Equipment Trucking Co.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 277 (N.L.R.B. 2001)

EQUIPMENT TRUCKING CO. 277
Equipment Trucking Co., Inc., and Smith Trucking
Company, Single Employer and Teamsters Lo-
cal Union 916 affiliated with International
Brotherhood of Teamsters, AFL–CIO. Case 14–
CA–25052 (formerly 33–CA–12592)
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On December 17, 1998, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed 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 as modified.2
1. Contrary to our dissenting colleague, we agree with
the judge that the Respondent’s vice president, Darrell
Howard’s March 23, 1998 comment to employee Larry
Northrup was an unlawful implied threat of discharge.
Howard’s comment, that the Respondent’s president
would run the Company “any way she wanted, and if
[he] didn’t like it, find another job,” was made in re-
sponse to Northrup’s statement of support for the Union
and of concern that the withdrawal of recognition would
adversely affect his retirement. The Board has long held
that such statements by an employer implicitly threaten
discharge because they convey the impression that the
employer considers complaining about working condi-
tions and engaging in union activity incompatible with
continued employment. See Padre Dodge, 205 NLRB
252 (1973), and Stoody Co., 312 NLRB 1175, 1181
(1993). Unlike our dissenting colleague, we also agree
with the judge’s conclusions that the Respondent’s April
6, 1998 statement to known union supporter employee
Jeff Thomas that he did not “appreciate his job much”
constituted an unlawful threat of reprisals because of his
union activities. In our view, the obvious coercive effect
of this statement is not undercut by the fact that the Re-
spondent did not elaborate on the threat. Further, the
case cited by our colleague, Standard Products Co., 281
NLRB 141, 148 (1986), enfd. in relevant part 824 F.2d
291 (4th Cir. 1987), is distinguishable as it did not in-
volve a similar statement. As she previously stated,
Member Liebman further finds Standard Products to be
inconsistent with other case law and she would overrule
it. See Ross Stores, 329 NLRB 573, 579 (1999) (Mem-
bers Fox and Liebman, dissenting in part, enf. granted in
part, and denied in part 235 F.3d 669 (D.C. Cir. 2001).

1 In its exceptions, the Respondent argues that the judge abused his
discretion by striking the Respondent’s answer with respect to com-
plaint allegations involving Brian McKinney and Chris Parker who are
alleged to have been agents of the Respondent in the circulation of the
decertification petition and to have made promises of wage increases
and changes in benefits if the Union was decertified. At the hearing, the
Respondent’s attorney stated that the Respondent was aware McKinney
and Parker were under subpoena and that when the two witnesses in-
formed the Respondent that they did not plan to show up at the hearing,
the Respondent had sent them out of town in the performance of their
duties as truckdrivers. We agree with the judge’s alternative findings
that the testimony of the witnesses and reasonable inferences establish
that McKinney and Parker acted as the Respondent’s agents in circulat-
ing the decertification petition and promising wage increases and
changes in benefits. We also agree with the judge’s finding that by
sending McKinney and Parker out of town with the knowledge that
these two key witnesses were named in the complaint and under the
subpoena, the Respondent became an active ally in their efforts to
evade the subpoena and interfered with the Board process. Accord-
ingly, we find that the judge did not abuse his discretion by striking the
Respondent’s answer regarding their conduct.
Chairman Hurtgen does not pass on this matter. He does not neces-
sarily agree that the Respondent sent McKinney and Parker out of town
for the purpose of interfering with Board processes. McKinney and
Parker voluntarily told Respondent that they would not attend the hear-
ing. Respondent then sent them out of town to perform a regular work
assignment.
2 We will modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
2. We agree, for the reasons fully set forth in Carterair
International, 322 NLRB 64 (1996), that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. We adhere to the view, reaffirmed by
the Board in that case, that an affirmative bargaining
order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective bar-
gaining representative of an appropriate unit of employ-
ees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such and order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In Vincent, the court summarized
the court’s law as requiring that an affirmative bargain-
ing order “must be justified by a reasoned analysis that
includes an explicit balancing of three considerations: (1)
the employees’ § 7 rights; (2) whether other purposes of
the Act override the rights of employees to choose their
bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the
Act.” 209 F.3d at 738.
336 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 278
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
requires and find that a balancing of the three factors
warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Em-
ployer’s withdrawal of recognition. An affirmative bar-
gaining order, with its attendant bar to raising a question
concerning the Union’s continuing majority status for a
reasonable time, does not unduly prejudice the Section 7
rights of employees who may oppose continued union
representation because the duration of the order is no
longer than is reasonably necessary to remedy the ill ef-
fects of the violation.
Moreover, we note that in addition to unlawfully with-
drawing recognition, the Respondent’s other unfair labor
practices were serious and numerous. These included
promising employees wage increases and changes in
benefits if they decertified the Union; stating that it
would never sign a contract with the Union; threatening
employees with termination and/or reprisals for support-
ing the Union; informing employees that it was futile to
select a union as their bargaining representative, that it
had withheld wage increases because employees had
selected the Union as their bargaining representative, and
that it was granting employees a wage increase because
they had decertified the Union; bypassing the Union and
dealing directly with the unit employees; granting unilat-
eral wage increases to its employees; and changing
health insurance and other benefits for its employees.
Although time has elapsed since these unfair labor prac-
tices were committed, many of them were of a continu-
ing nature and would likely have a longlasting effect.
The wage increases and improvements in benefits serve
as a constant reminder of the Respondent’s use of eco-
nomic weapons to defeat the Union.
We further note that, as found by the judge, the March
20, 1998 decertification petition did not reflect employee
free choice under Section 7, but the result of the prom-
ises of the Respondent’s agents, McKinney and Parker.
We find that these circumstances support giving greater
weight to the Section 7 rights that were infringed by the
Respondent’s unlawful withdrawal of recognition.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining or to engage
in any other conduct designed to further discourage sup-
port for the Union. It also ensures that the Union will not
be pressured, by the possibility of a decertification peti-
tion, to achieve immediate results at the bargaining table
following the Board’s resolution of its unfair labor prac-
tice charges and issuance of a cease and desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violations because it would permit a decerti-
fication petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement. Such a result would
be particularly unfair in circumstances such as those
here, where litigation of the Union’s charges took a cou-
ple of years and many of the Respondent’s unfair labor
practices were of a continuing nature and were likely to
have a continuing effect, thereby tainting any employees
disaffection from the Union arising during that period or
immediately thereafter. We find that these circumstances
outweigh the temporary impact the affirmative bargain-
ing order will have on the rights of employees who op-
pose continued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Equip-
ment Trucking Co., Inc., and Smith Trucking Company,
Winchester, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
Substitute the following for paragraph 2(e).
“(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.”

