Knoxville Distribution Co.

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 688 (N.L.R.B. 1990)

688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Knoxville Distribution Company and Joseph C. Cox
and Teamsters Local Union No. 519, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO. Cases 10-CA-24028
and 10-CA-24108
May 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 17, 1989, Administrative Law
Judge Howard I. Grossman issued the attached de-
cision. The Respondent filed exceptions with exhib-
its attached.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge's rulings, findings,' and conclu-
sions and to adopt his recommended Order as
modified.2
The judge concluded that the Respondent violat-
ed Section 8(a)(3) and (1) of the Act by laying off
employees Surber and Smith on April 14, 1989. In
its exceptions, the Respondent argues that the
judge did not fully understand the nature of the
"Tri-cities" route and therefore "speculated" incor-
rectly about the changes which the Respondent
made in that route. Thus, the Respondent contends
that the judge concluded incorrectly that it did not
' The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We also find without ment the Respondent's allegations of bias and
prejudice on the part of the judge On our full consideration of the
record and the decision, we perceive no evidence that the judge pre-
judged the case, made prejudicial rulings , or demonstrated a bias against
the Respondent in his analysis or discussion of the evidence
We correct the judge's inadvertent error in fn 9 of his decision regard-
ing the date that employee James "Duke" Dowden was hired Dowden
was hired on February 6, 1989 This error does not affect the result of
the judge' s decision
Since we agree with the judge that the manner and timing of the dis-
charges of employees Surber, Smith, and Green, as well as the dispropor-
tionate severity of their discipline , permit an inference that the Respond-
ent knew that the three alleged discnmmatees had engaged in union ac-
tivity, we find it unnecessary to rely on the judge 's additional finding that
company knowledge could be inferred because the Knoxville terminal
was a "small operation "
We deny the Respondent's motion to reopen the record for receipt of
additional evidence See Sec 102 48(d)(1) of the Board 's Rules and Regu-
lations We also deny the Respondent 's request for oral "hearing" inas-
much as the record and exceptions adequately present the issues and the
positions of the parties
2 The judge inadvertently omitted expunction language from his rec-
ommended Order We shall modify his recommended Order accordingly
and shall issue a new notice including such language
have a legitimate business reason to lay off two em-
ployees. For the reasons set forth below, we adopt
the judge's conclusion.
Initially, we note that the Tri-cities route in Ten-
nessee consisted of Bristol, Kingsport, and Johnson
City, and that Morristown, where the Respondent
had another terminal, was midway between Knox-
ville and the Tri-cities. The record indicates that
when the Respondent was compelled for insurance
purposes to limit its deliveries to a radius of 50
miles from its terminals, the Respondent apparently
determined to send truck cabs from Morristown to
Knoxville to pick up the trailers that had been
loaded and prepared for delivery at the Knoxville
terminal and to make the required deliveries in the
Tri-cities area. Because Morristown was approxi-
mately 50 miles from both Knoxville and the Tri-
cities area, the Respondent could thus continue to
deliver to its customers in the Tri-cities area with-
out violating the requirement of its insurer that de-
liveries be limited to within a 50-mile radius of its
terminals. Therefore, it appears that the Respond-
ent may have had legitimate business reasons for a
layoff of employees at the Knoxville terminal after
the Tri-cities route was transferred to Morristown.
We emphasize, however, that although the Re-
spondent may have had legitimate reasons for a
layoff of employees, we agree with the judge's
finding that the Respondent chose to lay off Surber
and Smith for discriminatory reasons and that their
layoffs violated Section 8(a)(3) and (1). In this
regard, we agree with the judge that the Respond-
ent's speech, made the day that employees Green,
Smith, and Surber were reinstated following their
unlawful discharges, to the effect that the Respond-
ent ran a "family operation" and did not need
"troublemakers," evidenced the Respondent's con-
tinuing animus toward these employees. We ac-
cordingly agree with the judge that under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), the General Counsel
has met his burden of establishing a prima facie
case that the Respondent's selection of employees
Smith and Surber for layoff was discriminatory.
We further conclude that the Respondent has not
rebutted this prima facie case by establishing that it
would have selected Smith and Surber for layoff in
the absence of their union activity. Thus, we agree
with the judge's rejection of the Respondent's as-
serted defense that Surber and Smith were laid off
because the driver is eliminated when the route is.
In this regard, we emphasize particularly that al-
though the Respondent acknowledged that a series
of accidents caused its insurance rates to triple and
298 NLRB No. 91
KNOXVILLE DISTRIBUTION CO. 689
admitted that retaining drivers with repeated acci-
dents caused "problems" for the Respondent, it laid
off Smith, an excellent driver, and Surber, a satis-
factory driver, while retaining at least two employ-
ees who were responsible for accidents and repeat-
ed traffic violations.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Knoxville Distribution Company, Knox-
ville, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
1. Add the following as paragraph 2(d) and relet-
ter the subsequent paragraphs.
"(d) Remove from its files any reference to the
unlawful discharges of Joseph C. Cox, Michael
Surber, Roland Smith Jr., and Carl Green Jr., and
the unlawful layoffs of Surber and Smith, and
notify them in writing that this has been done and
that evidence of the unlawful discharges and lay-
offs will not be used as a basis for future personnel
actions against them."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce
employees by discharging supervisors because they
fail or refuse to commit unfair labor practices.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Joseph C. Cox reinstatement to
his former or substantially equivalent position at
either our Knoxville or Morristown terminal, and
make him whole for any loss of earnings he may
have suffered because of our unlawful discharge of
him, with interest.
WE WILL make whole Michael Surber, Roland
Smith Jr., and Carl Green Jr., for any losses of
earnings they may have suffered by reason of our
unlawful discharges of them on January 20, 1989,
with interest.
WE WILL make whole Michael Surber and
Roland Smith Jr., for any losses of earnings they
may have suffered by reason of our unlawful lay-
offs of them on April 14, 1989, with interest.
WE WILL remove from our files any reference to
the unlawful discharges of Joseph C. Cox, Michael
Surber, Roland Smith Jr., and Carl Green Jr., and
the unlawful layoffs of Surber and Smith, and
notify them in writing that this has been done and
that evidence of the unlawful discharges and lay-
offs will not be used as a basis for future personnel
actions against them.
KNOXVILLE DISTRIBUTION COMPANY
The National Labor Relations Board has found
that we violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage membership in Team-
sters Local Union No. 519, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO, or any other labor organization, by dis-
charging or laying off employees because of their
union activity, or by discriminating against them in
any other manner with regard to their hire, tenure
of employment, or terms and conditions of employ-
ment.
Frank F. Roux, Esq,, for the General Counsel.
Jeffrey Taylor, Esq., of Morristown , Tennessee, and
Wesley A. Newsome, Vice President , of Newport, Ten-
nessee, for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The original charge in Case 10-CA-24028 was filed on
March 17, 1989, by Joseph C. Cox (Cox), an individual.
