Bowling Transportation, Inc.

BOWLING TRANSPORTATION, INC. 393 Bowling Transportation, Inc. and Richard Ashby. Case 25–CA–26896 September 28, 2001 DECISION AND ORDER BY MEMBERS LIEBMAN, TRUESDALE, AND WALSH On September 22, 2000, Administrative Law Judge William G. Kocol issued the attached decision. The Re- spondent filed exceptions,1 a supporting brief, and a re- ply brief. The General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified3 and to adopt the recommended Order as modi- fied.4 As explained below, the judge found that the Respon- dent violated Section 8(a)(1) by telling employees Rich- ard Ashby and Kenneth Hanks they were being disci- plined for protected concerted activity and, in Ashby’s case, for suspected union activity. For the reasons stated by the judge, we agree. The judge further found that the Respondent violated Section 8(a)(1) and (3) by discharg- ing Ashby and Hanks for protected concerted activity and for suspected union activity. For the reasons stated below, we agree. The judge also found that the Respondent violated Section 8(a)(1) and (3) by threatening employee Jeffrey Horton with reprisals for his protected concerted activity and suspected union activity and by discharging him for both activities. We agree. As set forth below, however, we find it necessary to correct two of the judge’s findings to conform to the evidence. 1 No exceptions were filed to the judge’s dismissal of the allegations that the Respondent violated Sec. 8(a)(1) by creating the impression that employees’ union and protected activities were under surveillance and by promulgating and posting a rule forbidding employees from discussing their wages. 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. 3 We shall modify Conclusion of Law 5 to correct Jeffrey Horton’s name and to conform to the violations found. 4 We shall modify the judge’s recommended Order in accordance with our recent decision in Ferguson Electric Co., 335 NLRB 142 (2001). I. RICHARD ASHBY AND KENNETH HANKS The Respondent transports steel from steel mills, in- cluding those of AK Steel, to major automotive produc- ers. The Respondent also performs intraplant steel haul- ing at AK Steel. In 1999,5 the Respondent employed Kenneth Hanks as a “supertruck” driver and Richard Ashby as a “supertruck” driver and “tow motor” opera- tor. Both Ashby and Hanks performed their work for the Respondent on AK’s property.6 As explained more fully in the judge’s decision, AK had a safety bonus program under which its contractors, including the Respondent, could earn up to $1 for each injury-free hour worked by their employees. The Re- spondent decided to share 50 cents per hour of this bonus with its employees. Ashby thought the employees should receive the full $1 per hour, and he discussed his concern with other employees, including Hanks. About December 9, Ashby and Hanks went to the office of Brian Rydberg, AK’s transportation and materials man- ager. Ashby explained to Rydberg his concern that the Respondent shared only half the bonus with its employ- ees and kept the remainder to pay for safety equipment and the Christmas party. Hanks was present throughout this discussion. Rydberg reported the discussion to L.J. Martin, the Respondent’s terminal manager. On December 19, Martin and an AK security guard es- corted Ashby off AK’s premises. Martin told Ashby he was being removed from the property because they be- lieved he was trying to get a union started because of his discussion with Rydberg. Martin told Ashby that AK had barred Ashby from its property. Also on December 19, Martin escorted Hanks from AK’s premises. Martin told Hanks that AK wanted him removed from the property because he had been present with Ashby for the discussion with Rydberg about the safety bonus. Several days later, the Respondent terminated Ashby and Hanks. Each employee’s termination notice de- scribed the reason for termination as “not able to func- tion on AK Steel property.” The judge found that the Respondent violated Section 8(a)(1) by telling Ashby and Hanks they were being re- moved from AK property because of their protected con- certed activity (i.e., their discussion with Rydberg about the safety bonus) and, in Ashby’s case, because of sus- pected union activity. We agree. The judge further found that the Respondent violated Section 8(a)(1) and (3) by terminating Ashby and Hanks 5 All dates are in 1999 unless otherwise specified. 6 As discussed below, the General Counsel did not allege that Bowl- ing and AK were joint employers, and AK was not charged with any unfair labor practices. 336 NLRB No. 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394 because they had engaged in protected concerted activity and because the Respondent believed they had engaged in union activity. Applying Wright Line,7 the judge con- cluded that protected concerted activity and suspected union activity were motivating factors in the termina- tions. As noted above, Martin told both Ashby and Hanks that it was removing them from the property at AK’s request because of their discussion with Rydberg, which we agree was protected concerted activity. Both Ashby and Hanks were later terminated for the same reason. Thus, we agree with the judge that protected concerted activity was a motivating factor in Ashby’s and Hanks’ discharges. We also agree that suspected union activity was a mo- tivating factor in both discharges. Martin told Ashby that the Respondent believed Asbhy was trying to start a un- ion because of his discussion with Rydberg.8 Although Martin did not expressly mention union activity to Hanks, both Ashby’s and Hanks’ terminations stemmed from the discussion with Rydberg about the safety bonus and were inextricably intertwined. It is clear that the discussion with Rydberg was the basis for the belief that Ashby was engaged in union activity. Therefore, there is ample evidence to support the finding that the Respon- dent believed Hanks, as well as Ashby, was engaged in union activity and that this belief was a motivating factor in both discharges.9 7 Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel has the initial burden to persuade that antiunion sentiment was a sub- stantial or motivating factor in the challenged decision. The burden of persuasion then shifts to the employer to prove its affirmative defense that it would have taken the same action even in the absence of pro- tected activity. Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996); Wright Line, 251 NLRB at 1089. The employer cannot simply present a legitimate reason for its actions but must persuade by a pre- ponderance of the evidence that the same action would have taken place even in the absence of the protected conduct. T&J Trucking Co., 316 NLRB 771 (1995), enfd. 86 F.3d 1146 (1st Cir. 1996). 8 The Respondent argues that there is no evidence that the Respon- dent (as opposed to AK) thought Ashby was trying to start a union. Ashby, however, testified that Martin said, “[W]e believe that you are trying to get a union started and we need to do an investigation of it.” (Emphasis added.) The judge credited Ashby’s testimony regarding his conversation with Martin and specifically noted that he was impressed with Ashby’s demeanor as a witness. 