Penn Tank Lines, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066 Penn Tank Lines, Inc. and Robert Miller and Freight Drivers, Warehousemen and Helpers, Local Un- ion No. 390, affiliated with International Broth- erhood of Teamsters, AFL–CIO and Joseph Steckler. Cases 12–CA–19505, 12–CA–19746, and 12–CA–19774 November 29, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH On March 28, 2000, Administrative Law Judge Ray- mond P. Green issued the attached decision.1 The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief sup- porting the cross-exceptions and answering the Respon- dent’s exceptions. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,2 and conclusions as modified and to adopt the rec- ommended Order as modified and set forth in full below. The parties’ exceptions to the judge’s decision raise two issues that warrant further discussion. First, we will address whether the Respondent violated Section 8(a)(5) by withdrawing recognition from the Union. In so doing, we will consider whether the employees’ October 29, 1998 decertification petition was tainted by unremedied unfair labor practices. For the reasons set forth below, we find, in agreement with the judge, that the petition was tainted by unfair labor practices and that the Re- spondent unlawfully withdrew recognition from the Un- ion based on that petition. Second, we will discuss whether the Respondent violated Section 8(a)(1) by warning employee Joseph Steckler for engaging in union activities. For the reasons set forth below, we find that the Respondent unlawfully warned Steckler. 1 The judge issued an Errata on April 6, 2000. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We shall modify the judge’s recommended Order in accordance with our recent decision in Ferguson Electric Co., 335 NLRB 142 (2001). The General Counsel has excepted to the judge’s failure to address the complaint allegation that the Respondent violated Sec. 8(a)(1) by encouraging employees to form a drivers’ committee in lieu of bargain- ing through the Union. The General Counsel relies on the credited testimony of driver Robert Miller concerning a conversation he had with the Respondent’s human resources consultant, Charles Nicholas. Specifically, Miller testified: “[Nicholas] said . . . you guys would have been better off without the Union. You could have formed your own driver committee and represented yourself better, and wouldn’t have had to pay the dues.” Contrary to the General Counsel’s assertion, we find that this statement did not unlawfully encourage employees to take future action to abandon the Union. Rather, the statement merely con- veyed the economic reality that if the employees had decided instead to form their own committee, they would not now be subject to the dues that unions typically collect from the employees they represent. See Office Depot, 330 NLRB 640 (2000). Accordingly, we dismiss the complaint allegation that Nicholas’s statement violated Sec. 8(a)(1) of the Act. Factual Background The facts, which are set forth more fully in the judge’s decision, may be briefly summarized as follows. On July 25, 1997, the Union was certified as the collective- bargaining representative of a unit of the Respondent’s tanker truckdrivers. In December 1997, the parties began bargaining for a collective-bargaining agreement. Nego- tiations continued until October 29, 1998, without the parties reaching agreement on a contract. At that time, the Respondent withdrew recognition. Drivers Joseph Steckler and Robert Miller were very active in the Union’s organizing drive and were known by the Respondent to be ardent union supporters. Addi- tionally, Steckler was part of the Union’s negotiating team. On May 20, 1998,3 the Respondent discharged Miller, allegedly for “job abandonment,” even though the Respondent had granted him permission to attend to his seriously ill, hospitalized mother, who subsequently died.4 On October 1, the Respondent unilaterally reduced waiting-time and lost-time pay for employees. During October, driver Joe Rodriguez solicited employees’ sig- natures on a petition indicating that they no longer sup- ported the Union. On October 29, Rodriguez presented the Respondent with the petition bearing the signatures of 54 of the 61 drivers in the bargaining unit. The Re- spondent then withdrew recognition from the Union. In early November, Steckler began soliciting employee signatures on a counterpetition showing employee sup- port for the Union. On November 8, Terminal Manager Tom Lovett observed Steckler request Miller to sign the petition, which by that time had 34 signatures, including 25 of those drivers who had signed the antiunion petition. Steckler was suspended on November 9 for “harassing and threatening” other employees about the Union. On two subsequent occasions, Steckler was offered rein- statement if he would stop “harassing” other employees. He declined, insisting that he had a right to talk to other employees about the Union. 3 All dates hereafter are in 1998, unless otherwise specified. 4 On October 27, Miller received an offer to return to work on No- vember 2, which he accepted. 336 NLRB No. 112 PENN TANK LINES, INC. 1067 The Judge’s Decision The judge found that the Respondent violated Section 8(a)(3) when it discharged Miller in May. Applying Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the judge found that the Respondent’s animus against Miller’s support for the Union was a motivating factor in the decision to discharge him. Based largely on credibil- ity, the judge also found that the Respondent did not demonstrate that it would have terminated Miller for le- gitimate reasons even absent his extensive union activi- ties. It is undisputed that on October 1 the Respondent re- duced the waiting-time and lost-time pay for drivers without providing notice and an opportunity to bargain to the Union. The judge therefore concluded that the Re- spondent violated Section 8(a)(5) by making these uni- lateral changes. The judge found that the Respondent’s October 29 withdrawal of recognition was unlawful because, inter alia, the employee petition on which it was based was tainted by unremedied unfair labor practices. He relied in particular on Miller’s unlawful discharge and the unlawful unilateral reduction in drivers’ waiting-time and lost-time pay. The judge also found that the Respondent