The original charge in Case 10-CA-24108 was filed on
April 24 by Teamsters Local Union No. 519, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL-
CIO (the Union), and an amended charge on May 30.
After issuance of a complaint, consolidated complaint
issued on June 9, 1989, alleging that Knoxville Distribu-
tion Company (Respondent, or the Company) (1) dis-
charged employees Michael Surber, Roland Smith Jr.,
and Carl Green Jr., on January 20, 1989, and failed to
reinstate them until February 13, 1989; and (2) laid off
Surber and Smith on April 14, 1989, because of their
protected, concerted activities, in violation of Section
8(a)(3) and (1) of the National Labor Relations Act (the
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act). The consolidated complaint further alleges that Re-
spondent discharged Cox on December 2, 1989, because
he refused to commit unfair labor practices directed by
Respondent, thus violating Section 8(a)(1) of the Act.
A hearing was held before me on these matters on
August 3, 1989, in Knoxville, Tennessee. Upon the entire
record, including my observation of the demeanor of the
witnesses I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Tennessee corporation, with an office
and place of business located at Knoxville, Tennessee
where it is engaged in the interstate transportation of
commodities. The Company also has a terminal at Mor-
ristown, Tennessee. During the past calendar year, a rep-
resentative period, Respondent derived gross revenues in
excess of $50,000 at its Knoxville, Tennessee facility
from the interstate transportation of freight. Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. HPO Services, Inc.,
122 NLRB 394 (1958).
Neither the complaint nor the consolidated complaint
alleges that the Union is a labor organization. However,
both the charge and the amended charge in Case 10-
CA-24108 give the Union's title as set forth above, and
the record establishes that a Board election was held on
February 22, 1989. Taking notice of the many other pro-
ceedings in which the Board has found the Union to be a
labor organization within the meaning of Section 2(5) of
the Act, I make the same determination.'
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union Activity and the Discharge of Cox
1. Summary of the evidence
Alleged discriminatee Green, Smith, and Surber were
employed as truckdrivers in 1987, and played an active
role in an organizational campaign which the Union
began in July 1988. They talked to other employees
about the Union, and signed union authorization cards.
Green began passing out union pamphlets in November
1988.
Respondent employed Joseph C. Cox as assistant ter-
minal manager in late September 1988.2 After 5 or 6
weeks of employment, he was discharged.
i Despite the absence of a complaint allegation as to the Union's status
as a labor organization, my finding of such status does to deprive Re-
spondent of due process See generally All American Gourmet, 292 NLRB
1111 (1989)
2 Cox testified that his employment began "somewhere" in September.
He was hired by then Terminal Manager Don Hutsell Hutsell had hired
another individual as assistant terminal manager, but this lasted for only a
few days, and Cox, after several interviews, was then employed Re-
spondent's representative Newsome stated at the hearing that he had
"records" showing Cox's hiring date as October 9, Hutsell testified that it
was "sometime" after September 16. I conclude that late September 1988
is the most probable date of hire Respondent's motion to introduce the
records is denied, as they were not authenticated
The parties stipulated that Cox and Hutsell were supervisors and
agents of Respondent within the meaning of the Act Hutsell had been
Cox affirmed that Hutsell praised his work to other in-
dividuals. Hutsell testified that "initially" he felt that Cox
was doing a good job-he could "deal with people" over
the phone "calm down irate customers," and he called
Hutsell "Sir." For the "first few weeks," according to
Hutsell, Cox "would handle calls over the phone." How-
ever, as indicated hereinafter, Hutsell's favorable assess-
ment of Cox's work later changed.
Cox testified to a conversation with Terminal Manager
Hutsell on the morning of November 28, 1988, a
Monday. Hutsell showed him a union brochure, saying
that he had discovered it on the dock. Hutsell asked
Cox, "Where in the hell did this come from?" Cox said
that he did not know. Hutsell then stated that this could
"cost everybody their job," that the Company was non-
union, and that it was management's function "to find
out who is bringing this stuff in . . . and to snuff them
out." The owner would close the place down rather than
let it become unionized. "This is kind of a spare change
operation for them (the owner) . . . This is just to pay
for the Porsches. They don't need it." Hutsell directed
Cox to find out who was bringing in the union bro-
chures, and either discharge them or to inform Hutsell of
their identities so that he could terminate them. At the
conclusion of this conversation, Hutsell put the union
brochure in his desk.
Cox testified that there had been "sub-currents" about
union activity, and that, at the time of his conversation
with Hutsell, he knew that it was employee Carl Green
who was distributing union literature.
Later the same day according to Cox, at about lunch
time on November 28, 1988, Hutsell again inquired about
the identity of the employee bringing in the union bro-
chures. "Was it Yankee Bob?" he asked Cox. When the
latter replied that he did not know, Hutsell "kind of
studied (his) face" and suggested other names. He again
directed Cox to find out, "or neither one of us will have
a job."
Early the following morning, November 29, 1988,
Hutsell again asked Cox whether he had discovered any-
thing. The latter replied that the drivers were "keeping it
quiet," but that there was a chance that drivers from an-
other trucking company that used the terminal had left
the brochure. Hutsell rejected this theory and repeated
his determination to ascertain the identify of the union
supporters and to fire them. He had taken such action in
previous instances of union activity. Several of such dis-
charged employees had filed for unemployment compen-
sation, and Hutsell had attended the hearings. "Patting
himself on the back" according to Cox, Hutsell said that
he had not lost one such case. "I know what they want
to hear." Similar conversations continued for the balance
of the week, according to Cox. He told Hutsell that the
employees were dissatisfied with asserted preferential
treatment given to one employee.
On the evening of November 29, 1988, Cox spoke
with alleged discriminatee Green, and told him that it
would be in his best interest not to bring any more union
the terminal manager since March 1986 , when the terminal opened He
was no longer employed by Respondent at the time of the hearing
KNOXVILLE DISTRIBUTION CO. 691
literature, because Hutsell was "going to find out." One
of the "other guys" would inform Hutsell, and Green
would be out of a job.3 During the last week of Novem-
ber, Cox asked another alleged discriminatee, Roland
Smith, whether he had left a "union card" in the office,
and told Smith that Hutsell was going to fire the em-
ployee who did so.4
On Thursday, December 1, 1988, Cox was working on
the dock, and was approached by an employee who had
been there since the Company began operations. Cox had
not previously engaged in extensive conversation with
this employee. "Just out of the blue," Cox testified this
employee began a discussion of the Union, and asked
Cox whether he had determined who was bringing in the
union literature. Cox did not name any employees, but
said that he had a "pretty good idea." The employee said
that he knew, and that he thought Cox would "figure it
out," since Cox was a "pretty smart fellow."5
According to Cox, he was discharged the following
day, December 2, 1988. As soon as the drivers had gone,
Hutsell again asked Cox whether he had ",found any-
thing out." Cox again denied it. He testified that Hutsell
"looked at him for a long time and didn't say anything."
