Associated truck Lines

National Labor Relations Board - Board Decisions

Dec 19, 1978

239 N.L.R.B. 917 (N.L.R.B. 1978)

Associated Truck Lines, Inc. and Wendell Frost. Case
7-CA- 14607
December 19, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY. AND PENFLl O
On August 23, 1978, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exeptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Associated Truck Lines,
Inc., Detroit, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 In the first paragraph of sec. D. the Administrative Law Judge inadver-
tently substituted the name "Frost" for the name "Close." It is apparent
that the witness referred to is Close and not Frost, who did not testify.
Therefore, where the paragraph refers to Frost's testimony, it should be read
Close's testimony.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH. Administrative Law Judge: This case was
heard at Detroit, Michigan, on May 3 and 4, 1978. The
charge was filed on November 11, 1977, by Wendell Frost,
an individual. The complaint, which issued on December
29, 1977, alleges that Associated Truck Lines, Inc. (herein
the Company or Respondent), violated Section 8(aX 1) and
(3) of the National Labor Relations Act, as amended. The
ASSOCIATED TRUCK LINES
gravamen of the complaint is that the Company allegedly
refused to reinstate Frost to his former position of employ-
ment and conditioned his reinstatement on the resignation
of one Richard Bate as union steward for Local 299, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (herein the Union). The
Company's answer denies the commission of the alleged
unfair labor practices. All parties were afforded full oppor-
tunity to participate, to present relevant evidence, to exam-
ine and cross-examine witnesses, to argue orally, and to file
briefs.
Upon the entire record in this case and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the arguments of counsel and the briefs submitted
by the charging party and by Respondent.' I make the
following:
FINDINGS OF FACT
I THE BUSINFSS OF RESPONDENT
The Company, a Michigan corporation with its principal
office and place of business in Grand Rapids, Michigan, is
a common carrier of motor freight. The Company operates
some 44 truck terminals in various states, including a ter-
minal in Detroit, Michigan, which is the facility involved in
the present case. In the course of its business, the Company
annually performs services valued in excess of $50,000 in
States outside of Michigan, for various enterprises located
outside of Michigan. I find, as the Company admits, that it
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background: The Company's Relations With Richard
Bate and Wendell Frost
The Company has collective-bargaining contracts with
some 32 to 35 local Teamster unions, covering units of
employees at most of its terminals. The Company's over-
the-road and local cartage drivers based at the Detroit ter-
minal are covered by a contract with the Union, which
provides for grievance and arbitration, inter alia, of termi-
nations of employees.
Richard Bate has been employed at the Detroit terminal
since 1943, and since 1974 he has been shop steward for the
over-the-road drivers at the Detroit terminal. Bate pro-
cesses grievances, and in this capacity he has frequent con-
tact with Jack Barense (pronounced "barns"), the Com-
pany's assistant vice president for labor relations, who
handles grievances on behalf of the Company. Their rela-
tionship has been a stormy one. Bate is an aggressive stew-
' Counsel for General Counsel failed to submit a brief His failure to do
so will be discussed at a later point in this Decision
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DECISIONS OF NATIONAL LABOR RELA I IONS BOARD
ard. Bate testified that Barense once told him that he
(Bate) never knew when he was beaten. Barense testified
that he found Bate more difficult than any other steward in
working out grievances. Further complicating their rela-
tionship was the fact that both men had a tendency to lose
their tempers. Indeed, as evidenced by the testimony of
both General Counsel and Company witnesses, both did so
at the grievance session on August 22, 1977,2 which is cen-
tral to the disposition of this case. Having observed Bar-
ense on the witness stand, including his demeanor on
cross-examination, I have further observed that he has a
tendency to sometimes be short tempered.
Wendell Frost began working for the Company in Feb-
ruary 1977 as an over-the-road driver, working out of the
Detroit terminal. Normally, W. Michael O'Malley, the
Company's assistant vice president for line-haul opera-
tions, hired road drivers. However, Barense personally
made the decision to hire Frost. Barense testified that he
hired Frost at the request of, and as a personal favor tc, an
officer of the Union. Barense understood that Frost had
been discharged from another trucking company, possibly
because he assaulted a dispatcher and that, absent the re-
quest, the Company probably would not have hired him.
During his tenure with the Company, Frost had a poor
attendance record. He missed 12 days of work. On May 31,
Assistant Vice President O'Malley sent him a "final letter
of warning," informing Frost that further absence would
result in his discharge. However, Frost assured Barense
that he would try to do better, and there is no evidence that
between May 31 and August 19 the Company had any
further complaints about his attendance.