9 In his Wright Line analysis, the judge stated that Martin “told Ashby and Hanks that they were terminated” because they had spoken with Rydberg about the safety bonus and, in Ashby’s case, because he was suspected of union activity. The evidence (and the judge’s factual finding) shows that Martin told Ashby and Hanks that they were being removed from AK’s property for these reasons. Ashby and Hanks were not officially terminated until several days after they were removed from the property. Thus, the evidence does not show that Martin ex- pressly told Ashby and Hanks that the reason for their termination (as distinguished from the reason for their initial removal from the prem- ises) was the discussion with Rydberg or the suspected union activity. The judge then addressed whether the Respondent had met its burden under Wright Line to prove it would have discharged Ashby and Hanks even in the absence of their protected activity. The Respondent asserted several rea- sons for discharging Asbhy and Hanks, claiming that Hanks violated a work rule against leaving a loaded truck unattended, Ashby interrupted production, and both Ashby and Hanks “walked off their jobs” and entered Rydberg’s office without permission. We reject these defenses for the reasons stated by the judge. The Respondent also argued that it would have termi- nated Ashby and Hanks regardless of their protected concerted activity because AK had barred them from the premises and the Respondent could not employ them productively elsewhere. The judge rejected this argu- ment, finding that the Respondent knew AK barred Ashby and Hanks from the premises because of their discussion with Rydberg. Relying on Capitol EMI Mu- sic, 311 NLRB 997 (1993), enfd. 23 F.3d 399 (4th Cir. 1994), the judge found that the Respondent was required, but failed, to take all measures within its power to resist the unlawful termination of Ashby and Hanks. Capitol EMI, however, involved the circumstances under which two joint employers will be found to have violated Sec- tion 8(a)(1) and (3) when only one employer took the unlawful action in question. See 311 NLRB at 997. Here, as the judge acknowledged, the General Counsel did not allege, and the judge did not find, that the Re- spondent and AK Steel were joint employers. Therefore, we disagree with the judge’s reliance on Capitol EMI. Nevertheless, we agree that the Respondent failed to prove an affirmative defense under Wright Line. The Respondent argues that it would have terminated Ashby and Hanks regardless of their protected concerted activity because AK barred them from its premises and the Re- spondent could not productively employ them elsewhere. The Respondent knew, however, that Ashby’s and Hanks’ discussion with Rydberg about the safety bonus was the reason AK barred them from its premises. Al- though AK was not charged with any unfair labor prac- tices, its barring of Ashby and Hanks from the property because of their protected concerted activity was for an unlawful reason.10 Thus, the Respondent relies on the The judge found, however, that Ashby and Hanks were terminated for the same reasons they were initially removed from the premises, and as discussed above, the evidence supports this finding. Thus, the judge’s conclusion that the discussion with Rydberg and suspected union activ- ity were motivating factors in the terminations is supported by the evidence. 10 Cf. Tracer Protection Services, 328 NLRB 734 (1999). BOWLING TRANSPORTATION, INC. 395 action of another employer taken for an unlawful reason as its Wright Line defense.11 This it cannot do. An affirmative defense under Wright Line must be based on a lawful, legitimate reason for the challenged employment decision.12 The Respondent’s burden, therefore, is to prove that it would have terminated Ashby and Hanks for a lawful, legitimate reason even in the absence of their protected conduct. By definition, the Respondent’s reliance on AK’s action, which was based on an unlawful reason, cannot satisfy this requirement. Accordingly, without relying on Capitol EMI, we agree that the Respondent discharged Ashby and Hanks in vio- lation of Section 8(a)(1) and (3).13 II. JEFFREY HORTON Jeffrey Horton worked for the Respondent as a truck driver. As explained more fully in the judge’s decision, about December 18, Horton prepared a list of work rules he found troubling. He discussed the list with other em- ployees and told them he intended to present the list to Bill Bowling, the Respondent’s President and CEO. Horton did present the list to Bowling and discussed it with him. The next day, Horton was suspended.14 While 11 Although Martin talked to Rydberg to try to get Ashby and Hanks allowed back on AK’s property, the record contains no evidence that Martin or any other representative of the Respondent informed AK that its insistence on removing Ashby and Hanks from the premises because of their protected concerted activity was unlawful. 12 See, e.g., Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 29 fn. 4 (D.C. Cir. 1998) (Wright Line gives an employer the opportunity to prove that “despite any unlawful motive, the same action would have occurred pursuant to some additional, lawful motive”); NLRB v. Joy Recovery Technology Corp., 134 F.3d 1307, 1314 (7th Cir. 1998) (em- ployer can “avoid a finding of an unfair labor practice if it can show that it would have taken the action regardless; that is, for legitimate reasons”); Oakes Machine Corp., 288 NLRB 456, 458 (1988) (where both lawful and unlawful grounds motivated respondent, respondent could not prevail under Wright Line without showing that the lawful reason alone would have prompted its actions), enf. granted in part, denied in part on other grounds 897 F.2d 84 (2d Cir. 1990). 13 We have adopted the judge’s recommended Order requiring, in part, that the Respondent reinstate Ashby and Hanks. The judge found, at least at the time of his decision, that the Respondent could not em- ploy Ashby and Hanks productively if they were barred from AK’s property. The General Counsel did not except to this finding. The judge, citing Flav-O-Rich, Inc., 309 NLRB 262 (1992), stated that if AK continues to resist reinstatement of Ashby and Hanks for unlawful reasons, that matter will have to be addressed in another proceeding. We do not agree that Flav-O-Rich stands for that proposition. Our Order in this case, however, requires the Respondent to offer Ashby and Hanks reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions. Once the Respondent has taken steps to comply with that Order, any issues as to the adequacy of the actions it has taken are properly left to the compliance stage of this proceeding. 14 Horton’s suspension notice listed the reason for his suspension as failure to follow instructions by “grouping” with other employees after being told not to do so. The General Counsel did not allege that Hor- ton’s suspension was unlawful. suspended, Horton called Bowling at home. Bowling told Horton that it sounded like several employees were going to lose their jobs. Bowling also said that it sounded like the employees were trying to form a union and that Horton, because he had presented the list of work rules to Bowling, was the leader. Bowling said there would not be a union because Bowling was the union. On December 23, Horton was discharged. On his termination notice, the boxes marked “failure to follow instructions” and “other” were checked as reasons for termination, and a handwritten remark stated “employee priorities to [sic] inconsistent with company policy.” We agree with the judge that Horton’s discussion of the list of work rules was protected concerted activity and that the Respondent violated Section 8(a)(1) by threatening Horton with reprisals for his protected activ- ity and for what the Respondent believed to be union activity. We also agree with the judge that the Respon- dent violated Section 8(a)(1) and (3) by discharging Hor- ton for the same reasons. In doing so, we find it neces- sary to correct two of his findings to conform to the evi- dence. In concluding that the Respondent violated Section 8(a)(1) by threatening Horton with reprisals, the judge stated: “The General Counsel next alleges that on De- cember 23 Respondent threatened its employees with discharge because of their union activity. I have