violated Section 8(a)(3) and (1) by suspending Steckler on No- vember 9, by conditioning his reinstatement on his re- fraining from engaging in union activities, and by ulti- mately discharging him. Specifically, the judge found that the Respondent’s terminal manager, Tom Lovett, observed Steckler soliciting drivers’ signatures on the prounion counter-petition and accused Steckler of harass- ing and threatening other drivers. When Steckler denied the accusations, Lovett suspended him. The judge fur- ther found that Lovett met with Steckler later in Novem- ber and in December to offer him reinstatement if Steck- ler would stop “harassing” the other drivers. Steckler refused Lovett’s offers, asserting his right to discuss the Union with other employees, and was not reinstated. The judge concluded that the Respondent “produced no evidence that [Steckler’s] alleged conduct consisted of anything other than his talking to employees and express- ing his support for the Union.” Discussion 1. The Board has long held that an employer may not withdraw recognition from a union while there are unre- medied unfair labor practices tending to cause employees to become disaffected from the union. Olson Bodies, 206 NLRB 779, 780 (1973). As one court has stated, a “company may not avoid the duty to bargain by a loss of majority status caused by its own unfair labor practices.” NLRB v. Williams Enterprises, 50 F.3d 1280, 1288 (4th Cir. 1995).5 The issue then is one of causation. In cases involving a general refusal to recognize or bargain with an incum- bent union, “the causal relationship between the unlawful act and subsequent loss of majority support may be pre- sumed.” Lee Lumber & Bldg. Material Corp., 322 NLRB 175, 178 (1996), enfd. in relevant part and re- manded 117 F.3d 1454 (D.C. Cir. 1997), decision on remand 334 NLRB 399 (2001). In other cases, the Board has identified several factors as relevant to determining whether a causal relationship exists. These causation factors include the following: (1) the length of time be- tween the unfair labor practices and the withdrawal of recognition; (2) the nature of the violation, including the possibility of a detrimental or lasting effect on employ- ees; (3) the tendency of the violation to cause employee disaffection; and (4) the effect of the unlawful conduct on employees’ morale, organizational activities, and membership in the union. Master Slack Corp., 271 NLRB 78, 84 (1984). With respect to proximity in time and nature of the violation, the record shows that the Respondent’s unlaw- ful unilateral reduction in employees’ waiting-time and lost-time pay occurred on October 1, less than a month before the withdrawal of recognition. Moreover, the loss in pay occurred on the same day that the Union agreed to allow the Respondent to raise employees’ hourly wage by $1 in order to facilitate hiring. The Respondent’s unilateral action, then, demonstrated its power to under- cut economic gains that were collectively bargained. Where unlawful employer conduct shows employees that their union is irrelevant in preserving or increasing their wages, the possibility of a detrimental or long-lasting effect on employee support for the union is clear. Cf. Alachua Nursing Center, 318 NLRB 1020, 1030–1031 (1995). Further, although the discharge of Miller occurred ap- proximately 5 months before the withdrawal of recogni- tion, in the circumstances of this case, we do not believe that the passage of time would reasonably dissipate the 5 On March 29, 2001, the Board issued Levitz, 333 NLRB 717, in which it “reconsider[ed] whether, and under what circumstances, an employer may lawfully withdraw recognition unilaterally from an incumbent union.” Levitz, however, has no bearing on our decision today because Levitz expressly limited its analysis “to cases where there have been no unfair labor practices committed that tend to undermine employees’ support for unions.” Id. at fn. 1. In addition, the Board held in Levitz that its analysis and conclusions in that case would only be applied prospectively. Id. at 729. We do not adopt the judge’s personal comments concerning how he believes Board law should be changed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068 effects of the Respondent’s conduct.6 It is well settled that the discharge of an active union supporter is excep- tionally coercive and not likely to be forgotten.7 This unlawful conduct “goes to the very heart of the Act,” NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941), and reinforces the employees’ fear that they will lose employment if they persist in union activity. Koons Ford of Annapolis, 282 NLRB 506, 508 (1986), enfd. 833 F.2d 310 (4th Cir. 1987). The final two Master Slack factors focus on the effect of the unlawful conduct on protected employee activities. The Respondent’s discharge of an active union adherent would likely “have a lasting inhibitive effect on a sub- stantial percentage of the work force” and “remain in [employees’] memories for a long period.” NLRB v. Ja- maica Towing, 632 F.2d 208, 213 (2d Cir. 1980). In addition, by unilaterally changing the employees’ terms and conditions of employment, the Respondent “mini- mize[d] the influence of organized bargaining” and “em- phasiz[ed] to the employees that there is no necessity for a collective-bargaining agent.” May Department Stores Co. v. NLRB, 326 U.S. 376, 385 (1945). In sum, the Re- spondent’s unlawful conduct is of a type that reasonably tends to have a negative effect on union membership and to undermine the employees’ confidence in the effective- ness of their selected collective-bargaining representa- tive. In light of this conduct, it is not surprising that an employee petition rejecting the Union would surface. For all these reasons, we find that the Respondent’s unlawful conduct would reasonably have led to em- ployee disaffection from the Union and would have un- dercut the Union’s support among the employees. Under these circumstances, the Respondent could not lawfully challenge the Union’s majority status on the basis of an antiunion petition that arose while those unfair labor practices remained unremedied. Therefore, we conclude that by withdrawing recognition from the Union on Oc- tober 29, and by refusing to bargain with it, the Respon- dent violated Section 8(a)(5) and (1) of the Act. 2. We now turn to whether the judge erred by failing to find that the Respondent violated Section 8(a)(1) by warning driver Joseph Steckler for engaging in Union activities. The judge made the following findings. In early No- vember, employees reported to Terminal Manager Tom Lovett that Steckler was asking them to sign a petition in favor of the Union. On November 8, Lovett observed Steckler soliciting Miller to sign the petition. The next 6 Significantly, Miller’s return to work did not occur until after the withdrawal of recognition. 