B. Frost's Termination
On Friday, August 19, Frost refused to pull a load from
Coldwater, Mich. to Ligonier, Ind. because he allegedly did
not have a sufficient number of driving hours available to
complete the trip within Department of Transportation
regulations. This finding is necessarily based on hearsay
evidence, because neither Frost nor Company Supervisor
Yoder, who terminated Frost, testified as a witness in this
case. Whatever the circumstances, the Company decided to
treat Frost's refusal as a voluntary quit and therefore took
the position that he was no longer entitled to his job. In his
unfair labor practice charge Frost alleged that the Compa-
ny violated Section 8(a)(1) and (3) of the Act both by dis-
charging him and by refusing to reinstate him. However,
after investigation, the Regional Director declined to issue
a complaint based on the discharge. The Regional Director
based this disposition on his determination that there was
insufficient evidence that Frost's termination was discrimi-
natorily motivated and that in any event deferral was war-
ranted under the doctrine of Spielberg Manufacturing Com-
pany, 112 NLRB 1080 (1955). As indicated, the Regional
Director did proceed on the allegation that the Company
unlawfully conditioned Frost's reinstatement on the resig-
nation of Bate as steward.
At the outset of this hearing. General Counsel took the
position that it was not litigating the discharge of Frost. In
All dates herein are in 1977 unless otherwise indicated.
his post-hearing brief, the Charging Party has similarly tak-
en the position that "[t]he lawfulness of Frost's discharge is
not an issue before the Board." At the hearing, the Compa-
ny, over the objection of General Counsel, was permitted
to introduce evidence concerning the circumstances of
Frost's termination in support of its contention that such
evidence tended to corroborate the Company's argument
that it would not under any circumstances have voluntarily
agreed to reinstate Frost. General Counsel also was permit-
ted to, and did, present evidence concerning the circum-
stances of Frost's termination. In response to my inquiry
concerning what such evidence would show, General
Counsel argued that the evidence demonstrated that the
Company set up Frost for discharge in order to get rid of
Bate. If so. this would mean that General Counsel was in
effect arguing that both the original discharge and the re-
fusal to reinstate Frost were unlawful. In these circum-
stances, one might reasonably expect General Counsel to
submit a brief in explication and support of its stated argu-
ment at the hearing. General Counsel's failure to submit a
brief might well be deemed as an abandonment of that
argument. However, the argument was made and both
sides presented evidence concerning the termination in
support of their respective positions. Therefore, I have con-
sidered these positions, and I will discuss my findings con.
cerning those positions at a later point in this Decision.
C. Frost's Grievance and the Company's Position Regarding
Reinstatement of Frost
Frost filed a grievance over his termination, and his
grievance was taken up, together with other grievances, at
a local-level meeting between the Company and the Union
at the Detroit terminal on Monday, August 22. Grievances
involving road drivers, including the Frost matter, were
taken up in the morning, and grievances involving city
drivers were taken up in the afternoon. Present at the
morning session, in addition to Frost, were then Business
Agent Richard Fitzsimmons, Steward Bate, and then-Al-
ternate Steward Elmer Shelley for the Union and Barense,
Terminal Manager William Stawowczyk, and Customer
Relations Officer Don Worth for the Company. Shelley, in
his capacity as alternate steward, sat in on grievance meet-
ings and substituted for Bate when necessary. At the time
of this hearing Fitzsimmons was no longer with the Union,
having taken a position with a Teamsters joint council, and
Shelley was no longer alternate steward, having transferred
to local cartage. Bate and Shelley testified for General
(Counsel, and Barense and Stawowczyk testified for the
Company. At the hearing company counsel represented
that Worth was ill and therefore could not be presented as
a witness. I accept that representation, and I have not
drawn any adverse inference from the Company's failure
to present Worth as a witness.
Frost's grievance was discussed intermittently during the
morning session, without any change in the Company's po-
sition. Barense stated that Frost did not work there any
more, that as far as Barense was concerned, Frost quit.
Barense argued that Frost was not happy working for the
Company and that it would not be a good idea to put him
back to work. However, toward the end of the session he
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ASSOCIATED TRUCK LINES
said that he would think about it. The principal topic of
discussion during the morning session was a grievance in-
volving work performed at the Company's Coldwater ter-
minal. The matter had long been a topic of discussion be-
tween Bate and Barense. The drivers were given one-half
hour's pay for performing certain nondriving functions, in-
cluding writing up defects in equipment. Bate argued that
one-half hour was not a sufficient period of time to per-
form these functions and vigorously pressed the grievants'
position. There was, in Bate's words, a "heated discussion."