3 As set forth in his concurrence, Chairman Hurtgen would also au-
thorize the Regional Director to appoint, at the Union’s request, a me-
diator. The mediator would be directed, at the Respondent’s expense,
to participate in all bargaining sessions and to attempt to forge an
agreement or, failing an agreement, to report to the parties and the
Regional Director on the status of negotiations and the mediator’s
recommendations. We find the Chairman’s proposal of interest. How-
ever, as the General Counsel has not sought this novel remedy and the
parties have not had an opportunity to brief the issue, we would not
address it at this time.
EQUIPMENT TRUCKING CO. 279
CHAIRMAN HURTGEN, dissenting in part and concur-
ring in part.
I adopt the judge’s findings in all but the following re-
spects:1
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) based on statements by its vice president,
Darrell Howard, to employee Larry Northrup. The judge
found that, on March 23, 1998, while a petition was cir-
culating to decertify the Union, Northrup stated that the
Union was not hurting employees and that its absence
would hurt employees (like Northrup) who were ap-
proaching retirement. In response, Howard told Northrup
that “they was never going to sign a contract anyway,
and it was Jeanne Bruner’s company and she’d run it any
way she wanted to, and, if [Northrup] didn’t like it, [he
could] find another job.”
The judge found that Howard’s comments to Northrup
violated Section 8(a)(1) in two respects. The judge found
that Howard’s statement, that the Respondent would
never sign a contract, unlawfully conveyed to Northrup
the futility of employees’ exercising their Section 7 right
to union representation. The judge further found that
Howard’s comment that Northrup should get another job
if he was unhappy with the way the Respondent was op-
erating, additionally violated Section 8(a)(1) as an im-
plied threat of discharge.
My colleagues rely on Padre Dodge, 205 NLRB 252
(1973); and Stoody Co., 312 NLRB 1175, 1181 (1993).
These cases offer them no support. The statement in
Padre Dodge was not said to be a threat of discharge.2 In
Stoody, unlike here, the employer stated that the em-
ployee “should” find another job.
I agree that Howard’s March 23 comments violated
Section 8(a)(1) in that they unlawfully conveyed to em-
ployees the futility of Union representation. I also find
that Howard’s statement—that if Northrup did not like
the fact that the Respondent would never sign a contract,
he (Northrup) could find another job—reasonably would
coerce Northrup in the exercise of his Section 7 rights.
However, I find nothing in this latter comment, or the
context in which it was made, which reasonably would
be interpreted as impliedly threatening Northrup with
discharge. At most, it suggested that Northrup would
leave the Respondent’s employ because of the circum-
stances there. Accordingly, I would reverse the judge’s
decision and order insofar as he finds that this March 23

1 In addition to the following three instances, I adopt fn. 1 of the de-
cision insofar as it states that it is unnecessary to rely on the judge’s
striking of the Respondent’s answer to the complaint allegations
involving its agents, Brian McKinney and Chris Parker.
2 See Padre Dodge, 205 NLRB at 252, 254 (conclusions of law).
incident constituted an 8(a)(1) implied threat of dis-
charge.
2. The judge found that the Respondent violated Sec-
tion 8(a)(1) based on Vice President Howard’s April 6,
1998 comment to employee Jeff Thomas. The judge
found that by telling Thomas that “you don’t appreciate
your job much,” Howard unlawfully threatened him with
unspecified reprisal because Thomas had not signed the
decertification petition. I disagree.
I find that Howard’s comments reasonably cannot be
construed as a threat of reprisal. Telling an employee
that he does not appreciate his job is, by its literal terms,
too vague to signify a threat.3 Nor does the context in
which this statement was made reasonably indicate that it
would be construed as a threat of reprisal. Indeed, after
Northrup responded to Howard’s comment, with “[Y]es,
I do [appreciate my job],” Howard merely walked away,
stating, “[T]hat’s all I have to say.” If anything, this re-
joinder undercuts any notion that Howard’s initial state-
ment reasonably would be viewed as a threat. My col-
leagues say that the “obvious coercive effect” of the
statement is not undercut by the fact that Respondent
“did not elaborate” on it. As discussed, I view the state-
ment as vague, not “obvious.” Further, the response of
Thomas and Howard’s reaction thereto, if anything, point
away from a finding of coercion.
Accordingly, I would dismiss this 8(a)(1) allegation.
3. Finally, although I would not find the 8(a)(1) viola-
tions discussed above, I do agree with the judge that the
Respondent’s unfair labor practices were serious and
numerous, and agree with my colleagues that an affirma-
tive bargaining order is warranted. Caterair Interna-
tional, 322 NLRB 64 (1996). Indeed, I find that further
remedial relief is warranted.
After 2 years of bargaining, without an initial agree-
ment having been reached, the Respondent engaged in a
course of conduct that undermined any prospect of suc-
cess in further bargaining. Specifically, the Respondent,
among other things: promised employees wage increases
and enhanced benefits if they decertified the Union; in-
formed employees that it would never sign a contract
with the Union; informed employees that it was futile to
select union representation; bypassed the Union and dealt
directly with employees; informed employees that wage
increases had been withheld because they had selected
union representation; unlawfully withdrew recognition
from the Union; and unilaterally changed employees
3 Standard Products Co., 281 NLRB 141, 148 (1986), enfd. in rele-
vant part 824 F.2d 291 (4th Cir. 1987) (“[t]he statement standing alone
. . . is somewhat vague, subject to interpretation to the listener . . .
[S]tanding alone it does not rise to the level of a threat that would vio-
late Section 8(a)(1)”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 280
terms and conditions of employment in derogation of the
Union’s representational status and in an effort to deny
employees union representation.
In these circumstances, I fear that it may be wholly in-
adequate to simply order the Respondent to remedy its
violations and permit the parties to resume bargaining.
As I stated in my concurrence in Altorfer Machinery Co.,
332 NLRB 130, 133 (2000): “The mere order may be
insufficient to cause the Respondent to genuinely change
its mind and view concerning the efficacy of union rep-
resentation.” See also Burrows Paper Corp., 332 NLRB
82, 84 (2000) (concurring opinion).
In Altorfer and Burrows the respondent employers en-
gaged in bad-faith and surface bargaining throughout
negotiations. In those circumstances, I questioned
whether merely sending the respondents back to the bar-
gaining table likely would “change [their] attitude and
demonstrated antipathy to collective bargaining,”4 or
change their minds regarding “the efficacy of union rep-
resentation.”5 Concededly, this case differs from Altorfer
and Burrows in that it does not center on bad faith bar-
gaining for an agreement. However, it clearly does dem-
onstrate a situation where the Respondent so repeatedly
and systematically undermined the Union as bargaining
representative, that there is serious question whether,
without intervention, successful bargaining could occur.
For that reason, I would authorize the Regional Direc-
tor to appoint, at the Union’s request, a mediator for bar-
gaining—chosen from a list of those qualified from an
American Arbitration Association panel for the Regional
Office area which includes the Respondent. The selec-
tion may be of a person mutually chosen by the parties,
or through a procedure of alternatively striking names
from the list. The mediator would be directed at Re-
spondent’s expense to participate in all bargaining ses-
sions, and to attempt to forge an agreement. Failing such
an agreement, after a period of time decided by the me-
diator, the mediator would render a report to the parties
and the Regional Director on the status of negotiations,
including matters agreed on, matters not agreed to and
the positions of the parties thereto, and the mediator’s
recommendation with respect to the nonagreed on issues.

