M.D. Miller Trucking and Topsoil, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1225 (N.L.R.B. 2014)

M.D. MILLER TRUCKING & TOPSOIL, INC. 1225
M.D. Miller Trucking & Topsoil, Inc. and General
Teamsters Local Union No. 179, affiliated with
International Brotherhood of Teamsters. Case
13–CA–104166
December 16, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On April 9, 2014, Administrative Law Judge Ira San-
dron issued the attached decision. The Respondent filed
exceptions with a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply
brief. In addition, the General Counsel filed cross-
exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2
In affirming the judge's findings, we agree that the
statements made by Marlene Miller to employee Edward
McCallum, and subsequently repeated by Chad Miller to
the Union, that McCallum would “get nowhere” by filing
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
The Respondent excepts to the judge’s finding that it violated Sec.
8(a)(1) by threatening loss of overtime and engaging in direct dealing.
The Respondent, however, does not state, either in its exceptions or
supporting brief, any grounds on which these purportedly erroneous
findings should be overturned. Therefore, in accordance with Sec.
102.46(b)(2) of the Board’s Rules and Regulations, we shall disregard
these exceptions. See Holsum de Puerto Rico, Inc., 344 NLRB 694,
694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
The General Counsel excepts to the judge’s conclusion that the Re-
spondent violated only Sec. 8(a)(1) when it engaged in direct dealing,
instead of Sec. 8(a)(5). Because direct dealing violates an employer’s
obligation to bargain in good faith, we find merit in the exception.
Permanente Medical Group, Inc., 332 NLRB 1143, 1144 (2000). This
finding does not necessitate any changes to the judge’s remedy or Or-
der.
We further find that the judge's decision to bar the Respondent from
presenting certain evidence as a sanction for the Respondent’s failure to
fully comply with subpoenas duces tecum from the General Counsel
and the Union was not an abuse of discretion, as the subpoenas sought
information relevant to the matters at issue. See McAllister Towing &
Transportation Co., 341 NLRB 394, 396–397 (2004), and cases cited
therein, enfd. 156 Fed.Appx. 386 (2d Cir. 2005).
2 We adopt the judge’s remedy concerning filing a report with the
Social Security Administration and lump-sum backpay, consistent with
our decision in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB 101 (2014).
a grievance, constituted unlawful threats of futility in
violation of Section 8(a)(1). The Respondent argues that
these statements did not violate the Act because Miller
was simply opining on the merits of a potential griev-
ance. We reject this argument in light of the circum-
stances surrounding Miller's statements: the Respondent
was undermining the Union by engaging in direct deal-
ing; Chad Miller had just unlawfully threatened loss of
overtime; and McCallum had just been unlawfully dis-
charged in a heated environment.3 Under these circum-
stances, an employee would reasonably conclude that it
would be futile to file a grievance because the Respond-
ent would make sure it went nowhere. The reasonable-
ness of this conclusion is further supported by the fact
that the Respondent subsequently, in effect, made sure
that McCallum’s grievance “went nowhere” by unlawful-
ly refusing to reinstate him. Accordingly, we agree with
the judge that Miller’s statements “conveyed the impres-
sion that the contractual grievance procedure was futile,”
in violation of Section 8(a)(1) of the Act. Prudential
Insurance Co., 317 NLRB 357, 357 (1995).4
Further, we find that the Respondent violated the Act,
as alleged in the complaint, because it refused to accept
McCallum’s current medical certification and required
him to complete multiple medical certifications before he
could return to work; we do not rely on the judge’s con-
clusion that the Respondent's conduct amounted to an
“effective termination.”5 However, because there is no
practical difference between ordering reinstatement and
ordering the Respondent to accept McCallum’s current
medical certification, which necessitates his reinstate-
3 There are no exceptions to the judge’s finding that McCallum en-
gaged in protected conduct at the April 11 meeting.
4 Member Johnson respectfully disagrees with his colleagues' finding
that Miller’s statements about the grievance constituted unlawful
threats. In his view, Miller’s statements amounted to her subjective
opinion about the merits of a potential grievance. Sec. 8(c) of the Act
protects the right of employers and their agents to offer their opinions,
provided they do not contain any threats or promises of benefits. Miller
was entitled to have the view that McCallum’s grievance would be
meritless, and, under Sec. 8(c), she was entitled to express that view.
Sharples Coal Corp., 264 NLRB 818, 821 (1982).
5 Because we agree with the judge's finding that the Respondent's al-
leged reliance on the medical certifications was pretextual, we need not
determine whether the judge erroneously refused to consider Federal
Motor Carrier Safety Administration regulations. The issue here is the
Respondent’s motivation, not the substance of the regulations. See,
e.g., Southern Mail, Inc., 345 NLRB 644, 646–647 (2005) (finding that
the employer’s prior lax approach to DOT regulations undermined its
post-union activity zeal in enforcing them).
Member Johnson notes that, generally, an employer's decision to
send an employee for additional medical evaluation, when warranted, is
not evidence of animus. In these circumstances, however, where
McCallum complied with the requirement to get clearance from an
FMCSA-certified doctor yet was still not reinstated, he would find the
Respondent’s actions to be pretextual.
361 NLRB No. 141

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226
ment after his successful grievance, we find it unneces-
sary to modify the judge’s reinstatement language in the
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, M.D. Miller Trucking &
Topsoil, Inc., Rockdale, Illinois, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.6
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT terminate or otherwise discriminate
against you because you object to cuts in wages or other
benefits mandated by our collective-bargaining agree-
ment with General Teamsters Local Union No. 179, affil-
iated with International Brotherhood of Teamsters (the
Union), or file grievances pursuant to the provisions of
that agreement.
WE WILL NOT bypass the Union and deal directly with
you concerning your wages or other benefits, or any oth-
er mandatory subjects of bargaining.
WE WILL NOT tell you that your filing of grievances
would be futile.
WE WILL NOT threaten you with loss of overtime or
other benefits when you object to cuts in wages or other
benefits mandated by our collective-bargaining agree-
ment with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
under Section 7 of the Act, as set forth at the top of this
notice.
6 We shall substitute a new notice to conform with Durham School
Services, 360 NLRB 694vcbnjmkl.,mnb (2014).
WE WILL within 14 days from the date of the Board’s
Order, offer Edward McCallum full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Edward McCallum whole for any loss
of earnings and other benefits resulting from his unlawful
termination.
WE WILL reimburse Edward McCallum an amount
equal to the difference in taxes owed upon receipt of a
lump-sum backpay payment and taxes that would have
been owed had there been no discrimination against him.
WE WILL submit the appropriate documentation to the
Social Security Administration (SSA) so that when
backpay is paid to Edward McCallum, SSA will allocate
it to the appropriate periods.
WE WILL remove from our files any reference to our
unlawful termination of Edward McCallum, and WE
WILL, within 3 days thereafter notify him in writing that
this has been done and that the termination will not be
used against him in any way.
M.D. MILLER TRUCKING & TOPSOIL, INC.

