Wayne W. Sell Corp.

National Labor Relations Board - Board Decisions

Sep 22, 1986

281 N.L.R.B. 529 (N.L.R.B. 1986)

WAYNE W. SELL CORP.
Wayne W. Sell Corporation and Walter James
Stickney. Cases 6-CA-17428, 6-CA-18063, 6-
CA-18355, and 6-CA-18503
22 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 18 March 1986 Administrative Law Judge
Burton S. Kolko issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified and to adopt the recom-
mended Order.
The judge found and we agree that the Respond-
ent's actions in changing Stickney's work assign-
ments ' and suspending him from 22 to 25 March
1985 violated Section 8(a)(3) and (1) of the Act be-
cause they were taken in retaliation for Stickney's
filing grievances on behalf of himself and other em-
ployees. The judge found, however, that the Gen-
eral Counsel did not establish that these actions
were taken in response to Stickney's filing unfair
labor practice charges with the Board and there-
fore did not prove a violation of Section 8(a)(4) of
the Act. For the following reasons , we fmd merit
in the General Counsel's exception to the judge's
latter finding.
The record reveals that on 13 March 19852
Stickney filed an unfair labor practice charge with
regard to letters of reprimand sent him by the Re-
spondent on 4 and 7 March. S The first flatbed as-
signment was made on 21 March, and Stickney was
suspended on 22 March.4 Stickney filed an amend-
ed charge 25 March and on 27 March he filed a
grievance over the suspension. On 19 April a con-
solidated complaint issued alleging certain viola-
tions of the Act. Pursuant to a settlement agree-
ment executed by the parties on 10 May, Respond-
ent was obligated to post a notice for 60 days, until
1 In agreeing with the judge that the Respondent 's assignment of flat-
bed loads to Stickney was unlawful , we find it unnecessary to rely on his
finding that tank truck loads were more lucrative than flatbed or dump
loads and therefore the change in work assignments resulted in lower
paying assignments for Stickney.
a All dates are 1985 unless otherwise indicated.
8 The judge found that the letters of reprimand violated Sec . 8(aX3)
and (1) and no exceptions were taken to this finding.
4 The judge found that the suspension violated Sec. 8(a)(3) and (1) and
no exceptions were made to this finding.
529
on or about 10 July.5 Shortly after expiration of
the posting period, the second flatbed assignment
was made on 13 July. Additional unfair labor prac-
tice charges were filed by Stickney on 15 July, and
these charges resulted in the Regional Director's
revocation of the settlement agreement on 30
August and the issuance on 4 September of a con-
solidated complaint. Less than a week later, on 10
September, the Respondent made its third flatbed
assignment to Stickney.
Contrary to the judge, we find that the timing of
these events gives rise to a strong inference that
the Respondent's actions were motivated by Stick-
ney's filing of charges with the Board as well as his
grievance filing. The Respondent's knowledge of
the charges is not in dispute and, indeed, in a letter
dated 27 March from the Respondent's vice presi-
dent, Beechey, to Stickney, Beechey made refer-
ence to the charges and questioned Stickney's
motive in filing them. With regard to animus, we
note that after unlawfully threatening Stickney
with physical harm at a grievance meeting on 4
April, the Respondent's president, Sell, directed
Stickney to "go tell that to the Labor Board too."
This statement, in addition to the references in the
letter noted above, demonstrates the Respondent's
displeasure with Stickney's invocation of Board
processes. These factors taken together are suffi-
cient to constitute a prima facie case of a violation
of Section 8(a)(4).
Having found that the General Counsel has es-
tablished a prima facie case of discrimination under
Section 8(a)(4), we further find, for the reasons set
forth by the judge, that the Respondent has not
met its burden of proving that it would have
changed Stickney's work assignments and suspend-
ed him even absent any unlawful motive.6 In view
of the foregoing, we conclude that the record es-
tablishes a pattern of retaliation against Stickney
for filing charges with the Board and filing griev-
ances under the collective-bargaining agreement
and that by engaging in such conduct, the Re-
spondent has violated Section 8(a)(3), (4), and (1)
of the Act.7
4 Stickney was out of work from I April to 27 May due to an injury.
On 9 July he filed a grievance over the Respondent 's alleged failure to
pay his health insurance premiums.
a In agreeing with the judge that the changes in the Respondent's op.
erations between 1982 and 1985 do not support the Respondent's alleged
business justification for changing Stickney's truck assignments, we note
that during that period the Respondent not only increased its use of flat-
bed trucks but also increased its use of tank trucks, permitting it to con-
tinue its practice of more than 2 years standing of assigning Stickney to
drive tank trucks.