Hutsell then asserted that Cox knew who was bringing
in the literature and was keeping something from Hut-
sell. When Cox again denied it, Hutsell "stared (him)
down," and repeated that "they would close the oper-
ation before they would let (the Union) come in."
At about lunch time, according to Cox, Hutsell called
him into the latter's office and said that he would have
to let him go. It was not Hutsell's decision, but had
"come down from Morristown." Freight was slowing
down, Christmas was a "slow time," and the Company
was "just not going to tolerate this Union."
Respondent provided a different version of the circum-
stances and chronology of Cox's discharge. According to
Terminal Manager Hutsell, he became dissatisfied with
Cox's work performance "[a]fter 3 or 4 weeks . . . ap-
proximately the middle of November, the first part of
November." Hutsell gave a variety of reasons for this
dissatisfaction; (1) Cox's absences from the office includ-
ing times when Hutsell palled in, one after when Cox as-
sertedly slept at home, and Cox's alleged claim that his
girlfriend had "kidnapped" him; (2) "feedback from cus-
tomers" indicating that Cox was not performing on as-
serted promises; and (3) Cox's purported failure to learn
the computerized billing system, as to which he had al-
legedly been reprimanded. Hutsell did not document any
of these asserted deficiencies, because "it takes a while to
sit down and type out a letter." Hutsell also testified that
he had given employees written warnings in the past'for
various offenses, including absenteeism.
According to Hutsell, Cox's asserted deficiencies
caused Hutsell to interview another individual named
John Imgrund, to replace Cox. The terminal manager
contended that an appointment with Imgrund was ar-
ranged for 10 a.m., on "the Friday following Thanksgiv-
ing," i.e., November 25, 1988, because the terminal was
3 Testimonies of Cox and Green
4 Testimony of Roland Smith
5 Testimony of Cox
closed on this day. Imgrund arrived and, after an alleged
discussion of Cox's deficiencies it was agreed that Im-
grund would "report to work at midnight that Sunday
night following Thanksgiving," i.e., November 27, 1988.
However, he never showed up. Hutsell contended that
Respondent's owner directed him to keep Cox another
week after Imgrund failed to appear at the alleged start-
ing date of November 27, 1988.
Imgrund, a witness for Respondent, testified that he
was "out of town" the "day after Thanksgiving," and
that he had received a "message" to call Respondent. He
thereupon called Respondent's terminal and talked either
with Hutsell or Respondent's vice president, Newsome.
Imgrund agreed that this was his "first contact." After a
series of leading questions from Respondent, and upon
cross-examination , Imgrund averred that he was "pretty
sure" that the first actual meeting took place on the day
after Thanksgiving. Imgrund's first scheduled day of
work with Respondent was "Sunday night, a week," be-
cause he "was to give a weeks' notice" at the place he
had been working. Imgrund said that he did not show up
for the position because it "was a night job and (he)
detest(ed) night work."
Hutsell agreed that he had a conversation with Cox
about a union brochure, but contended that it was Cox
who showed it to Hutsell, saying that the terminal man-
ager "might want to see this." The latter replied that he
did not need it, and put in in the trash can. Hutsell
denied asking to discover the names of the employees en-
gaged in union activity-he had no reason "to fear some-
thing like that."
According to Hutsell, on "the Monday before [he] dis-
charged" Cox, he said that the latter was getting too
many personal calls, and had not learned the billing
process. Cox was directed to learn it "by Friday." On
that "Friday," Cox called Hutsell from a drugstore 2
miles away, saying he needed some medicine. Cox sup-
posedly arrived 45 minutes later, and during the day had
3 or 4 telephone calls, one from his girlfriend. When
Hutsell asked Cox who it was, the latter said it was a
customer. On that same "Friday," Hutsell asked Cox
whether he knew how to bill, and Cox gave a negative
answer. Hutsell testified that he gave Cox the reasons for
the discharge during the exit interview, but denied
saying that it was based on economic considerations.
Asked on direct examination the date that he' fired Cox,
Hutsell replied that he did not know the exact date, but
that it was "the Friday following Thanksgiving."
Cox denied that Hutsell had ever reprimanded him, for
using the telephone or otherwise. He agreed that he had
been absent from the premises on several occasions, but
testified that these were errands directed by Hutsell, such
as getting a "fly wheel for a street rod" that Hutsell was
working on at home. Cox denied that he had ever been
reprimanded for absence during working time.. He agreed
that he was having trouble with his girlfriend, because
they were in the process of getting married 'and buying a
house. However, Cox denied that this affected his job
performance-,-his girlfriend worked for a group of doc-
tors, and "wasn't free to call (him) all day long." With
respect to the computer issue, Cox averred that one of
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the reasons Hutsell hired him was his experience with a
computer at his previous job. He had "pretty much mas-
tered" the "data entry functions" required at Respond-
ent's Knoxville terminal.
2. Factual analysis
In final argument, Respondent contended that the
process of hiring a replacement for Cox began on No-
vember 16, 1988, prior to the date of November 28-
which Cox allegedly stated was the first date he learned
of union activities . This argument misstates the issue and
the evidence . The issue is not the date that Cox learned
of union activities , but, rather , the date that Respondent
learned of them . From Hutsell 's admission that he had a
conversation with Cox about a union brochure , it is obvi-
ous that the Company did learn of the union activities.
The question is whether Respondent had not yet learned
of those activities at the time of its purported attempted
hiring of Imgrund . If so, this would tend to support Re-
spondent 's argument that the alleged employment effort
with respect to Imgrund evidences an attempt to replace
a deficient supervisor at a time when it did not know of
Cox's union sympathies.
Respondent's chronology of these events has numerous
contradictions and improbabilities. If, as Imgrund testi-
fied , he was out of town on November 25-the date of
his "first contact" with Respondent-it is unlikely that
an actual meeting took place on that date . Imgrund and
Hutsell contradict each other on the date that the former
was supposed to begin work , Hutsell claimed that it was
on midnight of November 27, 1988 (the Sunday follow-
ing Thanksgiving), while Imgrund asserted that it was a
week later. Hutsell contended that Cox was fired on "the
Friday following Thanksgiving ," November 25, 1988,
and the terminal manager's account of Cox's activities on
that "Friday" suggests that it was a normal workday.
However , Hutsell also testified that the terminal was
closed that day, while Imgrund , Cox's "replacement,"
had not yet been hired . In fact, Imgrund never went to
work for Respondent . The reason he rejected the job
was his dislike of night work . But all the evidence sug-
gests that Cox worked during the day. If so, it is unlikely
that Imgrund 's allegedly planned right -time work was in-
tended to replace Cox. Nor did Respondent provide any
evidence of another "replacement " for Cox when Im-
grund failed to show up.