7 The judge specifically found that “Miller was a prounion em- ployee who was willing to make waves if necessary.” day, Steckler was called into Lovett’s office. Lovett told Steckler that he had received reports that Steckler was “harassing the drivers” and “I am warning you to leave those men alone.” Later that same day, the Respondent suspended Steckler for “harassing and threatening” em- ployees about the Union. As stated above, the judge found that the Respondent “produced no evidence that [Steckler’s] alleged conduct consisted of anything other than his talking to employees and expressing his support for the Union,” and concluded that the suspension violated Section 8(a)(3). The judge, however, neglected to make a finding about Lovett’s statements to Steckler before he was suspended. A su- pervisor’s “warning” an employee about soliciting signa- tures on a union petition would reasonably cause him to fear adverse action for engaging in such protected activi- ties. We find that Lovett’s admonition to Steckler to “leave the men alone” would reasonably tend to interfere with Steckler’s free exercise of his Section 7 right to so- licit employees to sign the petition favoring the Union, in violation of Section 8(a)(1). See Miller Electric Pump & Plumbing, 334 NLRB 824 (2001). 3. For the reasons fully set forth in Caterair Interna- tional, 322 NLRB 64 (1996), we find that an affirmative bargaining order is warranted in this case as a remedy for the Respondent’s unlawful withdrawal of recognition from the Union. We adhere to the view, reaffirmed by the Board in that case, that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective- bargaining representative of an appropriate unit of em- ployees.” Id. at 68. In several cases, however, the U.S. Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the imposition of such an order. See, e.g., Vincent Industrial Plastics v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In the Vincent case, the court summa- rized the court’s law as requiring that an affirmative bar- gaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considera- tions: (1) the employees’ §7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the viola- tions of the Act.” Id. at 738. Although we respectfully disagree with the court’s re- quirement for the reasons set forth in Caterair, we have examined the particular facts of this case as the court PENN TANK LINES, INC. 1069 requires and find that a balancing of the three factors warrants an affirmative bargaining order. (1) An affirmative bargaining order in this case vindi- cates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the em- ployer’s withdrawal of recognition. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation because the dura- tion of the order is no longer than is reasonably necessary to remedy the ill effects of the violation. Moreover, in this case, the Respondent did not cease its unlawful conduct when it withdrew recognition from the Union on October 29. Rather, it continued to purge its work force of active union supporters by suspending, and ultimately discharging, union bargaining committee member Joseph Steckler. The suspension and discharge of Steckler occurred shortly after the Respondent learned that Steckler was collecting signatures on a prounion petition. Realizing that union support still existed among the unit employees, the Respondent moved, without de- lay, to prevent that support from growing by suspending and then discharging the instigator. In these circum- stances, it is only by restoring the status quo ante and requiring the Respondent to bargain with the Union for a reasonable period of time that employees will be able to fairly decide for themselves whether they wish to con- tinue to be represented by the Union or adopt some other arrangement. (2) The affirmative bargaining order also serves the policies of the Act by fostering meaningful collective bargaining and industrial peace. That is, it removes the Respondent’s incentive to delay bargaining in the hope of further discouraging support for the Union. It also ensures that the Union will not be pressured, by the pos- sibility of a decertification petition, to achieve immediate results at the bargaining table following the Board’s reso- lution of its unfair labor practice charges and issuance of a cease-and-desist order. (3) A cease-and-desist order, without a temporary de- certification bar, would be inadequate to remedy the Re- spondent’s violations because it would permit a decerti- fication petition to be filed before the Respondent had afforded the employees a reasonable time to regroup and bargain through their representative in an effort to reach a collective-bargaining agreement. Such a result would be particularly unfair in circumstances such as those here, where litigation of the Union’s charges took several years and the Respondent’s unfair labor practices were of a continuing nature and were likely to have a continuing effect, thereby tainting any employee disaffection from the Union arising during that period or immediately thereafter. We find that these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose contin- ued union representation. For all the foregoing reasons, we find that an affirma- tive bargaining order, with its temporary decertification bar, is necessary to fully remedy the allegations in this case. ORDER The Respondent, Penn Tank Lines, Inc., Ft. Lauder- dale, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Warning employees not to engage in union activi- ties. (b) Suspending or discharging employees because of their membership in, or support for, Freight Drivers, Warehousemen and Helpers, Local Union No. 390, af- filiated with International Brotherhood of Teamsters, AFL–CIO. (c) Conditioning reinstatement to employment on em- ployees refraining from engaging in union or other