Christal J. Gulick, Esq., for the General Counsel.
Michael J. Bobroff, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me in Winchester, Illinois, on Oc-
tober 28, 1998, pursuant to a complaint filed by the Regional

4 332 NLRB 82, 84.
5 332 NLRB 130, 133.
Director for Region 14 of the National Labor Relations Board
(the Board) on June 30, 1998, as amended on October 15, 1998.
The complaint is based on charges filed by Teamsters Local
Union 916 affiliated with International Brotherhood of Team-
sters, AFL–CIO (the Charging Party or the Union). The com-
plaint, as amended, alleges that Equipment Trucking Co., Inc.,
and Smith Trucking Company, Single Employer (jointly as the
Respondent or the Company and separately as Equipment
Trucking and Smith Trucking) committed violations of Section
8(a)(1), (3), and (5) of the Act. Jeanne Bruner is the president
of Respondent and Darrell Howard is the vice president of Re-
spondent. Respondent has by its answer, as amended, denied
the commission of violations of the Act. At the hearing Re-
spondent moved to dismiss the allegations added by the
amendment to the complaint 13 days prior to the hearing on the
basis of its close proximity to the hearing date. I found no rea-
son for granting this motion and it was denied at the hearing as
the representatives of Respondent involved in the amended
allegations were the same as those involved in the original
complaint allegations and were present at the hearing and the
amendment did not involve any complex allegations which
could not be readily addressed by Respondent.
On the entire record in this proceeding, including my obser-
vation of the witnesses who testified and after due considera-
tion of the briefs filed by the General Counsel and the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find that at
all times material, Equipment has been a Delaware corporation,
with its primary office and place of business located in Win-
chester, Illinois, and has been engaged in the transportation of
heavy equipment and other products, that Smith Trucking has
also been engaged in the transportation of heavy equipment and
other products and that during the 12-month period ending May
31, 1998, Smith Trucking in conducting its aforesaid business
operations has purchased and received at its Winchester, Illi-
nois facility goods and materials valued in excess of $50,000
directly from points outside the State of Illinois and Equipment
Trucking and Smith Trucking have each provided services in
excess of $50,000 for enterprises within the State of Illinois,
each of which enterprises meets a direct standard for assertion
of jurisdiction by the Board. It is further alleged, admitted, and
I find that at all times material that Equipment Trucking and
Smith Trucking have been affiliated business enterprises with
common officers, ownership, directors, management, and su-
pervisors; have formulated and administered a common labor
policy; have shared common premises and facilities; have pro-
vided services for and made sales to each other and have inter-
changed personnel with each other; and, have held themselves
out to the public as a single-integrated business enterprise and
accordingly constitute a single-integrated business enterprise
and a single employer within the meaning of the Act. Equip-
ment Trucking and Smith Trucking have been employers
EQUIPMENT TRUCKING CO. 281
within the meaning of the Act and have engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
B. The Labor Organization
The complaint alleges, the Respondent admits, and I find that
at all times material the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
C. The Appropriate Unit
The complaint alleges, Respondent admits, and I find that at
all times material the following employees of Respondent con-
stitute a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act:

All drivers and mechanics employed by Respondent at its
Winchester, Illinois facility, EXCLUDING office clerical and
professional employees, guards and supervisors as defined in
the Act.

It is further alleged and admitted and I find that on April 15,
1996, the Union was certified as the exclusive collective-
bargaining representative of the unit and at all times since April
15, 1996, based on Section 9(a) of the Act, the Union has been
the exclusive collective-bargaining representative of the unit.
II. THE ALLEGED UNFAIR LABOR PRACTICES
This case involves alleged violations of Section 8(a)(1) by
the issuance of threats and the promise of increases in wages
and of the granting of benefits if the unit employees decertified
the Union as their collective-bargaining representative and the
circulation of a decertification petition by Respondent through
two unit employees who are alleged to have been agents of the
Respondent in the circulation of the decertification petition and
to have made promises of wage increases and changes in bene-
fits if the Union were decertified and Respondent is also al-
leged to have made threats of the futility of bargaining and
obtaining a wage increase or improvements in benefits if the
Union were not decertified. The two unit employees alleged to
have served as agents of the Respondent in this regard are Brian
McKinney and Chris Parker.
Immediately prior to the opening of the hearing in this case,
the General Counsel announced that she had a problem with the
attendance of McKinney and Parker who had been served with
subpoenas ad testificandum by the General Counsel and Re-
spondent’s attorney then advised that these two witnesses had
informed Respondent that they did not plan to show up at the
hearing and that Respondent had sent them out of town in the
performance of their duties as truckdrivers. I announced that I
would strike Respondent’s defense for its complicity in aiding
their nonattendance and compliance with the subpoenas by
dispatching them out of town. I also informed the parties that I
would hear the case in its entirety and make alternative findings
on the merits as well, in case the Board did not agree with my
decision to strike the Respondent’s answer. The General Coun-
sel at the hearing and in brief supports my decision to strike
Respondent’s answer insofar as the role of these two witnesses
are involved. The Respondent at the hearing and in brief op-
poses my decision to strike its answer and contends that it had
no role in the two witnesses’ failure and refusal to comply with
the subpoenas, but merely sent them to work after they an-
nounced a fait accompli, that they would not attend the hearing.
The Respondent thus contends that I have abused my authority
in striking their answer.
In its brief the Respondent argues further that the General
Counsel has not proved that the witnesses were in fact served
with a subpoena. However, at the hearing the General Counsel
asserted, these witnesses were under subpoena and it is clear
that at the time Respondent made the work assignments for the
day of the hearing, Respondent had been advised by Parker and
McKinney that they had been subpoenaed by the General
Counsel. It is obvious that Respondent was aware of the sub-
poenas having been served on McKinney and Parker as there
would otherwise have been no statement made to Respondent
by them that they did not plan to attend the hearing.
I find that by sending the employees out of town under these
circumstances with the knowledge that these two key witnesses
were named in the complaint, and were under subpoena the
Respondent assisted them in their efforts to evade the subpoe-
nas. Thus, the Respondent is not a neutral or a nonparticipant
here. By sending these employees out of town on the day of
the hearing Respondent became an active ally in their efforts to
evade the subpoena and thus interfered with Board process.
Whether the General Counsel would have otherwise been suc-
cessful in seeking compliance with the subpoena is a matter of
speculation but by removing these witnesses from the area,
Respondent assured that they would not be available for the
hearing, placing the General Counsel at a significant disadvan-
tage in her prosecution of the complaint in this case if she
elected to proceed without them and or causing unwarranted
delay and expense to all concerned if the General Counsel
sought enforcement of the subpoenas. Such interference with
Board process is neither to be tolerated or rewarded. I, thus,
reaffirm my ruling at the hearing but will limit the striking of
the answer to any acts or statements attributable to McKinney
and Parker. As stated at the hearing I will issue this decision
based on the complaint allegations with respect to McKinney
and Parker. However I will make alternative findings assuming
arguendo that the Board disagrees with the striking of the an-
swer to any allegations concerning the conduct of McKinney
and Parker. There are ample Board and court precedents for
striking defenses of an employer who in an analogous situation
refuses to comply with subpoenas duces tecum, Bannon Mills,
Inc., 146 NLRB 611, 613 fn 4, 633–634 (1964); Ingalls Ship-
building, 242 NLRB 417, 421 fn. 7 (1979); American Art In-
dustries, 166 NLRB 943, 951–953 (1967), affd. 415 F.2d 1223,
1229–1230 (5th Cir. 1969), cert. denied 397 U.S. 990 (1970);
Hedison Mfg. Co. v. NLRB, 643 F.2d 32 (1st Cir. 1981); and
Control Services, 303 NLRB 481, 483 (1991). In Louisiana
Cement Co., 241 NLRB 536, 537 fn. 2 (1979), the Board pre-
cluded the defiant party from calling company officials and
supervisors as its own witnesses where it had failed to comply
with subpoenas calling for the testimony of these officials and
supervisors.
In addition to the foregoing this case also involves allega-
tions of violations of Section 8(a)(5) of the Act by the with-
drawal of recognition from the Union as the collective-
bargaining representative of the unit employees, by bypassing
the Union and by direct dealing with the employees and by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 282
issuance of wage increases and the implementation of changes
in benefits. The issuance of the wage increases and the grant-
ing of benefits are also alleged as violations of Section 8(a)(3)
of the Act.
A. The 8(a)(1) Allegations
1. Complaint subparagraph 5A
The complaint alleges that between March 1 and 15, 1998,
Respondent, by Vice President Darrell Howard, told an em-
ployee that Respondent would grant employees wage increases
and change employees’ benefits if employees decertified the
Union.
As Brian McKinney who told other employees that he had
received this promise from Howard did not appear and testify,
no direct evidence regarding this allegation was presented, and
the General Counsel does not seek a finding of a violation with
respect to this allegation and I accordingly do not find a viola-
tion with respect to this allegation.
2. Complaint subparagraphs 5B and C
The complaint alleges that between about March 15 and 19,
1998, Respondent, by Brian McKinney and Chris Parker, at its
facility and by telephone promised wage increases and changes
in employees’ benefits if employees decertified the Union.
The evidence established that between March 14 and 19 em-
ployees McKinney and Parker solicited the employees to sign a
decertification petition and told them that Respondent would
give the employees a $2-an-hour-wage increase with health
insurance as good or better than insurance through the Union
and either a 401(k) or a Roth IRA retirement plan. McKinney
also told the employees that if they did not want the insurance,
Respondent would give them an additional $1.50- to $2-an-
hour-wage increase.
Employee Jack L. Gauges testified that on Saturday morn-
ing, March 14, at the shop Parker told him, “[H]e could get us a
$2 an hour raise if we’d get rid of the Union.” When Gauges
told Parker he did not “want to lose the benefits we had and I
wasn’t sure,” Parker said, “[T]hat Brian (McKinney) said we
wouldn’t lose our benefits, we’d have insurance.” “He (Parker)
said Darrell Howard’ll make sure of that.” The following
Wednesday Parker called him at home in the evening and in-
quired whether Gauges “was going to sign the petition to get rid
of the Union?” He told Parker he did not know. A few minutes
later Gauges telephoned McKinney and “I asked him what was
going on with the Union, that Chris had been talking to me
about getting rid of it.” McKinney said, “[T]hat was true” and
that “he (McKinney) could get us a $2 an hour raise and they
were also talking about a 401K or Roth plan.” Gauges asked if
they would put this in writing. McKinney said, “I doubt it, but
I’ll call them,” and hung up. McKinney called him back 20
minutes later and said, “[T]hey wouldn’t put it in writing.”
McKinney also said that, “[I]f anyone would ask, that they
would deny it.” Gauges then asked McKinney who “they”
were and McKinney replied, “[T]he company.” Gauges told
McKinney he would think about signing the petition. A few
minutes after his second conversation with McKinney, Parker
called him again and told him that if he “was going to sign the
petition, it’d be in Brian’s (McKinney’s) pickup the next day at
work . . . in the front seat.” Parker also told him the petition
“had to be back in before Friday.” The following week there
was a letter in his pay envelope informing him of the wage
increase. The letter did not contain any mention of a 401(k) or
retirement plan. A day or two later he asked McKinney about
the lack of a reference to retirement in the letter and McKinney
said, “[H]e’d check into it for us.”
Employee Ron Holmes testified that on Sunday evening,
March 15, he was telephoned at home by McKinney who told
him “[H]e was trying to get rid of the Union” and “[I]f we
would get rid of the Union, we could get a raise.” The raise
would be $2 per hour and the employees “could get insurance
and a 401(k) plan.” He asked McKinney, “[H]ow he knew
this” and McKinney replied, “[T]hat Darrell (Howard) told him
this” and that “Darrell said that we could get a raise if we could
get rid of the Union.” He told McKinney he would think about
it. Two or three days later he signed the petition presented to
him at that time by McKinney in the Respondent’s shop. He
identified his signature on the petition at the hearing but testi-
fied that there was no writing on the top of the petition when he
signed it. Nor was there a date beside his name which presently
appears. Subsequently on Wednesday, March 25, he received a
letter informing him of the $2-an-hour increase in his pay enve-
lope. There was no mention of a 401(k) plan in the letter. He
asked McKinney about this outside the Respondent’s shop 2 or
3 days later and McKinney said, “[H]e’d look into it.”
Employee Dick Davidson testified that on March 19, Parker
spoke to him in Respondent’s shop and said that he and
McKinney were circulating a petition to get rid of the Union.
He asked Parker why and Parker replied that the Union had not
done anything for him (Parker). Parker told him that if it were
signed, the employees would get a $2-per-hour raise and better
insurance. He asked Parker who had said this and Parker re-
plied that McKinney had said “they” had said this. He refused
to sign the petition. On March 25, he received notification of
the same pay increase that Parker had discussed with him. He
then went to the Respondent’s shop at his father’s desk and
discussed the raise with his father, Paul Davidson, and his
brother, Rick Davidson, who are also employees and employ-
ees Jeff Thomas and John Bonch. While they were discussing
the raise, Howard approached and talked to them about signing
insurance forms. Thomas asked Howard about the retirement
they were losing. Howard said, “[H]e was going to try to get us
a retirement plan” and mentioned a “401(k).” Howard also said
the new insurance would be better than the prior insurance.
Employee Jeff Thomas testified that about 11 a.m. on March
20th he learned of a petition being circulated to get rid of the
Union. He then sought out McKinney and inquired as to what
was going on with the petition. McKinney told him, “[H]e
thought, if we got rid of the Union, we could get a $2 an hour
raise, keep our insurance, and get a 401K or Roth IRA plan.”
On Wednesday, March 25, he learned of the pay raise from a
letter enclosed with his paycheck and also that the Company
would offer a health insurance plan. The letter also stated that
the Respondent was going to offer a better insurance plan than
the one the employees had through the Union.
Employee Larry Northrup testified that on March 20 he
learned of the circulation of the decertification petition and
EQUIPMENT TRUCKING CO. 283
questioned McKinney about it. McKinney told him in the pres-
ence of Mark McGlauchen, “[T]he Union had been petitioned
out, that it was a done deal, and there wasn’t no more could be
said.” McKinney told them “[h]e was going to give us a $2 an
hour raise and a hospital plan equal to what we had and a 401K
plan.” Northrup told McKinney that he “[c]ouldn’t give us
nothing, that he was just a driver same as I was.” He asked
McKinney if Howard, “[h]ad anything to do with it.” McKin-
ney “just winked at me and dropped his head.”
Employee Mark McGlauchen testified that on Sunday,
March 15, he was telephoned at home by McKinney who
asked, “[W]hat I would think of getting a $2 an hour raise and
insurance and either a Roth IRA or a 401K . . . and get out of
the Union.” McKinney said, “[I]f you don’t need the insurance,
you could probably get another $1 or $2 an hour on top of
that.” He asked McKinney, “[W]hat makes you think you can
get that?” McKinney replied, “[W]e’ve been talking.” He
asked McKinney if he could get it in writing and McKinney
said no and told him, “[Y]ou know why.” He told McKinney,
“[Y]ou can’t put it in writing because you’re negotiating with-
out the Union, right, and he (McKinney) said that’s right.” He
told McKinney he would not go along unless he got it in writ-
ing. McKinney said, “[T]hey can’t put it in writing.” On Tues-
day, March 17, McGlauchen was telephoned at home by Parker
who told him that “he wanted me and two or three other guys
that lived in my area together to sign this paper and he wanted
us to do it on Thursday evening.” “He (Parker) said we needed
to get it done Thursday evening because it had to be turned in
by noon Friday.” On Thursday, March 19, McGlauchen
telephoned McKinney and inquired whether he had anything in
writing and McKinney said he did not. McGlauchen then said
he would not “go along with it.” McKinney said, “I don’t
blame you for what you’re doing, but its not a bad offer that
they’re offering and we’ve got enough signatures to do it
without you, so don’t worry about it.” Subsequently, he
learned of the wage increase when Howard handed him a letter
(GC Exh. 4c) informing him of it and the options regarding
insurance or an additional wage increase in lieu thereof. The
additional wage increase in lieu of the insurance corresponded
to a discussion he had with President Jeanne Bruner’s husband
a year prior in her presence in which McGlauchen told him he
did not need the insurance as his wife had a better plan and
Bruner’s husband indicated this could be done.
Vice President Darrell Howard testified that he was aware of
the circulation of the petition but otherwise disclaimed knowl-
edge. I do not credit Howard’s disclaimer of knowledge.
I credit the foregoing testimony of these current employees
which was not rebutted by the Respondent and find it estab-
lishes that Respondent by McKinney and Parker promised
wage increases and changes in benefits if the employees decer-
tified the Union in violation of Section 8(a)(1) of the Act. It is
clear from the timing and delivery of the same increase in
wages and benefits changes by Respondent only 3 days after
the receipt of the petition that the promises of wage increase
and benefit changes made by McKinney and Parker were made
with Respondent’s knowledge and authorization. Hooper’s
Chocolates, 319 NLRB 437, 441 (1995).
3. Complaint subparagraphs 5D and E
Subparagraph 5D of the complaint alleges that about March
23, 1998, Respondent, by Vice President Howard at its facility,
told an employee that Respondent would never sign a contract
with the Union. Subparagraph 5E of the complaint alleges that
on the same date Howard impliedly threatened an employee
with termination because the employee supported the Union.
Employee Larry Northrup, a 30-year employee, testified that
on March 20 he learned that a petition had been circulated to
decertify the Union. He confirmed this with McKinney on that
date. On March 23 he talked to Howard and told him, “[T]he
union wasn’t hurting us in any way and it (the withdrawal of
recognition) was going to hurt a lot or a few of us that was due
to retire It was going to cut into our retirement.” Howard told
him, “[T]hey was never going to sign a contract, anyway, and it
was Jeanne Bruner’s company and she’d run it any way she
wanted to, and, if I didn’t like it, find another job.” Howard
testified at the hearing that he told Northrup that “we didn’t
need to sign a contract because the union had been decertified.”
Howard did not otherwise address the statement attributed to
him by Northrup. I credit Northrup’s testimony as set out
above. I find Howard’s statement that Respondent never was
going to sign a contract with the Union was violative of Section
8(a)(1) as it conveyed the message of futility of the exercise of
the employees’ rights under Section 7 of the Act. Outboard
Marine Corp., 307 NLRB 1333, 1335 (1992). I find that How-
ard’s statement that Northrup should get another job if he did
not like the way the Company was operating, was an implied
threat of discharge and violated Section 8(a)(1) of the Act.
Stoody Co., 312 NLRB 1175, 1181 (1993).
4. Complaint subparagraph 5F
Subparagraph 5F of the complaint alleges that on or about
April 6, 1998, Respondent, by Vice President Howard at its
facility, threatened an employee with an unspecified reprisal for
not signing a petition to decertify the Union.
The Union filed the initial charge in this case on March 26,
1998. Employee Jeff Thomas testified that on April 6, 1998,
about 8 a.m. at the Illinois Valley Paving side (a company
owned by Jeanne Bruner’s father-in-law) Howard said to him,
“[Y]ou don’t appreciate your job much.” Thomas responded,
“[Y]es, I do.” Howard said, “[T]hat’s all I have to say and
turned around and walked off.” Thomas had been an observer
for the Union at the 1996 election. Later on October 19, 1998,
Thomas asked to speak to Howard and, “I told him I was tired
of this shit of me being blamed for turning the company in to
the Labor Relations Board and that I didn’t have anything to do
with it.” Howard responded, “[T]hat we would be going to
court real soon and he’d find out who had turned them in to the
Labor Relations Board.” Howard also said, “[I]f he was wrong
about me, he’d apologize.” Howard admitted at the hearing
that on April 6 after the withdrawal of recognition he told em-
ployee Jeff Thomas, that he didn’t appreciate his job very
much.
I credit the testimony of Jeff Thomas as corroborated by
Howard. I find that the evidence supports a finding that How-
ard linked Thomas’ union activities to this threat of discharge
and that Respondent thereby violated Section 8(a)(1) of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 284
Act. See Fieldcrest Cannon, Inc., 318 NLRB 470, 487 (1995),
wherein a statement by a supervisor to a known union sup-
porter, that the union could put the employee’s job in jeopardy
and that he should find another job, was violative of Section
8(a)(1) of the Act.
5. Complaint subparagraphs 5G, H, and I
The complaint alleges that Respondent President Jeanne
Bruner and Vice President Howard, in a letter to employees,
informed employees that it was futile to select a union as their
collective-bargaining representative, that it had withheld wage
increases because employees had selected the Union as their
collective-bargaining representative, and informed employees
that it was granting them a wage increase because they had
decertified the Union.
It is undisputed that Respondent’s March 23 letter to its em-
ployees (G.C. Exh. 4a-c) stated, “[A]s we told those of you who
were with us in April of 1996 when the election was held, we
do not believe this Union could do anything for you.” I find
Respondent violated Section 8(a)(1) of the Act by this state-
ment which informed the employees it was futile to select the
Union as their collective-bargaining representative.
The letter was also violative of Section 8(a)(1) of the Act by
asserting that wage increases had been withheld because of the
employees’ selection of the Union. Laidlaw Waste Systems,
307 NLRB 52, 54 (1992). The letter was also violative of Sec-
tion 8(a)(1) of the Act by its statement that Respondent was
granting the wage increase and change in benefits because of
the decertification of the Union, Hooper’s Chocolates, supra.
6. Complaint subparagraph 5J
The General Counsel did not present any evidence which
would have come through McKinney concerning subparagraph
5J which alleges that between March 23 and 30, 1998, Respon-
dent by Vice President Darrell Howard at its facility informed
an employee that it was withholding benefits because the Union
had filed charges with the Board. I accordingly do not find a
violation with respect to this allegation.
B. The 8(a)(3) and (5) Allegations
Facts
Respondent Equipment’s employees have been represented
by the Union for a number of years. Jeanne Bruner is the
president and majority stockholder of Equipment. Darrell
Howard is the vice president, and minority stockholder of
Equipment. Howard is the owner of Smith Trucking and serves
as dispatcher for both businesses. On April 15, 1996, the Un-
ion was certified to represent employees of both Equipment and
Smith Trucking in a single unit. There had been no agreement
reached between the parties on the initial collective-bargaining
agreement for the unit. There had been several bargaining ses-
sions between the parties from the time of the Union’s certifica-
tion until January 1998, with no discussion of economic items
up to that time. There had been no wage increase or improve-
ment in benefits during this period. Prior to the election in
1996 the Respondent had opposed the Union’s selection as
collective-bargaining representative in letters written to the unit
employees.
Employee Mark McGlauchlen testified that on January 2,
1998, he told Howard he was considering leaving his employ-
ment with Respondent as a result of his dissatisfaction with the
wages and benefits. Howard told him he did not want him to
leave but “could understand that things weren’t as good as they
could be.” Howard then went on to say, “[I]f you guys would
forget this Union, things could be a lot better around here, there
could be probably, a wage increase and things would be a lot
better.” I credit his testimony which was unrebutted.
The testimony of employees McGlauchen, Gauges, Holmes,
Thomas, and Northrup as set out above in this decision estab-
lishes that Respondent fostered the circulation of the petition to
decertify the Union. Respondent’s letters of March 23, 1998,
are as follows:

March 23, 1998

TO: Equipment Trucking Co. Tandem drivers

From: Jeanne Bruner and Darrell Howard

On Friday we received a petition from a majority of
you that you no longer wish to be represented by Team-
sters Local 916. We are happy that you decided to do this
because as we told those of you who were with us in April
of 1996 when the election was held, we do not believe this
union could do anything for you and that having a union
would just delay any future wage increases.
We want to let you know that we will be increasing
wage rates effective Monday, March 30, 1998. We also
want you to know that we are going to be implementing
new medical and dental insurnace [sic.] coverage through
GHP which you are now eligible for if you choose to be.
For all of those who wish to participate, we will this week
be having you complete insurance forms, which we will
then send to the insurance company, and we will then be
notifying you of the effective date for the new health in-
surance plan. It should become effective sometime in
April. During the months which you are not working, you
will be responsible for reimbursing the Company for the
cost of the insurance.
The following are two different options we need you to
choose from by filling out the attached form and returning
it to us by March 30, 1998.

Option A:
- Wage rate of $9.50/hour with medical and dental
in surance
- Medical exams and drug and alcohol tests will be
the same as in the past
- Time and a half will be paid after 40 hours per
week1

Option B:
- Wage rate of $11.00/hour with no insurance
- Medical exams and drug and alcohol tests will be
the same as in the past
- Time and a half will be paid after 40 hours per week

1 Prior to this overtime was paid on a daily basis for overtime
worked in excess of 8 hours.
EQUIPMENT TRUCKING CO. 285
[Emphasis added.]

Please choose which option you want and return it to
us as soon as possible.

Sincerely,

____________________________________
Jeanne BrunerDarrell Howard

__________ I choose Option A with insurance coverage.

__________ I choose Option B with no insurance coverage.

_____________________ ________________
Signature Date

March 23, 1998

TO: Equipment Trucking Co. Tractor drivers

From: Jeanne Bruner and Darrell Howard
Note: The same identical body of the letter to Tandem Driv-
ers.

The following are two different options we need you to
choose from by filling out the attached form and returning
it to us by March 30, 1998.

Option A:
- Wage rate of $10.75/hour with medical and dental
insurance
- Time and a half will be paid after 40 hours per week
for everyone
- Medical exams and drug and alcohol tests will be
the same as in the past
- Paid holidays when the day before or the day after is
worked

Option B:
- Wage rate of $12.25/hour with no insurance
- Time and a half will be paid after 40 hours per week
for everyone
- Medical exams and drug and alcohol tests will be
the same as in the past
- Paid holidays when the day before or the day after is
worked
[Emphasis added.]

Please choose which option you want and return it to
us as soon as possible.

Sincerely,

_/s/ Jeanne Bruner ________ /s/ Darrell Howard _______
Jeanne Bruner Darrell Howard

March 23, 1998

TO: Equipment Trucking Co. Mechanics

From: Jeanne Bruner and Darrell Howard

Note: The same identical body of the letter to Drivers.

The following are two different options we need you to
choose from by filling out the attached form and returning
it to us by March 30, 1998.

Option A:
- Wage rate of $10.65/hour with medical and dental
insurance
- Time and a half will be paid after 40 hours per week
for everyone
- Paid holidays when the day before or the day after is
worked
- 1 week paid vacation after 1 year of service and
2 weeks paid vacation after 2 years of service for
those of you who work at least 90% of the year.
[Emphasis added.]

Option B:
- Wage rate of $12.15/hour with no insurance
- Time and a half will be paid after 40 hours per week
for everyone
- Paid holidays when the day before or the day after is
worked
- 1 week paid vacation after 1 year of service and
2 weeks paid vacation after 2 years of service for
those of you who work at least 90% of the year.
[Emphasis added.]

Please choose which option you want and return it to
us as soon as possible.

Sincerely,

_/s/ Jeanne Bruner ________ /s/ Darrell Howard _______
Jeanne Bruner Darrell Howard
Analysis
This case involves the animus of the employer toward the
employees’ election of the Union and its efforts to dislodge it as
collective-bargaining representative of the unit employees
through the use of two unit employees to carry its message that
wage increases and improvements in benefits would be forth-
coming once the Union was removed from the picture. The
employers’ agents, Brian McKinney and Chris Parker, were
utilized to circulate a petition to decertify the Union as the col-
lective-bargaining representative of the unit employees with the
promise of a $2-per-hour-wage increase, health insurance, or an
additional hourly increase of $1.50 to $2 if the employees did
not want the health insurance and a 4019(k) or Roth IRA re-
tirement plan. The evidence establishes that the employees
were told the petition must be signed by Thursday, March 19,
to be presented to the Respondent’s management on Friday,
March 20. When the petition was tendered to Respondent on
March 20, Respondent’s representative immediately telephoned
the Union on the same date and withdrew its recognition of the
Union and canceled a negotiation meeting scheduled for Thurs-
day, March 26, at which the parties had agreed to discuss
wages. Additionally, the Respondent’s president and vice
president signed letters dated Monday, March 23, which were
distributed to employees on their payday, Wednesday, March
25, in their pay envelopes. The letters informed the employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286
of a $2-per-hour-wage increase, health insurance, or an addi-
tional $1.50-an-hour increase if they chose to waive their health
insurance and also changed the commencement of the payment
of overtime after eight hours of work per day to commence
after 40 hours of work per week. Although the letters made no
mention of pension benefits, Respondent’s vice president, Dar-
rell Howard, later informed the employees that Respondent
would establish a 401(k) or Roth IRA pension after he was
questioned by employee Thomas concerning the lack of refer-
ence to a pension in Respondent’s letter of March 23. Thus, on
receipt of the decertification petition Respondent delivered
what had been promised by its agents McKinney and Parker in
return for the decertification of the Union. The Respondent
argues that the Respondent’s promises can only be established
by hearsay evidence on which no reliance should be placed and
that any number of reasons could account for the similarity
between the promises made by its agents and the improvements
in wages and benefits delivered by Respondent upon its receipt
of the decertification petition. I, however, conclude that the
complaint allegations have been established. By virtue of Re-
spondent’s answer having been struck insofar as the allegations
that McKinney and Parker acted as its agents in promising a
wage increase, health insurance, and a 401(k), or other retire-
ment plan if the employees signed the decertification petition, I
find this is undenied. I further find that the testimony of the
employees, relating the promises made by McKinney and
Parker on Respondent’s behalf, is entitled to both credence and
weight2 and may properly be relied on in establishing the viola-
tions. I find this testimony has been corroborated by reasonable
inferences establishing that McKinney and Parker acted as
Respondent’s agents in circulating the petition and promising
wage increases and changes in benefits in view of the virtually
identical terms offered by McKinney and Parker on Respon-
dent’s behalf and the timing of the delivery by Respondent of
those items promised following the withdrawal of recognition.
Clearly Respondent’s conduct in issuing its letter of March 23
granting the wage increase and offering health insurance or an
additional hourly increase in pay in the alternative and How-
ard’s subsequent verbal assurance that Respondent would ob-
tain a retirement plan for the employees, constituted an affirma-
tion of the promises made by McKinney and Parker on its be-
half. Dentech Corp., 294 NLRB 924, 925–926 (1989).
I thus find that Respondent violated Section 8(a)(1) of the
Act by the promises of a wage increase and improvements in
benefits in return for the employee’s rejection of the Union as
their collective-bargaining representative. I find that the Re-
spondent’s direct dealing with its employees, Respondent’s
withdrawal of recognition and refusal to bargain with the Union

2 Northern States Beef, 311 NLRB 1056 fn. 1 (1993), quoting “Ad-
ministrative agencies ordinarily do not invoke a technical rule of exclu-
sion but admit hearsay evidence and give it such weight as its inherent
quality justifys.” Alvin J. Bart & Co., 236 NLRB 242 (1978); Dauman
Pallet Inc., 314 NLRB 185, 186 (1994), wherein the Board stated that it
has long held that hearsay evidence will be admitted “if rationally pro-
bative in force and if corroborated by something more than the slightest
amount of other evidence,” citing RJR Communications, Inc., 248
NLRB 920, 921 (1980); Livermore Joe’s Inc., 285 NLRB 169 fn. 3
(1987).
on the basis of the decertification petition, the grant of the uni-
lateral increase in wages, changes in insurance benefits, and the
changing of the overtime policy were each violative of Section
8(a)(5) and (1) of the Act. A decertification petition obtained
by unfair labor practices such as these cannot be relied on to
assert a good-faith doubt of majority status, Hooper’s Choco-
lates, supra. It is well established that an employer may not
bypass the certified collective-bargaining representative of its
employees and deal directly with the employees. An employer
may not make threats or promises to employees concerning
their engagement in concerted activities or their rejection of
their collective-bargaining representative.
It is well established that an employer may rely on a decerti-
fication petition as grounds for withdrawing recognition to
establish a good faith doubt of the Union’s majority in the ab-
sence of unfair labor practices on its part which contributed to
the employees’ disaffection with the Union. In this case the
Respondent’s unfair labor practices directly contributed to the
Union’s loss of majority by virtue of the promises of its agents
McKinney and Parker as set out above. The petition to decer-
tify the Union could not be relied on as it was tainted by the
involvement of Respondent in its creation through its agents
McKinney and Parker. Lee Lumber & Bldg. Material Corp.,
322 NLRB 175 (1996), affd. in relevant part 117 F.3d 1454
(D.C. Cir 1997); Tocco Inc., 326 NLRB 1279 (1998). Choc-
tawhatchee Electric, 274 NLRB 595 (1985).
Since the withdrawal of recognition was unlawful, the uni-
lateral changes were also unlawful and violative of Section
8(a)(5) and (1) of the Act. Moreover the increase in wages and
changes in benefits were also violative of Section 8(a)(3) and
(1) of the Act as they were motivated by Respondent’s animus
against the Union and Respondent’s efforts to deny the em-
ployees union representation. A prima facie case has been
established that the wage increase and changes in benefits were
unlawfully motivated and Respondent failed to offer any le-
gitimate reason for instituting these wage increases and changes
in benefits. Holly Farms Corp., 311 NLRB 273, 274 (1993).
CONCLUSIONS OF LAW
1. Respondent Equipment Trucking Co., Inc. and Smith
Trucking Company, constitute a single employer and an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Teamsters Local Union 916, affiliated with International
Brotherhood of Teamsters, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a unit
appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:

All drivers and mechanics employed by Respondent at its
Winchester, Illinois facility, EXCLUDING office clerical and
professional employees, guards and supervisors as defined in
the Act.

At all times since April 15, 1996, the Union has been the exclu-
sive collective-bargaining representative of the employees in
the above-described unit within the meaning of Section 9(a) of
the Act.
EQUIPMENT TRUCKING CO. 287
4. Respondent violated Section 8(a)(1) of the Act by:
(a) Telling an employee that Respondent would grant em-
ployees wage increases and change employees’ benefits if the
employees decertified the Union.
(b) Its agents, Brian McKinney and Chris Parker, promising
employees wage increases and changes in benefits if they de-
certified the Union.
(c) Telling an employee that Respondent would never sign a
contract with the Union.
(d) Impliedly threatening an employee with termination be-
cause the employee supported the Union.
(e) Threatening an employee with unspecified reprisal for his
support of the Union.
(f) The issuance of letters to employees informing them that
it was futile to select a union as their bargaining representative,
that it had withheld wage increases because employees had
selected the Union as their bargaining representative, that it was
granting employees a wage increase because they had decerti-
fied the Union.
5. Respondent violated Section 8(a)(1) and (3), and (5) of the
Act by granting wage increases to its employees and changing
the health insurance and overtime pay benefits of its employ-
ees.
6. Respondent violated Section 8(a)(1) and (5) of the Act by:
(a) Its agents, Brian McKinney and Chris Parker, bypassing
the Union and dealing directly with the unit employees by of-
fering them wage increases and changes to employees’ benefits
if they signed a petition to decertify the Union.
(b) Withdrawing its recognition of the Union and refusing to
bargain with the Union as the exclusive collective-bargaining
representative of the Unit at a time when there were unreme-
died unfair labor practices which caused the Union’s lack of
support and in reliance on a decertification petition which had
been unlawfully initiated by its agents on its behalf.
7. The above unfair labor practices in conjunction with Re-
spondent’s status as an employer affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in violations
of the Act, it will be recommended that the Respondent cease
and desist therefrom and take certain affirmative actions to
effectuate the purposes of the Act and post the appropriate no-
tice.
It is recommended that Respondent rescind its withdrawal of
recognition from the Union, that it bargain with the Union for a
reasonable time, that on request by the Union it rescind any or
all of the unilateral changes and restore the status quo, and that
it make the employees whole for any loss of earnings or bene-
fits sustained by them as a result of the withdrawal of recogni-
tion and implementation of unilateral changes in its employees’
terms and conditions of employment in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).3
Counsel for the General Counsel has in her brief requested
that I include in the recommended order modified language
regarding Respondent providing records for computing back-
pay. Whereas the standard backpay order requires Respondent
to “preserve and make available,” its payroll and other records
for computing backpay, which would not require that Respon-
dent “provide” the records, the General Counsel seeks to shift
to Respondent the burden of collecting and providing these
records to the Regional Office, thus placing the cost of this on
the wrongdoer. General Counsel also requests that the Respon-
dent be ordered to provide to the Region an electronic copy of
the records to the Region in the event that Respondent already
maintains the necessary payroll records in digital form. I grant
General Counsel’s request for the modified order as within the
Board’s remedial power to issue this order and find that this is
not unduly burdensome and that any burden caused to Respon-
dent thereby should properly be placed on it as the wrongdoer
in this case. I rely on the cases cited by General Counsel as
follows:

Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 539
(1943); Fibreboard Corp. V. NLRB, 379 U.S. 203, 216
(1964); NLRB v. Rutter-Rex Mfg. Co., Inc., 396 U.S. 258,
262–263 (1969); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898–
899 (1984); Road Sprinkler Fitters Local 669 v. NLRB, 789
F.2d 9, 16 (D.C. Cir. 1986); Mathews v. Eldridge, 424 U.S.
319, 348 (1976); NLRB v. Carolina Food Processors, Inc., 81
F.3d 507, 510 (4th Cir. 1996); NLRB v. Brown Transport
Corp., 620 F.Supp. 648, 653–654 (N.D. Ill. 1995); EEOC v.
Maryland Cup, 785 F.2d 471, 477 (4th Cir. 1986); The Elec-
tronic Agency and the Traditional Paradigms of Administra-
tive Law, 44 Admin. L. Rev. 79 (1992).

On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Equipment Trucking Co., Inc. and Smith
Trucking Company, Single Employer, of Winchester, Illinois,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing threats to its employees of termination, unspeci-
fied threats of reprisal, the futility of their support for a union.
(b) Making promises of wage increases, or changes in bene-
fits if the employees sign a petition to decertify the Union.
(c) Bypassing the Union and engaging in direct dealing with
the unit employees concerning their wages and benefits and
other terms and conditions of employment.

3 Under New Horizons, interest is computed at the “short term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
4 If no exceptions are filed as provided by Sec.102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288
(d) Withdrawing recognition from and refusing to bargain
with Teamsters Local Union 916, affiliated with International
Brotherhood of Teamsters, AFL–CIO on behalf of the employ-
ees in the appropriate unit.
(e) Unilaterally granting increases in wages and instituting
changes in health insurance and overtime pay benefits and other
terms and conditions of employment without bargaining these
increases in wages and changes in benefits and other terms and
conditions of employment with the Union.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Rescind its withdrawal of recognition from the Union.
(b) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:

All drivers and mechanics employed by Respondent at its
Winchester, Illinois facility, EXCLUDING office clerical and
professional employees, guards and supervisors as defined in
the Act.

(c) On request by the Union, rescind any or all unilateral
changes unlawfully implemented and restore the status quo.
(d) Make its employees whole for any loss of earnings or
benefits they may have sustained as a result of the Respon-
dent’s unfair labor practices, with interest, as set out in the rem-
edy.
(e) Preserve and, within 14 days of a request, provide at the
office designated by the Board or its agents, a copy of all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of such records if stored in digital form, neces-
sary to analyze the amount of backpay due under the terms of
this Order. If requested, the originals of such records shall be
provided to the Board or its agents in the same manner.
(f) Within 14 days after service by the Region, post copies of
the attached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, 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

5 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.”
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since January 1,
1998.
(g) 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.
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 violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT issue threats of termination to our employ-
ees, or unspecified threats of reprisal, because of their support
of Teamsters Local Union 916, affiliated with International
Brotherhood of Teamsters, AFL–CIO and will not threaten
them with the futility of their support of the Union.
WE WILL NOT make promises of wage increases or
changes in health insurance or retirement benefits if the em-
ployees sign a petition to decertify the Union.
WE WILL NOT withdraw recognition from Teamsters Local
916, affiliated with International Brotherhood of Teamsters,
AFL–CIO and refuse to bargain with the Union concerning the
rates of pay, wages, hours, and terms and conditions of em-
ployment of our employees in the following appropriate unit:

All drivers and mechanics employed by Respondent at our
Winchester, Illinois facility, EXCLUDING office clerical and
professional employees, guards and supervisors as defined in
the Act.

WE WILL NOT bypass the Union and engage in direct deal-
ing with our employees concerning their wages and benefits
and other terms and conditions of employment.
WE WILL NOT institute unilateral increases in wages and
changes in health insurance and overtime pay benefits and other
terms and conditions of employment without bargaining these
increases in wages and changes in benefits and other terms and
conditions of employment with the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind our withdrawal of recognition from the
Union.
EQUIPMENT TRUCKING CO. 289
WE WILL, on request recognize and bargain with the Union
and put in writing and sign any agreement reached on terms and
conditions of employment for our employees in the above-
described unit.
WE WILL, on request by the Union, rescind any or all uni-
lateral changes in wages, benefits, hours, or other terms and
conditions of employment and restore the status quo.
WE WILL make our employees whole, with interest for any
loss of earnings or benefits they may have suffered as a result
of our withdrawal of recognition from the Union and our insti-
tution of unilateral changes in the wages, benefits, hours, or
other terms and conditions of employment.

EQUIPMENT TRUCKING CO., INC. AND SMITH
TRUCKING COMPANY