The Board’s decision can be found at
www.nlrb.gov/case/13–CA–104166 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

Kevin McCormick, Esq., for the General Counsel.
Alan F. Block, Esq. (Block & Landsman), for the Respondent.
Brian C. Hlavin (Baum, Sigman, Auerbach & Neuman, Ltd.),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case arises
out of a December 9, 20131 complaint and notice of hearing
(the complaint) stemming from unfair labor practice charges,
that General Teamsters Local Union No. 179, affiliated with
1 All dates are in 2013, unless otherwise indicated.

M. D. MILLER TRUCKING &TOPSOIL, INC. 1227
International Brotherhood of Teamsters (the Union) filed
against M.D. Miller Trucking & Topsoil, Inc. (the Respondent
or the Company). The complaint alleges that the Respondent
committed violations of Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act) involving driver Edward
McCallum.
I conducted a trial in Chicago, Illinois, on February 19 and
20, 2014, at which I afforded the parties full opportunity to be
heard, to examine and cross-examine witnesses, and to intro-
duce evidence.
At the conclusion of the hearing on February 20, 2014, I set
Friday, March 28, 2014, as the due date for the filing of briefs.
On that date, the Respondent’s counsel mistakenly attempted to
file his brief with Region 13. The following Monday, March
31, 2014, he filed it with the Division of Judges. In the circum-
stances, and in the absence of any foreseeable prejudice to the
General Counsel or the Union, I will accept the Respondent’s
brief. However, I will not consider as evidence what it asserts
are Federal Motor Carrier Safety Administration regulations,
inasmuch as they were not made part of the record.
Issues
(1) Following McCallum’s discharge on April 11 for his
conduct at a group meeting that day, and an April 22
grievance panel decision ordering him reinstated with
backpay, did the Respondent, on and after April 22, ef-
fectively terminate his employment by requiring him to
submit additional medical documentation, because (1)
McCallum voiced objections at the April 11 meeting to
any cuts in drivers’ contractual wages or other benefits,
and (2) he filed grievances on April 15, one of which
was over his April 11 discharge?2
(2) At said April 11 meeting, did President and Owner
Marlene Miller (Ms. Miller) bypass the Union and deal
directly with its unit employees by soliciting them to
accept a cut in wages or other benefits mandated by the
collective-bargaining agreement?
(3) At the meeting, did Ms. Miller inform McCallum that it
would be futile for him to file a grievance over his dis-
charge?
(4) At the meeting, did Supervisor Chad Miller, Ms. Mil-
ler’s son, threaten McCallum with loss of overtime after
McCallum objected to any cuts in wages or other bene-
fits mandated by the collective-bargaining agreement?
Witnesses and Credibility
McCallum and Union Business Agent and Secretary-
Treasurer Gregory Elsbree testified on behalf of the General
Counsel. Ms. Miller, Miller, and driver Frederick Crownhart
testified for the Respondent.
Credibility resolution is the key to deciding this case. For all
of the following reasons, I credit the testimony of McCallum
and Elsbree where it diverged from that of the Millers and
Crownhart. McCallum did not appear to hesitate or equivocate
when answering questions, both on direct and on cross-
examination, and his testimony on direct and on cross-
2 The April 11 discharge is not per se before me but is integrally
connected to the April 22 termination.
examination was quite consistent. In this regard, he did not
appear to attempt to minimize the effects of the multiple sclero-
sis with which he was diagnosed in May 2010. Moreover, Els-
bree substantially corroborated him.
McCallum and Elsbree may have exaggerated Miller’s use of
profanity in their respective conversations with him, and I be-
lieve that McCallum did get more upset at the April 11 meeting
than his testimony portrayed. However, any such exaggeration
paled in comparison to the unbelievable depiction of
McCallum’s conduct at the April 11 meeting as described by
the Millers, particularly Ms. Miller. I will specify the portions
of their testimony that rang false, starting with that meeting.
Thus, Ms. Miller testified that after she suggested that driv-
ers might take a pay cut as one of the options for helping the
Company to stay financially afloat, McCallum “started yelling
and screaming and swearing about his insurance. . . .3” Ac-
cording to her account, after she replied that she was not talking
about insurance, he kept repeating, “I’m not doing anything for
this company. I don’t care what happens to this company,” and
said, “I don’t give a f—k about anybody but myself.”4 Miller’s
account was similar but less detailed. I find their testimony
incredulous to the point of ludicrous. I cannot believe that
McCallum would have unleashed a tirade in response to her
request that the drivers consider a cut in pay. If McCallum was
concerned with his health insurance benefits, it makes no sense
that he would have stated that he did not care what happened to
the Company. The imputed statement, “I don’t give a f—k
about anybody but myself” sounds quite farfetched, particularly
when uttered at a group meeting attended by coworkers with
whom McCallum had worked for years. If this was the first
time in 11 years as an employee that McCallum engaged in
such egregious behavior, it would have been totally out of char-
acter; if he had sworn to her to such an extent before, it is in-
conceivable that she would not have fired him earlier. For
reasons to be stated, driver Crownhart was not a fully credible
witness. Nevertheless, nowhere in his testimony did he indicate
that McCallum used any profanities, and he thus failed to cor-
roborate the Millers’ testimony that McCallum did so.
Similarly incredible was Ms. Miller’s description of
McCallum’s conduct at the grievance hearing on April 22. She
testified that he started off by “yelling” how bad a company the
Respondent was, accused her of trying to take away her insur-
ance, and “kept degrading” the Company.5 This undoubtedly
overblown depiction further undermines my faith in the relia-
bility of her testimony.
Both Millers testified that McCallum looked markedly ill
and/or infirm when they observed him at work in 2012. Thus,
Ms. Miller testified that when she observed him on a couple of
occasions in the summer of 2012, “His face was very flushed.
He was pulling his left leg. He had trouble moving. He was
slow, very slow. He—He had physical difficulties.”6 Howev-