pro- tected concerted activities. (d) Unilaterally changing wages, hours, or other terms and conditions of employment, without first notifying and bargaining with the Union. (e) Unlawfully withdrawing recognition from the Un- ion and refusing to bargain with it as the exclusive col- lective-bargaining representative of the employees em- ployed in the bargaining unit described below in para- graph 2(d). (f) 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) Within 14 days from the date of this Order, offer Joseph Steckler full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make whole Robert Miller and Joseph Steckler for any loss of earnings and other benefits resulting from their suspension and/or discharge, in the manner set forth in the remedy section of the judge’s decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspension and/or discharge of Robert Miller and Joseph Steckler and, within 3 days thereafter, notify them in writing, that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070 this has been done and that the suspension and/or dis- charge will not be used against them in any way. (d) Recognize and, on request, bargain with the Union as the exclusive representative of the employees in the following appropriate unit concerning terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All petro chemical transport drivers em- ployed by the Employer at its facility located at 1150 Spangler Road, Fort Lauderdale, Florida 33316. Excluded: All other employees, office clerical employ- ees, sales employees, dispatchers, guards, and supervi- sors as defined in the Act. (e) Rescind the unilateral change in its policy regard- ing waiting-time and lost-time pay, and reinstate the former policy. (f) Make whole all bargaining unit employees for any loss of earnings and other benefits resulting from the unilateral change in the waiting-time and lost-time pay. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). (g) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (h) Within 14 days after service by the Region, post at its facility in Fort Lauderdale, Florida, copies of the at- tached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 20, 1998. (i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations not found. 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT warn employees not to engage in un- ion activities. WE WILL NOT suspend or discharge employees be- cause of their membership in, or support for, Freight Drivers, Warehousemen and Helpers, Local Union No. 390, affiliated with International Brotherhood of Team- sters, AFL–CIO. WE WILL NOT condition reinstatement to employ- ment on employees refraining from engaging in union or other protected concerted activities. WE WILL NOT unilaterally change wages, hours, or other terms and conditions of employment, without first notifying and bargaining with the Union. WE WILL NOT unlawfully withdraw recognition from the Union and unlawfully refuse to bargain with it as the exclusive collective-bargaining representative of the em- ployees employed in the bargaining unit described be- low. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. PENN TANK LINES, INC. 1071 WE WILL, within 14 days from the date of the Board’s Order, offer Joseph Steckler full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL make whole Robert Miller and Joseph Steckler for any loss of earnings and other benefits re- sulting from their suspension and/or discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful sus- pension and/or discharge of Robert Miller and Joseph Steckler, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the sus- pension and/or discharge will not be used against them in any way. WE WILL recognize and, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employ- ees in the bargaining unit: Included: All petro chemical transport drivers em- ployed by the Employer at its facility located at 1150 Spangler Road, Fort Lauderdale, Florida 33316. Excluded: All other employees, office clerical employ- ees, sales employees, dispatchers, guards, and supervi- sors as defined in the Act. WE WILL rescind the unilateral change in our policy regarding waiting-time and lost-time pay, and reinstate our former policy. WE WILL make whole all bargaining unit employees for any loss of earnings and other benefits resulting from the unilateral change in the waiting-time and lost-time pay, plus interest. PENN TANK LINES, INC. Michael Maima, Esq., for the General Counsel. Stewart Keene, Esq., for the Respondent. Libby Herrera-Navarrete, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me in Miami, Florida, on December 13 and 14, 1999. The charge and amended charge in Case 12–CA– 19505 were filed by Robert Miller on May 28 and August 5, 1998. The charge and amended charge in Case 12–CA–19746 were filed by the Union on November 2 and December 10, 1998. The charge and amended charges in Case 12–CA–19774 were filed by Joseph Steckler on November 12 and December 7, 1998, and January 29, 1999. On August 30, 1999, the Regional Director issued a consoli- dated complaint in these cases which alleged as follows: 1. That following a Board-conducted election, which was held on July 1997, the Union was certified as the exclusive collective-bargaining representative in the following unit of employees: Included: All petro chemical transport drivers employed by the Employer at its facility located at 1150 Spangler Road, Fort Lauderdale, Florida 33316. Excluded: All other employees, office clerical employees, sales employees, dispatchers, guards and supervsi9ors as de- fined in the Act. 2. That in or about April 1998, the Respondent by its agent, Charles Nicholas, encouraged employees to form a drivers committee in lieu of bargaining through the Union. 3. That on or about May 20, 1998, the Respondent, for dis- criminatory reasons, discharged Robert Miller. 4. That on or about October 1, 1998, the Respondent, with- out notification to or bargaining with the Union, unilaterally reduced the rates of pay for “waiting” time and time lost due to equipment breakdowns for employees in the bargaining unit. 5. That on or about October 29, 1998, the Respondent ille- gally withdrew recognition from the Union. 6. That in or about November 1998, the Respondent by Tom Lovett, its terminal manager, threatened employees with un- specified reprisals if they engaged in union activities. 