Transportation Management Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1981

258 N.L.R.B. 363 (N.L.R.B. 1981)

TRANSIPO()RTATI()N MANAG(IMENT C()ORI
Transportation Management Corporation and Driv-
ers, Chauffeurs, Warehousemen & Helpers
Local Union No. 829, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America and Betty Johnson
and Rose Mary Bassett and Jean C. Cahill.
Cases 1-CA-15902, 1-CA-16026, and I-CA-
16322(1-2)
September 29, 1981
DECISION AND ORDER
Be MEMBERS FANNING, JENKINS, AND
ZIMMI- RMAN
On April 17, 1981, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the General Coun-
sel filed a brief in support of the Administrative
Law Judge's Decision.
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 exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
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, Transportation
Management Corporation, Medford, Massachusetts,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
I Respondent has excepted to certain credibility findings made by the
Administrative Lav Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
Without making specific findings, the Administrative law Judge stated
in his Conclusions of Law that Respondent violated Sec. 8(a)(
4
) of the
Act by discriminating against employee Rose Mary Bassett because she
filed charges under the Act and he also ordered Respondent to cease and
desist from advising employees of the futility of filing charges. We find
that the record, as outlined by the Administrative l.a Judge. clearly
supports both his Conclusions of Lau and Order
Member Jenkins would not rely on Wright Line, a Division of Wrighl
Line, Inc., 251 NLRB 1083 (80). because in no case has Respondent
established the existence f a genuine lawful reason for the discharges
which the Administrati'e Law Judge found to be unlawful
2 In accordance with his dissent in Olympic Medical Corporation. 250
NLRB 146 (1980). Member Jenkins swould award interest on the hackpa
due based on the formula et forth thereil
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
APPENDIX
NoT-i-ic To ESPIOi o IIs
POSTII)E BY ORI)IR OF THE
NATIONAl LABOR RlIl.lTIONS BOARI
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discourage membership in
Drivers, Chauffeurs, Warehousemen & Helpers
Local Union No. 829, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, or any other
labor organization, by discharging, terminat-
ing, suspending, or otherwise discriminating
against employees because of their union mem-
bership or activities.
WE WILL. NOT coercively interrogate em-
ployees concerning their union membership or
activities.
WE WIL. NOT engage in surveillance of em-
ployees' union activities.
We. WILL. NOT threaten employees with dis-
charge and other recriminations for engage-
ment in union activities.
W. WIL NOT advise employees of the futil-
ity of trying to obtain union representation.
Wl WIll NOT warn employees to stay away
from the Union.
WE WIL. NOT advise employees of the futil-
ity of filing charges with the National Labor
Relations Board nor discriminate against em-
ployees because they have filed such charges.
WI WlI.I. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them under Sec-
tion 7 of the Act.
258 NLRB No. 61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WIIL offer Heather Moore, Betty John-
son, Lina Faustrum, Rose Mary Bassett, and
Jean Cahill immediate and full reinstatement to
their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges previously enjoyed, and
wt wL.L make them whole for any loss of
earnings they may have suffered by reason of
our discrimination against them, with interest.
TRANSPORTATION
CORPORATION
MANAGEMENT
DECISION
STATEMENT O TIIHE CASE
ROBERT COHN, Administrative Law Judge: Following
the conclusion of a hearing in this proceeding held
before him, Administrative Law Judge C. Dale Stout
became unavailable to the National Labor Relations
Board (herein called the Board), within the meaning of 5
U.S.C. §554(d) and Section 102.36 of the Board's Rules
and Regulations, to render and issue a decision based on
the record made before him. The parties have agreed to
waive a hearing de novo. Thus, in conformity with Sec-
tion 102.36 of the Board's Rules and Regulations, I have
been designated in Administrative Law Judge Stout's
place to prepare and issue a decision on the record as
made, as well as for all other purposes relating to the
performance of his functions and responsibilities as the
designated Administrative Law Judge.
Pursuant to this designation, I have requested that the
parties involved attempt to reconcile the issues and dif-
ferences present. After several efforts, the parties herein
have been unable to resolve the issues presented, which
are principally alleged discriminatory discharges.
Thus, the issues are whether: (1) Respondent suspend-
ed, laid off, or discharged, and subsequently failed to re-
instate, employees Lina Faustrum, Heather Moore, Betty
Johnson, Jean Cahill, Gloria Sullivan, Jennie Lennon,
and Rosemary Bassett in violation of Section 8(a)(3) of
the National Labor Relations Act, as amended, herein
called the Act; (2) Respondent discriminated against em-
ployee Rosemary Bassett because of her participation in
a Board proceeding in violation of Section 8(a)(3) of the
Act; (3) Respondent discriminated against employee
Rosemary Bassett because she filed charges or gave testi-
mony under the Act in violation of Section 8(a)( 4 ) of the
Act; and (4) Respondent threatened, interrogated, prom-
ised benefits, suggested the futility of selecting a labor
organization, engaged in surveillance, or did any other
acts in violation of Section 8(a)(1) of the Act.
Following the close of the hearing, post-hearing briefs
were filed by counsel for the General Counsel and coun-
sel for Respondent, which have been duly considered.
Upon the entire record, including arguments of counsel,
I make the following:
FINDINGS AND CONCUSIONS
I. THE BUSINESS OF RISPONDENT
Respondent is a Massachusetts corporation with facili-
ties located in Boston, Medford, Lexington, and Spring-
field, Massachusetts, and headquarters located at its Med-
ford facility. Respondent's primary business is the trans-
portation of schoolchildren for various municipalities lo-
cated in Massachusetts. Respondent, in the course and
conduct of its business, receives gross annual revenue in
excess of $250,000. It also annually purchases and re-
ceives supplies and materials valued in excess of $50,000
directly from points outside the Commonwealth of Mas-
sachusetts. I conclude and find that Respondent is, and
has been at all times material, an employer engaged in
commerce within the meaning of the National Labor Re-
lations Act, as amended.
II. THE L.ABOR ORGANIZATION INVOL.VED
The Union, Drivers, Chauffeurs, Warehousemen &
Helpers Local Union No. 829. a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the
meaning of the Act.