7 Town & Country LP Gas Service, 255 NLRB 1149 (1981).
281 NLRB No. 82
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified Mows and orders that the Re-
spondent, Wayne W. Sell Corporation, Sarver,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(b).
"(b) Unlawfully making discriminatory assign-
ments to employees for engaging in union activity
by filing grievances and for filing unfair labor prac-
tice charges under the Act."
2. Substitute the following for paragraph 1(d).
"(d) Unlawfully suspending employees for en-
gaging in union activity by filing grievances and
for filing unfair labor practice charges under the
Act."
3. Delete the last paragraph of the recommended
Order.
4. Substitute the attached notice for that of the
administrative law judge.
& The judge included in his recommended Order a visitatorial clause
authorizing the Board, for compliance purposes, to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure under the su-
pervision of the United States court of appeals enforcing the Board's
Order In the circumstances of this case , we find it unnecessary to in-
clude such a clause . We shall modify the judge's recommended Order ac-
cordingly
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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten employees for filing
grievances.
WE WILL NOT discriminate against employees by
issuing letters of reprimand, making more onerous
assignments, or suspending them for engaging in
union activity by filing grievances.
WE WILL NOT discriminate against employees by
making more onerous assignments or suspending
them for filing unfair labor practice charges.
WE WILL make Walter James Stickney whole by
paying him the amount he lost as a result of our
unlawful discrimination, with interest.
WE WILL remove from the personnel file of
Walter James Stickney Jr. any reference to the un-
lawful written reprimands issued to him.
WAYNE W. SELL CORPORATION
Kim Siegert and Stanley Zawatsk4 Esqs., for the General
Counsel.
Ralph T. DeStefano and Kurt Miller, Esqs., of Pittsburgh,
Pennsylvania, for the Respondent.
Walter James Stickney Jr., of Cabot, Pennsylvania, pro se.
DECISION
STATEMENT OF THE CASE
BURTON S. KOLKO, Administrative Law Judge. In this
case I find proven the General Counsel 's allegations that
Wayne W. Sell, owner of the Wayne Sell Corporation
(Respondent), threatened and coerced employee Walter
James Stickney in violation of Section 8(axl) of the Act,
and that Respondent discriminated against Stickney in
violation of Section 8(aX3) and (1) of the Act, 29 U.S.C.
§ 158(a)(1), (3).1 I dismiss the complaint on the allegation
of a violation of Section 8(a)(4), 29 U.S.C. § 158(a)(4).
I. BACKGROUND
Respondent, a Pennsylvania corporation engaged in
the trucking business near Sarver, Pennsylvania, admits
that it is an employer engaged in commerce within the
meaning of the Act. Respondent has recognized Team-
sters Local 538 (Union) as the collective-bargaining
agent for its employees since 1973.
Respondent operates a trucking business consisting of
55 vehicles it owns and 35 owner/operator vehicles it
leases on a daily basis. Respondent employs 51 drivers.
This case involves the operation by Respondent's em-
ployees of its owned vehicles.
Respondent uses three different kinds of trucks in its
operations: dump trucks, flatbed trucks, and tank trucks.
The drivers are dispatched on a seniority basis for the
first round out each day, and on a first-in, first-out basis
i The charge in Case 6-CA-17428 was filed on 18 June 1984 and
amended on 18 April 1985 . The charge in Case 6-CA-18063 was filed on
13 March 1985 and amended on 25 March 1985 and 18 April 1985 The
consolidated complaint issued on 19 April 1985 and Respondent timely
answered . The parties entered into a settlement for these cases that was
approved by the Regional Director on 10 May 1985 (Jt Exh . 1). The set-
tlement agreement was vacated after Stickney filed a charge in Case 6-
CA-18355 on 15 July 1985, and a consolidated amended complaint in the
three cases issued on 4 September 1985. Respondent timely filed an
answer A final charge, complaint , and order consolidating the cases
issued on 16 October 1985, that was timely answered by Respondent.
This case was heard before me on 30 and 31 October 1985, in Pittsburgh,
Pennsylvania . Briefs were filed on 3 December 1985. The General Coun-
sel's motion to correct the transcript is granted.