For these reasons I reject Respondent 's evidence re-
garding the relevant dates and the object of the attempt
to hire Imgrund. I credit Cox's testimony, partially cor-
roborated by Hutsell, and that Cox had a conversation
with Hutsell about a union brochure on Monday, No-
vember 28, 1988. This establishes Respondent 's knowl-
edge of the union campaign not later than that date. I do
not credit Hutsell's claim it was Cox who brought the
union brochure to the terminal manager . It is highly im-
probable that Cox, who sympathized with the union ad-
herents, would have jeopardized the union movement by
showing its literature to Hutsell . Rather, it is more likely,
as Cox testified , that Hutsell showed Cox the brochure,
saying that he had discovered it on the dock. I also
credit Cox's averment that, at the conclusion of the first
conversation on Monday, Hutsell put the union brochure
in his desk; I reject Hutsell 's contention that he put it in
the trash can.
As indicated , Cox gave a detailed description of Hut-
sell's response to the discovery of the union brochure, in-
cluding statements that the Company would go out of
business rather than allow the terminal to become union-
ized , and that Cox and Hutsell would both be out of
jobs. According to Cox , Hutsell said that it was manage-
ment's function to "snuff out" union organizers, and
boasted of his success in defeating discharged employee
applications for unemployment compensation . In addi-
tion, as indicated , Hutsell repeatedly directed Cox dis-
covered the union activists , "studied" Cox's face when
he denied knowledge , and finally asserted that Cox was
withholding information about the Union . Hutsell 's testi-
mony on this issue was a simple denial that he ever di-
rected Cox to discover the identities of the union propo-
nents. Cox was a more truthful witness that Hutsell, and
I creit his testimony on the various conversations he had
with Hutsell about the Union during the week of No-
vember 28 , 1988. Accordingly , I find that Respondent
evidenced strong union animus, directed Cox to discover
the identities of the union activists , and suspected him of
concealing information about the union movement when
he failed to comply with the Order.
I accept the General Counsel 's uncontradicted evi-
dence that Cox had conversations with union activists
during the week of November 28, and advised them of
the Company's intention to fire them when they were
discovered . I also credit Cox 's testimony that an employ-
ee with whom he had previously had little contact asked
him on Thursday, December 1, whether he had discov-
ered the identities of the union activists, and that Cox an-
swered in a manner which would indicate such knowl-
edge.
I credit Cox's testimony that he was discharged on
December 2, 1988. Hutsell 's assertions on the date of dis-
charge are contradictory.
Cox affirmed and Hutsell denied that the latter gave
economic reasons for the discharge. Instead , Hutsell
claimed , Cox was fired for a variety of deficiencies. Re-
spondent's evidence is not persuasive . I note the incon-
sistency in Hutsell 's claim that he did not have , the time
to prepare a written reprimand for Cox's claimed defi-
ciencies , and his admission that he had issued written
reprimands for similar offenses . I credit Cox's denial that
he was ever reprimanded . Cox was a truthful witness,
and his explanation of his occasional absences from .the
office as errands ordered by Hutsell is credited. I also
accept his testimony of the issues of telephone calls with
his girlfriend , and the computerized billing. I note the
abruptness , a matter of only a few weeks, in which Cox
allegedly changed from an exemplary supervisor into one
who had to be terminated.
I credit Cox's testimony that Hutsell advanced eco-
nomic reasons for the discharge during the exit inter-
view . There is no evidence that the Company had any
economic difficulties at that time . To the contrary, Hut-
sell contended that the Company had so much business
he needed additional supervisory help. Hutsell did not
explicitly deny Cox's testimony that Hutsell , during the
KNOXVILLE DISTRIBUTION CO 693
exit intrview, 'told Cox that the Company was not going
to "tolerate" the Union. I credit Cox.
Because of the improbabilities and contradictions in
Respondent's evidence on the reasons for Cox's dis-
charge, and based on my crediting of Cox's testimony on
these matters, I reject Respondent's economic reasons as-
serted to Cox during the discharge interview, and its
other reasons asserted at the hearing. These reasons were
pretextual or recently fabricated. The real reason was the
fact that Cox failed or refused to comply with Respond-
ent's order to discover the identities of the union adher-
ents, together with its suspicion that he knew their iden-
tities.
B. The Discharges of Smith, Surber, and Green on
January 20, 1989
Hutsell's testimony indicates that there were about 9
or 10 drivers in January 1989, and three employees .who
worked only on the dock.6 Hutsell testified that the
Knoxville terminal was a "small operation." A union
meeting was planned for 11 a.m., on January 21, 1989,
and alleged discriminatee Roland 'Smith asked employees
to attend. On the day before the scheduled meeting Janu-
ary - 20, ' Respondent discharged Smith, Surber, and
Green.
Beginning in about September 1988, Surber had been
making deliveries on a route called the "Tri-Cities" run.
Compared to other of the Company's delivery runs, this
involved relatively long distances and working hours.
Surber affirmed that this run Was 2 to 2-1/2 hours "from
Knoxville," and that he was working 50 to 60 hours per
week: ' HutseIl sought a volunteer to help Surber. Smith
offered to assist, and credibly testified that Hutsell
agreed Smith could ask to be relieved of the run if he
did not like it. Beginning in November 1988, Smith ran
the Tri-Cities route on Tuesday and Thursday, and the
"North Knoxville" route on Monday, Wednesday, and
Friday, and 'the North, Knoxville route on Tuesdays and
Thursdays. As Surber agreed, he and Smith simply
"swapped runs." In late December 1988, Smith asked to
be relieved of the Tri-Cities route. However, he never
failed to make the run.
Smith testified that Terminal Manager Hutsell told him
that he was being discharged (on January 20, 1989) be-
cause he had asked to be relieved of the Tri-Cities run
and could not be depended on Hutsell testified that
Smith was discharged because he wanted "easier runs,"
and had a habit of "oversleeping." The terminal manager
claimed that he gave Smith a "verbal warning" about
oversleeping, but Smith denied receiving any warnings
or reprimands prior to his discharge. Smith was a more
6 HutseIl identified Lowell Harvey, Bob Brown, and Tony Bayles as
drivers with greater seniority than Smith, Surber, and Green In Septem-
ber 1988 or thereafter, the Company hired drivers Joe Ferguson, Robert
Burton, and John Scott-a total of nine drivers employed in January
I989 Although James Dowden was also hired as a driver, the parties
stipulated that his hiring date was February 6, 1989 The three employees
who worked only on the dock were Sam Smith, Harlan Ferguson, and
Charles Norman
truthful witness than Hutsell, and I credit his version of
his employment history and the exit mtervie'w.7
Surber testified that Hutsell told him he was being
fired because of a "bad attitude" and "some write-ups" in
his file. The "bad attitude" charge was based on a con-
versation Surber had with Smith which Hutsell over-
heard. Surber told Smith that he hoped the brake valve
on his truck had been fixed, since it might "pop out" and
cause an accident. Hutsell had said nothing at this time.