II. THE ALLEGEI) UNIFAIR LABOR PRACTICES
A. The Discharge of Jennie Lennon
Employee Jennie Lennon worked for Respondent
from September 1977 through November 1978. From the
start of her employment until September 1978, William
(Bill) Cobuzzi was her supervisor. Subsequently, from
that time through November 1978, Ted Sullivan was her
supervisor.
In April 1978,' Jennie Lennon, Heather Ann Moore,
and Irene Livingston, along with their husbands, visited
the offices of the Teamsters Union in Boston to discuss
with that organization their grievances with Respondent,
in particular their grievance about not being paid for
work they had performed. Subsequently, they distributed
to other employees pamphlets given them by the Team-
sters. In July 1978, the above-mentioned employees again
met with the Teamsters, this time to discuss whether the
Teamsters would help in organizing the other drivers.
During the fall of 1978, these same women assisted the
Union in filing a petition for an election with the Massa-
chusetts Labor Relations Commission. It was during this
same fall of 1978 that employee Lennon was discharged
from her job.
On November 17, 1978, employee Lennon asked Re-
spondent's President Zimmerman if she could borrow the
company car2 to visit her father (dying from cancer) in
Maine that upcoming weekend. She was denied use of
the car for that trip because it was too far (over 900
miles).
On Friday, November 17, employee Lennon called Su-
pervisor Ted Sullivan and informed him that she had a
I All dates hereinafter refer to the calendar year 1978.
2 Each driver was assigned a company car or an for transportation of
the children as well as normal, personal use.
364
TRANSPORTATION MANAGEMENT CORP.
migrane headache and therefore could not do her after-
noon (2:15-4 p.m.) run. Sullivan told her to contact her
backup driver because he could not cover the run for
her. Lennon had previously tried to contact a backup
driver, but was unsuccessful. Nevertheless, Sullivan
asked her to persist in trying to get one.
During the time she was telephoning for a backup
driver, her mother called and informed her that her
father had taken a turn for the worse and that she
wanted as many of the children there as possible. When
Lennon left that afternoon, she had still not contacted or
provided a backup driver.3 Upon her return, she noticed
that her company car was not in her driveway. She con-
tacted Respondent and learned that she had been dis-
charged. On Monday, November 20, employee Lennon
called Sullivan and asked for her job back. Sullivan said
that she would have to speak with Zimmerman. On No-
vember 21, she spoke with Zimmerman and explained
the trip to Maine and the urgency of the circumstances
that led her to take the trip. Zimmerman consequently
rehired her.
She reported to work on the morning of November
22, and went on a run that Supervisor Ted Sullivan as-
signed. Later, that afternoon, she and her husband had a
meeting with Sullivan in the latter's office. There, Sulli-
van told her to turn in her keys and that Zimmerman
had gone against his decision and he (Sullivan) did not
like it. Sullivan discharged her again.
Analysis and Concluding Findings
Counsel for the General Counsel has the burden of es-
tablishing by a preponderance of the evidence that the
termination of the employee involved was because of her
union activities and not for the "cause" contended by the
Employer. I find, for the reasons set forth below, that
the General Counsel did not sustain his burden with re-
spect to employee Lennon.
In the first place, although it was, of course, shown
that Lennon engaged in activities on behalf of the Union,
and the record establishes that Respondent opposed such
activities, there is scant evidence from which an infer-
ence may be drawn that Respondent was aware of such
activities prior to the discharge.
However, I need not rest my finding on that slender
reed since the record establishes that Lennon did, in fact,
breach well-established rules for which she was terminat-
ed. Thus, Lennon acknowledged receipt of several of
Respondent's written notifications of drivers' responsibil-
ities to have a backup driver; that no exceptions would
be permitted; and that failure to abide by that rule would
be grounds for immediate dismissal. The fact is, of
course, that she breached the rule, albeit for a good
reason in her view and was immediately discharged
thereafter.
It is true that Zimmerman rehired her upon her plea-
testifying that he did so because Lennon told him that
Sullivan had approved her rehire, and that he subse-
quently approved her second discharge upon learning
3 Lennon drove her personal car, which originally she thought would
not make it to Maine. It was for this reason that she had asked Zimmer-
man for use of the company car to Maine that eekend
that Sullivan was upset that Zimmerman had overruled
him. In any event, these facts establish that, if Respond-
ent's motivation were discriminatory, it would have
never taken her back to work following the first dis-
charge. Moreover, there is no evidence that Respondent
did not rigidly and uniformly enforce the rule prior to
the inception of the union activities.
Accordingly, I will recommend that the complaint be
dismissed insofar as it alleges discrimination against
Jennie Lennon.
B. The Discharge of Heather Moore
Moore was employed by Respondent both as a driver
and an office worker for approximately 4 years prior to
her termination on November 27. During the period sev-
eral months prior to her termination, she worked as a
driver at the Medford location of Respondent, where her
supervisor was Ronald Harff.
With respect to her union activities prior to the termi-
nation, it appears that, as previously set forth, Moore ac-
companied Lennon and Livingston to the offices of the
Teamsters in Boston on one occasion in April and an-
other in July. While there, they received pamphlets and
union cards from teamster officials which they subse-
quently distributed to other drivers of Respondent. How-
ever, as in the case of Lennon, there is no direct evi-
dence that officials of Respondent were ever notified or
became aware of such conduct.
On Wednesday, November 22, the day before Thanks-
giving, Moore pulled her vehicle into the gas pumps at
Medford, and went into the office to speak to Kenneth
Hoggard, Respondent's vice president and director of
operations, respecting some timesheets. While there, she
was approached by her supervisor, Harff, who asked her
to take a special run of children to a school in Waltham,
which she agreed to do. When she returned to her car,
she found the car door open, and some safety equipment
and papers missing. She reported this to Harff who ad-
vised that she should make the run and afterwards to call
safety officer, William Reardon, when she arrived at her
home. She later called Reardon and reported the missing
equipment. The latter indicated that the equipment
would have to be replaced at her expense. When she
suggested that she might secure the equipment at a less
expensive price than if the Company provided it, Rear-
don indicated that she should check with Kenneth Hog-
gard on that matter.
The following Friday, November 24 (which was a day
off for Moore), Moore and her husband met with Hog-
gard at the latter's office. The conversation that day re-
volved around two issues: (1) the replacement of the
safety equipment which Hoggard indicated that it was all
right with him if Moore could replace it cheaper, but
that he was not agreeable that Moore could transport
any children without first replacing the safety equipment,
since it was a violation of state law; and (2) Moore uti-
lized the occasion to complain concerning her paycheck
which she received that morning in the mail. Her com-
plaint was that the check was 15 hours short, and there
followed a discussion respecting the manner in which
hours and wages were to be computed. Near the end of
365
DECISIONS OF NATIONAL LAB()R RELATIONS BO()ARD
the discussion, Moore testified that her husband turned
to Hoggard and said, "If my wife has to work and not
get paid for the hours she worked, then she's not going
to work extra runs." Hoggard then stated that, if Moore
refused extra runs, she would be fired.
The following Monday, November 27, Moore's hus-
band told her that Hoggard wanted to see her at 9 a.m.
in his office after she had performed her morning school
run. She went to the office and was told by Hoggard,
"Seeing where you're going to continue to bitch about
your paycheck, give me your keys, you're fired." She
gave him the keys and he took them into the safety
office. When he returned and was in the process of figur-
ing out her paycheck, she asked him if she could use his
telephone and he said, "What, are you going to call all
your protesters in now?" She replied, "No, I just want to
call my husband." Further, according to Moore's testi-
mony, Hoggard told her that the decision to discharge
was made the day before when he had discussed the
matter with President Zimmerman and Supervisor Allen
Aronson.4 Hoggard testified that he was very disturbed
when Moore made the accusations to him and to others
that the Company was cheating her out of money after
he had spent some time discussing it with her and ex-
plaining what company policy was regarding the matter.
Also, when he learned in the Monday conversation that
the safety gear in her vehicle had not been replaced, he
determined and informed Moore that he intended to ter-
minate her at that time.
Analysis and Concluding Findings
Here, as in the case of Lennon, above, the only evi-
dence of union activities engaged in by Moore were
visits to the Teamsters offices in Boston during the
spring and summer of 1978, and subsequent distributions
of pamphlets and union cards shortly thereafter.5 There
is no direct evidence that such union activities ever came
to the attention of Respondent's officials and there is no
evidence that any threats or intimidatory remarks were
made by Respondent's officials to any employees in-
volved from July until the time of discharge. However,
there are two statements made by Respondent's officials
which bear heavily upon this issue, and which I feel
show an awareness and knowledge by Respondent of
Moore's union and concerted activities. These are: (1)
the statement by Hoggard at the exit interview regarding
the calling in of Moore's protestors,6 and (2) a statement
subsequently made by President Zimmerman to employ-
ee Lina Faustrum upon the latter's termination to the
effect that now Faustrum and her friend Heather Moore
could go out and try to organize a union, but that it
would take a long time, and he would fight them "every
inch of the way."
4 Hoggard denied that he made any statement to Moore about "protes-
tors": that he alone made the decision to fire Moore, denying that he
ever told Moore that the decision to fire her had been made the previous
day in consultation with Zimmerman and Aronson.
r The record is not clear as to when, where, and how long after the
visit to the Teamsters offices the distributions occurred. However, a rea-
sonable inference would seem to be that such distributions ere made
shortly thereafter.
Based upon Moore's testimony which I credit since it does not
appear to contain major discrepancies.
Thus, there appears to be substantial evidence from
which an inference may be drawn that Respondent was
aware of Moore's union activities prior to the termina-
tion. This, taken with its vigorous opposition to the
Union, along with the insubstantiality of its defense on
this issue, leads me to the conclusion that Moore would
not have been terminated absent her engagement in pro-
tected activities. 7
Thus, the safety equipment issue, as a cause for dis-
charge, is not persuasive in view of the fact that (1) Hog-
gard did not mention it at the time of termination, and
(2) there is substantial record evidence that in the past
Respondent condoned the transportation of schoolchil-
dren in vehicles which did not contain all of the safety
equipment. The conduct of Moore on the pay problem,
while vigorous and argumentative, did not violate any of
Respondent's rules, nor was it laced with threats of harm
or offending expletives. The charge that Moore was ac-
cusing the Company of cheating her is hardly a sufficient
cause for discharge in the circumstances of this case, i.e.,
where Respondent had definitive rules of misconduct.
Based on all of the foregoing, I conclude and therefore
find that the termination of Heather Moore was in order
to discourage membership in a labor organization, in vio-
lation of Section 8(a)(3) and (1) of the Act.
C. The Discharge of Betty Johnson
Betty Johnson was employed by Respondent as a
driver from January 1979 until her discharge of March
13, 1979. The circumstances leading to her termination
appear to stem directly from a change in company policy
respecting the use of company vehicles after 8 p.m.
Thus, prior to February 1979, it was company policy
to allow driver-employees to utilize company owned ve-
hicles (which were assigned to them for the purpose of
making school runs) for normal, personal errands, and
enjoyment. As Johnson testified, she was told by Rear-
don when she took the job that, as long as they worked
for the Company, the drivers could use the car personal-
ly for their convenience at any time. The aforesaid
change in policy was that, after 8 p.m., the company ve-
hicle could not be used for personal matters.
This unilateral change in policy, which was apparently
considered a substantial fringe benefit by the employees,
led to strong opposition by them. Thus, Johnson testified
without contradiction that, during the period of Febru-
ary through March, she had occasion to discuss the
matter with approximately 100 to 150 other employees.
On or about March 13, 1979, she had a conversation
with several employees at the gas pumps in the Eggle-
ston garage at the Roxbury facility concerning the
matter. It appears that the group of employees grew to a
substantial number, resulting in Supervisor John Ferreer
asking the employees to leave the property. The employ-
ees left without argument. The meeting took place in the
morning around 9:30 to 10.
Johnson returned home at approximately 12:30 p.m.,
and observed two supervisors from Respondent's Med-
See Wright Linec. a Division of Wright Line, lr., 251 NLRB 1083
(1980).
366
TRANSPORTATION MANAGEMENT CORP.
ford office removing her company vehicle from her
driveway. She was told that Zimmerman had told them
to pick up the car. Whereupon, Johnson requested a
neighbor to give her a ride to the Medford office where
she met with Zimmerman. The latter explained that he
had directed her car to be picked up because he had re-
ceived a telephone call stating that Johnson had told the
drivers not to pick up any schoolchildren. Johnson vehe-
mently denied such accusation and stated that she was
simply talking to the drivers about the possibility of set-
ting up a meeting. When Zimmerman responded that,
"That's not what I heard," Johnson replied, "Well, I'm
sorry about what you heard."
Analysis and Concluding Findings
The record reflects that it was company policy at the
time-as so understood by the employees-that the re-
moval of a company car from the premises and posses-
sion of an employee constituted a termination. The
above-related findings respecting the circumstances lead-
ing up to the discharge of Johnson were based on her
testimony, the record reflecting that Zimmerman did not
testify-nor did Respondent offer any evidence-as to
why Johnson was discharged. Thus, her testimony on
this issue stands uncontradicted on the record.
As previously related, the record evidence shows that
Johnson was a relatively new employee, whose driving
record with Respondent was never called into question,
and that she was apparently terminated by Respondent's
president as a direct consequence of her meeting with
other employees to protest the unilateral cancellation or
rescission of an important employee benefit. Interesting-
ly, and somewhat incredibly, Zimmerman testified that
he neither discharged Johnson or gave instructions that
her employment be terminated; that he "thought" that it
was Supervisor Ferreer who gave such instructions; and
that he did not know the reason she was terminated. 8
Employee Lina Faustrum testified that on or about
March 12, 1979, Supervisor Bill Cobuzzi sent her out to
the parking lot to ascertain exactly what cars were there
and what their numbers were. When she returned she
asked Cobuzzi what Betty Johnson's car was doing in
the back lot. He responded, "Well, this is between you
and I. I don't want it to go any farther. They fired her
for union activities. Mr. Zimmerman fired her for union
activities."9
Based on all of the foregoing, I find that the General
Counsel has made a prima facie showing of discrimina-
tion by proving that, immediately prior to her discharge,
Johnson was engaged in union or concerted activities
protected by Section 7 of the Act. Certainly the above-
related conduct on the part of Respondent raises an in-
ference that the termination related to the concerted ac-
tivities. Respondent did not sustain its burden of thereaf-
ter coming forward with competent and sufficient evi-
dence to rebut the prima facie case of the General Coun-
sel. Accordingly, I conclude, and therefore find, that the
8 Ferreer was not called as a witness, although it was not shown he
was unavailable.
9 Uncontradicted testimony of Faustrum, which I credit. Cobuzzi was
not called as a witness at the hearing, and it was not shown that he was
unavailable.
discharge of Betty Johnson was in violation of Section
8(a)(1) and (3) of the Act, and will recommend an appro-
priate remedy.
D. The Suspension of Lina Faustrum and Rosemary
Bassett and the Disharge of Lina Faustrum
Faustrum had been employed by Respondent for a
little over a year when, on March 15, 1979, she was
placed on suspension by President Zimmerman, and dis-
charged 4 days later on March 19. At the time of such
suspension and discharge, she was employed both as a
driver and as an office worker at Respondent's Lexing-
ton garage. Her immediate supervisor was Fleet Man-
ager Cobuzzi. Rosemary Bassett also worked in the
office.
The record shows that during the 2-day period, March
13 and 14, the employees of Respondent, still chaffing
under the unilateral rescission of one of their principal
fringe benefits as set forth above, determined to hold a
meeting to discuss the various options open to them.
Pursuant to such plan, the employees printed a leaflet an-
nouncing such a meeting, used car radios of the Employ-
er to announce the meeting, handbilled employees with
the leaflet, and, on the evening of March 14, telephoned
a large number of employees requesting them to attend
the meeting at the VFW hall in Wellesley, Massachu-
setts, to be held on the evening of March 15."
On the morning of March 15, Faustrum and Bassett
awoke to find their company automobile missing. Faus-
trum telephoned Respondent's Medford office to report
the car was missing, and then went to the same office
with Rosemary Bassett to fill out a stolen car report.' 2
Faustrum then reported to work at the Lexington garage
being transported by another of Respondent's employees.
There she was told by Cobuzzi that Zimmerman said she
could not work in Lexington without a vehicle. Accord-
ingly, Faustrum went to the Medford office to discuss
the matter with Zimmerman.
While waiting to see Zimmerman in the outer office,
there was an incident with an office supervisor, Mary
Putney. It appears that Putney received a telephone call
from a driver inquiring about a union meeting. Depend-
ing upon whose testimony one chooses to believe, Faus-
trum either was given the telephone by Putney or Faus-
trum took the telephone away from her suddenly to
inform the caller about the scheduled meeting for March
15. Putney informed Zimmerman of the incident, and
then Faustrum went into Zimmerman's office. Zimmer-
'o See Wright Line, supra. I am cognizant that at some places in the
transcript, it appears that the meeting of employees took place after John-
son was terminated; i e. March 13 and March 12, respectively. However,
the dates are staled in terms of "on or about" so that a mistake of I day
would not he of overriding significance. More importantly, as previously
noted, Ferreer was not called as a witness. and I believe an adverse infer-
ence should be drawn from such failure since he could have cleared up
the timing of the meeting as well as what report, if any. he made to
President Zimmerman respecting it. Sec. e.g.. M. J. Pirolli d Sons. Inc..
194 NLRB 241 (1971), and cases cited.
" In connection with the telephoning. it appears that Faustrum used
the Employer's telephone list which was available to her as an office em-
ployee
12 It should he noted that both Faustrum and Bassett live in Charles-
to" n, Massachusetts
367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man told Faustrum that she had no right to take the tele-
phone away from Putney to discuss union business. Zim-
merman then placed Faustrum on suspension until there
was a car available for her, stating that he was not going
to provide transportation for her to and from Lexington,
and that she would be taken back to work when her car
was recovered. He also accused her of taking the Com-
pany's list of drivers and using it for union activities, and
she replied that she did not steal the list because she used
it everyday on the job. 3
On March 17, Faustrum telephoned Supervisor Co-
buzzi advising that she still had some keys to the Lexing-
ton garage in her possession. The keys were to the gate,
front door, and office of Respondent's Lexington garage.
Cobuzzi told Faustrum to retain the keys and he would
pick them up later. However, later in the day, Faustrum
again called Cobuzzi who said he had been delayed. Ac-
cordingly, Faustrum told Cobuzzi that she intended to
turn the keys over to the Charlestown police for safe-
keeping because she did not want the responsibility for
them. Cobuzzi agreed, and stated that he would pick up
the keys at the Charlestown police station when he was
through that day.
On Monday, March 19, Faustrum went to the Med-
ford office to turn in her timecard and was told that
Zimmerman wanted to see her. When she entered his
office, he was, as she testified, "raving" about the fact
that she had turned in his keys to the Charlestown police
station. When she responded that it appeared to her to be
the safest place to leave the keys, Zimmerman responded
that the Charlestown police were not trustworthy. He
went on to tell her that she was fired because she stole
his car list once, she gave his keys to the police, and
now she was starting a union. Zimmerman also raised the
name of Heather Moore and told Faustrum that she and
her friend, Heather Moore, could go out and try to
change his rules about putting in a union. However, he
advised her that it would take 2 years to get a union in,
another 4 years to get a contract, and that he would
fight them every inch of the way. I find the discussion
by Zimmerman indicating a futility of attempting to
secure union representation to constitute interference, re-
straint, and coercion within the meaning of Section
8(a)(1) of the Act.
Analysis and Concluding Findings
By way of defense, Respondent urges that there is no
evidence that Zimmerman, who admittedly made the de-
cision to suspend and terminate Faustrum, was aware of
her union or concerted activities prior to March 15. 1
disagree. Certainly, the activities of Faustrum and Bas-
sett on March 13 and 14, by way of arranging and publi-
cizing the meeting to be held on March 15, came to the
immediate attention of Supervisor John Ferreer. Thus,
the testimony is uncontradicted that, when Bassett and
Faustrum used the two-way radio to read the leaflet to
'a On or about March 13 or 14, Faustrum gave Supervisor Cobuzzi a
copy of the leaflet. Cobuzzi advised her not to hand out the leaflets or
Zimmerman would fire her. This threat is unrebutted since Cobuzzi did
not take the witness stand. I find that it constitutes interference, restraint,
and coercion of employees' concerted activities i violation of Sec.
8(a)(l) of the Act.
employees, they were told to get off the air by Ferreer.
It is certainly a reasonable inference that these acts and
conduct were reported to President Zimmerman.
Moreover, the reason proffered by Zimmerman for the
decision to terminate Faustrum-i.e., that he did so be-
cause she turned the keys to the Lexington garage over
to the Charlestown police without approval and contrary
to the instructions of Supervisor Cobuzzi (Resp. br. p. 6),
seems slightly incredible. In the first place, contrary to
Respondent's assertions, the unrefuted evidence is that
Cobuzzi agreed with Faustrum's suggestion to turn over
the keys to said police force. Whatever personal opinion
Zimmerman may have harbored respecting the trustwor-
thiness of that security force was certainly not a rule of
Respondent which Faustrum breached, or indeed, does
the record indicate that Zimmerman's feelings in this
regard were well known. Finally, I note that, at the exit
interview, Zimmerman indicated his awareness of-and
opposition to-Faustrum's union activities.
Accordingly, I conclude, and therefore find, that Re-
spondent did not sustain his burden of coming forward
with credible, substantial evidence to sustain its asserted
reason for the suspension and termination. For similar
reasons, I find the suspension of Rosemary Bassett to be
causally related with her concerted and/or union activi-
ties, and will recommend an appropriate remedy.
E. The Discharge of Gloria Sullivan
Sullivan had worked for Respondent since May 1978
as a driver when she was terminated on March 19, 1979.
Her immediate supervisor was Ronald Harff.
The record shows that Sullivan was active in union or
concerted activities during the period from March 13
through March 15. She testified that she distributed
about 100 leaflets announcing the meeting at the VFW
hall in Wellesley, and attended that meeting on the eve-
ning of March 15. There she observed three supervisors,
and one of them testified that he recognized her at the
meeting. 4
The following day, Friday, March 16, Sullivan had a
conversation with Harff in the latter's office in which he
inquired what went on at the union meeting the previous
evening. Sullivan responded that the girls were upset and
mad because of changes in pay and nonuse of vehicles
after 8 p.m.; whereupon Harff told her to keep out of it,
and "Keep her nose clean."' s
On the afternoon of March 19, Sullivan had a conver-
sation with Harff respecting letting her off duty the fol-
lowing Sunday, March 25, to attend the wedding of a
niece. Sullivan asked Harff if he would cover the run
and he responded that he would if she, in turn, would
take over the run going to the Cape (Cod) because no
one else wanted it. Sullivan agreed. Present during the
conversation was Sullivan's backup driver, Leta Bennett,
i4 Of s.hich more, anon.
" The fregoing findings are based on the testimony of Sullivan. Harff
w.as not called as a wilness although it as not shown that he was un-
available. However. present during the conversation was another supervi-
sor, Hank Ouelette. h o did testify; however, he did not rebut the testi-
mony of Sullivan concerning the union meeting or harsh warning to stay
out of the matter. I find such interrogation and warning to constitute in-
terference. restraint, and coercion in violation f Sec. (a)(1) of the Act.
368
TRANSPORTATION MANAGEMENT CORP.
who also had received an invitation to the wedding. Sul-
livan then testified that she asked Harff if it were possi-
ble that her Monday run would be covered if she did not
make it back from the wedding. According to Sullivan's
testimony, Harff did not agree but the other supervisor
in the conversation, Hank Ouelette, said, "Don't worry
about it, everything is all right."
On Sunday morning, March 25, Sullivan telephoned
Harff to reassure herself that the run on Sunday was to
be covered, and Harff confirmed the arrangement. How-
ever, when Sullivan returned from the wedding on
Monday, March 26, at or about 10:30 a.m., she noticed
that her company van which had been parked in front of
her house was missing. Sullivan called the office and
asked if they had picked up the van, and she was direct-
ed to come to the office and bring her pay slips. When
she asked Zimmerman if she was fired, he responded af-
firmatively. Later, she learned from Zimmerman that the
reason for her discharge was refusal to go on her run on
Monday.
Leta Bennett testified that she was present when Sulli-
van asked permission to be off on March 25, to go to a
wedding in Ashland, and was told by Harff and Ouelette
that permission was granted. When asked on direct ex-
amination by counsel for the General Counsel, "Was
there any mention of any other days involved?" Bennett
responded, "The Monday morning possibly."
Ouelette testified that he "vaguely" remembered the
conversation between Sullivan and Harff concerning the
wedding, and that his best recollection was that she
asked Harff if he could cover the Sunday run. Harff
agreed to do so. Ouelette confirmed that Sullivan also
asked about the Monday morning run to which Harff re-
sponded in the negative. Ouelette also denied making
any statement to Sullivan that her Monday run would be
covered.
Analysis and Concluding Findings
The essential issue on this aspect of the case is whether
Sullivan received assurance from Respondent's supervi-
sors that the Monday run would be covered in the event
she failed to return from the wedding in time. I am un-
convinced that there is substantial, credible evidence to
sustain the burden of the General Counsel on this issue.
Thus, unlike the Sunday situation where, apparently,
supervisors are called upon and do cover runs for em-
ployees (and this was done in this case), no such practice
exists with respect to weekday runs.1 6 Aside from that
consideration, however, the record evidence simply does
not establish that there was a confirmed commitment on
the part of either Harff or Ouelette to cover Sullivan's
Monday run. When Sullivan telephoned Harff on Sunday
morning to confirm the coverage of the Sunday run, no
mention was made of Monday, probably because it was
still undetermined whether or not Sullivan would return
on Monday morning in time to make her run. Unlike the
Sunday situation, which was, in fact, confirmed, Sullivan
made no attempt either Sunday afternoon, Sunday eve-
ning, or Monday morning to confirm coverage of the
Monday run. The question remains, as Respondent poses
16 Testimony of Ouelente
in its brief (p. 43), "when was Respondent supposed to
find out whether or not Sullivan would make it back to
do her Monday run?" Moreover, as Respondent points
out, the reason Sullivan raised the issue of the coverage
of the Monday run was because she thought she might
be too drunk to make it back for the Monday run. I
agree with Respondent that it strains credulity to believe
that Respondent would agree to cover a run for an em-
ployee because she was letting it be known in advance
that she might be drunk and unable to work. This par-
ticularly where the General Counsel and the Charging
Parties are contending that Respondent was seeking re-
crimination against the employees for engaging in union
activities. If, indeed, Respondent wished to penalize Sul-
livan for engaging in union activities, it was not required
to agree to let her off on Sunday.
There is no question but that failure to cover a run
duly assigned to a driver constitutes immediate grounds
for dismissal. This was done in this case, and constitutes
a legitimate reason for discharge. The fact that Sullivan
may have engaged in protected concerted activities prior
thereto does not, of course, immunize her from legiti-
mate disciplinary action. Moreover, the fact that Re-
spondent may have opposed the unionization of its em-
ployees, and was not unhappy that Sullivan gave it an
excuse to terminate her alter the result. As the Board
held in Klate Holt Company, 161 NLRB 1606, 1612
(1966):
Moreover, even if we were prepared to find that
Respondent was seeking an opportunity to termi-
nate . . . [the alleged discriminatee] because of its
annoyance with the way in which he engaged in
protected activity, we would not, in this case, find
that Respondent discriminatorily discharged him.
The mere fact that an employer may desire to ter-
minate an employee because he engages in unwel-
come concerted activities does not, of itself, estab-
lish the unlawfulness of a subsequent discharge. If
an employee provides an employer with a sufficient
cause for his dismissal by engaging in conduct for
which he would have been terminated in any event,
and the employer discharges him for that reason,
the circumstance that the employer welcomed the
opportunity to discharge does not make it discrimi-
natory and therefore unlawful.
Based on all of the foregoing, I find that the General
Counsel failed to sustain his burden of proof on the issue
of the dismissal of Sullivan; accordingly, I will recom-
mend that the complaint be dismissed to that extent.
F. The Refusal of Respondent To Employ Its
Employees Jean Cahill and Rosemary Bassett for
Summer Employment During 1979, and the Failure
To Recall Cahill and Bassett for the School Year
Commencing September 1979
It has been found, supra, that Rosemary Bassett was
one of the employees whom Respondent discriminatorily
suspended in March 1979 for her engagement in protect-
369
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
ed concerted activities. '7 It appears that one of the em-
ployees who assisted Rosemary Bassett and Lina Faus-
trum in promulgating and distributing the leaflets an-
nouncing the March 15 meeting was Jean Cahill. Cahill
had been employed by Respondent since September 5,
1978, as a driver. She attended the March 15 meeting
and observed three company supervisors (Cobuzzi, Co-
valucci, and Ferreer) walking around the cars in the
parking lot while the employees inside the hall were
voting on the supervisors' admittance to the meeting.s
The record reflects that in approximately the first
week in May of a given year, the Company sends to its
employees along with their paychecks a form letter
asking whether the employee desires to work for the
summer.' 9 If the employee desires summer employment,
he or she checks the appropriate box along with her
starting date of employment and vehicle number. Both
Bassett and Cahill indicated their desire for summer em-
ployment during 1979, and so marked the form letter and
returned it to Respondent. Also, both reaffirmed their
desires in conversations they had with Personnel Super-
visor Reardon respecting the matter. Thus, Cahill testi-
fied that, on a day in May when she was filling in at the
reception desk in the personnel office, she had a conver-
sation with Supervisor Reardon in which she asked
when the Company intended to advise the employees as
to summer employment. She told Reardon that she
needed the job, and would like to know if she was going
to be employed. Reardon asked how long Cahill had
been with Respondent, and she replied since Labor Day.
Reardon replied, "You are a veteran, you have no prob-
lem, you are a shoe-in. The cutoff date is December 31,
which is the end of the Christmas vacation." Reardon
explained that the cutoff date of December 31 meant that
those working before that date were "almost assured" of
employment for summertime. 20
Similarly, Bassett testified that she had returned her
form letter in May to Personnel Director Reardon, and
had a conversation with him about the matter on or
about June 5 at the gas pumps. She asked him when the
employees would be advised as to the summer work, and
he responded by asking her when she commenced work-
ing for Respondent. She responded "October (1978),"
and he replied that the "cutoff date was December and
[Bassett] was all right." 2 '
The record reflects that on June 19, 1979, the Board
conducted a representation election at Respondent's
facilities in order to determine whether the employees,
including the drivers, wished to be represented by the
Union. The record also reflects that Bassett was called
upon to act as a union observer at such election, and did
17 The record reflects that Bassett returned to Respondent's employ-
ment on March 30, 1979, when Supervisor Harff called her to advise that
her "car had been found." and requested that she return to work.
'18 find this incident to constitute surveillance, and therefore interfer-
ence, restraint, and coercion in violation of Sec. 8(a)(I) of the Act.
19 The record reflects that, of the approximate 700 drivers who work
for Respondent during the winter months, approximately 250 are retained
for summer employment.
20 The foregoing findings are based on the unrefuted testimony of
Cahill, which stands uncontradicted on the record. Reardon was not
called as a witness by Respondent, and it was not shown that he was un-
available.
z2 Testimony of Bassett.
so. Accompanying Bassett to the polling place that day
was Jean Cahill who waited for her while she performed
her duties as an observer.
Two days later, on June 21, which was the last day of
the school year, both Bassett and Cahill were advised by
Supervisor Harff that neither were going to be employed
during the summer by Respondent. Cahill testified that
she had asked Harff if it were his decision, to which he
responded in the negative-that it was Hoggard's.
Whereupon, Cahill took up the matter with Hoggard ad-
vising that her work had been satisfactory, that she had
worked 12 hours a day doing all kinds of work, and that
she was "just about guaranteed that she would be work-
ing for the summer until the other day [referring to elec-
tion day]." When Hoggard asked what happened "the
other day," Cahill explained concerning the election and
that she had waited outside the office for Bassett to give
the latter a ride home. Cahill persisted that she needed
the job and Hoggard responded, "If you want to sit
down and write me a letter explaining why [you] should
be working, all your good points, I will consider them."
Cahill responded, "Ken, I don't know if I can say this or
not. I won't kiss your ass or anybody else's ass for a job.
My friends are my friends, and you can go to hell. And I
walked out the door."
When, on June 21, Bassett was advised that she was
not going to be employed during the summer months,
she, too, had a conversation with Hoggard. Bassett too
explained that she had had no complaints about her
work, had no accidents, had satisfactorily completed her
runs, and had even worked in the office. At that point,
Hoggard suggested that if Bassett so desired, she could
"write a letter to him, telling him why [she] thought
[she] should work." Bassett responded at that time why
she thought she should work, that her work had been
performed satisfactorily and that there had been no com-
plaints and no accidents. Hoggard responded, "Submit
the letter," and that ended the conversation.
Following her conversation with Hoggard, Bassett
spoke with President Zimmerman in his office. When she
entered the office, he indicated that he did not want to
see her because she had "lied about him to the Labor
Board." He opened his desk, pulled out some papers, and
started to read them. They were the charges that Bassett
had filed against him with the Board. Zimmerman read
through them and then expressed his displeasure because,
as he put it, he had been very good to Bassett and seen
to it that she had an air-conditioned car, that she was
"sort of low on the totempole to have an air-conditioned
car." Bassett made reference to the fact that she had
been an observer at the election 2 days prior, and that "it
wasn't going to look very good to do this to [her], 2
days later." Zimmerman responded that "you know
what's going to happen with that, you are going to go
into that lady and you're going to tell her what hap-
pened, and she is just going to put it on the other
charges and it isn't going to do any good, because it is
going to come up in the 1980's."
The record reflects that on Friday, August 17, 1979,
Respondent placed an advertisement in the Boston Globe
seeking part-time and full-time drivers. Whereupon,
370
TRANSPORTATION MANAGEMENT CORP.
Cahill telephoned the Company and spoke with Person-
nel Supervisor Reardon while Bassett listened in on an
extension line. Cahill opened the conversation by advis-
ing Reardon that she had not received a letter from the
Company respecting employment for the fall.2 2 Reardon
advised Cahill that he had been told not to call either
her or Rosemary Bassett back to work. When Cahill
asked was there any particular reason, Reardon respond-
ed, "I was not given a reason; I was just told not to call
you back. I did fight to call you back, I would have
liked to call you back, you were an excellent worker.
But, I was told not to and I have to do what I am told
too." 23
Accordingly, neither Cahill nor Bassett was employed
as a driver by Respondent in the fall of 1979.
Analysis and Concluding Findings
With respect to the summer employment aspect of the
issue, Respondent's vice president and director of oper-
ations, Ken Hoggard, testified, as previously noted, that
only approximately 250 out of 700 wagon drivers were
retained for summer employment; that the criteria for se-
lecting such employees were as follows: (a) length of
service; (b) availability of work; (c) the employee's resi-
dence in relationship to the available work; (d) whether
a run is a continuous year-round program; and (e)
whether there was a special request by a supervisor to
retain a particular employee for the summer.
In his testimony, Hoggard listed a number of employ-
ees who were retained for various reasons, a number of
which was because there was a special request by their
supervisor. He noted that Harff, who was the supervisor
of both Cahill and Bassett, did not specifically request
any of the employees he supervised be kept on for the
summer.
The principal difficulty with this defense, as I view it,
is that, prior to the hearing herein, no one other than
Hoggard was made aware specifically of the above-cited
criteria. There is no evidence that it had been previously
announced to or made available to employees; indeed, as
far as the unrefuted record shows, they were told that
the principal, if not the only, determinant as far as their
retaining summer employment was concerned was
whether they were employed prior to the December 31
"cutoff date." Of course, this was not, as Respondent
argues, a "guarantee" that an employee who was em-
ployed prior to such date was assured of summer em-
ployment; however, it would seem reasonable to expect
that if such were not the case some notification or expla-
nation would be forthcoming to the employees, at least
as of the time they were told they were not to be hired.
However, nothing like that occurred. Instead, 2 days
after the Board election, union observer Bassett and her
friend, Cahill, who drove her to the polling place, were
2 Hoggard testified that in late summer the personnel department of
Respondent sends out a letter advising employees of orientation sessions
for the fall and when they would occur; that "All employees of the prior
year unless they are found deficient in some regard would be routinely
sent letters notifying them of the orientation meeting."
23 Credited testimony of Cahill, as corroborated by Bassett as previ-
ously indicated, Reardon was not called as a witness although it was not
shown that he was unavailable.
abruptly and summarily advised that they were not to he
included among those employed for the summer-wi:h-
out being given any reason for such conduct except for
lack of work. Rather, Hoggard imposed the obligation
upon the employees to submit a letter setting forth affir-
matively why she should be employed. Of course, this
request smacks of discrimination in that there is no
record evidence that such was a regular or uniform prac-
tice, or that any other employee was so requested to
submit such a letter.
Finally, and perhaps most importantly, I am impressed
on this aspect of the case by the failure of Respondent to
call as its witness its Personnel Supervisor Reardon, who
could have, through his testimony, answered many of
the questions respecting the procedure for choosing the
employees and why these two particular employees were
not chosen for summer employment after he had assured
them otherwise. It is, of course, well established that the
failure to call such a critical witness, who is not other-
wise shown to be unavailable, creates an adverse infer-
ence that his testimony would have been adverse to the
interest of Respondent. 24
Similarly, with respect to the failure to recall Cahill
and Bassett for employment in the fall of 1979, the unre-
futed testimony is simply that, contrary to past practice
and normal procedure, someone in higher management
instructed Reardon not to recall Bassett and Cahill with-
out giving a reason therefor. In absence of any further
explanation, it is certainly a reasonable inference from all
of the foregoing that such decision was motivated by
those employees engagement in union or concerted ac-
tivities. I so find.25
Based on all of the foregoing, I conclude and therefore
find that the failure to hire Bassett and Cahill for the
summer months of 1979, and regular employment of the
fall of 1979, was in order to discourage membership in
the Union in violation of Section 8(a)(3) and (1) of the
Act, and I will recommend an appropriate remedy.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with its interstate operation, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take the following affirmative
actions which are necessary to effectuate the policies of
the Act.
24 See . J. Pirolli d Sons. Inc.. upra, and cases cited.
2, In its brief. Respondent suggests that Cahill was not employed be-
cause of the use of profane language to her supervisor upon being refused
employment for the summer months. I reject such contention in the light
of the other record evidence, when considered in the context of the cir-
cumstances in which the language was uttered.
371
DECISIONS OF NATIONAI. I.ABOR RELATIONS H()ARD
Having found that Respondent discriminatorily termi-
nated Heather Moore, Betty Johnson, Lina Faustrum,
Rosemary Bassett, and Jean Cahill, and discriminatorily
suspended Lina Faustrum and Rosemary Bassett, I shall
recommend that Respondent offer said employees imme-
diate and full reinstatement to their former positions or,
if such positions, no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of earnings they may have suffered as a result of
the discrimination against them. Any backpay found to
be due shall be computed in accordance with the formu-
la set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), plus interest as set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).
As the unfair labor practices committed by Respond-
ent strike at the very heart of employee rights safeguard-
ed by the Act, I shall recommend that Respondent be
placed under a broad order to cease and desist from in
any manner infringing upon the rights of employees
guaranteed in Section 7 of the Act.26
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act, in the manner above-described, Re-
spondent has violated Section 8(a)(1) of the Act.
4. By discriminatorily suspending Lina Faustrum and
Rosemary Bassett, and by terminating its employees
Heather Moore, Betty Johnson, Lina Faustrum, Rose-
mary Bassett, and Jean Cahill, in order to discourage
membership in the Union, Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. By discriminating against its employee Rosemary
Bassett because she filed charges under the Act, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(4) and (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2 7
The Respondent, Transportation Management Corpo-
ration, Medford, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall:
26 N.L.R.B. v. Entwvitle Manufacturing Company, 120 F.2d 532, 536
(4th Cir. 1941).
27 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
1. Cease and desist from:
(a) Discouraging membership in Drivers, Chauffeurs,
Warehousemen & Helpers Local Union No. 829, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, or any other labor or-
ganization, by discharging, terminating, suspending, or
otherwise discriminating against employees because of
their union membership or activities.
(b) Coercively interrogating employees concerning
their union membership or activities.
(c) Engaging in surveillance of employees' union activ-
ities.
(d) Threatening employees with discharge and other
recriminations for engagement in union activities.
(e) Advising employees of the futility of trying to
obtain union representation.
(f) Warning employees to stay away from the Union.
(g) Advising employees of the futility of filing charges
with the National Labor Relations Board.
(h) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to self-organization, to form labor organizations, to join
or assist the above-named Union or any other labor orga-
nization, to bargain collectively with representatives of
their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such ac-
tivities.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Heather Moore, Betty Johnson, Lina Faus-
trum, Rose Mary Bassett, and Jean Cahill, immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of
earnings they may have suffered by reason of the dis-
crimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records and re-
ports, and all other reports necessary to analyze the
amount of backpay due under this Order.
(c) Post at its Boston, Medford, Lexington, Roxbury,
and Springfield, Massachusetts, facilities, copies of the at-
tached notice marked "Appendix." 2s Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's repre-
sentative shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
findings, conlclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its indings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes
" 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
372
TRANSPORTATION MANAGEMENT CORP.
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaints be,
and they hereby are, dismissed insofar as they allege vio-
lations of the Act not found in this Decision.
373