7. That on or about November 8, 1998, the Respondent, by Lovett, created the impression of surveillance. 8. That on or about November 8, 1998, the Respondent, by Lovett, threatened to suspend an employee if he engaged in union activity. 9. That on or about November 8, 1998 Respondent, for dis- criminatory reasons, either suspended indefinitely or discharged Joseph Steckler. 10. That on or about November 20, 1998, the Respondent conditioned Steckler’s reinstatement on him ceasing to engage in union or other protected concerted activities. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed, I make the following FINDINGS OF FACT I. JURISDICTION The parties agree and I find that the Respondent is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also is agreed and I find that the Charging Party, Freight Drivers, Warehousemen and Helpers, Local Union No. 390, affiliated with International Brotherhood of Teamsters, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent is engaged in the business of delivering gasoline and diesel fuel. The facility involved in the present case is located in Port Everglades, Florida, and the Respondent has been contracted by Mobil Oil to make deliveries. Previ- ously, the job of delivering this product was conducted by Mo- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072 bil’s own employees before that company decided to contract that work out. Some of the Respondent’s drivers were previ- ously employed by Mobil and there is evidence that some were angry because when they were dropped by Mobil, they lost benefits and suffered a diminution in pay. Respondent’s terminal manager in 1997 and until March 1998 was Mike Pittman. In March 1998, Pittman was replaced by Tom Lovett. The Respondent admits that Pittman, Lovett as well as Charles Nicholas and dispatcher Raymond Sangster, were supervisors and/or agents as defined in Section 2(11) and (13) of the Act. Joseph Steckler and Robert Miller were both employed as drivers, the former from September 1995 and the latter from September 1996. The Union organizing drive started in early 1997 and em- ployee Joseph Steckler was particularly active in soliciting support for the Union. Also active was employee Robert Miller. The organizational campaign eventually led to the filing of a representation petition. An election conducted under the aus- pices of the NLRB was held in July 1997. The Union won and was certified. In December 1997, the parties commenced bargaining. At the table, the Union was led by its then-president, Morgan, and by employees Steckler and Bumbry. The employer was repre- sented by its human resources consultant, Charles Nicholas, and by Mike Pittman, who, at the time, was the terminal man- ager. Steckler described the initial period of bargaining as being difficult inasmuch as the Company’s negotiators, under the direction of Nicholas, stalled and challenged every paragraph of a proposed contract. In 1998, Morgan was replaced by Gerry Pape as union presi- dent and she took over at the bargaining table. Also at that time, Nicholas was replaced at the bargaining table by Stewart Keene. Negotiations continued until October 29, 1998, when the employer withdrew recognition. B. The Unilateral Change Allegation The Respondent admitted that on or about October 1, 1998, it reduced the waiting-time and lost-time pay for bargaining unit employees. It also admitted that these matters were man- datory subjects of bargaining and that it did not give the Union notice of these changes and an opportunity to bargain about them. Accordingly, on these undisputed facts, I conclude that the Respondent violated Section 8(a)(1) and (5) of the Act.1 C. The Allegations Regarding Steckler Joseph Steckler was hired by the Respondent as a driver in September 1995. He testified that he was the one who con- tacted the Union in January 1997, and that he actively solicited his coworkers to join. Steckler gave unrebutted testimony that on or about February 27, 1997, at a regular meeting, terminal manager Pittman stated that he heard rumors about a union 1 The evidence indicates that in January 1999 the employer retracted these changes. I shall therefore leave it for compliance to determine what if any amount of money is owed to employees. coming into Port Everglades and that the employees could not talk about the Union on company premises. (This is outside the 10(b) period and not alleged in the complaint.) According to Steckler, on or about May 13, 1997, another employee asked him about a union meeting and he told this employee that he couldn’t talk about that just then. Steckler testified, without contradiction, that Pittman walked up and asked him to go to the office where he reminded Steckler that he could not talk about the Union on company property. Si- multaneously, Pittman changed Steckler’s schedule from hav- ing Saturday and Sundays off to having Tuesday and Thursdays off. (Also outside the 10(b) period.) In May 1997, Steckler had an accident which he described as minor and involving a small dent and scratch to the vehicle he was driving. He was given a 3-day suspension for this acci- dent. The General Counsel produced evidence that another driver, having an accident with a comparable injury, was given a 1-day suspension. (This too is outside the 10(b) period.) As noted above, an NLRB-conducted election was held in July 1997 and the Union won. This resulted in it being certified as the collective-bargaining representative of the employees in the above-described unit on July 25, 1997. Also as noted above, Steckler was one of two employees chosen to assist the Union during negotiations. As the negotiations were going slowly, some of the employ- ees became disenchanted and Joe Rodriguez, another driver, seems to be the person who began expressing antiunion senti- ments. In the summer of 1998, Rodriguez, according to Steck- ler, picked two arguments with him, one of which resulted in a suspension to Steckler but not to Rodriguez. In or about October 1998, Rodriguez solicited employees to sign a petition indicating their nonsupport for the Union. And by October 29, 1998, Rodriguez obtained 54 signatures out of about 61 drivers which he presented to terminal manager Lovett. In the first week of November 1998, Steckler started solicit- ing the drivers to sign a counter petition supporting the Union. He did this off company premises and on break times. On No- vember 8, he asked Miller to sign this petition. This apparently was seen by or reported to Lovett because, on the following day, Steckler was called into Lovett’s office and, in the pres- ence of bookkeeper Rochelle Sheflin, told that he was harassing and threatening the other drivers. Steckler denied that he did so but he was sent home with a suspension. When asked, Sheflin testified, in effect, that what Lovett meant by harassment was that Steckler was speaking about the Union to the other employees. Her testimony in this regard was as follows: Q. When you were asked to come in and witness this conversation between Mr. Lovett and Mr. Steckler, as you’ve now told us, Ms. Sheflin, did Mr. Lovett explain what he meant by harassing the drivers? A. Just going up to them and constantly at them. Q. About what? A. The Union. Insofar as the alleged threats or harassment by Steckler, the Respondent produced no evidence that this alleged conduct PENN TANK LINES, INC. 1073 consisted of anything other than his talking to employees and expressing his support for the Union. Subsequent to his suspension, Lovett met with Steckler on two occasions (November 20 and December 3, 1998), and of- fered to reinstate him if he would stop “harassing” the other drivers. Steckler refused to accept this conditional offer as he insisted that he had the right to talk about the Union to the other employees. The Respondent’s contention that Steckler was discharged for cause is rejected. It is clear to me that the evidence in this case demonstrates that the suspension and subsequent refusal to reinstate Steckler was motivated solely by Steckler’s support for and activities on behalf of the Union and his efforts in No- vember 1998 to solicit employees to sign a prounion petition. I therefore conclude that the Respondent has violated Section 8(a)(1) and (3) of the Act in this regard. D. The Allegations Regarding Robert Miller Robert Miller was hired by the Respondent as a driver in September 1996. Like Steckler, Miller also supported the Un- ion and expressed his support to his coworkers. On or about August 26, 1997, Miller was present at the Mo- bil rack when a small spill of gasoline occurred. Whether this presented an immediate danger is debatable, but in any event, Miller expressed, in no uncertain terms, his concern to the other drivers. As a consequence, Miller was given a half-day suspen- sion and he filed an unfair labor practice. Regarding this event, in an affidavit executed by Terminal Manager Pittman, he stated: Robert Miller’s ranting about the Mobil employees having exposed him and others to danger by having spilled fuel out in the area of the loading bays should have been kept between management and himself. Miller, however, chose to involve other employees. I remember seeing him in the driver’s room ranting to other employees about what he had observed under the rack. Miller’s incident occurred around shift change. Miller didn’t have to involve anyone else in it. The other em- ployees in the driver’s room were trying to do their work. The unfair labor practice charge filed by Miller was eventu- ally resolved by way of a non-Board settlement pursuant to which the suspension was retracted and Miller was paid $50. This settlement was agreed to in March 1998. Although I am not here to relitigate the merits of the forego- ing unfair labor practice charge, the circumstances show that the Respondent had ample reason to believe that Miller was a prounion employee who was willing to make waves if neces- sary. Miller testified that in late March or early April 1998, he had a conversation with Nicholas at the facility where among other things, the latter stated that the employees would be better off without a union and that they could have formed a committee to deal with their problems. Although this is denied by Nicholas, I shall credit Miller. Miller was sent a letter on May 20, 1998, notifying him of his discharge, ostensibly for failing to report to work without giving notice of his absence. This letter read as follows: As a result of your failure to report off for work without no- tice, Job Abandonment, your employment with Penn Tank Lines, Inc. has been terminated effective today, May 20, 1998. The facts in this case do not, in my opinion, support the em- ployer’s claim that Miller was absent without leave. And given the other evidence of antiunion animus, I shall conclude that the motivation for Miller’s discharge was because of his union and/or protected concerted activity. Miller’s mother became sick and had to enter a hospital on May 11, 1998. Miller promptly notified his supervisor, Ray- mond Sangster, about his mother’s illness and asked permission to take off from work. Sangster conceded that he gave permis- sion and that he told Miller that he did not have to call in every day but could come back when he was ready. On May 12, 1998, Miller decided to come to work on the evening shift. Nevertheless, he left after half a shift because he got word that his mother’s situation had worsened. Miller testi- fied that he told the night dispatcher that he needed to go. Miller credibly testified that on Wednesday, May 13, he again called Sangster about his mother’s condition and told him that he would not be coming to work. He testified that Sangster told him that he could stay out as long as he needed and that he didn’t have to call in every day. On May 14, Miller’s mother had the operation but on May 15, she died. (These 2 days were Miller’s regular days off.) As he needed to take care of funeral arrangements, Miller credibly testified that on May 15, he called and spoke to dispatcher Shaun Johnson and told him that he would not be coming in. He testified that Johnson told him to call when he was ready to return. Between May 15 and 20, 1998, Miller was involved in fu- neral affairs and was largely away from his own home. On May 20, 1998, Miller received written notice that he was fired for failing to come to work and failing to call in. Based on this set of circumstances, I find wholly unconvinc- ing, the assertion by the Respondent that it discharged Miller for good cause. Rather, in accordance with Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), I conclude that the General Coun- sel has made out a prima facie showing of discriminatory mo- tive for Miller’s discharge. By the same token I find that the Respondent has not shown that it would have discharged Miller for legitimate reasons. I therefore conclude based on this re- cord that the discharge of Robert Miller violated Section 8(a)(1) and (3) of the Act.2 E. The Withdrawal of Recognition As noted above, the Union was certified as the exclusive col- lective-bargaining representative in July 1997. Thereafter bar- gaining commenced but during the period of time that the com- pany was represented by Nicholas, the bargaining was slow and unproductive. In or about September 1998, the Company faced with a shortage of qualified drivers and an inability to retain those it 2 I note that Miller subsequently received on October 27, 1998, an offer to return to work on November 2, which he accepted. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074 had, determined that it needed to give its drivers an immediate wage increase. Accordingly, at a meeting held on September 20, 1998, the Employer proposed that it be allowed to give an interim $1 an hour wage increase even in the absence of an executed collective-bargaining agreement. After consulting with the employee representatives, Union President Pape agreed to this idea and sent a letter to that effect on September 22, 1998. (In part, Pape’s agreement was based on her feeling that the Respondent was, at this time, more amenable to making progress in the negotiations.) In the meantime, and at dates not entirely known to me, one of the other drivers, Joseph Rodriguez, started soliciting signa- tures for a petition to oust the Union as the bargaining represen- tative. In this regard, two drivers, James Prendergast and Jorge Lopez, testified without contradiction that they were told by Rodriguez that the purpose of signing this petition was to get a $1 an hour wage increase. As neither Rodriguez nor any of the other employees testified about the petition, I have no idea as to the circumstances and statements that were made to other driv- ers in an effort to induce them to sign this petition. With respect to the petition solicited by Rodriguez, James Steckler testified that he noticed that during this time, Lovett and Rodriguez all of sudden became very chummy and had lunches together. There was, however, no firm evidence that Rodriguez’s efforts to solicit signatures was orchestrated by the Company. By October 29, 1998, the antiunion petition had 54 signa- tures, a number well in excess of a majority. This was pre- sented to Lovett and on that same date, the company sent the following letter to the Union. Please be advised that Penn Tank Lines, Inc., Port Ev- erglades facility is withdrawing recognition of IBT Local 390, effective immediately. This action has been precipitated by an overwhelming majority of the bargaining unit at this facility requesting by petition that such action be taken. Commencing on November 2, 1998, Steckler began solicit- ing signatures to a counter petition indicating employee support for the Union. (As noted above, this led to his discharge.) And by November 8, 1998, Steckler had obtained 34 signatures, a number which also constituted a majority. Of the 54 people who signed the antiunion petition, 25 also signed the prounion petition. Under existing Board law, a union, having been certified pursuant to a Board-conducted election, is entitled to an irrebu- table presumption of majority status for 12 months following its certification. Ray Brooks v. NLRB, 348 U.S. 1077 (1954). However, under existing Board law, after the certification year expires and in the absence of a collective-bargaining agree- ment, the presumption becomes one, which is rebuttable. And if the employer has objective evidence on which it can base a good-faith doubt of majority support for the Union, it may withdraw recognition without violating Section 8(a)(5) of the Act. Laidlaw Waste System, 307 NLRB 1211 (1992); Celanese Corp., 95 NLRB 664 (1951). Moreover, under existing case law, an employer may withdraw recognition based on a good- faith doubt even where there is evidence of postwithdrawal majority support for the Union. AMBAC International Ltd., 299 NLRB 505, 506 (1990). On the face of it, the antiunion petition that was presented to the employer on or about October 29, 1998, and which was signed by a majority of the bargaining unit employees would seem to be the type of evidence upon which the employer could assert a good-faith doubt. Nevertheless, there is evidence in this case that the petition was solicited by a promise that it would be the mechanism through which the employees would obtain a substantial wage increase. Thus, although the Employer “knew” by October 29, 1998, that a majority of its work force had signed a petition to oust the Union, it could not have known (unless having partici- pated in its solicitation), the circumstances that these signatures were obtained. The Employer could not know what if any promises were made to each employee. The Employer could not know if employees signed their names because they truly wanted to be rid of the Union or because they simply wanted to be rid of the solicitor. The Employer could not know whether employees signed simply because their friends signed. Nor could it know whether any threats were made or if the purpose of the petition was misrepresented to the prospective signers. In short, it is easy to obtain signatures on cards or petitions and, in my opinion, this evidence relating to majority status is not particularly persuasive in determining what employees really want. Such evidence is, in my opinion, a poor substitute for a fair election conducted under the auspices of the NLRB or equivalent State agency. The National Labor Relations Act, at Section 9, has proce- dures whereby employees, through secret-ballot elections may elect to be represented by a union for collective-bargaining purposes. Likewise, inasmuch as the Act permits employers or employees to file election petitions to oust an incumbent union, it seems to me that it would be far more efficient, economical, and consistent with employee free choice for elections to be the preferred method for resolving such questions instead of having them litigated in the context of an unfair labor practice trial.9 In this regard, it seems to me that exactly the same principles should be applicable in determining if an employer is required to grant initial recognition in the absence of an election as when an employer is seeking to withdraw recognition from an in- cumbent union. In NLRB v Gissel Mfg. Corp., 395 U.S. 575 (1969), the Board abandoned the test set out in Joy Silk Mills, 85 NLRB 1263 (1949), which asked whether the Employer had a “good faith doubt” as to the Union’s majority status when it refused to recognize a union. Instead it proposed, and the court adopted a standard whereby an employer’s refusal to recognize a union (having majority support), would only be unlawful (in the ab- sence of an election or in cases where the union lost an elec- 9 In a decertification proceeding, the election normally will be held in the existing collective-bargaining unit. Therefore, there would be little need for any prolonged hearing to determine who would be eligi- ble to vote. Accordingly, absent a blocking unfair labor practice charge, an election should normally take place within a relatively short period of time. PENN TANK LINES, INC. 1075 tion), where the Employer’s conduct made the holding of a fair election improbable.10 After NLRB v Gissel, supra, an employer’s good-faith doubt, or lack thereof, became irrelevant in determining if an em- ployer was obligated to recognize a union that was trying to become an incumbent. Applying the principle of equivalence, it seems to me that the employer’s good faith should be equally irrelevant when determining if its withdrawal of recognition from an incumbent union is either legal or prohibited under the Act. As the employer, (or its employees), has the option of filing a petition for an election if it has a reasonable basis for questioning a union’s continuing majority support, it seems to me that the preferred method of resolving the question of repre- sentation should be the Board’s election processes unless it is shown that the Union’s conduct has made a fair election an unlikely possibility.11 In sum, I would recommend that the Board conclude that pe- titions, or other manifestations by employees to oust a union, in the absence of unremedied unfair labor practices, would be sufficient evidence upon which the employer could either con- duct an employee poll or file a decertification petition. On the other hand, I would recommend that the mere presentation of such a petition to the employer should not give it a basis for withdrawing recognition. Thus I would not follow a unitary standard in dealing with evidence of employee disaffection with union representation. In the present case, I would also conclude that the Em- ployer’s withdrawal of recognition was flawed by my earlier conclusions that it had discriminatorily discharged Robert 10 In NLRB v. Gissel Packing Co., 395 U.S. 575 (l969), the Supreme Court distinguished between three categories of situations insofar as the propriety of granting a bargaining order to remedy an employer’s unfair labor practices. The first category involved the “exceptional” case where “outrageous” and “pervasive” unfair labor practices are commit- ted. The second category involves “less pervasive practices” that have a tendency to undermine majority strength and impede the election process. As to this second category, the Court held that a bargaining order would be proper to remedy an employer’s unlawful conduct which had the effect of making a fair election unlikely where at some point the Union had majority support amongst the employees. The third class of cases, concern those where minor or less extensive unfair labor practices have been committed which would have a “minimal impact” on an election. The Court held that in the third category of cases, a bargaining order would be inappropriate to remedy an em- ployer’s unfair labor practices. 11 It is, of course, conceivable that in an effort to influence employ- ees, a union may engage in illegal conduct. This, however, can be litigated in the context of objections to an election and/or an 8(b) unfair labor practice charge. If the Board concluded, after a hearing, that a union’s conduct was so egregious as to make a fair election improbable, it could order that the Union be decertified instead of ordering that a new election be held. Miller and that it had made a unilateral change. As these unfair labor practices were unremedied at the time of the withdrawal of recognition, I conclude that the withdrawal itself was tainted. Lee Lumber & Building Material Corp., 322 NLRB 175 (1996). CONCLUSIONS OF LAW 1. By discriminatorily discharging Robert Miller on May 20, 1998, and by discharging Joseph Steckler on November 8, 1998, the Respondent violated Section 8(a)(1) and (3) of the Act. 2. By conditioning reinstatement of Steckler on his waiver of his rights to solicit support for Freight Drivers, Warehousemen and Helpers, Local Union No. 390, affiliated with International Brotherhood of Teamsters, AFL–CIO, the Respondent has vio- lated Section 8(a)(1) and (3) of the Act. 3. By unilaterally changing its policy regarding waiting time, the Respondent violated Section 8(a)(1) and (5) of the Act. 4. By withdrawing recognition from the Union and by refus- ing to bargaining, the Respondent has violated Section 8(a)(1) and (5) of the Act. 5. The aforesaid violations affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. 6. The evidence does not, in my opinion, establish that the Respondent has violated the Act in any other manner encom- passed by the complaint. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent, having discriminatorily discharged Robert Miller and Joseph Steckler, it must to the extent that it has not already done so, offer reinstatement and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of their discharges to the dates of reinstate- ment or valid reinstatement offers, less any net interim earn- ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). See also Florida Steel Corp., 231 NLRB 651 (1977). Inasmuch as I have concluded that the Respondent has vio- lated Section 8(a)(5) of the Act by making a unilateral change in waiting time, I shall recommend that it be ordered to rein- state its former policy and to make employees whole, with in- terest, to the extent it has not already done so. Finally, I shall recommend that the Respondent, upon re- quest of the Union, recommence bargaining with the Union and bargain in good faith. [Recommended Order omitted from publication.]