When, during the discharge conversation, Hutsell gave
this as the reason, Surber replied that Hutsell should also
discharge Green, since the latter had told Hutsell that his
trucks were "nothing but junk."
Hutsell did not dispute Surber's account of the dis-
charge interview. He claimed that the defect in Surber's
truck, had been fixed the same night that the latter re-
ported it, and that his reference to it the following day
manifested a "negative attitude." Hutsell added that
Surber had placed a "wrong placard" on his truck, and
in the fall of 1988, had caused $850 damage to an auto-
mobile. "I should have fired him at that time," Flutsell
testified. However, he did not 'do so, and did not docu-
ment either event with a written warning, because "it
takes time to document." Hutsell picked January 20 as
the date to take action on these matters because he was
getting "pressure" to produce.
Carl Green was fired on January 20, assertedly for
"accidents" and "not calling in" about damage freight.
On the latter occasion, after green delivered some
freight, the unloader noticed a few damaged boxes.
There is no suggestion that Green caused the damage.
He carried the notice of the damage back 10 Hutsell at
the end of his run, and the latter told him that the report
should have been called in. ,
Hutsell characterized Green's accidents as "minor,"
and agreed that other drivers had had more serious acci-
dents, including, in one case, the loss of a driving license,
and in two instances, issuance of written warnings by the
Company In one'case, another driver was involved in a
serous accident resulting in a $20,000 payment by the in-
surance company and placement of _ Respondent in "a
high risk' pool." None of these drivers was discharged.
Nonetheless, Terminal Manager flutsell maintained that
the' combination of Green's minor accidents plus his de-
livering instead of calling in a damage report warranted
his discharge.'
Hutsell testified that he had fired one employee per
year in the prior 3 years. He had never previously fired
three employees in one day, as he did on January 20,
1989.
Smith, Surber, and Green filed unfair labor practice
charges following their discharges. Thereafter, they en-
tered into a non-Board settlement with the Company,
IOn cross-examination, Smith agreed that he told a, state unemploy-
ment compensation office that he was,discharged because he was "not
dependable," but that he did not believe it. Asked why he gave this
reason to the state office, Smith replied, "Well, that's what he said, so
that's what I put down " I do not consider this to be an inconsistency
having any effect on Smith's credibility
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and were reinstated on February 13, 1989. $ Respondent
affirmed at the hearing that one of the reasons for the re-
instatement was- to allow Smith, Surber , and Green to
participate in a Board election on February 22, 1989.
The Union lost the election.
Green and Smith testified without contradiction that,
upon their reinstatement , Company Vice President New-
some held a meeting of all employees in which he said
that he was running a "family operation ," and that they
did not need any "trouble -makers."
C. 'The Alleged Discriminatory Layoff of Smith and
Surber on April 14, 1989
1. Summary of the evidence
'During the period of Smith's and Surber's discharges
from January 20 to February 13, 1989, Respondent used
three other drivers to run the Tri-Cities route.9 Smith
testified without contradiction that Bob Brown and Sam
Smith ran the North Knoxville- route in addition to their
"old routes" during this period.
Upon Smith's and Surber's reinstatement on February
13, 1989, they were reassigned to the Tri-Cities run.io
Smith testified that, at, the end of the day on April 14,
1989, Hutsell, told him that he was, "laid off' the Tri-
Cities run had been "lost because of insurance reasons."
Smith protested that he was,"the ' third man there," that
others hired after he had arrived were being allowed to
stay, and that he had an "excellent driving record." Hut-
sell replied that he was going to handle it' "like TVA,
when the job got cut so did the employee." Surber testi-
fied that Hutsell told him that the Company was going
to "run the Tri-Cities route out of Morristown because
of insurance purposes." Surber argued ' that he was
"fourth on seniority," and Hutsell replied that it did not
make any difference whether Surber had 20 or` 2' years
seniority-"when your lob, is eliminated, then you have
to leave." Surber asked for work on the dock, but Hut-
sell, replied that Dowden was going to be working on
the dock. I'
Smith testified that the Company followed seniority
principles in job assignments. Thus, according to Smith,
Lowell, Harvey had the, highest seniority. On one occa-
sion Harvey complained about his back, and Hutsell ex-
changed routes between Smith and, Harvey, for this
reason. Former Assistant Terminal Manager Cox testified
that other drivers 'complained about preferential treat-
ment given ' to 11 Harvey in that he was allowed to keep his
truck when changing runs. According to Smith, when
8 Respondent contended at the hearing that the three alleged discrimin-
atees had been paid backpay Counsel for the General Counsel stated that
he had no knowledge of the terms of the non-Board settlement, and that
litigation of the allegations was appropriate , despite that settlement
9 Hutsell testified that he used James Dowden, John Scott, and Joe
Ferguson Roland Smith agreed that Dowden and Ferguson were used,
but listed Sam Smith as the other employee As indicated, Hutsell
averred that Smith was used only for work on the dock, while the parties
stipulated that Dowden was not hired until February 9, 1989, i e , 4 days
before the reinstatement of the alleged discrimmate'es"
10 Testimony of Rowland Smith' Hutsell affirmed that other employees
had to rup the Tn-Cities run "for 4 weeks" when Smith and Surber were
gone
11 Dowden was known by the name "Duke" As indicated, he was
hired on February 6, 1989
there were only two runs with Smith and Surber avail-
able, Hutsell gave Smith the choice because of his higher
seniority. Surber corroborated this testimony.
In comparison, to his excellent driving record, Smith
affirmed that other drivers who were allowed to remain
on April 14 had "wrecks and tickets." He identified one
of these as "Yankee Bob."
On direct examination, Hutsell was -asked about "the
Kingsport run." He replied that the "initial thing" he no-
ticed was receipt of a letter from an insurance company
stating that the Company' s premium was $75,500, that it
had "doubled, tripled" because the Company was run-
ning a "wider area," and that it would have to "eliminate
the Kingsport run." He forwarded this letter to "the
main office-terminal in Morristown (Tennessee)."
George Walker, an, insurance agent, testified that the
Company's prior coverage had been canceled because of
losses due to accidents within the prior 2-year period.
Accordingly, he had to seek new coverage, and the new
policy required limitation to a 50-mile radius. Walker tes-
tified that he spoke to, Company Vice President New-
some and Terminal Manager Hutsell about the matter.
