor relations, and inter-
relation (indeed, identity) of operations. NLRB v. Browning-
Ferris Industries, 691 F.2d 1117 (3d Cir. 1982).
On May 21 Stoltz, Roboski, Ulrich, Riegel, Frazer,
DeCarr, and Paine signed union cards. On May 22 Nolan,
Engle, Hoch, and Seitzinger signed cards. That is a total of
11 employees, and there were 17 employed on that date. I
find that the Union had a majority on May 22. I, therefore,
conclude that at all times since May 22, the Union, by virtue
of Section 9(a) of the Act, has been, and is, the exclusive
representative of the employees in the above-mentioned unit
for the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment.
Gissel, supra, 395 U.S. at 613–614, permits the Board to
order an employer to bargain with a union that has dem-
onstrated majority strength prior to the commission of the
unfair labor practices that the order is meant to remedy. An
order is appropriate only in ‘‘‘exceptional’ cases marked by
‘outrageous’ and ‘pervasive’ unfair labor practices’’ and
‘‘less extraordinary cases marked by less pervasive practices
which nonetheless still have the tendency to undermine ma-
jority strength and impede the election process.’’ On learning
that the employees were engaged in union activities, Yerger
immediately threatened them with the closure of the facility
and the resultant loss of their jobs. The threats were often
repeated, the prounion employees were harassed, their right
to use CB radios were taken away, they were deprived of 1
day’s work, and finally Yerger closed Trucking, only to re-
open under Landscaping’s name without rehiring those who
favored the Union. Yerger not only threatened retribution of
the most basic kind but also carried out his threat. He laid
off the entire complement of 17 employees and fired 8 of
them, actions which cannot be easily forgotten by the em-
ployees who were not rehired as well as those who were,
only after they were laid off 11 days.
Yerger’s threat to close Trucking, a ‘‘hallmark violation’’
of the Act, is one of the most flagrant means by which he
could have hoped to dissuade his employees from maintain-
ing their union support. That alone was serious enough to
justify the issuance of a bargaining order, particularly when
accompanied by the subsequent closure of the facility.
Gissel, supra, 396 at 616–620; Precision Graphics, 256
NLRB 381 (1981), enfd. mem. 681 F.2d 807 (3d Cir. 1982);
NLRB v. Atlas Microfilming, 753 F.2d 313 (3d Cir. 1985).
Here, Yerger carried out his threat, teaching a lesson to all
by closing Trucking and showing Yerger’s utter control over
his employees’ lives and welfare. Then, he reopened under
Landscaping, but refused to permit the prounion employees
from returning. In other words, he punished everyone be-
cause of the union activities, but only the prounion employ-
ees permanently. The discharges and layoffs are also hall-
mark violations of the Act which deserve to be remedied by
a bargaining order. ‘‘[N]o event[s] can have more crippling
consequences to the exercise of Section 7 rights than the loss
of work.’’ Apple Tree Chevrolet, 237 NLRB 867 (1978),
modified 608 F.2d 988 (4th Cir. 1979). Thus, the possibility
of conducting a fair election by the use of traditional rem-
edies is slight. These employees would not forget what re-
sults from union activities. The employees’ sentiments re-
garding representation, having been expressed through au-
thorization cards, would, on balance, be protected better by
the issuance of a bargaining order rather than by traditional
remedies alone. Mayfield Produce Co, 290 NLRB 1083 fn.
3 (1988); Kona 60 Minute Photo, 277 NLRB 867, 870–871
(1985). It follows that, because of the serious nature of the
unfair labor practices committed herein, I will also rec-
ommend a broad order requiring Respondents to cease and
desist from infringing in any other manner on rights guaran-
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 There was no proof submitted to support the allegations con-
tained in pars. 6(f)(1) and (k) and 8(a) and (b)(4). I will dismiss
those allegations.
14 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.
teed employees by Section 7 of the Act. Hickmott Foods,
242 NLRB 1357 (1979).13
Because I have recommended that a bargaining order
issue, it also follows that, despite my findings of objection-
able conduct, I will recommend that the Board-conducted
representation election be set aside, that Case 4–RC–17637
be dismissed, and that all proceedings in connection there-
with be vacated. Ideal Electric & Mfg. Co., 134 NLRB 1275
(1961); Trading Port, Inc., 219 NLRB 298 (1975).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondents, Yerger Trucking, Inc. and its alter ego,
Yerger Landscaping & Paving, Inc., Sinking Spring, Pennsyl-
vania, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening their employees with plant closure, sale of
their business, loss of employment or benefits, changed terms
and conditions of employment, violence, or any other reprisal
because of their employees’ support for Teamsters Local
Union 429 affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO or their participation in any other protected and
concerted activities, including participation in Board proc-
esses.
(b) Threatening their employees with discharge, unless
they withdraw an unfair labor practice charge filed with the
Board’s Regional Office.
(c) Interrogating their employees about their own and other
employees’ union activities and about their participation in
Board processes.
(d) Spying on their employees’ protected activities or cre-
ating the impression that their protected activities are under
surveillance.
(e) Directing their employees to stop calling other employ-
ees at their homes and trying to get them to join the Union,
or to stop passing out union cards on company property.
(f) Accusing their employees of disloyalty in order to dis-
courage them from supporting the Union or engaging in
union activities.
(g) Changing the terms and conditions of employment of
their employees because of their union activities.
(h) Discharging, laying off, failing, or refusing to recall for
employment, giving more onerous work assignments, failing
to assign work, or otherwise discriminating against their em-
ployees because they join, support, or assist the Union or be-
cause they engage in other protected and concerted activities.
(i) Writing to mortgage lenders or other credit institutions
in order to get revenge on their employees because they sup-
port or assist the Union.
(j) Giving more onerous work assignments to their em-
ployees because they support or assist the Union.
(k) Refusing to recognize or bargain collectively with the
Union as the exclusive bargaining representative of all their
employees in the unit described below, with respect to rates
of pay, wages, hours, and other terms and conditions of em-
ployment:
All full-time drivers and mechanics employed by
Yerger Trucking, Inc. and Yerger Landscaping & Pav-
ing, Inc., Sinking Spring, Pennsylvania, excluding all
clerical employees, guards, and supervisors as defined
in the Act.
(l) In any other manner interfering with, restraining, or co-
ercing their employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer their employees listed below immediate and full
reinstatement to their former positions or, if those positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, displacing, if necessary, any newly hired,
reassigned, or transferred employees, and make the employ-
ees listed below 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 this
decision:
Donald DeCarr Edward Nolan
Randall Frazer Charles Riegel Jr.
Steve Hermany Scott Roboski
Keith Hotzman Merlin Ulrich
(b) Make whole their employees by paying them the
wages lost by reason of Respondents’ failure to assign them
work on June 3, 1991, when Respondents subcontracted
trucks, with drivers, from other companies, in the manner set
forth in the remedy section of this decision.
(c) Make whole their employees listed below for losses
they suffered as a result of Respondents’ closure of their
business after July 3, 1991, and until July 15, 1991, in the
manner set forth in the remedy section of this decision:
Edwin Beck Jr. Jay Seitzinger
Luther Engle Jr. Kenneth L. Spayd
John Fox Solon Weidenhammer
Michael Hoch Garth Wartzenluft
Warren Ressler Linn Wartzenluft
(d) On request, bargain with the Union as the exclusive
representative of all their employees in the unit described
above with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed
agreement.
(e) Rescind all discriminatory changes Respondents made
in their employees’ working conditions and maintain their
original conditions of employment until the parties bargain in
good faith to an agreement or bona fide impasse as to any
proposed changes in such working conditions.
(f) Remove from their files any reference to the unlawful
discharges of Donald DeCarr, Edward Nolan, Randall Frazer,
Charles Riegel Jr., Steve Hermany, Scott Roboski, Keith
Hotzman, and Merlin Ulrich and notify them in writing that
579YERGER TRUCKING
15 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.’’
this has been done and that the discharges will not be used
against them in any way.
(g) Submit a copy of the final Decision and Order in this
proceeding to the United States Department of Agriculture,
Farmers Home Administration, Leesport, Pennsylvania office
and inform that institution in writing that Edward Nolan has
been offered full reinstatement as their employee and is enti-
tled to full backpay, with interest, pursuant to an Order of
the National Labor Relations Board, and send a copy of that
notification to Nolan.
(h) Reimburse Edward Nolan for the cost of filing a new
mortgage application, should he wish to refile.
(i) 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.