Barense testified that he accused Bate of trying to run the
Company's business. Stawowczyk testified that both Bate
and Barense raised their voices. Fitzsimmons told them to
calm down. None of the pending grievances were resolved
at this session. (At the time of this hearing, the Coldwater
matter was under study by both sides). The witnesses were
generally in agreement as to the overall course of the morn-
ing session. However, their testimony differed in two sig-
nificant respects. Barense testified that he closed the morn-
ing session by saying that it would not do them any good to
discuss any more grievances that day. Bate and Shelley
testified, in sum, that Fitzsimmons indicated that he would
discuss the Frost matter privately with Barense and would
let him know the result. Barense testified that during the
argument over the Coldwater grievance, he told Bate that
he was not representing his people and should resign as
steward. Stanwowczyk corroborated this testimony. Bar-
ense further testified that this was the only time he made
such a statement. Shelley and Bate testified that Barense
did not make such a statement at the meeting. Before dis-
cussing my resolution of these credibility issues, I shall pro-
ceed to take up testimony concerning subsequent conversa-
tions and meetings, as the later ones are of particular
significance in that resolution.
After the morning session, Bate, Shelley, and Frost went
to lunch at a restaurant about four blocks from the Detroit
terminal. Shelley testified that after lunch, he telephoned
Stawowczyk's office (where the afternoon session was
being held) to check with Fitzsimmons about the Frost
matter. Fitzsimmons told him that Barense was meeting
with another company official and that Shelley should call
back in 15 minutes. Shelley testified that he did so, but that
this time Stawowczyk's secretary put Barense on the
phone. Barense asked who he was with, and Shelley told
him. According to Shelley, Barense said "you tell Mr. Bate
if he resigns as union steward, I'll put Mr. Frost back to
work." Shelley incredulously asked Barense to repeat what
he said, and Barense did so. Shelley reported the conversa-
tion to Bate, and they returned to the terminal. Bate testi-
fied that he went to see Barense, who confirmed what he
had said to Shelley. According to Bate, he told Barense
that he would have to think about it and that if he agreed,
the Union would have to have an election within 5 days,
but if the members still wanted him, he would have to
serve. Barense responded that "that was it." Shelley further
testified that later that afternoon, in the terminal parking
lot, he asked Barense if he would reconsider the Frost case.
According to Shelley, Barense answered: "The only way
I'll reconsider it is just the way I told you. Talk to Bate
about resigning as steward. Otherwise, we don't have any-
thing to talk about."
Barense, in his testimony, denied the testimony of Shel-
ley and Bate. Stawowczyk testified that to his knowledge,
Barense did not receive any telephone calls during the af-
ternoon session. Barense testified that after the morning
session he had no contact with Bate, Shelley, or Frost until
he met Shelley and Frost in the parking lot that afternoon.
According to Barense, they asked him to put Frost back to
work and Barense said he would discuss it with Assistant
Vice President O'Malley when Barense returned to Grand
Rapids. Barense testified that he did consult with O'Mal-
ley, who indicated that because of Frost's absenteeism and
short duration of employment, they should not reconsider
their position. O'Malley corroborated this testimony.
Bate testified that about a week after the grievance ses-
sion, Barense telephoned him and asked if he was going to
resign. Bate said he would, but that if the members wanted
to return him he would stay on. Barense answered, "Then
I have nothing more to say to you." According to Bate,
Frost was not mentioned in this conversation. Barense tes-
tified that they had a telephone conversation in which he
told Bate that he had discussed the "problem" with O'Mal-
ley and that Frost would be left as a voluntary quit. Ac-
cording to Barense, Bate said that he was not going to
resign as union steward, and Barense answered that that
was his business. Barense' version of this conversation
poses, and leaves open, the question of why Bate would
couple an inquiry about Frost with a statement that he
(Bate) would not resign as steward. As will be discussed
herein, the same paradox appears again in Barense' testi-
mony concerning a conversation which took place nearly 3
months later.