"Subsequently," on April 28,, Walker sent Newsome a
letter stating that the new policy limited "operations by
your trucks to a 50-mile radius of the Knoxville termi-
nal."12
Hutsell testified that the distance from Knoxville, to
Kingsport is about 92 miles. These cities are located in
eastern Tennessee. The "main office" is Morristown is
located approximately midway between them. Southeast
of Kingsport is Johnson City, about the same distance
from Morristown as Kingsport. A line connecting the
cities of Knoxville, Morristown, Kingsport, and Johnson
City roughly forms a "Y," -with Knoxville at the base
pointing to the Southwest, Morristown at the intersec-
tion of the arms of the "Y," and Kingsport and Johnson
City' at the ends of the arms pointing to the Northeast. 1'3
' Hutsell asserted that the insurance agent's 'position
meant that the had "two people too many." He was run-
ning "an alternating type schedule" from Knoxville to
Kingsport, using 'Smith and Surber. Accordingly, he had
to lay off two employees. He, called his "boss," presum-
ably Vice President Newsome, and the latter instructed
him to "lay off the 2 people that are running Kingsport."
Hutsell agreed that this was the first time the Company
had laid off employees, and that it was a ."hard decision
to make."
Hutsell testified that "they had discussed . . . a kind, of
relay to Morristown . . . ." The terminal manager was
asked why Respondent did not lay off either Smith or
Surber, and retain the other. His answer was that the
Company had ,"2 people on the run" and had to dis-
charge both of them "to be fair about it."
Hutsell denied that the Company had any formal se-
niority system, or ever accorded special treatment to em-
ployees based on seniority With respect to the accidents,
Hutsell professed that he did not know whether a driver
12 R Exh I The policy itself was not submitted, and there is no evi-
dence as to whether the 50-mile rule applied to the Morristown terminal
131 take judicial notice of p '91 of the 1988 "Rand McNally Road
Atlas" (Rand McNally & Co, Chicago, IL).
KNOXVILLE DISTRIBUTION CO
with a bad driving record might lose his insurance cov-
erage However, Hutsell agreed that the Company did
not want employees with continuous accidents, because
they caused "problems." He was shown a motor vehicle
accident report dated April 7, 1989, on Robert Bruton,
one of his employees, which shows three speeding and
two other violations within a period of about 2-1/2
years.14 Burton, subsequently, became uninsurable and
was taken off driving However he was not discharged.
2. Factual analysis
I credit Roland Smith's testimony that, upon his and
Surber's reinstatement on February 13, 1989, they were
reassigned to the Tri-Cities route. The exact nature of
the run is not set out with specificity in the record. From
its title and the long hours that it required 15 it may rea-
sonably be inferred, and I conclude, that three cities
were involved. It is obvious that one of these cities was
Knoxville. It is also obvious that the route originated in
Knoxville, and carried freight from that area to the other
two cities, with, perhaps, return freight.
It follows that Huttsell's description of Smith's and
Surber's, postreinstatement work-as an "alternating type
schedule" between Knoxville and Kingsport-is not
completely accurate. The third city is not named. The al-
ternating nature of the schedtle was between the North
Knoxville run (or other 'work) and the Tri-Cities run-
this was the same work Smith and Surber had been
doing prior to their discharges.
I credit Smith's and Surber's uncontradicted testimo-
nies that Hutsell told them they were being laid off be-
cause their jobs had been "cut" or "eliminated." There is
no evidence that Respondent had previously established
any such layoff procedure. Hutsell 'acknowledged that
the Company considered the possibility of a "relay" type
delivery from Knoxville to Morristown with, presuma-
ble, another truck carrying the second leg of the relay so
that both legs were under 50 miles. Hutsell did not clear-
ly indicate whether the Company utilized this procedure.
However, in order to comply with the asserted 50-mile
rule, it would have been required to do something like
this-or lose all the business originating in Knoxville
going more than 50 miles east.
Hutsell told Smith that the Tri-Cities run had been
"lost," while he asserted to Surber that the Company
was going to "run it" out of Morristown. These explana-
tions are contradictory, and neither is accurate. The
latter does not articulate how the Company was going to
get freight originating in Knoxville more than 50 miles
from that terminal. If, as Hutsell told Surber, the Compa-
ny was going to "run the route" out of Morristown,
there is no explanation of how it would get Knoxville-
originated freight to Morristown in the first place. It
would have had to, send a Knoxville truck to Morris-
town, or go through the costly procedure of sending a
Morristown truck backward to Knoxville.
There is nothing in the record to indicate that the
Company simply abandoned customers or established
business, and Hutsell's statement to Surber shows that it
14 G.C Exh 7
15 Testimony of Surber.
695
had no intention of doing so. I conclude that the Compa-
ny has not established how it complied with the alleged
50-mile rule when transporting Knoxville-originated
freight more than that distance, without continuing to
use Knoxville facilities and drivers.
For the foregoing reasons, I further conclude that
Hutsell's assertion that he had had "two people too
many" because of the change in insurance coverage was
erroneous Hutsell tacitly admitted this by his testimony
that he laid off two drivers rather than one because "it
was the fair thing to do. I reject Respondent's implied
position that an employer, faced with economic reasons
for a layoff, must lay off employees ' for whom it has
work in order to be fair to those for whom it has none.
Because of the contradictions and ambiguities in Re-
spondent's evidence, I conclude that it has not estab-
lished that business reasons required it to lay off any em-
ployees on April 14,'1989.
Assuming arguendo that the Company had valid busi-
ness reasons requiring it to lay off employees, the evi-
dence does not establish that its selection of Smith and
Surber was based on established practice or business con-
siderations. There is no evidence of a prior rule requiring
discharge or layoff if a job was "eliminated," and, as in-
dicated, insufficient evidence that any job in fact had
been "eliminated."
I credit the testimony of Smith, Surber, and Cox that
preferential treatment on occasion was given to employ-
ees with more seniority, and I reject Hutsell's averment
that he never did so. Hutsell did not specifically deny
the testimonies of the General Counsel's witnesses, and
was not as reliable a witness. The record is clear that, on
April 14, 1989, Respondent laid off Smith and Surber
while retaining at least two employees with less seniori-
ty.
I credit Smith's testimony that "Yankee Bob" contin-
ued to be retained despite "wrecks and tickets" on his
driving record, and other evidence that the Company
kept Robert Burton despite 'traffic violations leading to
loss of his driving license. I credit Smith's testimony that
he had an excellent driving record and that he argued
this fact to Hutsell at the time of the April 14 layoff. In
fact, Respondent has advanced no evidence against
Smith's capacity as a driver.
Although Hutsell claimed that Surber had damaged a
vehicle prior to his January 20 discharge, the terminal
manager never documented this assertion, there is no evi-
dence of a motor vehicle report showing violations by
Surber, and it is clear that Respondent on April 14, 1989,
retained drivers with worse records than Surber's. It is
also obvious from the testimony of Respondent's witness,
Walker, that the Company's prior, insurance was can-
celled because of auto accidents. Hutsell incredibly
denied knowledge that a bad driving record might lead
to loss of insurance, but admitted that drivers with con-
tinuous accidents were not good for the Company.
Nonetheless, it retained other drivers with worse records
than Smith's and Surber's on April 14, 1989.
Respondent subsequently offered reinstatement to
Smith and Surber. Smith accepted but Surber declined.