(j) Post at their facility in Sinking Spring, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’’15 Copies
of the notice, on forms provided by the Regional Director for
Region 4, after being signed by Respondents’ authorized rep-
resentative, shall be posted by Respondents immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondents to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(k) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondents have
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 of the United States Government
WE WILL NOT threaten our employees with plant closure,
sale of our business, loss of employment or benefits, changed
terms and conditions of employment, violence, or any other
reprisal because of our employees’ support for Teamsters
Local Union 429 affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO or their participation in any other protected
and concerted activities, including participation in Board
processes.
WE WILL NOT threaten our employees with discharge, un-
less they withdraw an unfair labor practice charge filed with
the Board’s Regional Office.
WE WILL NOT interrogate our employees about their own
and other employees’ union activities and about their partici-
pation in Board processes.
WE WILL NOT spy on our employees’ protected activities
or create the impression that their protected activities are
under surveillance.
WE WILL NOT direct our employees to stop calling other
employees at their homes and trying to get them to join the
Union, or to stop passing out union cards on company prop-
erty.
WE WILL NOT accuse our employees of disloyalty in order
to discourage them from supporting the Union or engaging
in union activities.
WE WILL NOT change the terms and conditions of employ-
ment of our employees because of their union activities.
WE WILL NOT discharge, lay off, fail or refuse to recall for
employment, give more onerous work assignments, fail to as-
sign work, or otherwise discriminate against our employees
because they join, support, or assist the Union or because
they engage in other protected and concerted activities.
WE WILL NOT write to mortgage lenders or other credit in-
stitutions in order to get revenge on our employees because
they support or assist the Union.
WE WILL NOT give more onerous work assignments to our
employees because they support or assist the Union.
WE WILL NOT refuse to recognize or bargain collectively
with the Union as the exclusive bargaining representative of
all our employees in the unit described below, with respect
to rates of pay, wages, hours, and other terms and conditions
of employment:
All full-time drivers and mechanics employed by
Yerger Trucking, Inc. and Yerger Landscaping & Pav-
ing, Inc., Sinking Spring, Pennsylvania, excluding all
clerical employees, guards, and supervisors as defined
in the Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
WE WILL offer our employees listed below immediate and
full reinstatement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, displacing, if necessary, any
newly hired, reassigned, or transferred employees, and make
the employees listed below whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, with interest:
Donald DeCarr Edward Nolan
Randall Frazer Charles Riegel Jr.
Steve Hermany Scott Roboski
Keith Hotzman Merlin Ulrich
WE WILL make whole our employees by paying them the
wages lost by reason of our failure to assign them work on
June 3, 1991, when we subcontracted trucks, with drivers,
from other companies, with interest.
WE WILL make whole our employees listed below for
losses they suffered as a result of our closure of our business
after July 3, 1991, and until July 15, 1991, with interest:
Edwin Beck Jr. Jay Seitzinger
Luther Engle Jr. Kenneth L. Spayd
John Fox Solon Weidenhammer
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Michael Hoch Garth Wartzenluft
Warren Ressler Linn Wartzenluft
WE WILL, on request, bargain with the Union as the exclu-
sive representative of all our employees in the unit described
above with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed
agreement.
WE WILL rescind all discriminatory changes we made in
our employees’ working conditions and maintain their origi-
nal conditions of employment until the parties bargain in
good faith to an agreement or bona fide impasse as to any
proposed changes in such working conditions.
WE WILL remove from our files any reference to the un-
lawful discharges of Donald DeCarr, Edward Nolan, Randall
Frazer, Charles Riegel Jr., Steve Hermany, Scott Roboski,
Keith Hotzman, and Merlin Ulrich and notify them in writing
that this has been done and that the discharges will not be
used against them in any way.
WE WILL submit a copy of the final Decision and Order
in the proceeding of the National Labor Relations Board
against us to the United States Department of Agriculture,
Farmers Home Administration, Leesport, Pennsylvania office
and inform that institution in writing that Edward Nolan has
been offered full reinstatement as our employee and is enti-
tled to full backpay, with interest, pursuant to an Order of
the National Labor Relations Board, and send a copy of that
notification to Nolan.
WE WILL reimburse Edward Nolan for the cost of filing
a new mortgage application, should he wish to refile.
YERGER TRUCKING, INC. AND YERGER LAND-
SCAPING & PAVING, INC.