WAYNE W. SELL CORP.
for the remainder of the day. Drivers are paid according
to the type of truck they drive and length of the trip. It
is undisputed that the most lucrative loads are those de-
livered in tank-type trucks.
Stickney has been employed by Respondent since June
1982. He is 15 on the seniority list, and was the seventh
top wage earner in 1982.
For several months after his date of hire, Stickney
drove all three kinds of trucks owned by Respondent.
After Stickney requested to be assigned to drive only
tank-type trucks, Respondent honored Stickney's request
for a substantial period of time.
Stickney served as shop steward from January to De-
cember 1984 . As steward, Stickney filed many griev-
ances and met repeatedly, with Sell and Respondent's
vice president, and it is Sell 's conduct during these meet-
ings that gives rise to the 8(a)(1) allegations at issue in
this case . Stickney continued to file grievances until his
resignation as shop steward . Three months after Stickney
resigned as shop steward he was issued two letters of
reprimand, he was suspended for several days, and he re-
ceived his first flatbed assignment, all within a 1-month
period . The next two flatbed assignments occurred some
months later . Stickney continued to communicate with
the NLRB and file grievances during this entire time.
IL UNFAIR LABOR PRACTICES
A. The 8(a)(1) Allegations
Stickney filed his first grievance with the Employer in
November 1983 . In January 1984 he was elected shop
steward for the Union . As steward he filed numerous
grievances on behalf of himself and his fellow employ-
ees. a He resigned as steward in December 1984 because
of a disagreement with Raymond Baker, secretary-treas-
urer of Teamsters Local 538. He continued to cause
grievances to be filed after his resignation.
During the process of resolving the various grievances
he filed, Stickney met repeatedly with Sell and James
Beechey, the Company's vice president . The General
Counsel argues that the abusive language and threats
used by Sell at these meetings violate Section 8(a)(1).
One such meeting occurred on 14 March 1984 con-
cerning two grievances filed by Stickney. Stickney testi-
fied that at this meeting Sell told him he never should
have hired him, told him that he was a troublemaker,
and used vulgar language . Sell admitted that he has lost
his temper at grievance meetings . I credit Stickney's tes-
timony and fmd that Sell used abusive and profane lan-
guage at this meeting.
Stickney further testified that Sell used a variety of ob-
scenities at the grievance meeting of 27 April 1984, that
Sell threatened to "blackball " him, and that Sell stated
that Stickney "had filed more grievances in the past 3
months than they had in 11 years, and they had better
stop." Lawrence Davis, the employee on whose behalf
the grievance was filed, substantially corroborated this
a It is irrelevant whether a grievant files on behalf of himself or other
employees-filing grievances is protected activity. Vanport Sand &
Gravel, 270 NLRB 1358, 1361 (1984); Interboro Contractors, 157 NLRB
1295 (1966), enfd . 388 F.2d 495 (2d Cir. 1967).
531
testimony, although he only remembered that the term
"blackball" was used when he was reminded of it.
Sell admitted that he used profanity, that he expressed
his anger to Stickney about the number of grievances
filed, and that he often loses his temper . He denied that
he threatened Stickney . When asked whether he threat-
ened to blackball Stickney , Sell stated he was "baited
into that," but denied that he ever used the term "black-
ball." He testified that he told Stickney that he would
give him "the best [recommendation] in the country."
This remark could possibly have been interpreted by
Stickney as a veiled threat to blackball him , but I credit
Sell's denial that he threatened to blackball Stickney.
However, I fmd that Sell's statement that the grievances
"had better stop" was a threat of unspecified reprisals for
engaging in protected conduct.
Stickney testified that at the next grievance meeting,
15 June 1984, Sell threatened to get him in a dark alley
somewhere, used other vulgar and abusive language, and
made threatening physical gestures . The verbal threats
were confirmed by John Becker, the employee on whose
behalf the grievance was filed. Respondent's witnesses
denied that threatening gestures were used . I credit Re-
spondent 's denial that Sell used physical intimidation to
threaten Stickney; but even if these gestures did occur, it
strikes me that they were not sufficiently intimidating to
constitute a violation of Section 8(a)(1). Stickney did not
fear physical harm, and this behavior seems to be typical
of Sell's personality . I credit the employees' testimony
about Sell 's statements, and find that Sell did verbally
threaten Stickney.
The last meeting at which violations were alleged took
place on 4 April 1985 . Sell admitted saying to Stickney
at this meeting that if he kept "sticking [his] nose in ev-
erybody's business, sooner or later somebody 's going to
put it all over [his] face." This statement , referring to
Stickney's grievance filing, is a thinly veiled threat of
physical harm for participating in that activity. Griev-
ance filing is a protected activity, and threatening an em-
ployee with harm for participating in this protected ac-
tivity is a violation of Section 8(a)(1). Danish Creamery
Assn., 265 NLRB 652, 654 ( 1982).
Respondent argues that the alleged threats were actu-
ally "shop talk" and a sign of Sell 's explosive personality.
It is undisputed that Sell loses his temper regularly and
uses profane and vulgar language often . Stickney's suc-
cessor as steward stated that he has filed several griev-
ances as steward and Sell has never threatened him for
filing grievances . This shows that, although Sell may use
profanities regularly , threats of discharge and unspecified
reprisals are not routinely used in grievance meetings,
but were only used against Stickney . Sell used threats be-
cause of his animosity toward the increased grievance
activity of Stickney, and not because of his explosive
personality . In addition , Sell's remarks went farther than
the kind of foul language commonly accepted in the in-
dustrial sphere. See Kay Fries, Inc., 265 NLRB 1077,
1089 (1982). He actually threatened Stickney on 14
March that he would "have his job" and that the griev-
ances "had better stop." The statement that someone
would "put his nose all over his face" on 4 April is a
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat of physical harm and unlawful . These kinds of
statements interfere with the Section 7 rights of employ-
ees, and are violative of the Act. See Bardcor Corp., 270
NLRB 1083 (1984).
Finally , Respondent's argument that Stickney 's griev-
ances were motivated by his litigious nature, and are
therefore unprotected , is meritless . There is no evidence
that Stickney's grievances were so numerous and so friv-
olous that they lost the protection of the Act. The fact
that most grievances were resolved in Respondent's
favor or dropped is irrelevant. The merit of a grievance
does not determine whether the filing is protected. Jersey
Power & Light Co., 269 NLRB 886 (1984). In addition,
the fact that Stickney filed many grievances does not
render the behavior unprotected. Ad Art Inc., 238
NLRB 1124 (1978), enfd. 645 F.2d 669 (9th Cir. 1980). It
is only extreme behavior on the part of an employee that
removes his actions from the protection of the Act. See
Caterpiller Tractor Co., 276 NLRB 1323 (1985).
B. The 8(a)(3) and (1) Allegations
1. The change in assignments and the suspension
Stickney had his larynx and the surrounding tendons
removed in May 1980. He breathes and speaks through a
tube he inserts in his throat that is held into place by
straps. He was hired by Respondent in June 1982 as a
truckdriver . He was assigned to drive all three kinds of
trucks operated by Respondent during his first month of
employment . Respondent contends that these assign-
ments continued until the beginning of 1983. The Gener-
al Counsel asserts that these assignments continued only
a few months . It is undisputed that commencing at some
point after his date of hire, but before March 1985, Stick-
ney was assigned to drive only tank-type trucks. This ar-
rangement accommodated Stickney because his tube
caused him to have difficulty with the tarping required
for driving flatbed trucks and with the dust that drivers
are forced to inhale when driving dump trucks.
Respondent admitted that it ceased accommodating
Stickney on 21 March 1985 when he was assigned to
drive a flatbed truck. He was subsequently assigned to
drive flatbed trucks on 13 July 1985 and 10 September
1985. This change in procedure is not consistent with
Respondent's past practice. The only other flatbed as-
signments Stickney received since Respondent began to
accommodate him were both under special circum-
stances. The first, in November 1982 was performed as a
"favor" to Respondent because of a special need. For the
other, in November 1983, Wayne Barkley was dis-
patched to accompany Stickney to assist with the tarp
required for the load . Because the flatbed assignments
beginning 21 March 1985 were a deviation from Re-
spondent's past practices, the General Counsel has dem-
onstrated that there was a change in Stickney's working
conditions beginning 21 March 1985.
Respondent argues that driving flatbed and dump
trucks is no more onerous than driving tank trucks. Sev-
eral witnesses testified to this effect. However, Stickney
credibly testified that he experiences pain and other
physical problems when he does the tarping necessary
for flatbed assignments or breathes the dust accompany-
ing dump truck assignments . I find that the physical pain
and difficulty described by Stickney rendered flatbed
truck and dump truck assignments more onerous than
driving tank trucks . The imposition of more onerous
working conditions is unlawful if it is motivated by union
animus, even if the condition is more onerous because of
the special physical condition of the employee. Gayston
Corp., 265 NLRB 1 , 18 (1982). In addition, it is undis-
puted that tank truck assignments are more lucrative
than dump and flatbed truck assignments . Therefore,
even if the difficulty of his assignments did not change,
Stickney received several lower paying assignments after
21 March 1985 . Such a change in work assignments is
unlawful if it was motivated by union animus. Danny's
Foods, 260 NLRB 1445 (1982). Moreover, Respondent
admittedly removed Stickney 's name from the dispatch
roster 22-25 March 1985. Stickney did not receive any
assignments for those days, although some were avail-
able. This suspension is unlawful if it was motivated by
union animus . Beverly Enterprise, 272 NLRB 83 (1984).3
The timing of the flatbed assignments and the suspen-
sion is important in determining whether they were un-
lawfully motivated . Because proving unlawful motivation
is difficult , the Board relies on circumstantial evidence to
establish motivation . NLRB v. Instrument Corp., 714 F.2d
324 (4th Cir. 1983). The first flatbed assignment occurred
just after Respondent issued a second letter of reprimand
to Stickney (discussed below). Respondent had consist-
ently assigned Stickney to tanks for at least 2 years, then
suddenly issued two letters of reprimand and assigned
him to a flatbed load without any explanation. The se-
quence of the actions raises the inference that they were
based on union animus . The 8(a)(1) violations also pro-
vide evidence of union animus on Respondent's part.
Lemon Drop Inn, 269 NLRB 1007 (1984), enfd. 752 F.2d
323 (8th Cir. 1985). To rebut the General Counsel's case,
Respondent is required to show that the same employ-
ment actions would have taken place even without the
protected conduct on the part of the employee. Wright
Line, 251 NLRB 1083, 1089 (1980).
Respondent presented substantial evidence to show
that the operation of its business required the change in
Stickney 's assignments . The amount of cement hauled on
flatbed trucks had increased substantially since Stickney
was hired. In addition, Respondent in 1985 operated
about twice the equipment it did in 1982. I find that even
with the changes described by Respondent, the assign-
ments at issue would not have happened but for Stick-
ney's union activity. The absence of any attempt to
inform Stickney of the Respondent's desire to change his
assignments coupled with the timing of the assignments
convince me that the justification offered by Respondent
was not the true motivating factor.
Respondent also argues that it had to remain flexible in
its ability to assign drivers. However, the flatbed assign-
3 The instant case is distinguishable from Ducane Heating Corp., 273
NLRB 1389 (1985), in which the Board stated that the employer was
under no duty to accommodate his employees There, Respondent's fail-
ure to accommodate was consistent with past practices. In the instant
case, the General Counsel has shown that Respondent's actions were in-
consistent with its past practice
WAYNE W. SELL CORP.
meats in question were not to customers who required
immediate delivery , and there were other drivers avail-
able to deliver cement at the time. In light of these facts,
I find this reason to be pretextual and not the motivating
factor in Respondent's decision.
Finally, Respondent argues that the resentment • of the
other drivers caused him to cease accommodating Stick-
ney. I find this argument to be without merit . No griev-
ance was filed on the matter until directly before the
hearing, and no explanation was offered to Stickney at
the time of the assignment . If this were truly the reason
for the change Respondent would surely have informed
Stickney, given Sell 's lack of reticence.
In sum, the business justifications offered by Respond-
ent do not overcome the inference of improper motiva-
tion . I find the assignments to flatbed and dump trucks
would not have happened if Stickney had not engaged in
the filing of grievances, a protected activity ; and I con-
clude that changing Stickney 's conditions of employment
violated the Act. Wright Line, supra.
Respondent further justifies Stickney's suspension by
arguing that Stickney threatened to sue the Company,
and this was the only reasonable action it could have
taken in response . It is undisputed that Stickney informed
dispatcher Dollman that he would "hold him legally re-
sponsible for any injuries" that resulted from his driving
a flatbed truck . I have not found , nor does Respondent
cite, any case in which the Board has found the threat of
a legal proceeding sufficient cause to suspend an employ-
ee. On the contrary, precedent shows that warnings by
employees to resort to legal procedures are protected ac-
tivity. Kay Fries, supra, 265 NLRB at 1090 . Respondent
does not allege that Stickney threatened anyone with
harm. The reasons given by Respondent for Stickney's
suspension are clearly pretextual . Respondent failed to
show that it had a lawful motivation for suspending
Stickney. The suspension was based on protected activity
and it violates Section 8 (a)(3) and (1) of the Act. Algreco
Sportswear Co., 271 NLRB 499, 516 (1984).
2. The letters of reprimand
On 4 March 1985 Stickney received a letter of repri-
mand from Respondent . The letter stated that Stickney
had violated company policy by failing to call the dis-
patch office prior to his departure from Respondent's fa-
cility. Several witnesses confirmed the existence of this
company policy and testified that they adhered to it.
However , Beechey testified that no letter of reprimand
has previously been issued for a violation of this policy.
Respondent had issued only four letters of reprimand
since 1980.
In addition, another employee , Wayne Barkley testi-
fied that he had violated this particular policy with Re-
spondent 's knowledge , but never received a letter of rep-
rimand . Beechey himself stated that sometimes drivers
fail to call before their departure . Beechey also stated
that Stickney made his delivery on time , that Beechey
did not call Stickney 's home to ascertain whether he had
left yet, that he did not check to see if there was a phone
available for Stickney to use , and that there may have
been no phone available for Stickney to use.
533
Respondent sent Stickney another letter of reprimand
dated 7 March 1985, for his failure to inform the dis-
patch office of an overload he delivered on 25 February
1985 (incorrectly stated as 26 February in Beechey's
letter). Beechey testified that he placed a notice regard-
ing weight restrictions in the drivers' room in mid-Febru-
ary 1985 . He also recalled informing Stickney of this
change . Stickney testified that he believed his weight
limitation was the same as it had been in September
1982-78,000 pounds . He also testified that he believed
that if he violated this policy , the sole result would be
that he would be responsible for any fine resulting from
the overload. I neither credit nor discredit this testimo-
ny, for I find that even if Stickney was aware of the cor-
rect limit, Respondent's action was not justified.
Stickney stated that he observed Butch Darling sign
for an overload and that he never received a letter of
reprimand . Employee Davis testified that he had previ-
ously delivered overloads and that he had not been repri-
manded. Barkley testified that he has pulled overloads on
several occasions and was never sent a letter of repri-
mand. In addition, the parties stipulated to the number of
overloads indicated on bills of lading entered into evi-
dence. Far more than half of the loads were shown to be
over 77 ,500 pounds . Although the record does not reveal
how many of the drivers of the overloaded trucks called
in to the dispatch office before delivering the overloads,
the evidence does show that overloads have been and
are very common and letters of reprimand are very rare.
This, when considered along with the fact that Respond-
ent sent two letters to Stickney within a few days of
each other , after having sent only four letters in the past
5 years, raises an inference that the reprimands were mo-
tivated by Stickney 's grievance activity rather than the
violations of company policy . Union animus is also dem-
onstrated by the 8 (a)(1) violations on Sell 's part. In addi-
tion, the timing of the letters , so close together and after
a building of animosity , is an important circumstance in-
dicating antiunion motivation . Lemon Drop Inn , supra.
In an attempt to challenge any inference that the let-
ters were issued in response to Stickney 's grievance ac-
tivity, Beechey claimed that the circumstances surround-
ing Stickney 's reprimands were unique and caused the
reprimands. The unique circumstances arose from the
fact that the Company had recently paid a $340 fine for
an overload driven by Stickney . However, this ticket in-
volved a violation that was disputed , and the Company
paid the fine rather than challenge the validity of the ci-
tation. This explanation does not convince me that Re-
spondent issued the letters for neutral reasons. Given the
rarity of such letters and the sequence of events, I find
that the two letters of reprimand would not have been
issued but for Stickney's union activity , and I conclude
that Respondent violated the Act by issuing the two let-
ters. See Algreco Sportswear Co., supra.
C. The 8(a)(4) Allegations
The General Counsel argues that Respondent violated
8(a)(4) of the Act by removing Stickney from the dis-
patch roster and assigning him to drive flatbed loads.
The General Counsel argues that Respondent 's animus
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and knowledge of Stickney 's activities with the Board
show that the assignments and suspension resulted from
8(aX4) discrimination . The first flatbed assignment fol-
lowed the filing of a charge by 1 week . Stickney filed
amended charges on 25 March and 18 April , and the
second flatbed assignment occurred on 13 July. The
third assignment occurred on 10 September , less than a
week after a consolidated complaint issued reflecting the
change that was filed on 15 July.
To establish a violation of Section 8(aX4) of the Act,
the General Counsel must produce evidence that gives
rise to the conclusion , whether directly or by inference,
that Respondent's adverse employment actions were mo-
tivated by Stickney 's filing of charges with the Board or
participation in Board proceedings . Ruehle's Paramedic
Ambulance, 270 NLRB 1322 (1984). The sequence of
events in the instant case does not give rise to this infer-
ence . Stickney 's first contact with the Board occurred by
letter dated 27 April 1984 . This letter discussed Sell's
threatening and abusive conduct toward Stickney during
a grievance meeting . Stickney filed another charge on 18
June 1984 . No adverse employment actions resulted from
either of these contacts with the Board . Stickney contin-
ued to file grievances over the next months, and received
the first letter of reprimand dated 4 March 1985. In re-
sponse to this letter, Stickney contacted the Board. The
first flatbed assignment and removal from the dispatch
roster occurred shortly thereafter . However, Stickney's
grievance filing continued throughout this period . Stick-
ney filed additional charges with the Board after his first
flatbed assignment and removal from the dispatch roster.
Finally, a few days after Stickney 's next grievance, Re-
spondent made the second flatbed assignment . This sce-
nario indicates that Sell's animosity toward Stickney's
grievance activity , which I found previously , continued
to motivate Respondent 's adverse treatment. In short, it
was Stickney's repeated grievance filing , not the Board
filing , that motivated Sell.
Nor did the General Counsel produce convincing
direct evidence of illegal motivation. Sell's statement "to
go tell that to the Labor Board too" was made in con-
nection with Stickney's grievance filing, and could have
referred to that rather than the Board activity. Without
more, the General Counsel has failed to meet his burden
of establishing a prima facie case of discrimination under
Section 8(a)(4); this charge is therefore dismissed.
CONCLUSIONS OF LAW
1. Wayne W. Sell Corporation is an employer engaged
in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Respondent violated Section 8(a)(1) and (3) of the
Act by discriminatorily issuing to Stickney two letters of
reprimand ; by making discriminatory truck assignments;
and by suspending him from 22-25 March 1985.
3. Respondent violated Section 8(a)(1) of the Act by
threatening Stickney and using other abusive language
that interfered with Stickney's exercise of his Section 7
rights.
4. Respondent did not violate Section 8(a)(4), and that
charge is therefore dismissed.
5. The unfair labor practices set forth above affect
commerce within the meaning of Section 2 (6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed4
ORDER
The Respondent , Wayne W. Sell Corporation , Sarver,
Pennsylvania , its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Unlawfully issuing reprimands to employees for ex-
ercising rights guaranteed them under Section 7 of the
Act.
(b) Unlawfully making discriminatory assignments to
employees for exercising rights guaranteed them under
Section 7 of the Act.
(c) Threatening employees for filing grievances.
(d) Unlawfully suspending employees and issuing let-
ters of reprimand for exercising rights guaranteed them
under Section 7.
(e) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make James Stickney whole for any loss of pay
and benefits he may have suffered by reason of the
above-described unlawful actions, with backpay and in-
terest to be computed as in F W Woolworth Co., 90
NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).
(b) Remove all documents and references in James
Stickney's personnel file that relate to Respondent's ac-
tions that have been found in the attached decision to be
unfair labor practices , and make whatever record
changes necessary to negate the effect of these docu-
ments and Respondent 's unlawful actions.
(c) Post at its facility in Sarver, Pennsylvania, copies
of the attached notice marked "Appendix."s Copies of
the notice, on forms provided by the Regional Director
for Region 6, after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
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
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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
WAYNE W. SELL CORP.
spondent has taken to comply. For the purpose of deter-
mining or securing compliance with this Order, the
Board, or any of its duly authorized representatives, may
obtain discovery from the Respondent , its officers,
agents, successors or assigns, or any other person having
knowledge concerning any compliance matter, in the
535
manner provided by the Federal Rules of Civil Proce-
dure . Such discovery shall be conducted under the su-
pervision of the United States court of appeals enforcing
this Order and may be had upon any matter reasonably
related to compliance with this Order, as enforced by the
Court.