Hutsell testified that the Company later lost its principal
696 DECISIONS OF THE'NATIONAL LABOR RELATIONS BOARD
account, and that he and,Smith were laid off on July 14,
1989. The, Company retained only three employees: I
credit this uncontradicted.testimony.
D. Legal Analysis and Conclusion
1. The discharge of Cox
It is established law that an, employer violates, Section
8(a)(1) of the Act,by dischargingra supervisor for- refus-
ing to commit unfair labor practices or because, he failed
to prevent unionization. 16 As the Board has stated, such
action "demonstrated graphically- to, rank-and-file em-
ployees the extreme measures', to ;which the , offen ding
employer will, resort in order, to'thwart them in their
desire to join or assist a labor, organization." Jackson Tile
Mfg. Co., 122 NLRB 764, 767 (1958).
As set forth above,, Hutsell's statements to Cox demon-
strated strong union animus. Hutsell's direction, to Cox to
ascertain the identities of the union sympathizers so that
they could be discharged constituted an order for Cox to
commit an unfair labor practice.-From"the fact that Cox
failed or refused to compl-with` this Order; because of
Respondent's suspicion that-"Cox was withholding infor-
mation about the Union, and because of"the precipitate
nature" of'Cox's alleged metamorphosis from a praisewor-
thy supervisor into one warranting discharge, I conclude
that Cox's refusal to comply with the "Order was the
reason for his termination.'Phe various reasons advanced
by Respondent are pretexts as set forth above. Accord-
ingly, I find, by discharging Cox on December 2, 1988,
because he refused to commit an unfair labor practice,
Respondent thereby 'violated Section 8(a)(1) of the Act
2. The discharges of Smith, Surber, and Green on -
January 20, 1989
A threshold issue is whether this allegation of the
complaint should' be dismissed because of the prior
charges filed by the alleged discriminatees involving the
January 20 discharges, 'and the fact that they entered into
a non-Board settlement 'with Respondent In a recent
case 'where the employee entered into a similar agree-
ment with the employer providing, inter alia, for the
payment of a sum of-money, the Board refused to strike
the'allegation from the complaint. Although the Region-
al Director had approved withdrawal of the charge, lie
was not a party to the non-Board settlement and was, not
estopped from proceeding on any new charges alleging
the same conduct, as the withdrawn charge. Auto Bus,
Inc., 293 NLRB,855 (1989)
This principle is controlling in the instant case. Assum-
ing that the Regional Director herein approved -with-
drawal of the original charges, he was not a party to the
settlement agreement,, and may ' appropriately issue a
complaint based on the' same conduct as that which' pre-
cipitated the original charges. Respondent protested at
the hearing that it had already paid backpay to the em-
ployees: However, this was .also the casein Auto Bus,
supra, and the General Counsel in this-proceeding agreed
that any such sums could 'be offset against any backpay
II See authorities cited in - Parker-Robb Chevrolet, 262' NLRB 402, 403
fns ^7, 8 (1982)
found to _be due. Accordingly;)- I deny Respondent's
motion to-strike , this allegation from 'the complaint.
-The General Counsel has - the burden of establishing a
prima facie case that is sufficient to, support an inference
that 'protected conduct was a motivating=factor̀ 'in Re-
spondent 's decision to discipline an employee. Once this
is, established, the burden shifts to Respondent to demon-
strate that the discipline would have 'been administered
even in the absence of the protected conduct.17
As set forth above, Smith , Surber, and Green engaged
in organizational activities , including , in Green 's case the
distribution of union -pamphlets 'in November 1988. Re-
spondent learned that an organizational campaign- was
taking place , manifested strong union - animus in state-
ments to and the unlawful discharge of Assistant Termi-
nal Manager Cox, and made a' determined ' effort to learn
the identities of the union adherents.
The size of Respondent's Knoxville terminal is not set
forth specifically in the record. However, Terminal Man-
ager Hutsell described it 'as a
.
"small," or "spare change
operation .". There were about 9 or ' 10 drivers , and-about
3-employees who worked on the dock.
A union meeting Was scheduled ; for January 21, 1989.
Smith, - Surber, and Green ' Were- discharged the day
before this meeting, the first time ' that 'any three employ-
ees had been discharged by' Terminal Manager Hutsell
during the approximately 3 ,years, he had been the termi-'
nal manager . The reasons advanced by'Respondent for
the discharges of the three , empioyees were 'unrelated to
one another. -
I conclude that Respondent had knowledge that the
three alleged discr-iminatees had engaged in union activi-
ty, because of the , simultaneity of ,the ,discharges of three
employees for unrelated reasons, "the fact that this was
the first time three , employees had, ever been discharged
at the same time, and,the ,timing of the discharges-1 day
before a union meeting. Abbey's Transportation. Services v.
NLRB, 837 F . 2d 575 (2d Cir. 1988-), enfd. 284 , NLRB 696
(1987). In addition , an inference of company knowledge
is warranted because the Knoxville terminal was, a "small
operation," with only 10-15 employees and an employer,
actively engaged in discovering the identities of the
union adherents. -' s
- Based on Respondent 's strong ; . union animus and
knowledge of the alleged discriminatees ' union activities,
I conclude that the General Counsel has established a
prima facie case that those activities were a motivating
factor in Respondent 's decision to discharge them
Respondent has not established' ,that it would have dis-
charged the three employees -in, the absence of their pro-
17 Wright Line, 251 NLRB 1083(1980), enfd 662° ii 2d t89 (1st Cir
1981), cert denied 455-U S 989, approved'm NLRB v. Transportation
Management Corp., 462 U S 393, (1983) The test set, forth above applies
regardless of whether the case involves pretextual reasons or dual moti-
vation Frank Black Mechanical Services, 271-f LRB 1302, fn 1 (1984)
"[A] finding of"pretext necessarily means that the 'reasons advanced by
the employer either did not exist or were not in. fact relied upon, thereby
leaving intact the inference of wrongful motive established by the Gener
al Counsel" Limestone Apparel Corp, 255 NLRB 722 (1981), enfd 705
F 2d 799 (6th Or 1982)
18 Breuer Electric Mfg Co, 184 NLRB 190 (1970), American Grinding
& Machine Co, 150 NLRB 1357 (1965)
"KNOXVILLE DISTRIBUTION CO.
tected activity. Smith was_not "undependable" because
he asked to be relieved of the Tri-Cities run in December
1988-Hutsell had agreed that Smith, a volunteer on the
run, could ask to be relieved. Surber's asserted "bad atti-
tude" was based on his expressed concern about the
brakes on his truck in a conversation with another em-
ployee, which Hutsell happened to overhear. In light of
Respondent's insurance problems because of accidents,
Surber's "attitude" should have been characterized as ap-
propriate. Although Surber and Green both had acci-
dents, Hutsell did not bother to document Surber's,
called Green's a "minor" matter, and retained drivers
with worse driving records. The extent to which Re-
spondent labored to dredge up reasons for discharge is
demonstrated by its criticism` of Green for hand-deliver-
ing a damage report instead of calling it in. I conclude
that all these reasons are pretexts, and that the actual
reason for the discharges of these three employees on
January 20, 1989, was their union activities. I, therefore,
find that, by such discharges, Respondent committed
unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act. '
3. The-layoffs of Smith and Surber on
April 14, 1989
Respondent 's union animus prior to the January 20 dis-
charges is described above. There is evidence that this
animus continued following the reinstatements of the
three employees on February 13, 1989. Company Vice
President Newsome then told employees that he was
running a "family operation,"' and did not need any
"troublemakers." I, therefore, conclude that the General
Counsel has established a prima facie case that the lay-
offs were discriminatorily motivated.