er, when she was asked if she ever discussed those difficulties
with him, she answered, “No. I didn’t want to say anything to
3 Tr. 245.
4 Tr. 359–360.
5 Tr. 363–364.
6 Tr. 352.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228
him,”7 without offering an explanation. Miller testified that in
2012, he frequently observed McCallum having difficulty get-
ting in and out of the truck cab and that this problem worsened
through time.
Their testimony is wholly undermined by their allowing him
to continue to work throughout 2012 and then calling him back
to work in 2013. In this respect, there is no evidence that either
of them ever expressed a concern, or even spoke to him, about
his physical condition impacting his work performance, even
though Ms. Miller testified that she had many conversations
with him about the treatments that he was receiving.
Ms. Miller testified that on April 11, after McCallum had
been discharged and was being escorted out, she observed his
truck poorly maintained, and that this would have been an addi-
tional reason for firing him. There is not a scintilla of evidence
in the record that McCallum was ever reprimanded for not
properly maintaining his truck in the 11 years that he was an
employee. That she happened to notice such dereliction imme-
diately after his discharge is remarkably coincidental—and
wholly unbelievable. In this respect, she testified that, at the
April 22 grievance hearing, she produced pictures of his alleged
poor maintenance of his truck; however, no such pictures were
submitted to me.
Ms. Miller claimed that McCallum had previously been di-
rected to provide medical long forms on a regular basis, but his
personnel file contained only one long form prior to 2013, for
2010. Moreover, the Respondent provided no explanation of
why, prior to April 2013, it did not direct McCallum to provide
an updated long form after the 2010 form expired on July 10,
2012. In this regard, the Respondent failed to call the clerical
employee who maintains those records, Cathy Miller, who is
Miller’s wife and Ms. Miller’s daughter-in-law. The complaint
does not allege Cathy Miller as an agent, and I need not decide
whether she was, because of her familial connections, an
“agent.” Suffice to say, the unexplained inconsistency between
these facts and Ms Miller’s testimony further diminishes Ms.
Miller’s overall credibility.
I will not detail every instance where Ms. Miller’s initial tes-
timony differed from what was contained in her affidavit to the
Region. I will cite but one example here. Ms. Miller testified,
contrary to McCallum and Elsbree, that McCallum brought up
his health insurance at the April 22 grievance meeting. How-
ever, it was later stipulated that in her affidavit, she said noth-
ing about McCallum mentioning insurance.
Finally, the marked contrast in the degree of detail she pro-
vided about what was said at the April 11 meeting also weighs
against her believability. Thus, she was quite detailed in de-
scribing how she opened the meeting, and her interaction with
McCallum. It is uncontroverted that after that, Miller interject-
ed, and a heated exchange ensued between him and McCallum.
However, when I asked Ms. Miller what they said to each oth-
er, she conveniently professed not to recall any specifics. Some
extraordinary circumstance might explain this dichotomy in her
memory, but if one exists, it is not in the record. Accordingly, I
draw an adverse inference from such contrast.
7 Ibid.
As noted earlier, Crownhart painted a far less egregious pic-
ture of McCallum’s conduct at the April 11 meeting than did
the Millers, but he was not a fully credible witness. Thus, he
testified that he listened to what Ms. Miller and McCallum said
but then totally tuned out the subsequent conversation between
McCallum and Miller and, therefore, could recall nothing of
what they said to each other. The normal reaction would have
been to listen more carefully to a heated exchange, not less so,
and I am convinced that Crownhart’s professed complete lack
of recall, as was the case with Ms. Miller, was not bona fide.
In making my credibility assessments, I have not had to rely
on my observations of witness’ demeanor, but I am cognizant
of the following. Ms. Miller was melodramatic during portions
of her testimony, and her attempt to convince me that
McCallum greatly upset her by his alleged profane outburst at
the April 11 meeting was obvious—and unpersuasive. Both by
his testimony and the reticence with which he answered ques-
tions, Crownhart struck me as a reluctant witness who was not
fully forthcoming. Miller seemed uncomfortable and some-
what impatient, leading me to suspect that he might be prone to
losing his temper and that he might have over reacted to what
McCallum said to Ms. Miller at the meeting.
Subpoena Issues and Ruling
Both the General Counsel and the Union requested issuance
of pretrial subpoena duces tecum.8 At no time did the Re-
spondent make a motion to quash or clarify any portion of ei-
ther. When the Respondent’s counsel attempted to show,
through witness Crownhart, that a practice existed before 2013
that employees submit both medical cards and long forms, the
General Counsel and the Union objected on the basis of sub-
poena noncompliance.
Paragraph 3 of both subpoenas requested, “Any and all doc-
uments showing communications from Respondent to Re-
spondent’s employees regarding providing medical documenta-
tion for the period January 1, 2010, to the present.” The Re-
spondent furnished medical documents that employees submit-
ted during the calendar year 2013, but nothing that they submit-
ted earlier. When I asked why pre-2013 documents were not
provided, Mr. Block replied that “[i]t was just a miscommuni-
cation” and later explained, “[W]e interpreted No. 3 as any kind
of shop rules . . . or regulations. . . . We admit there are no such
written rules,” but he then averred that the Respondent had
evidence of a pattern and practice.9 Since there were no rules
either before or during 2013, this explanation fails to satisfacto-
rily explain why only 2013 documents were submitted. Mr.
Block’s further explanation that the 2013 documents were vol-
untarily submitted “[i]n an abundance of caution,”10 even
though he determined that they were not required by the sub-
poena, flies in the face of real-world litigation and is totally
unconvincing.
Paragraph 10 of both subpoenas called for production of
“Any and all lists showing information regarding employee
medical cards for the time period January 1, 2010 to the pre-
sent.”
8 GC Exh. 17; CP Exh. 1.
9 Tr. 273, 276–277.
10 Tr. 280.

M. D. MILLER TRUCKING &TOPSOIL, INC. 1229
In response, the Respondent furnished medical cards and cer-
tain medical test results, both pre-2013 and 2013, only for
McCallum but not for any other employees. Again, both the
General Counsel and the Union objected to the Respondent’s
introduction of evidence pertaining to other employees, on the
basis of subpoena noncompliance. Mr. Block responded that
the Respondent maintains no lists and that neither subpoena
asked the Respondent to provide all medical cards and long
forms back to 2010. However, if that had been the Respond-
ent’s interpretation of paragraph 10, then it logically would
have provided no documents in response. Yet, it produced
McCallum’s records. Significantly, Ms. Miller’s affidavit con-
tained a statement that Cathy Miller “maintains a sheet that
says when somebody’s card is expired and when they need a
new one.”11 The Respondent offered no such lists at trial, or an
explanation for why not. Taking these factors into account, I
found the Respondent’s explanation unpersuasive.
Based on the above, I granted the General Counsel’s and Un-
ion’s motions to bar the Respondent from presenting evidence
of a purported practice prior to 2013 of requiring employees to
submit both cards and long forms. I determined that this was
an appropriate sanction for the Respondent’s failure to fully
produce requested documents. See Perdue Farms, 323 NLRB
345, 348 (1997), affd. in relevant part 144 F.3d 830, 833–834
(D.C. Cir. 1998), and Packaging Techniques, Inc., 317 NLRB
1252, 1253 (1995). To have done otherwise would have sub-
verted the purpose of pretrial subpoenas duces tecum by poten-
tially jeopardizing the General Counsel’s ability to present his
case in a timely and orderly fashion, and risked undue prolon-
gation of the hearing.
I must note that any claim by the Respondent that it had a
“policy” prior to 2013, of requiring drivers to have on file cur-
rent long forms, is refuted by the undisputed fact that
McCallum’s long form expired on July 10, 2012, yet the Re-
spondent allowed him to continue to drive through the remain-
der of 2012, and even called him back to work in April 2013,
without his submission of an updated long form.
Facts
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents, stipulations, and
the thoughtful posttrial briefs that the General Counsel, the
Union, and the Respondent filed, I find the following.
The Respondent’s Business Operation
The Respondent, an Illinois corporation, with a principal
place of business located in Plainfield, Illinois, has been en-
gaged in the business of hauling materials by truck to and from
construction sites. The Respondent has admitted Board juris-
diction as the complaint alleges, and I so find.
Marlene Miller, the Respondent’s president and owner, has
operated the business for about 23 years. As of April 11, it
employed 11 drivers and 1 office employee (Cathy Miller,
Chad Miller’s wife). At all times material, Chad Miller has
been the dispatcher and a supervisor. For the past 6 or so years,
Respondent’s sole customer has been D. Construction, a road
11 Ibid (representation of the General Counsel, which the Respondent
did not dispute).
construction company. Ms. Miller operates out of her home in
Plainfield, but the drivers work out of the Respondent’s shop
situated at the D. Construction site in Rockdale, Illinois. The
drivers work seasonally: In spring, summer, and fall, and in
early winter, depending on weather and customer needs. The
operation shuts down when the weather is too cold or rainy.
At all times material, the Respondent has agreed to be bound
by the collective-bargaining agreement between the Contractors
Association of Will and Grundy County (the Association) and
the Union. Thereby, the Respondent has agreed to recognize
the Union as the exclusive bargaining representative of a unit
consisting of all of the Respondent’s full-time and regular part-
time drivers who perform truck hauling work encompassed by
article1.4 of the collective-bargaining agreement. The most
recent agreement, effective June 1, 2010, through May 31,
2012,12 was extended. The Respondent is not an Association
member.
The agreement contains no specific provisions concerning
medical documentation that drivers need to submit. As far as
termination, article 16.1(a) provides that no employee be dis-
charged for any activity not interfering with proper work per-
formance, and article 16.2 provides that an employee not be
discharged without just cause. There is no progressive disci-
pline language.
Article 6 is the grievance and arbitration provision. It pro-
vides, inter alia, the following: (1) a dispute that cannot be re-
solved between the employer and the Union shall be reduced to
a written grievance; (2) if the employer is not a member of the
association, the grievance shall be submitted to a joint griev-
ance committee or panel consisting of three representatives of
the employer and three representatives of the Union; and (3) a
majority decision of the panel is final and binding on all parties.
McCallum’s Employment Prior to April 11
The Respondent employed McCallum from April 2002 until
April 11, or for approximately 11 years. He hauled construc-
tion material and debris to and from jobsites. His supervisor
was dispatcher Miller. The facility never had a union steward
during his employment.
In May 2010, McCallum’s neurologist informed him that he
had a diagnosis of multiple sclerolosis (MS). He immediately
informed Miller of this. Miller responded that if he needed to
go to doctor’s appointments, just to let him know. Thereafter,
when McCallum told Miller that he had to go to a doctor’s
appointment or for an intravenous drug injection every 4
weeks, Miller got another driver to take his place. On the days
that McCallum received the injection, he was off work for the
entire day.
McCallum usually drove the same company truck every day.
All of the Company’s trailers were semidump trailers. On sev-
eral occasions, from around May 2010 to late 2012, Miller
called McCallum on the Nextel two-way radio and asked him
to pull D. Construction’s flatbed trailer. Each time, McCallum
said that he could not get on top of the flatbed because it was
stacked high with material, and the instability due to his foot
could cause him to fall and get injured. Miller found someone
12 GC Exh. 2.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230
else to go on the flatbed, or had McCallum move an empty
flatbed. Because cold weather affected his MS, McCallum
requested that he be called back as late as possible, and Miller
obliged him. He returned to work in 2013 on about April 1.
From 2010 to shortly before April 11, McCallum had ap-
proximately 10–15 conversations with Ms. Miller about his
condition. In these casual conversations, she asked him his
medications, how he felt, and his potential future treatments.
Ms. Miller did not deny his testimony, which I credit, that in
their last conversation, he told her that his medications were
stable, the MRIs showed no changes, and his MS was stable. In
at least some of the conversations, Ms. Miller talked about the
medications that she herself was taking. She never said any-
thing in any of the conversations about his ability to perform
work.
I note that McCallum and Miller testified very similarly
about their conversations regarding the flatbed and that
McCallum and Ms. Miller’s versions of their numerous conver-
sations were also quite compatible. This was not so in regard to
whether his physical condition noticeably declined as time went
on.
McCallum testified that his physical condition did not
change between 2010 and 2013, that he walked the same during
that period,13 and that he never told Miller that his getting in
and out of trailers was becoming more difficult. Inasmuch as
the Millers continued to allow him to work, brought him back
in April, and never raised to him any concerns about his ability
to perform his duties, I credit him over their testimony that he
showed marked deterioration between 2010 and April.
McCallum’s Submission of Medical Forms
Before 2013
Pursuant to Department of Transportation (DOT) regulations
or rules, drivers are required to have periodic physical exams
for clearance to drive. Two forms are involved. The first is a
medical examination certificate signed by the doctor (medical
card); the second is a detailed medical examination report for
commercial driver fitness determination (long form), filled out
by both the doctor and the driver. The cards are generally good
for 2 years, but the period may be shorter at the apparent discre-
tion of the doctor.14
I credit the following testimony of McCallum, which Miller
did not contest and which was consistent with the fact that
McCallum’s personnel file prior to his April termination con-
tained only his long form for 2010.
Throughout his employment, McCallum submitted the medi-
cal cards, which were valid for 2 years until after he was diag-
nosed with MS; for 6 months thereafter. When he first started
in 2002, he asked Miller if he needed to submit the long form,
and Miller replied no. He offered the long form again in 2004
and 2006, but they were not taken and placed in his file. In
13 Since April 2, he has worn a WalkAide/electronic stimulator but
testified without controversion that he did not use it at work and that
Miller never saw him with it.
14 This was true with regard to McCallum, after he was diagnosed
with MS. See also R. Exh. 5 at 12 (card for Patrick McDonald valid for
1 year, from May 9, 2013, to May 9, 2014).
2010, after his MS diagnosis, he voluntarily submitted his 2010
long form.
The April 11 Meeting
Prior to April 11, the last group meeting that Ms. Miller held
with drivers occurred in approximately 2011 and concerned
safety.15
Ms. Miller called and held a meeting at the shop on the late
afternoon of April 11. All the drivers who worked that day
were present, along with Miller.
The Millers, Crownhart, and McCallum testified to what was
said at the meeting. McCallum’s description was the most
detailed, and because of issues I have with the others’ credibil-
ity, I credit him over their accounts, with the exception of his
testimony that he spoke in a normal tone. Based on the totality
of evidence and circumstances, I am convinced that he was
“pretty upset” and became loud at some point during the meet-
ing, as Crownhart described.16 However, I do not find that he
unleashed a stream of profanities or made outrageous state-
ments, as the Millers have averred.
Ms. Miller began by explaining that the Company was hav-
ing economic problems and needed employees’ help to reduce
costs to allow the Company to stay in business. She stated that
drivers could either take a pay cut or come up with other alter-
natives that she could not discuss. When drivers asked how
much the pay cut would be, she responded that she did not
know, but maybe a dollar. She did not specifically mention
health insurance, but McCallum testified that he assumed that
was one of the alternatives to which she was referring.
When she finished, the only person to respond was
McCallum, who was rather upset and stated that he would not
take a pay cut or opt out of his insurance. In response, Miller
called him “a f—king jackoff“ and “stupid,” and stated that the
new health plan would be much better than the current health
plan.17 He continued to swear at McCallum, although perhaps
not to the full extent that McCallum painted. He called
McCallum “a real piece of s—t” and said that McCollum
“would never see overtime again.”18 McCallum told Miller not
to speak to him in such a manner. It is undisputed that Ms.
Miller then told McCallum that he was fired for insubordina-
tion.
McCallum responded that all he had done was ask Miller not
to speak to him so and that he was going to the Union to file a
grievance for harassment. Ms. Miller replied, “Go file a griev-
ance. You’ll get nowhere.”19 McCallum responded that he
would find out for himself if it would go nowhere, and she
repeated her statement.
McCallum asked for a letter explaining his discharge. Alt-
hough Ms. Miller said that she would give it to him, he never
15 Uncontroverted testimony of Miller at Tr. 314.
16 Tr. 289–290.
17 Tr. 36.
18 Ibid. McCallum’s testimony was unrebutted—Miller did not spe-
cifically deny saying this, and Ms. Miller and Crownhart professed total
lack of recall.
19 Ibid. Ms. Miller did not specifically deny making such a state-
ment.

M. D. MILLER TRUCKING &TOPSOIL, INC. 1231
received one. She escorted him out to his truck to get his per-
sonal items, and he left.
McCallum’s Grievances and the Committee Decisions
on April 22
On this record, the only grievance that has ever been filed,
other than McCallum’s, was one filed about 8 years ago by a
driver discharged for turning over a truck.20 Prior to April,
Ms. Miller had only one or two phone conversations with Els-
bree, and no face-to-face contact, in the 6 years that he was
business agent.
Immediately after his discharge, McCallum went to the un-
ion hall on April 11 and met with Elsbree. As per the contrac-
tual grievance procedure, Elsbree called Miller as McCallum’s
direct supervisor. Elsbree described what McCallum had relat-
ed and asked for the Company’s side. Miller used expletives in
referring to McCallum and said that he was fired for insubordi-
nation.21 Elsbree stated that he wanted to talk to Ms. Miller
about the termination, and Miller replied that there was nothing
to talk about because it was going nowhere, and they were not
going to bring McCallum back to work. Elsbree told him that
the next step was to reduce the grievance to writing and file it
with the Contractors’ Association. Miller repeated that it
would go nowhere.
On April 15, the Union filed three grievances on
McCallum’s behalf:

(1) That McCallum be paid 2 hours’ pay for report-
ing on April 8, after the Respondent failed to no-
tify him at least 2 hours before reporting time
that there would be no work that day (article 8—
wages).22
(2) That McCallum be reinstated because he was
discharged without just cause (articles 8 and
16.2).23
(3) That the employee and the Union will not be
asked to make any written or verbal agreement
which may conflict with this agreement, as per
article 23.1.24

The grievances were referred to the Association, and a joint
committee heard them at around noon on April 22 at the Asso-
ciation’s offices. Elsbree, McCallum, and Ms. Miller were in
attendance. I credit Elsbree’s and McCallum’s account over
Ms. Miller’s unbelievable testimony, where they disagreed, and
find the following.
The committee members asked McCallum and Ms. Miller
questions about the events surrounding McCallum’s termina-
tion. After the committee deliberated, one of its members noti-
fied Ms. Miller of their decision that McCallum be reinstated
with backpay. Before leaving, she gave McCallum his Nextel
radio back. She understood that he was returning to work the
following day.
20 Testimony of Ms. Miller at Tr. 249–250.
21 Miller conceded that his tone with Elsbree was “elevated” and that
he was “pretty aggravated” at the time. Tr. 322.
22 GC Exh. 3.
23 GC Exh. 4.
24 GC Exh. 5.
Later in the day, the Association, by email and regular mail,
notified the parties that the April 8 pay and reinstatement griev-
ances were decided in McCallum’s favor (the third grievance
was not), and it ordered that McCallum be reinstated, with
backpay.25 He was later paid a little over $800 but never rein-
stated.
Events after the Committee Decision
Ms. Miller testified that after she left the grievance hearing,
“I immediately ran home and asked Cathy [Miller] to pull
[McCallum’s] file and asked why his long form wasn’t
there.”26 Later that day, Ms. Miller left a voice mail for
McCallum, stating that he needed to furnish a copy of the long
form for his last physical and that Miller would call him later
with his start time. That evening, Miller called him with a start
time and repeated that he had to submit the long form before he
could return to work.
The next morning, McCallum delivered a long form, com-
pleted by Dr. Hassain Syed and dated March 13,27 by placing it
in the bin on Miller’s desk at the shop. Dr. Syed stated that
McCallum met the requisite standards to drive but required
periodic monitoring due to his MS. Therefore, the qualification
was only for 6 months, or until September 13. In the health
history portion, McCallum checked “no” to all of the health
history boxes. The doctor, on page 3, stated, “Pt has multiple
sclerosis (indiscernible) stable condition. Minimal left food
drop after exertion.”
It is unclear from Ms. Miller’s testimony whether she decid-
ed that McCallum needed to obtain a second opinion sua sponte
or after that was recommended by a representative of the Fed-
eral Motor Carrier Safety Administration (FMCSA). Thus, she
testified that she decided to ask McCallum to get a second opin-
ion, due to “the culmination of his appearance, . . . the culmina-
tion of his inability to do the jobs, and not being totally forth-
coming on his long form . . . .”28
On the other hand, she also testified that she called the
FMCSA and said that she had a problem with a driver’s long
form. The FMCSA representative told her that the DOT would
not require that doctors be FMCSA-approved until 2014 but
recommended that she go to the FMCSA website and obtain an
FMCSA-approved doctor to render a second opinion. When I
asked her what the problem was with the long form that
McCallum submitted she replied that he had not truthfully
answered the questions about his medical history, in particular
“neurological diseases,” rendering his certification false and
invalid, and negating the medical card.
In any event, Ms. Miller found two certified doctors in the
area, and she selected Dr. Shakir Moiduddin because he was
closer to where McCallum resided. She paid for McCallum’s
visit.
On April 23, Miller initiated a series of texts that ended on
May 9.29 The first text stated that McCallum needed to go to a
25 GC Exh. 15.
26 Tr. 368.
27 GC Exh. 7.
28 Tr. 368.
29 GC Exh. 13

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232
motor carrier doctor, Dr. Moiduddin, at 3 p.m. “to be given the
okay to work.”30
The next day, McCallum saw Dr. Moiduddin, who per-
formed a more invasive physical exam than any that McCallum
had before. Instead of providing McCallum a card and long
form, Dr. Moiduddin issued a letter stating that McCallum
needed a note from a neurologist stating his prognosis, medica-
tion, and compliance, and whether he was safe to drive trucks.31
By letter of April 25, Dr. Roumen Balabanov, McCallum’s
neurologist, provided such by furnishing the results of his Janu-
ary 28 evaluation of McCallum.32 He stated in relevant part:

His MS was in remission at the time, but his prognosis is un-
known since MS exacerbation is unpredictable. He has been
receiving Tysabri intravenous therapy every 5 weeks at our
clinic to manage his MS, and his medication adherence is
very good. He is cleared to drive for CDL.

Apparently, Dr. Moiduddin had further communications with
Dr. Balabanov, because the latter prepared two additional let-
ters.33 The first, dated April 29, stated that he could not clear
whether McCallum could drive or not; the second, dated May
7, stated that McCallum’s MS was stable and that he was in
remission clinically and by MS imaging; that his prescribed
treatment was Tysabri 300 mg intravenously given monthly;
and that McCallum was 100-percent compliant with his treat-
ment plan. Dr. Balabanov further stated that although the
prognosis was unpredictable, McCallum’s compliance with his
treatment plan gave him the best chance of his MS remaining
stable. He explained that his evaluation was a neurological
exam, which did not give him the ability to comment on
McCallum’s ability to safely drive a truck. He clarified that his
earlier statement that McCallum was cleared to drive for CDL
meant that McCallum might undergo testing to further evaluate
abilities to drive safely.
After the May 7 letter from Dr. Balabanov was faxed to Dr.
Moiduddin’s office, McCallum called the latter and was told
that Dr. Moiduddin would not clear him.
Miller had indicated in previous texts that McCallum could
not return to work until he was cleared by a certified FMCSA
doctor. In light of Dr. Moiduddin’s refusal to issue him a
clearance, McCallum went to the FMCSA website, where he
obtained the name of the other FMCSA-certified physician in
the area, James Skomurski. Dr. Skomruski administered a
physical examination on May 9 and gave McCallum a card and
a long form, both expiring on November 9.34 On the long form,
McCallum checked that he had MS as a muscular disease, and
he detailed his medications. Dr. Skomurski noted a limp and
left foot drop (and made one other notation, which is illegible).
On May 9, McCallum sent texts to both Ms. Miller and Mil-
ler, stating that he had received that day a DOT medical card
from Dr. Skomurski, a FMCSA-registered doctor on the
30 Id. at 1.
31 GC Exh. 8.
32 GC Exh. 9.
33 GC Exhs. 10, 11.
34 GC Exh. 12.
FMCSA website for certified medical examiners.35 The Millers
never responded in any way.
The Respondent provided no evidence that it has ever re-
quired other drivers to get cards and long forms only from
FMCSA-certified doctors, and Ms. Miller took no steps to de-
termine if the doctors who cleared other drivers in or into 2013
(R. Exh. 5) were in fact certified. I note that Drs, Moiduddin
and Skomurski are the only two certified doctors in the area,
and they were not the ones who examined the other drivers.
Conclusions
The General Counsel alleges that the Respondent effectively
terminated McCallum in violation of Section 8(a)(3) and (1) of
the Act, because he objected to cuts in benefits at the April 11
meeting, and filed grievances on April 15, including one per-
taining to his April 11 discharge.
The framework for analyzing alleged violations of Section
8(a)(3) is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel must make a prima facie
showing sufficient to support an inference that the employee’s
protected conduct motivated an employer’s adverse action. The
General Counsel must show, either by direct or circumstantial
evidence, that the employee engaged in protected conduct, the
employer knew or suspected the employee engaged in such
conduct, the employer harbored animus, and the employer took
action because of this animus.
Under the Wright Line framework, if the General Counsel
makes a prima facie case of discriminatory conduct, it meets its
initial burden to persuade, by a preponderance of the evidence,
that protected activity was a motivating factor in the employer’s
action. Once this is established, the burden of persuasion shifts
to the employer to show that it would have taken the same ad-
verse action even in absence of the protected activity. NLRB v.
Transportation Corp., 462 U.S. 393, 399, 403 (1983);
Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002);
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127
F.3d 34 (5th Cir. 1997) (per curiam). To meet this burden, “an
employer cannot simply present a legitimate reason for its ac-
tion but must persuade by a preponderance of the evidence that
the same action would have taken place even in the absence of
the protected conduct.” Serrano Painting, 332 NLRB 1363,
1366 (2000), citing Roure Bertrand Dupont, Inc., 271 NLRB
443 (1984).
If the employer’s proffered defenses are found to be a pre-
text, i.e., the reasons given for the employer’s actions are either
false or not, in fact, relied on, the employer fails by definition
to show that it would have taken the same action for those rea-
sons, and there is no need to perform the second part of the
Wright Line analysis. On the other hand, further analysis is
required if the defense is one of “dual motivation,” that is, the
employer defends that, even if an invalid reason might have
played some part in the employer’s motivation, the employer
would have taken the same action against the employee for
permissible reasons. Palace Sports & Entertainment, Inc. v.
NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
35 GC Exh. 13 at 3; GC Exh. 14.

M. D. MILLER TRUCKING &TOPSOIL, INC. 1233
As to the first prong, McCallum’s activities clearly came un-
der the protection of the Act. Although McCallum’s objection
to any cuts in benefits was done as an individual, this occurred
at a group meeting called by the Employer, and an inference
may be made that his object was to initiate or induce group
action; it therefore amounted to protected concerted activity.
See Cibao Meat Products, 338 NLRB 934, 934 (2003); Whit-
taker Corp., 289 NLRB 933, 934 (1988); Enterprise Products,
264 NLRB 946, 949 (1982) (by calling the meeting and solicit-
ing employees’ responses, the employer “lumped [them] to-
gether and viewed [them] as a group,” citing Frank Briscoe,
Inc. v. NLRB, 637 F.2d 946, 949 (3d Cir. 1981)).
Similarly, his filing of grievances, including the one over his
April 11 discharge, constituted protected concerted activity.
NLRB v. City Disposal Systems, 465 U.S. 822, 836 (1984) (“No
one doubts that the processing of a grievance [according to the
procedures in a collective-bargaining agreement] is concerted
activity within the meaning of § 7”); LB & B Associates, Inc.,
340 NLRB 214, 216 (2003).
The knowledge element is also clearly satisfied, inasmuch as
the Millers were present at the April 11 meeting and knew of
McCallum’s grievances.
As stated earlier, animus can be either direct or express, or
inferred. With respect to McCallum’s objections to any cuts in
benefits, Miller responded by swearing at him and threatening
him with deprivation of overtime. When McCallum protested
Miller’s language, Ms. Miller stated that he was fired for in-
subordination. Thus, the Millers demonstrated express animus
toward McCallum for his protected activity.
Turning to the grievances that McCallum filed, Ms. Miller
told him at the April 11 meeting that if he filed a grievance over
his discharge, it would go nowhere. This aside, her actions
after the April 22 decisions in McCallum’s favor, and other
evidence of record, provide ample inferential evidence of ani-
mus. It is noteworthy that grievance filings at the facility are a
rarity—there is evidence of only one other grievance ever hav-
ing been filed at any time, in approximately 2006.
The single most significant factor inferring animus is Ms.
Miller’s admission that, after she learned that the grievance
committee had ruled in McCallum’s favor and ordered her to
reinstate him, she “immediately ran home,” had McCallum’s
medical files pulled, and discovered that he did not have a cur-
rent long form on file (even though the previous one had ex-
pired in July 2012, or approximately 9 months earlier).
Animus can also be inferred from the following.
Even according to the Millers’ testimony, they were very
sympathetic and understanding of McCallum’s medical issues
prior to April. Indeed, it is undisputed that Miller consistently
accommodated McCallum’s limitations prior to 2013 in terms
of assignments, and never raised concerns about his ability to
satisfactory perform his job. Ms. Miller’s abrupt and drastic
change in attitude in April cannot be explained other than as
reflection of animus against him for objecting at the April 11
meeting to cuts in contractual benefits and for successfully
pursuing a grievance on his discharge.
McCallum was never before directed to submit a long form,
and Miller had in fact previously said that their submission was
unnecessary.
Ms. Miller’s three asserted reasons for why she directed him
to get a second opinion, even though he submitted a current
card and current long form from Dr. Syed, rang false and
smacked of pretext. The first was his “appearance,” and the
second, his “inability to do the job.” However, neither she nor
Miller ever talked to him about either, they brought him back to
work in April, and neither of these became a problem until after
McCallum engaged in protected activity. The third reason was
that McCallum was “not being totally forthcoming” on the long
form he submitted in April. She testified that she based this
conclusion on his checking “no” on all the boxes in the health
history section, even though he had MS, presumably engaging
in some kind of fraudulent concealment. Such a contention is
laughable. Dr. Syed, the examining physician, referenced
McCallum’s MS in his portion of the long form, and McCallum
had notified the Millers that he had the condition almost imme-
diately after it was diagnosed in May 2010. The flimsiness of
this purported reason has to be viewed as evidence of pretext.
At the time in question, DOT did not require that examining
physicians be FMSCA certified, nothing in the record estab-
lishes that any other drivers were required to see an FMCSA-
certified doctor, and Ms. Miller admittedly never checked their
records to determine such. Indeed, there are only two such
certified physicians in the area (Drs. Moiduddin and Skomur-
ski), and none of the drivers whose medical records are con-
tained in Respondent’s Exhibit 8 have cards or long forms from
them. Thus, the Respondent treated McCallum arbitrarily and
disparately, further reflections of inferred animus.
After Dr. Moiduddin refused to give McCallum a clearance,
he went to Dr. Skomurski, the other area FMCSA-certified
doctor, who did issue him the card and long form. When
McCallum notified the Millers of this, they failed to respond,
and still did not allow him to return to work.
In sum, the Respondent immediately focused on McCallum’s
MS as an ideal subterfuge to avoid its obligation to reinstate
him as per the grievance panel’s directive. Despite
McCallum’s diligent efforts to provide a medical clearance, the
Respondent continued to refuse to reemploy him, even after he
obtained the card and long form from an FMCSA-certified
physician.
Based on the above, I conclude that both direct and inferen-
tial evidence establish animus against McCallum for his pro-
tected activities.
Turning to the last prong of Wright Line, the Respondent un-
questionably discharged McCallum on April 11 because he
objected to cuts in driver benefits. This, along with the circum-
stantial evidence of animus that I have described, lead to the
conclusion that the Respondent effectively terminated him on
and after April 22 because of his protected activities of object-
ing to cuts in contractual benefits and of filing grievances, in-
cluding one pertaining to his April 11 discharge.
I conclude, therefore, that the General Counsel has met his
burden of establishing a prima facie case that the Respondent’s
effective termination of McCallum on and after April 22 was
because he engaged in protected activities. Since I further con-
clude that the Respondent’s reasons for effectively terminating
McCallum on and after April 22 were transparently pretextual,
I need not perform the second part of Wright Line analysis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234
Accordingly, I conclude that the Respondent’s effective ter-
mination of McCallum on and after April 22, for his conduct on
April 11 and for filing grievances, violated Section 8(a)(3) and
(1) of the Act.36
Independent 8(a)(1) Violations
I conclude that, at the April 11 meeting, the Respondent
committed the following violations of Section 8(a)(1) of the
Act:

(1) Ms. Miller, without notifying the Union or giving it an
opportunity to attend, held a meeting with drivers in
which she solicited them to agree to a cut in wages or
other benefits provided in the collective-bargaining
agreement, in order to keep the Company in business.
She thereby bypassed the Union and dealt directly with
employees about a mandatory subject of bargaining.
See Mercy Health Partners, 358 NLRB No. 69, slip op.
at 1 (2012).
(2) After McCallum stated that he would be filing a griev-
ance over his discharge, Ms. Miller stated that would be
futile. See Grane Trucking Co., 241 NLRB 133 (1979).
(3) Miller threatened McCallum with loss of overtime when
he objected to any cuts in wages or other benefits man-
dated under the collective-bargaining agreement.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)(3)
and (1) of the Act: Effectively terminated Edward McCallum
on and after April 22, 2013.
4. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)(1)
of the Act.
(a) Bypassed the Union and dealt directly with unit employ-
ees concerning their wages or other benefits.
(b) Told employees that filing a grievance would be futile.
(c) Threatened employees with loss of overtime when they
objected to any cuts in their wages or other benefits mandated
by the collective-bargaining agreement.
REMEDY
Because I have found that the Respondent has engaged in
certain unfair labor practices, I will order it to cease and desist
and to take certain affirmative action designed to effectuate the
Act’s policies.
Specifically, the Respondent shall make Edward McCallum
whole for any losses, earnings, and other benefits that he suf-
36 In Farmbest, Inc., 154 NLRB 1421, 1422 (1965), enf. denied on
point 370 F.2d 1015 (8th Cir. 1967), the Board agreed with the ALJ
that the discharge of an employee for insisting upon conformity to the
provisions of the collective-bargaining agreement violated both Sec.
8(a)(3) and (1).
fered as a result of the unlawful discipline imposed on him.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010).
Further, the Respondent shall file a report with the Social
Security Administration allocating backpay to the appropriate
calendar quarters and, if it becomes applicable, shall compen-
sate McCallum for any adverse tax consequences of receiving a
lump-sum backpay award. Latino Express, Inc., 359 NLRB
518 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended37
ORDER
The Respondent, M.D. Miller Trucking & Topsoil, Inc.,
Plainfield, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Terminating or otherwise discriminating against employ-
ees for objecting to cuts in wages or other benefits mandated by
the collective-bargaining agreement with General Teamsters
Local Union No. 179, affiliated with International Brotherhood
of Teamsters (the Union), for filing grievances pursuant to the
provisions of that agreement, or for otherwise engaging in ac-
tivities on behalf of the Union.
(b) Bypassing the Union and dealing directly with employees
concerning their wages or other benefits, or any other mandato-
ry subjects of bargaining.
(c) Telling employees that filing grievances would be futile.
(d) Threatening employees with loss of overtime or other
benefits when they object to cuts in pay or other benefits man-
dated by the collective-bargaining agreement.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Edward McCallum full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Edward McCallum whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful termination of
Edward McCallum, and within 3 days thereafter notify him in
writing that this has been done and that the termination will not
be used against him in any way.
37 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.

M. D. MILLER TRUCKING &TOPSOIL, INC. 1235
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Rockdale, Illinois, copies of the attached notice marked
“Appendix.”38 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
38 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet set, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 11, 2013.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.