On November 8, Frost's grievance came up for an arbi-
tration hearing before the Michigan Joint State Cartage
and Over-The-Road Arbitration Committee. The commit-
tee ruled that "based on the facts presented, the termina-
tion of Wendell Frost is upheld." General Counsel con-
cedes that as set forth by the Regional Director in his
refusal to issue a complaint based on Frost's termination,
"the hearing was fair and regular and ... the Committee's
decision is not repugnant to the purposes and policies of
the Act," under the guidelines set forth in Spielberg Manu-
Jacturing Co., supra. The committee declined to consider
Bate's argument that the Company had conditioned rein-
statement of Frost on Bate's resignation as steward.
At the same committee meeting, a grievance over the
discharge of road driver Allen Close, allegedly for a major
chargeable accident, was resolved when the Company
agreed to reduce his discharge to a disciplinary time off.
Close returned to work a few days later, and he was still
working for the Company at the time of this hearing. After
Close returned to work, he and Elmer Shelley asked Bar-
ense to put Frost back to work. Shelley testified that Bar-
ense said that he was always open to talk, but that they
would have to have an election for steward, because he
could not talk to Bate, who was always hollering and yell-
ing. Close, who was also presented as a witness for General
Counsel, partially corroborated the testimony of Shelley.
According to Close. Barense said that his door was always
open, but that he could not discuss it with Bate, who was
"uncontrollable," but would discuss it with them. Barense
testified that when Shelley and Close asked him to recon-
919
DECISIONS OF NArTIONAL LABOR RELATIONS BOARD
sider the Frost case, he answered that his door was always
open. However, Barense conceded that he never said this
to Bate. Barense also failed to explain why he would an-
swer that his "door is always open" on the Frost matter if,
as testified by Barense and O'Malley, they had already de-
cided not to reconsider their position on the Frost matter
and had so informed Bate. Barense also admitted, on cross-
examination, that he discussed "'stewards" with Shelley
and Close. Although General Counsel did not permit Bar-
ense to explain his answer, Company counsel, on redirect
examination, could have afforded Barense an opportunity
to do so. However, he did not. The paradox is again pre-
sented, i.e., that Barense, by his own admission, once again
linked the matter of Frost to Bate's position as steward.
D. Concluding Findings
I credit the testimony of Shelley, Frost, and Bate. Shelley
and Frost may fairly be characterized as disinterested wit-
nesses, and therefore their testimony is entitled to great
weight. At the time of this hearing both were still employed
by the Company, and neither held any position with the
Union. Moreover, Close was in the position of having re-
gained his job because the Company agreed to downgrade
his discharge to a disciplinary layoff. In these circumstanc-
es, it is unlikely that Shelley, and even more so Frost,
would knowingly testify falsely against the Company.
Moreover, as indicated, Barense' testimony is internally in-
consistent and in some crucial respects tends to corrobo-
rate that of General Counsel's witnesses. Thus, by his own
admission, discussion of Frost was continually paired with
Bate's status as steward,and Barense left the door open to
Shelley and Close while closing it in Bate's face, allegedly
on the basis of a final decision not to reinstate Frost.
I find, as alleged in the complaint, that the Company, by
Barense, conditioned reinstatement of Frost on the resig-
nation of Bate as union steward. Specifically, Barense flat-
ly informed the Union that if Bate resigned as steward, he
would put Frost back to work. The Company thereby vio-
lated Section 8(aXl1) and (3) of the Act. The rights of em-
ployees and their union to be represented by persons of
their choice "cannot be diluted in the absence of compel-
ling evidence of legitimate considerations." Dravo Corpora-
tion, 228 NLRB 872, 874 (1977). No such considerations
are present in this case. As the Company concedes in its
brief, an employer cannot be justified in discriminating
against one employee because of the union activities of
another employee or employees. See Associated Truck
Lines, Inc., 188 NLRB 313, 316 (1971), and Hoffman Bever-
age Company and Hoffman Beverage Company, Debtor In
Possession, 163 NLRB 981, 987 (1967), cited by the Com-
pany. Even if the Company had a legitimate excuse for
refusing to deal with Bate, the Company could not lawfully
hold Frost hostage to its demands. Frost was not a union
officer or steward, and he was not responsible for the man-
ner in which Bate presented the Union's position. The
Company could not lawfully condition Frost's reinstate-
ment on Bate's resignation any more than an employer
could refuse to reinstate a striking employee because of
picket line misconduct by another employee. Moreover,
Bate did not engage in any misconduct which might war-
rant employer refusal to deal with him. The Company's
objection to Bate was based solely on Barense' animus to-
ward him because he was an aggressive advocate. This is
not a legitimate reason for refusing to deal with a union
steward. N.L.R.B. v. Gates Rubber Company, 493 F.2d 249
(6th Cir. 1974). By conditioning the reinstatement of Frost
upon the resignation of Bate, the Company discriminated
against Frost because of Bate's union activity and inter-
fered with the statutory rights of Bate by attempting to
intimidate him in the performance of his responsibilities as
union steward. Such conduct has a predictable tendency to
discourage employees from serving and conscientiously
performing their duties as stewards, from seeking union
assistance in obtaining redress of their grievances, and gen-
erally from supporting their union. Compare Dravo Corp.,
supra, 228 NLRB at 874.
Barense' position was not, as suggested by the Company,
taken in an emotional outburst during a heated grievance
session. Rather, Barense conveyed the Company's position
to Shelley after he had full opportunity to deliberate and
consult with other company officials. The Company ad-
hered to that position even after the arbitration panel re-
jected Frost's grievance. Therefore, it is evident that the
Company made a careful and calculated determination to
tie the Frost matter to Bate's resignation. After Bate re-
fused to resign, Barense intimated to Shelley and Close
that the membership could get rid of him. Barense had
hired Frost as a favor to the Union, and by tying the Frost
matter to Bate's status, he saw an opportunity to create
divisiveness within the Union and potentially to remove his
antagonist Bate as steward or at least to tame him. How-
ever, I am not persuaded that Barense formulated this poli-
cyv at the time of Frost's termination. On the evidence con-
tained in this record, that argument never rises above the
level of suspicion. As indicated, the evidence concerning
the circumstances of Frost's termination is inconclusive,
because the principal figures involved, i.e., Frost and Sup-
ervisor Yoder, were not presented as witnesses, and the
evidence which did go into the record substantially consist-
ed of hearsay. General Counsel introduced into evidence a
determination by the Michigan State Employment Security
Commission that Frost was entitled to unemployment
compensation because he had not engaged in any miscon-
duct, voluntary quit, or refusal of work which would dis-
qualify him from receiving such benefits. However, the
present record fails to indicate whether the Company con-
tested Frost's claim. Therefore, the determination is not
entitled to evidentiary weight in the present case. In these
circumstances, it is not possible for me to find, as General
Counsel would have me find (or, at least, as General Coun-
sel argued at one point in this proceeding), that Frost was
terminated for a pretextual reason and that the real reason
related to Bate's status as steward. On the other hand, I am
not persuaded that the evidence demonstrates, as the Com-
pany would have me find, that the Company would not
have retained or reinstated Frost under any circumstances.
On the contrary, Barense made clear to Shelley and Close,
even after the arbitration hearing, that his door was still
open on the Frost matter. The fact that Assistant Vice
President O'Malley may have been opposed to reinstating
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ASSOCIATED TRUCK LINES
Frost does not establish that the Company would not have
reinstated him. Although O'Malley normally hired road
drivers, Barense made the original decision to hire Frost,
and he could also have decided to reinstate him. Barense
was the Company's spokesman at the grievance and arbi-
tration hearings (O'Malley not even being present), and he
presumably had authority to adjust grievances. In fact,
Barense did offer to reinstate Frost, subject only to the
unlawful condition that Bate resign as steward.
In sum, the evidence is inconclusive as to whether, ab-
sent the unlawful condition, the Company would or might
have reinstated Frost. In these circumstances, Frost is enti-
tled to the conventional remedy of reinstatement, together
with backpay from August 22, the date of the Company's
unlawful proposal. Where, as here, an employer offers an
employee ajob or promotion but couples the offer with an
unlawful condition, the appropriate remedy is to place the
employee in the position he would have been in but for the
unlawful conduct, i.e., had the unlawful condition not been
attached to the offer. Phelps Dodge Corp. v. N.L. R.B., 313
U.S. 177, 187-189 (1941); Allis-Chalmers Corporation, 231
NLRB 1207 (1977). Moreover, in cases where a respondent
union or employer has engaged in misconduct which might
have prevented an employee from obtaining or regaining a
job, but the evidence is inconclusive on this point, the
Board will normally resolve the doubt against the wrong-
doer rather than against the wronged employee. Thus,
where a union has violated its duty of fair representation in
failing to process a grievance on behalf of an employee
which, if successful, would have resulted in a promotion or
retention of a job, the Board has directed such union to
reimburse the employee as if the grievance were meritori-
ous. Laborers International Union of North America, Local
324, AFL-CIO (Centex Homes of California, Incorporated),
367, 234 NLRB (1978); Local Union No. 2088, International
Brotherhood of Electrical Workers, A FL-CIO (Federal Elec-
tric Corporation), 218 NLRB 396, 397 (1975). Likewise,
where an employer has interfered with employees' right to
have union representation during an interview with poten-
tial disciplinary consequences, the Board will normally di-
rect the employer to rescind the discipline imposed and to
make the employees whole for any losses they may have
suffered by reason of the imposition of such discipline.
Certified Grocers of California, Ltd., 227 NLRB 1211, 1215
(1977); Southwestern Bell Telephone Company, 227 NLRB
1223, fn. 1 (1977); Alfred M. Lewis, Inc., 229 NLRB 757,
759 (1977). The Board, in Southwestern Bell and Lewis, su-
pra, referred to restoration of the "status quo ante." How-
ever, this was not the sole predicate for the Board's remedi-
al orders in those cases. Indeed, restoration of the status
quo ante in Phelps Dodge, Centrex, and Federal Electric,
supra, would have left the employees involved without any
affirmative relief.3 Rather, as the Supreme Court made
clear in Phelps Dodge and the Board made clear in Federal
3 "'Status quo" has been judicially defined as "the last uncontested status
which preceded the pending controversy." Minnesota Mining and Manufac-
turing Company v. Meter. 385 F.2d 265, 273 (8th Cir 1967) Applying this
test, restoration of the status quo in Phelps Dodge, would have left the em-
ployees in question (Curtis and Daugherty) as job applicants, the emplosee
in Federal Elec tic without a retroactive promotion, and the employee In
Centrex without a job.
Electric, anything less than reinstatement and restitution of
losses would constitute an inadequate remedy which would
fall short of effectuating the policies of the Act. In the
present case, a prohibitive order and the posting of a no-
tice, without more, would amount to little more than a slap
on the wrist. The discrimination against Frost would re-
main unremedied, and Bate and his fellow employees
would be left subject to the lingering effects of the Com-
pany's unlawful conduct, previously discussed. Therefore,
reinstatement with backpay is warranted to provide an ad-
equate remedy and to effectuate the policies of the Act.
CONCLUSIONS OF LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 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 conditioning the reinstatement of Wendell Frost
on the resignation of employee Richard Bate as union
steward, the Company has violated and is violating Section
8(aXl) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(aXl) and (3) of the Act, I shall recom-
mend that it be required to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Company discriminatorily condi-
tioned reinstatement of Wendell Frost on the resignation
of Richard Bate as union steward, it will be recommended,
for the reasons heretofore discussed, that the Company be
ordered to offer Frost immediate and full reinstatement to
his former job or, if it no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings that he may have suffered from the time of
his discharge to the date of the Company's offer of rein-
statement. Backpay shall be computed in accordance with
the formula approved in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest computed in the manner
and amount prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).4 It will also be recommended that the
Company be required to preserve and make available to
the Board, or its agents, on request, payroll and other rec-
ords to facilitate the computation of backpay due. As the
present case involves serious 8(a)(3) discriminatory con-
duct, I shall recommend that the Company be ordered to
cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act. See Allis-Chal-
mers Corporation, supra, 231 NLRB 1207, fn.3.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
4See. generally, Isis Plumbing d Heating (Co 138 NLRB 716. 717 721
(1962).
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 5
The Respondent, Associated Truck Lines, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Conditioning the reinstatement of Wendell Frost or
any other employee on the resignation of Richard Bate or
any other person as union steward.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Wendell Frost immediate and full reinstate-
ment to his former job or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights, and make him whole for losses he
suffered by reason of the discrimination against him as set
forth in the section of this Decision entitled "The Rem-
edy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due.
(c) Post at its terminal in Detroit, Michigan, copies of
the attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
I5 n the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and Order herein shall, as provided in Sec. 102.48 of the Rules
and Regulations, be adopted by the Board and become its findings. conclu-
sions, and Order, and all objections thereto shall be deemed waived for all
pu.rposes.
6 In the event that this Order is enforced by a judgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
Region 7, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National La-
bor Relations Board has found that we violated the Na-
tional Labor Relations Act and has ordered us to post this
notice and to carry out its provisions.
WE WILL NOT condition the reinstatement of Wendell
Frost or any other employee on the resignation of
Richard Bate or any other person as union steward.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act, including the
right to bargain collectively through representatives of
their own choosing.
WE WILL offer Wendell Frost immediate and full re-
instatement to his former job or, if such job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights, and make
him whole for losses he suffered by reason of the dis-
crimination against him.
ASSOCIATED TRUCK LINES. INC.
922