Respondent has not demonstrated that it would have
laid off Smith and Surber absent their protected activi-
ties. As described above, Hutsell's testimony tends to' ob-
scure rather than clarify what changes in operation, if
any, Respondent made for insuiance reasons. Nowhere is
there any credible evidence that it lost business at that
time and its handling of Knoxville-originated freight re-
mains unexplained. Even if the Company had validly
concluded that it should charge one or two employees,
impartial business considerations and past practice would
have warranted the layoffs of drivers with worse driving
records and less seniority Because of Respondent's fail-
ure to establish that valid business considerations were
the reason for the layoff, I further conclude that they
were discriminatorily motivated, and constituted addi-
tional unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1 The Respondent, Knoxville Distributing Company,
is an employer engaged in within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Local Union No. 519, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO is a
697
labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Joseph C. Cox, a supervisor, on De-
cember 2, 1988, because he failed and refused to commit
unfair labor practices, Respondent thereby committed an
unfair labor practice within the meaning of Section
8(a)(1) of the Act.
4. By discharging on January 20, 1989, employees Mi-
chael Surber, Roland Smith Jr., and Carl Green Jr., be-
cause of their union activities and sympathies, and, after
reinstating the employees, laying off Surber and Smith
on April 14, 1989, for the same reason, Respondent
thereby committed unfair labor practices within the
meaning of Section 8(a)(3) and (1) of 'the Act.
5. The foregoing unfair 'labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
It having found that the Respondent has engaged in
certain unfair labor practices, it is recommended that It
be ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
It is clear that the appropriate remedy for the unlawful
discharge of Supervisor Joseph C. Cox would normally
be reinstatement and backpay. Advertiser's Mfg. Co„ 280
NLRB 1185 (1986), enfd. 823 F.2d 1086 (7th Cir.
1987).19 Since Respondent's Knoxville operation was re-
duced in size to about three employees on July 14, 1989,
it is unclear that there is work for Cox at that location.
However, Respondent has another terminal at Morris-
town, and Cox is entitled to an offer of reinstatement at
that facility or to the Knoxville terminal. Superior Ware-
house Grocers, 277 NLRB 18, 27 (1985). Such offer shall
make available to Cox former position, or, if that posi-
tion no longer exists, substantially equivalent position,
without loss of seniority or other rights and benefits.
If in the course of compliance investigation it is con-
cluded that Cox would have been retained at Knoxville
or offered a position in Morristown, the backpay period
shall continue until a valid offer of reinstatement is made
to him. If, however, it is determined that Cox would
have been laid off on or about July 14, 1989, his backpay
period shall terminate as of such date (ibid). Cox shall be
paid the amount he would have earned from the date of
his unlawful discharge to the date of an offer of rein-
statement or until termination of his backpay period,
whichever first occurs, less net interim earnings.
Inasmuch as Respondent reinstated Michael Surber,
Roland Smith Jr., and Carl Green Jr., following its un-
lawful discharges of them on January 20, 1989, and paid
them some backpay, to such extent Respondent has par-
tially remedied those unfair labor practices. However,
the appropriate amount of backpay has not been ascer-
tained, and will consist of the amount of money they
would have earned from the dates of their unlawful dis-
charges to the dates of their reinstatements, less interim
earnings, as determined in the compliance stage of this
'9 See also In 14, supra,
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proceeding. As agreed by the General Counsel, amounts
of backpay previously paid by Respondent shall be offset
against amounts herein determined to be due.
Since Respondent has already offered reinstatement to
Michael Surber and Roland Smith Jr., following its un-
lawful layoffs of them on April 14, 1989, to this extent
Respondent has partially remedied those unfair labor
practices. However, Surber and Smith are entitled to be
made whole for any losses they may have suffered be-
cause of the unlawful, layoffs by payment to each of
them a sum of money equal to what he would have
earned from the date of his layoff to ^ the date of Re-
spondent's offer of reinstatement, less net interim earn-
ings.
The computation of backpay amounts due herein shall
be made on a quarterly basis in the manner established
by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).20
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, I recommend the follow-
ing2 i
ORDER
The Respondent , Knoxville Distributing Company,
Knoxville, Tennessee , it officers , agents, and representa-
tives, shall
1. Cease and desist from
(a) Discouraging membership in Teamsters Local
Union No. 519, affiliated with the International' Brother-
hood of Teamsters , Chauffeurs , Warehousemen and"
Helpers of America, AFL-CIO, or any other labor orga-_
nization , by discharging or laying off employees because
of their union activity , or by discriminating against them
in any other manner with regard to their hire , tenure of
employment, or terms and -conditions of employment.
(b) Interfering with , restraining , or coercing employees
by discharging supervisors because they fail and refuse
to commit unfair labor practices.
20 Under New Horizons, interest is computed ai the 'short term Federal
rate`4 for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before January 1, 1987 (the effective
ate of the amendment) shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977),
21 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the' findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(c) In any_ like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Joseph C. Cox full reinstatement to his
former position at Respondent's Knoxville, Tennessee or
Morristown, Tennessee terminal; or if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of earnings he
may have suffered because of Respondent's unlawful dis-
charge of him in the manner described the remedy sec-
tion of this decision.
(b) Make whole Michael Surber, Roland Smith Jr.,
and Carl Green Jr., for any losses of earning they may
have suffered" by reason of Respondent's unlawful dis-
charges of them on January 20, 1989, in the manner de-
scribed in the remedy section of this decision.
(c) Make whole Michael Surber and Roland Smith Jr.
for any losses of -earnings they may have suffered by
reason of Respondent's unlawful layoffs of them on April
14, 1989, in the manner described in the remedy section
of this decision.
(d) Preserve and, on request, make available to the
Board or, its agents, for copying, all payroll records,
social security payment records, timecards, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its Knoxville, Tennessee plant copies of the
attached notice marked "Appendix "22 " Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by,the Respondent to ensure that the no-
tices are not altered, defaced, or covered by ,any other
material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what 'steps the Re-
spondent has taken to comply.
22 If this,Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "