J. N. Moser Trucking, Inc.

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. N. Moser Trucking, Incorporated and Larry Johnson. Case 13-CA-17665 May 22, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 28, 1980, Administrative Law Judge Donald R. Holley issued the attached Supplemen- tal Decision in this proceeding.' Thereafter, Re- spondent filed exceptions and a supporting brief; and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and briefs and has decided to affirm the rulings, findings, 2 and conclusions of the Adminis- trative Law Judge and to adopt his recommended Order. 3 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, J. N. Moser Trucking, Inc., Aurora, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. i In this case the Board issued a Decision and Order Remanding Pro- ceeding to Administrative Law Judge dated August 14, 1979, which is not reported in volumes of Board Decisions. 2 Respondent has excepted to certain credibility findings made by the Administrative Law 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 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 3 The Administrative Law Judge inadvertently ordered that a "Notice to Members" rather than a "Notice to Employees" he posted at Respond- ent's place of business. A notice with the correct heading is hereby slub- stituted 249 NLRB No. 106 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an 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. WE WILL NOT interfere with, restrain, or coerce employees by discharging them for en- gaging in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL offer Larry Johnson immediate and full reinstatement to his former job or, if such position no longer exists, to a substantial- ly equivalent position of employment, without prejudice to his seniority or other rights and privileges previously enjoyed, and WE WILL make him whole for any loss of pay he may have suffered by reason of our discrimination against him, with interest. J. N. MOSER TRUCKING, INCORPO- RATED SUPPLEMENTAL DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge: On May 23, 1979, I issued a Decision in which I recom- mended that the complaint in this case be dismissed be- cause the Charging Party, Larry Johnson, had failed to comply with Section 102.19 of the National Labor Rela- tions Board Rules and Regulations subsequent to dismiss- al of the original charge filed herein. By Decision and Order dated August 14, 1979, the Board sustained the General Counsel's exceptions to the above-described De- cision and remanded the proceeding for decision on the merits. In so doing, I hereby reaffirm all previous find- ings of fact and conclusions of law set forth in my May 23, 1979, Decision which are not inconsistent with the Board's Decision and Order Remanding Proceeding to Administrative Law Judge. FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES A. Background J. N. Moser Trucking, Incorporated, herein called Re- spondent, is an Illinois corporation engaged in the per- J. N. MOSER TRUCKING, INCORPORATED 721 formance of transportation services for the United States Postal Service. Its operations are headquartered in Aurora, Illinois, a suburb of Chicago, Illinois. At all times material to this case, Respondent employed 24-25 employees at its Aurora location. Such employees were supervised by Respondent's owner, John Moser, and his son, Bill Moser, who manages the Aurora facility.' In late August 1977, the Wage and Hour Division of the U.S. Department of Labor commenced an investiga- tion at Respondent's Aurora facility. Larry Johnson, the Charging Party, testified without contradiction that when Bill Moser learned of the investigation he informed him that a Wage and Hour investigator would be around to speak with drivers individually; that "You don't have to talk to him. You can tell him to go scratch your ass if you want to." Johnson testified that the Wage and Hour investigator, McMahon, visited his home during the fall of 1977. Thereafter, Johnson voluntarily informed Bill Moser that the investigator asked him what hours he worked, what runs they were making, their hourly rate, whether they were getting health and retirement benefits, travel time, and so forth. On December 22, 1977, Wage and Hour Compliance Officer McMahon prepared a document entitled "Sum- mary of Unpaid Wages" which was received in the mail by Bill Moser at the Aurora facility on December 24, 1977. The document, which is in the record as General Counsel's Exhibit 3, reveals, inter alia, that McMahon calculated that Respondent owed its Aurora-based driv- ers some $78,488.49 in back wages and that Larry John- son was allegedly owed the largest single sum- $7,968.50. An itemization of moneys allegedly due was furnished with the summary. It is in the record as Gener- al Counsel's Exhibit 4 and reveals, inter alia, that unpaid travel pay was claimed for drivers G. Bumbgardner, E. Cline, D. Edwards, and L. Johnson in a total amount of $4,477.92. B. The General Counsel's Case Larry W. Johnson, the Charging Party, was hired by Respondnt as a truckdriver on February 4, 1976. With exception of several short assignments involving the op- eration of tractor-trailer vehicles, he operated so-called straight trucks. From sometime in 1977 until the date of his termination (May 23, 1978), he was assigned to Re- spondent's Burlington, Iowa, route.2 While driving a straight truck equipped with a diesel engine in Novem- ber 1977, Johnson continued to operate the vehicle after it lost oil pressure and the engine seized up. The truck was towed in and it was then apparent that extensive re- pairs would be necessary. Although Bill Moser testified without contradiction that Johnson laughed about the in- cident when he later asked him what had happened, the record reveals Johnson was not disciplined at the time. I Respondent's answer admits, and I find, that John Moser and Bill Moser are, and have been at all times material, agents and/or supervisors within the meaning of Sec. 2(1 1) and (13) of the Act. 2 Johnson worked nights. He drove an empty truck from Aurora to Chicago and then ran his route which was from Chicago to Burlington. On completing his route and returning to Chicago, he drove the empty truck back to Aurora. Employee witnesses Johnson and Steve Bumbgardner described Respondent's reaction to the Wage and Hour Division claim that it owed its drivers almost $80,000 in backpay. Thus, Johnson testified that, on one occasion in the fall of 1977, he walked into the Aurora office and Bill Moser walked in behind him and pinched his arm and asked him, in the presence of driver-mechanic Don Schleining, if he was ready to look for another job.a When Johnson asked what he meant, Moser replied that he had received notice from Wage and Hour that they owed Johnson almost $8,000 in backpay. Moser asked Johnson how he felt about it and the employee replied that he felt the Company owed him some money but not that much. During the conversation, Moser displayed the "Summary of Unpaid Wages" funished him by Wage and Hour, stating it came to almost $80,000 and he indicated he had talked with other drivers and most of them felt they did not owe them any backpay money. When the subject of travel pay arose, Moser stated the Company was not paid for travel time and that the drivers would not be paid travel time either. John Moser's reaction to the claims made by the De- partment of Labor was described by both Johnson and Steve Bumbgardner. While neither employee could place the date, each testified that John Moser informed them that if he had to pay out almost $80,000 supposedly owed in backpay and travel time he would have to lock the doors and nobody would have a job. Johnson testified without contradiction that, between Christmas and New Year's, Bill Moser told him, Steve Bumbgardner, Gerry Bumbgardner, and Donny Schlein- ing that most of the drivers were going along with what they were trying to do down there-that they were taking backpay checks and were bringing the money back. Moser asked Johnson how he felt about being owed money and the employee indicated he felt he was owed some money for travel time. Moser repeated his earlier statement to the effect that the Company was not paid for travel time and, for that reason, the drivers would not be paid travel time. Subsequently, Bill Moser showed Johnson a personal check from Steve Walz indi- cating Walz was one of the drivers going along and giving the money back. By late December, Johnson had made it clear that he felt he was entitled to the travel pay which Wage and Hour claimed was due him. 4 Nevertheless, the Mosers continued to gain his support in their effort to defend against the claims. Thus, Johnson testified without con- tradiction that John Moser told him on one occasion that, if he had to pay him almost $8,000, he would turn around and sue him for the damage to the truck engine. Subsequently, on March 6 or 7, 1978, Bill Moser at- tempted to gain his cooperation by telling him the Com- pany did not hold the damage to the engine against him but they wanted him to go along with what they were 3 While Johnson testified the conversation occurred in the "fall" he was clearly erroneous. As Johnson was shown G. C. Exh. 3 during the discussion and Respondent received that document on December 24, 1977, I find the conversation, which was not denied by Bill Moser, oc- curred shortly after Christmas 1977. 4 G.C. Exh. 4, which itemizes the gross amounts claimed for each em- ployee in G.C. Exh. 3, reveals Respondent allegedly owed Johnson $1,438.68 in unpaid travel pay. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trying to do down there. Johnson testified that Bill Moser told him at that time that he was a good driver, was at work when he was supposed to be, and that they did not want to lose him. In late February 1978, the repairs to the truck engine damaged in November were completed and Respondent was billed approximately $6,500 by the firm which had accomplished the repairs. About the same time, Respond- ent was notified by letter dated February 28, 1978, that the U.S. Postal Service was canceling its Chicago to Peoria, Ilinois, mail route effective March 31, 1978. 5 It is undisputed that two drivers senior to Johnson were as- signed to the Peoria run at the time in question. The record likewise reveals that of the 25 drivers then em- ployed at the Aurora facility drivers William Drees and Steve Bumbgardner were less senior than Johnson. Johnson testified that when he reported for work on the evening of March 8, a Wednesday, Bill Moser in- formed him that he wanted him and the other three driv- ers involved in the travel pay situation to go with him to the Company's lawyer's office the following Saturday (March 11) to discuss the travel pay issue. According to Johnson, Moser told him the lawyer had prepared some papers and he desired that the drivers let the lawyer ex- plain the papers to them, that they could sign them if they wanted to, but they did not have to sign them. Moser offered to pick up Johnson at his home or meet him at the terminal for the trip to the lawyer's office. Johnson claims he told Moser he would think about the request and let him know. According to Johnson, when he returned to Aurora the morning of March 9, he told Bill Moser he had de- cided he would not go to the lawyer's office that coming Saturday. The employee asserts that Moser then in- formed him that "he'd give me a two-week notice." Johnson testified he then asked, "You mean you are giving me a two-week notice," and that Moser replied, "Yes, you got a two-week notice." Although Johnson had refused to go to the office of the Company's lawyer to discuss the travel pay situation, Bill Moser continued during Johnson's last 2 weeks of employment to attempt to gain his cooperation in the Wage and Hour matter. Thus, Johnson testified that, at some time which he could not place after he had been given notice, Moser told him that most of the guys were going along with what they were doing, and he took an envelope from his desk and extracted an affidavit from it which had been signed by driver Denny Edwards. After he allowed Johnson to inspect the affidavit, Moser asked if Johnson would consider signing a paper like that and Johnson told him no. Subsequently, 2 or 3 days before his last day of work on March 23, Moser asked Johnson how many days he had left to work. Johnson told him, and Moser then asked if the employee would not recon- sider and sign an affidavit. Johnson said no and made a s Although General Counsel served Respondent with a subpoenas duces tecum requesting, inter alia, information concerning prior damage to Re- spondent's vehicles and indication of driver discipline imposed and copies of all contracts or correspondence which would reveal the volume of transportation services performed by Respondent for the U.S. Postal Service from January 1, 1978, forward, Respondent, without moving that the subpena be revoked, refused to produce the subpenaed material at the hearing. comment to the effect that he thought they were going to let the Wage and Hour Division settle the problem with backpay. Moser replied that his lawyers had come up with the idea of the affidavit and they wanted four drivers to sign it. The conversation ended with Moser stating that since Johnson would not go along with what they were trying to do he had no choice but to get rid of him. Johnson claims Moser told him he hated to lose him because he was a good driver but since he would not go along with what they were trying to do down there he had no choice but to let him go. C. Respondent's Defense Bill Moser, manager of the Aurora facility, was Re- spondent's only witness. He was called as a witness by counsel for the General Counsel, was then cross-exam- ined by Respondent's counsel, and was subsequently placed on the witness stand again by Respondent during presentation of its case. Moser's testimony is summarized below. With regard to the November 1977 engine seizure in Johnson's truck, Moser testified that when Johnson made it back to the terminal the employee informed him he had noticed the drop in oil pressure but he continued to operate the truck in attempt to make it to a truckstop. Johnson further explained that he did not think he would hurt the engine and once it seized up it was too late. Ac- cording to Moser, the employee was laughing during the entire period he spent explaining the incident to him. Moser indicated during his testimony that numerous drivers asked him questions about the Wage and Hour investigation. He could not recall whether he discussed the Wage and Hour matter with Johnson individually prior to the time that he asked him to go to his lawyer's office to discuss the travel pay matter. After indicating that he received a bill for repair to the engine of the Johnson truck in an amount approximating $6,500 around February 25, 1978, Moser stated he re- ceived the U.S. Postal Service letter canceling the Peoria contract around March 3 or 4. He testified that two driv- ers with more seniority than Johnson were then assigned to the Peoria route, and that cancellation of the contract required that he terminate one driver to facilitate reas- signment of the two drivers. He indicated he chose John- son for termination because of his attitude with respect to the November engine seizure. Moser testified he could not recall what he said to Johnson when he informed him he would be terminated in 2 weeks. Contrary to Johnson's testimony, Moser con- tended he told Johnson on either March 7 or 8 that he was being laid off due to the loss of the Peoria mail con- tract, and thereafter asked the employee the next day whether he would go to the company lawyer's office the following Saturday to discuss the travel matter. He testi- fied that Johnson said nothing when he told him he was to be laid off, that he just got in his truck and left-went to work. According to Moser, when he asked Johnson if he would go to the lawyer's office, Johnson immediately said no and that was the end of the conversation. When he was asked by his counsel whether he dis- cussed the signing of an affidavit further with Johnson after the employee refused to go to the company law- J. N. MOSER TRUCKING, INCORPORATED 723 yer's office, Moser stated, "I don't believe I did. I think I just dropped the issue right there, I wasn't going to force him to do nothing." In this vein, Moser indicated the other three drivers involved in the travel pay matter did accompany him to the lawyer's office and all three ex- ecuted affidavits. He stated that he did not think he showed Johnson Dennis Edwards' affidavit. Moser's testimony reveals that Johnson was the only driver terminated at the Aurora facility from the date of Johnson's termination to the date of the hearing in this case. At some disclosed time, one driver senior to John- son became a part-time employee. Analysis and Conclusions Obviously, my first task in this case is to resolve the credibility issue raised by the conflicting testimony given by Johnson and Bill Moser. While Johnson's recollection of dates was quite faulty, I was impressed by his demea- nor while on the witness stand and gained the impression that he was attempting to recount honestly his best rec- ollection of what occurred during his last few months of employment at Respondent. On the other hand, I found Bill Moser to be an unimpressive witness, who attempted to refute Johnson's testimony by employing technicalities rather than by simply stating his best recollection of the conversations they had. Illustrative was Moser's conten- tion that he did not tell Johnson that he wanted him to go to the lawyer's office to inspect a paper; that he could not have said that because no affidavits were prepared until the other three involved drivers visited the lawyer's office. While it is quite probable that Moser did not tell Johnson he wanted him to look at a prepared paper at the lawyer's office, it is clear that Moser wanted Johnson to go to the lawyer's office so a paper or affidavit could be prepared. Similarly, while he witnessed the situation wherein his father told employees Johnson, Drees, and Steve Bumbgardner he would have to close the doors if he had to pay out almost $80,000, Bill Moser attempted to infer that Johnson and Bumbgardner had testified fal- sely by contending his father was not at the terminal when the employees claim the statement was made. While the employees were probably wrong about the date the statement in question was made, there is no doubt in my mind that it was made at some time. In sum, I find the testimony of Johnson and Steve Bumbgardner to be more reliable than that of Bill Moser. In particular, I credit Johnson's assertion that he was given a 2-week notice immediately after he told Moser he would not go to the lawyer's office, and I credit his testimony which reveals that Moser thereafter indicated inferentially that he might not be terminated if he would reconsider and choose to cooperate with Respondent on the backpay claim matters. As Johnson failed to rebut Moser's claim that his dere- liction caused the engine difficulty in November and he failed to signify that he did not treat the situation as a "laughing" matter, I conclude that Respondent did have cause to terminate the employee. I further find, however, that Moser did inform Johnson that they did not hold the engine damage against him, and that his failure to co- operate with the Company on its defense to the claims made by Wage and Hour left Moser no recourse other than termination of the uncooperative employee. Ac- cordingly, I find that the reasons advanced by Respond- ent for Johnson's termination are pretextual and that the real reason was his refusal to assist it in defeating the claims made by the Wage and Hour Division of the U.S. Department of Labor. Remaining for discussion is Respondent's contention that Johnson was not engaged in protected concerted ac- tivities when he pressed his claim for travel pay and re- fused to go to the company lawyer's office. In agreement with the General Counsel, I find that the Board's find- ings in inter alia, G.V.R., Inc., 201 NLRB 147 (1973) and Alleluia Cushion Co., Inc., 221 NLRB 999 (1975), are dis- positive of the issue. Respondent's real argument is that the courts will, in Respondent's opinion, refuse to accept the Board's view of what constitutes protected concerted activity within the meaning of Section 7 of the Act. The answer to that argument is simply that I am bound by Board precedent and must adhere to the principles enun- ciated in G. VR. and Alleluia Cushion, Accordingly. I find that employee Johnson was engaged in protected concerted activity when he pressed his claim for travel pay and refused to cooperate with Respondent in its at- tempt to defend against the claims made by the Wage and Hour Division of the U.S. Department of Labor. For the reasons stated, I find, as alleged in the com- plaint, that Respondent discharged Larry Johnson on March 23, 1978, in violation of Section 8(a)(1) of the Act. II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Larry Johnson on March 23, 1978, because he engaged in protected activities, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent will be required to offer Larry Johnson reinstatement to his former position of employment with- out prejudice to his seniority or other rights and privi- leges, dismissing, if necessary, anyone who may have been hired to perform the work which he has been per- forming. Additionally, Respondent will be ordered to make this employee whole for any loss of earnings he may have suffered by payment to him of a sum equal to the amount he normally would have earned from the date of the unlawful discharge to the date he is offered reinstatement, less interim net earnings. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).6 Upon the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 7 The Respondent, J. N. Moser Trucking, Incorporated, Aurora, Illinois, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees by discharging or in any other manner discriminating against employees for engaging in protected concerted activity. e See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 7 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 find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer Larry Johnson immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position without prej- udice to his seniority or other rights and previously en- joyed, and make him whole for any loss of pay due to the violation against him in accordance with the manner set forth in "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, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Aurora, Illinois, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Re- spondent representative, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. s 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."