con- cluded above that on that date Bowling told Horton that it sounded like the employees were trying to form a un- ion and since Horton was the one who brought the list to him, Horton was the leader.” The factual findings refer- enced by the judge in this statement do not include a finding as to the specific date this statement was made, but instead place it sometime between Horton’s Decem- ber 19 suspension and his December 23 termination. This is consistent with the evidence and does not affect the validity of the judge’s conclusion that Bowling’s statement violated Section 8(a)(1). In addition, in concluding that the Respondent failed to prove that it would have terminated Horton even in the absence of his protected activity, the judge stated that there was no factual evidence supporting the Respon- dent’s assertion that Horton would have been discharged in any event because he was unwilling to abide by the AK rules he found troubling. Bill Bowling did testify that Horton called him on December 23 from Milwau- kee, Wisconsin, and that during this conversation Horton indicated he would not “adhere to” the AK rules. How- ever, Bowling’s own testimony earlier in the hearing15 15 Both the Respondent and the General Counsel called Bowling as a witness. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396 was that he did not recall why Horton was terminated. When shown a copy of Horton’s termination notice stat- ing “employee priorities to [sic] inconsistent with com- pany policy,” Bowling testified that he did not remember what that statement meant. Bowling further testified that when Martin called him to discuss discharging Horton, Bowling merely told Martin to handle it as he saw fit. Martin testified that he terminated Horton on Bowling’s instructions, and that Bowling did not give a specific reason for the termination but stated that Horton had pre- sented a list of things he did not like about the Company. Martin did not corroborate Bowling’s testimony that Horton expressed any unwillingness to follow the rules unless and until they were changed. Thus, the evidence does not support the Respondent’s assertion that Hor- ton’s alleged unwillingness to follow rules was a reason for his discharge. We therefore agree that the Respon- dent failed to meet its burden to prove it would have dis- charged Horton even in the absence of his protected con- duct. Accordingly, we affirm the judge’s conclusion that the Respondent discharged Horton in violation of Section 8(a)(1) and (3).16 AMENDED CONCLUSIONS OF LAW Substitute the following for paragraph 5 of the judge’s Conclusions of Law: “5. By discharging Jeffrey Horton because he engaged in protected concerted activity and because the Respon- dent believed he had engaged in union activity, the Re- spondent has engaged in unfair labor practices affecting 16 The Respondent also argues that reinstatement and backpay are improper because Ashby’s testimony regarding Martin’s antiunion statements and Horton’s testimony regarding Bowling’s antiunion statements were uncorroborated. The Respondent contends that under Sixth Circuit law, backpay cannot be awarded based on the uncorrobo- rated testimony of interested parties. The Respondent overstates Sixth Circuit precedent. The Sixth Cir- cuit has stated that it generally will not find substantial evidence sup- porting an unfair labor practice based solely on uncorroborated testi- mony of an interested party whose testimony is directly contradicted by a disinterested witness. See, e.g., Union Carbide Corp. v. NLRB, 714 F.2d 657, 662 (6th Cir. 1983). Bowling is the Respondent’s CEO and President and therefore is not disinterested. Although it might be ar- gued that Martin, who is no longer employed by the Respondent, may be disinterested, Martin did not expressly confirm or deny making the statement about which Ashby testified. In addition, Ashby’s written statement, prepared at Martin’s request and submitted to Martin within a few days after Ashby was removed from AK’s property, states that “at no time was me or [Hanks] thinking about let alone trying to form a union.” This statement, which appears to be a reply to an assertion of union activity, supports Ashby’s testimony that Martin cited union activity as the reason for removing Ashby from AK’s property. In any event, the Respondent’s exception relates only to testimony regarding the Respondent’s statements about union activity. The judge found separate violations of Sec. 8(a)(1) based on the Respondent’s discharge of Ashby, Hanks, and Horton for protected concerted activ- ity. commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.” ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Bowling Transportation, Inc., Owensboro, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(d): “(d) 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.” Rafael Williams, Esq., for the General Counsel. Konrad Kuczak, Esq., of Dayton, Ohio, for Respondent. DECISION STATEMENT OF THE CASE WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Owensboro, Kentucky, on July 31 and August 1, 2000. The charge and amended charge were filed January 12 and February 16, 2000, respectively,1 and the complaint was issued April 13, 2000. The complaint alleges that Bowling Transportation, Inc. (Respondent) violated Section 8(a)(1) of the Act by posting and promulgating a rule forbidding employ- ees from discussing their wages with each other, creating the impression among its employees that their union and protected concerted activities were under surveillance, and threatening employees with discharge because of their union and protected concerted activities. The complaint also alleges that Respon- dent violated Section 8(a)(3) and (1) by discharging employees Jeffery Horton, Richard Ashby, and Kenny Hanks because they engaged in protected concerted activities and because Respon- dent believed that they had engaged in union activity. Respon- dent filed a timely answer that admitted the allegations of the complaint concerning the filing and service of the charge, commerce and jurisdiction, and agency status. Respondent denied the substantive allegations of the complaint. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, is engaged in heavy hauling and material transportation with an office and place of business in 1 All dates are in 1999 unless otherwise indicated. BOWLING TRANSPORTATION, INC. 397 Owensboro, Kentucky. During 1999, Respondent purchased and received at its Owensboro, Kentucky facility goods valued in excess of $50,000 directly from points located outside the Commonwealth of Kentucky. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background As indicated, Respondent is engaged in the business of heavy hauling and material transportation. Generally, Respon- dent transports steel coils from major steel mills to the big three automotive producers. It also provides intraplant transportation services. Since about October 1988, Respondent has provided such services to A.K. Steel at AK’s facility in Rockport, Indi- ana. There Respondent provides equipment and employees to perform intraplant handling and movement of steel coils using ultra heavy duty tractor-trailers called supertrucks. Depending on the production schedule, Respondent’s employees at this facility had a significant amount of idle time. The AK facility has several check shacks that have a computer and are used to check vehicles in and out of the facility. AK also has a receiv- ing office; about six or seven AK employees worked there. Bill J. Bowling is Respondent’s president and CEO. Don Bowling, Bill’s son, is vice president. Lawrence J. Martin served as Respondent’s terminal manager at the Owensboro facility until June 2000. Paul Brewer serves as Respondent’s safety and maintenance supervisor. These persons are admitted supervisors and agents of Respondent. B. The Terminations of Hanks and Ashby Kenneth Hanks worked for Respondent at the AK facility from early July until his suspension on December 19; he worked as super truckdriver. Richard Ashby worked for Re- spondent as a super truckdriver/tow motor operator from early August until his suspension on December 19. At some point AK implemented a safety program for its con- tractors, including Respondent, in which the contractors could earn up to $1 for each injury-free hour worked by their employ- ees. AK strongly encouraged that the contractors share this bonus with their employees. Respondent determined to pass on 50 cents per hour of the safety bonus to its employees at the AK facility. Ashby felt that the employees should be receiving the full $1 per hour safety bonus. He spoke to other employees at the AK facility, including Hanks, about the safety bonus and these em- ployees shared Ashby’s concern. Ashby also voiced his con- cerns about the safety bonus to Paul Brewer, Respondent’s safety and maintenance supervisor.2 On December 9, during some “down time” when there was no work to perform, Ashby decided to bring the matter of the safety bonus to the attention of Brian K. Rydberg. Rydberg worked for AK at the Rockport, Kentucky facility as manager 2 Indeed, Respondent in its brief at p. 3 concedes “Mr. Ashby and Mr. Hanks had freely discussed their disagreement with the amount of the safety bonus among themselves, other employees and Mr. Paul Brewer, a member of Bowling management.” of transportation and materials until December 1999. He had an office in AK’s receiving office. Ashby told Hanks that he was going to Rydberg’s office to give him “some hell” and Hanks decided to join Ashby. They entered the receiving office and encountered Rydberg in the hallway. Ashby asked if they could talk to Rydberg for a minute, and Rydberg replied that they could, and he invited them in his office. Ashby said that he wanted to ask some questions about the safety bonus. Rydberg said that he really did not know much about the pro- gram but he would answer what he could. Ashby then ex- plained his concern that employees were only getting 50 cents per hour and the remainder of the bonus was retained by Re- spondent to pay for things such as safety shoes, hard hats, safety glasses, and the Christmas party. Rydberg said that this was not his concern and suggested that they talk to Glen Easter- ling, another AK employee, about the matter. The discussion in Rydberg’s office lasted about 10 to 15 minutes.3 Rydberg contacted Martin and told him that Ashby and Hanks had been in AK’s receiving office and had raised the matter of the safety bonus. Rydberg explained that AK should not be in a position where they were being contacted about these matters. Rydberg instructed Martin to have them re- moved from the premises.4 In response to this incident on December 10, Respondent is- sued a memorandum to employees stating: Effectively immediately, there shall be no contact be- tween . . . Bowling Over-the-road/Highway personnel and AK Steel shipping department, unless you have been spe- cifically told to stop in by Bowling Transportation man- agement, or have been asked to come in by AK Steel Su- pervisory personnel. . . . Deviation from this directive could result in discipli- nary action or termination. 3 These facts are based on a composite of the credible testimony of Ashby and Hanks. In deciding to credit that testimony, I have consid- ered Rydberg’s testimony. Rydberg acknowledged that on December 9 Hanks and Ashby approached him at his office in AK’s receiving of- fice. He denied that he invited them into his office and claimed that they were not welcome there. He testified that he told Hanks and Ashby that if they had any questions concerning the safety program that they should raise it with Glen Easterling and Bowling. Rydberg testi- fied that Hanks later approached him and said that he had not been involved with Ashby’s comments; that he had simply followed along. Hanks denied that this subsequent conversation took place. Rydberg also claimed that there were at least two other occasions when Ashby and Hanks visited him at his office on this matter. Rydberg claimed that he informed Don Bowling and Martin of these subsequent meet- ings. However, Respondent offered no evidence to corroborate Rydberg’s testimony that Hanks and Ashby approached him in his office on the safety bonus matter more than on the single occasion described above. None of the documents describing the reasons for discharge mention anything more than this single occasion. Moreover, my observation of Rydberg’s demeanor as a witness left me with the sense that he was more eager to build a case to support the discharge of the employees than merely accurately recount the facts. For these reasons I do not credit Rydberg’s testimony. 4 These facts are based on the credible testimony of Martin. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 398 This was the first that the employees were notified of this pol- icy.5 On December 19 Martin and a security guard escorted Ashby from AK’s facility. Martin told Ashby that he had to escort him off the property because they believed that he was trying to get a union started because he had talked to Rydberg. Martin said that AK barred Ashby from its property. Ashby said that he was not trying to start a union and that he never even talked to anyone about a union. Martin said that they would have to investigate the matter. Ashby asked if he was terminated and Martin replied no, not at that time. Martin told Ashby to get in contact with him in 2 or 3 days and he would try and resolve it. Martin suggested that Ashby write a letter explaining why he was talking to Rydberg because that would provide Martin with more leverage to get Ashby reinstated.6 Ashby prepared such a letter and addressed it to Martin; it read: Approximately one week ago I went to Byron Rydberg’s office and Kenny Hanks followed me. Once in Byron’s office I asked him if he knew anything about the safety bonus. He said he did not. I went on to tell him that I heard that we were getting one dollar an hour and the Bowling was taking fifty cents of it for boots, hard hats, and glasses. I then told him I was informed that our boots were to last one year and showed him the soles of my boots and told him I had only been working for Bowl- ing for approximately four and a half months. He then in- formed me that he knew nothing about any of it. He then said that these problems were between Bowling and me, and that he or AK Steel had anything [sic] to do with it. At that time me and Kenny left Byron’s office. Me and Kenny were in Byron’s office for approxi- mately five to ten minutes. If I caused any problems I apologize but I was trying to get an answer, but at no time was me or Kenny thinking about let alone trying to form a union. [spelling corrections made]. On December 27, Martin informed Ashby that in the best in- terests of the Company he was terminated. Ashby’s termina- tion notice indicated that he was terminated because he was “not able to function on AK Steel property.” Other records show that the reason he was terminated was because he was not “welcomed” on the site by AK. On December 19, Martin also escorted Hanks from the AK facility. Martin told Hanks that this was due to the fact that he was present with Ashby when Ashby spoke to Rydberg about the safety bonus. Martin also told Hanks to prepare a statement of exactly what had occurred during the meeting with Rydberg. Martin said that he would use the statement to try and persuade AK to permit Hanks to come back on the property. Hanks’ suspension notice indicated that he was suspended pending termination and read “barred by AK- escorted off site.” 5 This is based on the credible testimony of Ashby and Hanks. 6 These facts are based on Ashby’s testimony. I note that Martin was not recalled to specifically deny that he made the remarks concern- ing the Union. I was also impressed with Ashby’s demeanor as a wit- ness. Like Ashby, Hanks prepared a letter for Martin. Hanks’ let- ter read: On or around the 8th or 9th of December I took a load to door 722. When I got there Richard (Ashby) was walk- ing towards Brian (Rydberg)’s office. I asked what he was doing. Richard said he was going to give Brian some hell. Not knowing what he was going to ask, I went to the of- fice with him. Richard asked Brian if he had a moment. Brian said yes, come on in. Richard and I went in and sat down. Richard asked who was in charge of the safety program. Brian said Glenn Easterling and then asked why? Richard told him about our safety bonus. A few days later Martin called Hanks and told him that AK did not want him back on the site. Hank’s termination notice indicated that the reason he was terminated was “not able to function on AK Steel property.” It had been AK’s policy to occasionally bar an employee of a contractor from the site for up to 3 days as a penalty for safety violations. After Hanks and Ashby were suspended, but before they were terminated, Martin went to Rydberg’s office and asked if they could be only temporarily barred. Rydberg re- plied that they were permanently barred from the site. After Martin received the letter from Ashby he again approached Rydberg to see if things had “cooled down” and asked if there was something they could do to work this out. Rydberg replied that if Hanks and Ashby returned to the site Respondent would be removed from the site the next day. During the time that Martin was employed at the site, no other employee had either been permanently barred from the site.7 Respondent did not offer Hanks and Ashby positions at any of its other facilities. However, the evidence shows that they could not be employed elsewhere without being required to visit an AK facility. C. Horton’s Termination Jeffrey Horton worked for Respondent as a truckdriver from July 1998, until his termination on December 23, 1999. Horton was dissatisfied with some of Respondent’s work rules. He spoke to other employees at the AK facility about his concerns. On December 18 Horton prepared a list of the rules that trou- bled him and other employees. The list read: Things I can not do at AK Steel Don’t talk to AK management. Don’t talk to anyone about pay, mine or otherwise. Don’t sit in plane [sic] sight if I have nothing to do. Don’t sit at the drop lot if I have nothing to do. Don’t go in the drop lot office when I have nothing to do. Don’t drive around the plant when I have nothing to do. Don’t go into the receiving trailer when I have nothing to do. 7 These facts too are based on Martin’s credible testimony. BOWLING TRANSPORTATION, INC. 399 Don’t go to the scale house parking lot when I have nothing to do. Don’t leave the truck unattended when I have nothing to do. Don’t be more than 50 (feet) away from the truck without the key in my pocket. Don’t use the company radio for anything except purely business. No personal comments on the radio. Don’t move the truck with the tarp open, foreward [sic] or back. No books, magazines or any other reading material in the trucks. No electronic devices in the truck that are not supplied by Bowling. Don’t park in a bunch when we have nothing to do. Separate. Horton showed the list to other employees and told them that he intended to present it to Bowling that evening at the company Christmas party. The employees agreed that Horton should do so. Before the Christmas party several employees approached Bowling and said that Horton wanted to know if he would be at the party, that if Bowling would be at the party then Horton would come also. Bowling said that he would be at the party. That evening, at the Christmas party, Horton presented the list to Bowling. They went into an office to discuss the matter. Horton said that the list was of things that the employees were not supposed do while at AK. He and Bowling discussed the rules and Bowling asked for a copy of the list. Horton gave no indication that other employees assisted him in preparing the list.8 Bowling admitted that Horton approached him at the Christmas party with a “laundry list” of rules that he did not like at AK. Bowling testified that he told Horton that those were AK’s rules and that the employees had to abide by them if they were going to work at AK’s facility. The day after the Christmas party Bowling showed the list to Martin. Rydberg acknowledged that on the day after the Christmas party Bowl- ing told him that Horton had presented a list of grievances con- cerning AK’s work rules. On December 19, Martin advised Horton that he was sus- pended for 5 days. Records indicate that on December 20 Hor- ton received a suspension for failure to follow instructions in that he was “grouping” with other drivers inside that AK check shack after being told not to congregate and not to leave his truck.9 Horton called Bowling at his home and asked if Bowling was aware of the fact that he had been suspended. Bowling replied that he was, and that it sounded like several employees were going to lose their jobs. Bowling said that it sounded like the employees were trying to form a union and since Horton was the one who brought the list to him, Horton was the leader. Horton attempted to assure Bowling that they were not trying to form a union. Bowling replied that there was not going to be a 8 These facts are based on Horton’s credible testimony. 9 The General Counsel does not allege that this suspension was unlawful. Horton’s suspension was based on an incident that occurred the day before the Christmas party and before Horton began preparing the list. union because he was the union. After unsuccessfully attempt- ing again to assure Bowling that the employees were not trying to form a union, Horton told Bowling that he was sorry that Bowling felt that way and the conversation ended.10 Bowling conceded that Horton called him at home. Bowling testified that he told Horton that he wanted a happy employee and that an unhappy employee does not do a good job and that if Horton were so unhappy he would get Horton out of the AK job. A few days later Bowling advised Martin to terminate Hor- ton. Bowling did not give a specific reason for the termination; instead, Bowling told Martin that Horton was unhappy and had presented a list of things that he did not like about company policy.11 On December 23 Martin informed Horton that he was termi- nated. Horton’s termination notice indicated that he had failed to follow instructions and read “employee priorities to [sic] inconsistent with company policy.” Other records indicate that Horton was terminated for his disagreement with company policies. III. ANALYSIS A. The 8(a)(1) Allegations The General Counsel alleges that in early December, Re- spondent, by an unknown agent, posted and promulgated a rule that forbid employees from discussing their wages. In support of this allegation the General Counsel presented testimony from Horton. He testified that in early December Paul Brewer, Re- spondent’s safety officer/dispatcher and an admitted agent, distributed a memorandum to employees at a shift meeting. Horton testified that about 10 employees were present at this meeting, including Hanks. The employees allegedly signed this memorandum and returned it to Brewer. The memorandum supposedly stated that it was against Respondent’s policy to discuss wages with fellow employees; however, no memoran- dum was produced at the trial. Hanks testified that he was pre- sent at a meeting where Brewer told employees that they were not to talk to anyone about their wages. Hanks testified, how- ever, that this meeting took place in early November. He testi- fied that Ashby was there, but Ashby did not corroborate this testimony. Hanks did not confirm Horton’s testimony that this rule was issued in writing. Brewer was not called to testify by Respondent. Bowling, however, denied that Respondent had a rule that prohibited employees from discussing their wages. He explained that such a rule made no sense because the wage rates of employees were common knowledge. In his brief, the General Counsel appears to concede that he has failed to show that Respondent issued any unlawful written rule. Rather, in his brief he argues that an oral rule was prom- ulgated. However, Hanks testimony in this regard was uncor- roborated. Under these circumstances, I conclude that the Gen- eral Counsel had failed to meet his burden of proof by showing, by a preponderance of the evidence, that any unlawful rule was promulgated. I shall dismiss this allegation of the complaint. 10 These facts are based on the credible testimony of Horton. I note that Respondent did not recall Bowling to contradict this testimony. 11 These facts are based on the credible testimony of Martin. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400 The General Counsel also alleges that on December 19 Re- spondent informed employees that they were terminated be- cause they engaged in union and protected concerted activity. I have found above that on that date Martin told Ashby that he was being removed from the property because Respondent believed that he was trying to get a union started because he had talked to Rydberg (about the safety bonus).12 Telling an employee that he is being disciplined because he engaged in union or protected concerted activity is unlawful. Atlas Transit Mix Corp., 323 NLRB 1144, 1150 (1997). By telling an em- ployee that he was disciplined because he engaged in union activity and in protected concerted activity, Respondent vio- lated Section 8(a)(1). The General Counsel next alleges that on December 23 Re- spondent threatened its employees with discharge because of their union activity. I have concluded above that on that date Bowling told Horton that it sounded like the employees were trying to form a union and since Horton was the one who brought the list to him, Horton was the leader. Horton at- tempted to assure Bowling that they were not trying to form a union. Bowling replied that there was not going to be a union because he was the union. I conclude that Bowling impliedly threatened Horton with reprisals because Respondent suspected that he had engaged in union activity and protected concerted activity.13 Bowling’s remarks were made in the context of Horton’s earlier, albeit lawful, suspension. He emphasized the risk Horton was taking by engaging in those activities when he indicated that there would not be a union at Respondent.14 By threatening an employee with reprisals for having engaged in union and protected concerted activity, Respondent violated Section 8(a)(1). The General Counsel also alleges that during this same con- versation Respondent gave the impression that it was engaging in surveillance of the union and protected concerted activities of its employees. I disagree. In context it was clear that Bowl- ing indicated that his suspicion that Horton and others were engaging in union activity and protected concerted activity came not from surveillance but from Horton’s open act of pre- senting and discussing the list of work rules with Bowling. I shall dismiss this allegation of the complaint. B. The Terminations 1. Legal standards The General Counsel alleges that Ashby, Hanks, and Horton were terminated because they engaged in protected concerted activity and because Respondent suspected that they engaged in union activity. In determining whether employees have en- gaged in concerted activity, I examine Meyers Industries, 268 NLRB 493 (1984), remanded sub. nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), Meyers Industries, 281 NLRB 882 (1986). There, the Board determined that for an employee’s activity to be concerted within the meaning of Section 7 of the Act the activity must be engaged in with or on the authority of other employees and not solely by and on behalf of the em- ployee himself. Once it has been determined that the activity is concerted, a violation of Section 8(a)(1) will be found if the employer knew of the concerted nature of the activity, the con- certed activity is protected under the Act, and the adverse em- ployment action was motivated by the employee’s protected concerted activity. 12 I conclude below that the discussion of the safety bonus with Rydberg was concerted activity protected by the Act. 13 I conclude below that the Horton’s discussion of the list of offen- sive work rules is concerted activity protected by the Act. 14 The General Counsel does not allege, either in the complaint or in his brief, that this remark constituted an unlawful statement that em- ployees’ union activities would be futile. In addition, the shifting burden analysis set forth in Wright Line15 governs the determination of whether Respondent vio- lated Section 8(a)(3) and (1) of the Act by terminating the em- ployees for their union activity and also whether it violated Section 8(a)(1) by terminating them for their protected con- certed activity. The Board has restated that analysis as follows: Under Wright Line, the General Counsel must make a prima facie showing that the employee’s protected union activity was a motivating factor in the decision to dis- charge him. Once this is established, the burden shifts to the employer to demonstrate that it would have taken the same action even in absence of the protected union activ- ity.7 An employer cannot simply present a legitimate rea- son for its actions but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.8 Fur- thermore, if an employer does not assert any business rea- son, other than one found to be pretextual by the judge, then the employer has not shown that it would have fired the employee for a lawful, nondiscriminatory reason.9 7 NLRB v. Transportation Management Corp., 462 U.S. 393, 400 (1983). 8 See GSX Corp. v. NLRB, 918 F. 2d 1351, 1357 (8th Cir. 1990) (“By asserting a legitimate reason for its decision and showing by a preponderance of the evidence that the legitimate reason would have brought about the same result even without the Illegal motivation, an employer can establish an affirmative de- fense to the discrimination charge.”) 9 See Aero Metal Forms, 310 NLRB 397, 399 fn. 14 (1993). T&J Trucking Co., 316 NLRB 771 (1995). This was further clarified in Manno Electric, 321 NLRB 278 (1996). 2. Terminations of Ashby and Hanks I first address the issue of whether Hanks and Ashby were terminated for protected concerted activity in violation of Sec- tion 8(a)(1). Ashby spoke to Hanks and other employees about the matter of the safety bonus and the employees shared his concerns. Moreover, Ashby and Hanks together went to Rydberg’s office and discussed the safety bonus issue. This clearly constitutes concerted activity. Respondent argues that Hanks was not involved in concerted activity because he en- tered Rydberg’s office without knowledge of what Ashby in- tended to discuss there. This argument misses the point. The evidence shows that Hanks remained with Ashby in Rydberg’s office while they discussed the safety bonus; this became con- 15 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). BOWLING TRANSPORTATION, INC. 401 certed activity. Moreover, Respondent would reasonably per- ceive that Hanks, by accompanying Ashby, was engaged in concerted activity. Respondent was aware of the concerted nature of the activity because Rydberg reported that Ashby and Hanks had come to him and raised the safety bonus matter. Indeed, Respondent concedes as much. Similar to its earlier contention, Respondent argues that it was unaware of the concerted nature of the activ- ity. It relies on the postsuspension letters written by Ashby and Hanks wherein they stated that Hanks merely followed Ashby in to Rydberg’s office. This argument suffers from the addi- tional infirmity that Respondent’s knowledge of this fact oc- curred after the employees were suspended and the employees were subsequently terminated for the same reason that they were suspended—they together talked to Rydberg about the safety bonus. Martin told Ashby and Hanks that they were terminated, in part, because they had spoken with Rydberg about the safety bonus matter; this statement violated Section 8(a)(1). Indeed, Martin urged these employees to prepare a written explanation concerning their meeting with Rydberg. This evidence shows that the terminations were motivated in substantial part by the employees’ protected concerted activity. The timing of the discharges further supports such a conclusion. Respondent argues: “A bonus is not the appropriate object of ‘concerted activity.’” Such an argument is inconsistent with Board law and the clear language of Section 7 of the Act. Re- spondent cites New River Industries v. NLRB, 945 F.2d 1290 (4th Cir. 1991). However, that case is inapposite. There, the concerted protest concerned a free ice cream cone that the em- ployer provided to employees on a single occasion. Here, the concerted activity concerned, from the employees’ perspective, 50 cents per hour for as long as the safety bonus program ex- isted. Respondent next argues: “Attempts to determine from a cus- tomer the terms (of) an employer’s compensation from that customer are not the appropriate object of a concerted activity.” Without deciding whether this argument is legally sound, I note that it is factually unsupported by the credible evidence. The employees were already aware of the $1 per hour safety bonus. Hanks and Ashby did not seek private, confidential information from AK. Instead, they protested the fact that they did not directly receive the full amount of the bonus. I conclude that their activity was protected under Section 7. In sum, I conclude that the General Counsel has met his ini- tial burden under Wright Line of showing that Ashby and Hanks were terminated because they engaged in protected con- certed activity. I now turn to the allegation that Respondent fired Ashby and Hanks because it believed that they had engaged in union activ- ity. Martin told Ashby that he was terminated in part because he was trying to get a union started; I have concluded that this statement violated Section 8(a)(1). This admission from Martin amply supports the conclusion that Ashby’s termination was motivated in substantial part because Respondent believed that he had engaged in union activity. The fact that Respondent’s belief was mistaken is to no avail. NLRB v. Link-Belt Co., 311 U.S. 584, 589–590 (1941). I further conclude that Hanks’ ter- mination was similarly motivated. Both suspensions and dis- charges stemmed from the same events and were inextricably intertwined. I thus conclude that the General Counsel has again met his initial burden under Wright Line. I now examine whether Respondent has met its burden under Wright Line of showing that it would have terminated Ashby and Hanks in any event. Respondent argues that Hanks and Ashby would have been fired for entering Rydberg’s office. However, the record does not support such an assertion. In the first place, Respondent has failed to establish that prior to De- cember 9 it had any policy concerning employees entering the receiving office to discuss work related matters. Certainly, there was no written rule to that effect. To the contrary, it was only after the incident that Respondent found it necessary to issue any rule,16 and even then the rule dealt with “contact” between Respondent’s employees and AK. Moreover, the rule itself did not show that employees would be fired; it provided only that a breach of the rule “could result in disciplinary action or termination.” In a similar vein, Respondent argues that it was justified in terminating these employees because they con- ceded that they were going to give Rydberg “hell” and a “hard time.” However, the evidence shows that Respondent did not rely on this reason in terminating the employees and failed, in an event, to show that it would have terminated them if it had relied on such a reason. Respondent also asserts that Hanks was also terminated be- cause he violated a rule against leaving a loaded truck unat- tended. It will be recalled that in that statement Hanks prepared for Martin after his suspension he made passing reference to taking a load to door 722. At that door a tow motor operator would unload the truck. Respondent now seizes upon that statement to support its argument. However, there is no credi- ble evidence that Respondent then relied on this reason to dis- charge Hanks. In any event, it has failed to show that it would have terminated Hanks had it relied on it. Respondent also asserts that Ashby was terminated because he interrupted production. It bases this conclusion on Ashby’s written statement to Martin, described above. It argues that because the statement did not indicate that Ashby was on lunch or break, he was therefore interrupting production. This argu- ment falls of its own weight. The reasons for discharge described in the previous para- graphs were not told to the employees and did not appear in their termination papers. Thus, Respondent shifted its reasons for the terminations. Moreover, in Respondent’s prehearing brief it asserted that terminations were “fully justified as they walked off their jobs, leaving a loaded truck standing.” Re- spondent no longer made this argument in its posthearing brief. These shifting reasons for discharge not only to undermine Respondent’s case but also serves to strengthen the General Counsel’s case. 16 Respondent, in its brief, argues that Horton conceded that employ- ees knew that they were not to go into the receiving office. Indeed, Horton did concede at much, but this of little use to Respondent’s ar- gument since the record is not clear whether Horton’s knowledge of this policy came about as a result of the memorandum issued after the December 9 incident or whether such a policy predated that event. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402 Finally, Respondent argues that it had to fire Hanks and Ashby because AK had barred them from the facility and they could not be productively employed elsewhere.17 To be sure, AK insisted that Respondent remove the employees from the premises, and I have concluded that Respondent could not pro- ductively employ them elsewhere in the business. However, I have also concluded that Respondent knew that AK’s insistence was based on the fact that the employees had engaged in con- certed activity protect under Section 7. Under these circum- stances Respondent’s legal obligation was to refuse to acqui- esce in AK’s request. I recognize that the General Counsel has not charged AK with any violations of the Act and has not al- leged that AK is a joint employer with Respondent. But the Board has stated [E]ven in the absence of a joint employer relationship, an employer is properly held liable for its own actions that af- fect an individual’s employment status with another em- ployer. Thus, an employer that successfully requests the termination of an employee for discriminatory reasons vio- lates the Act and can be required to make the employee whole for loss of pay, even if it is not the employee’s em- ployer. Flav-O-Rich, Inc.,[309 NLRB 262 (1992)]. The entity acquiescing in the request would not be guilty of an unfair labor practice, however, it were not aware of the motive behind the request. Id. at 266. Capitol EMI Music, 311 NLRB 997, 1000 fn. 22. Respon- dent’s efforts to persuade AK to reinstate Hanks and Ashby fell short of its obligation to take all measures within its power to resist the unlawful terminations. Indeed, Respondent added a second unlawful motive of its own when it also terminated the employees because it suspected that they had engaged in union activity. I conclude that Respondent has failed to show that it would have terminated Ashby and Hanks even if they had not engaged in protected concerted activity or because it believed that they had engaged in union activities. It follows that Respondent violated both Section 8(a)(1) and Section 8(a)(3) by suspending and then terminating Ashby and Hanks. 3. Termination of Horton I now address the issue of whether Horton was terminated because he engaged in protected concerted activity. Horton spoke to other employees of the concerns he had about work rules. He then prepared a list of those concerns and showed the list to other employees. He also told them that he intended to present the list to Bowling; the employees agreed that he should do so. This presents a clear case of concerted activity. I also conclude that Respondent was aware of the concerted nature of the activity. First, several employees asked Bowling whether he would be attending the Christmas party because if he was then Horton would attend. When Horton came to the party and presented the list it must have been obvious to Bowl- ing that the other employees knew that Horton intended to do so. More importantly, Bowling later told Horton that because Horton had presented the list to him, Horton was the leader of 17 Although I raised this issue at trial with the General Counsel he does not address it in his brief. the effort to form a union. This statement shows that Respon- dent knew, or at least suspected, that Horton had concertedly prepared and presented the list.18 Bowling’s remarks, described immediately above, also show that Horton’s protected concerted activities were a substantial motivating factor in his discharge. These remarks were unlaw- ful. Also, Martin admitted that Bowling told him that a reason Horton was being fired was because Horton presented the list of work rules complaints to Bowling. The timing of the dis- charge reinforces this conclusion. I conclude that the General Counsel has met his initial burden under Wright Line of show- ing that Horton’s protected concerted activities were a substan- tial motivating factor in his termination. I turn to address the issue of whether Horton was discharged because Respondent believed that he had engaged in union activity. I have found that Bowling told Horton that it sounded like the employees were trying to form a union and since Hor- ton was the one who brought the list to him, Horton was the leader. This statement violated Section 8(a)(1). When Horton protested that the employees were not attempting to form a union, Bowling remarked that there was not going to be a union because he was the union. This evidence establishes that Hor- ton’s termination was due in substantial part because Respon- dent suspected that he had engaged in union activity. I now examine whether Respondent has met its burden under Wright Line of showing that it would have terminated Horton in any event. Horton was not told any reason for his termination other than unlawful reasons. The notation on his termination notice that he was terminated because his priorities were incon- sistent with company policies is not to the contrary. Respon- dent argues that Horton was properly discharged because he had been recently suspended for lawful reasons and he had, by protesting the nature of some of the work rules, shown an un- willingness to abide by those rules. This argument lacks both factual and logical support. There is no factual evidence that Horton was unwilling to abide the rules until they were changed and it does not logically follow that because employ- ees seek to change work rules that they will be unwilling to live by the rules until changed. I conclude that Respondent has failed to show that it would have terminated Horton in any event. Respondent violated Section 8(a)(1) when it terminated Hor- ton in substantial part because he had engaged in protected concerted activities, and it violated Section 8(a)(3) when it terminated him in substantial part because it believed that he had engaged in union activity. CONCLUSIONS OF LAW 1. By telling employees that they were disciplined because they engaged in union activity and in protected concerted activ- ity, Respondent has engaged in unfair labor practices affecting 18 Respondent argues that it was not aware of the concerted nature of Horton’s activity because Horton admitted that at the meeting where he presented the list he did not give any indication that other employees assisted him in the preparation of the list. However, this testimony does not address the issue of whether Respondent otherwise learned of the concerted nature of Horton’s activity. BOWLING TRANSPORTATION, INC. 403 commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By threatening an employee with reprisals for having en- gaged in union and protected concerted activity, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 3. By suspending and discharging Ashby and Hanks because they engaged in protected concerted activity, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 4. By suspending and discharging Ashby and Hanks because Respondent believed that they had engaged in union activity, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the Act. 5. By discharging Ashby Horton because Respondent be- lieved that he had engaged in union activity, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having discriminatorily discharged employees, the Respon- dent must offer them reinstatement19 and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of discharge to the date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended20 ORDER Respondent, Bowling Transportation, Inc., Owensboro, Ken- tucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling employees that they were disciplined because they engaged in union activity and in protected concerted activ- ity. (b) Threatening employees with reprisals for having engaged in union and protected concerted activity. (c) Suspending, discharging, or otherwise discriminating against employees because they engage in protected concerted activity. 19 If AK continues to resist the reinstatement of Hanks and Ashby for unlawful reasons, that matter will have to be addressed by the General Counsel in another proceeding. Flav-O-Rich, supra. 20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended 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 purposes. (d) Suspending, discharging, or otherwise discriminating against employees because Respondent believed that they en- gaged in union activity. (e) In any like or related manner interfering with, restraining, 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 effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Richard Ashby, Kenneth Hanks, and Jeffrey Horton full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Richard Ashby, Kenneth Hanks, and Jeffrey Hor- ton whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspensions and dis- charges, and within 3 days thereafter notify the employees in writing that this has been done and that the suspensions and discharges will not be used against them in any way. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Or- der. (e) Within 14 days after service by the Region, post at its fa- cility in Owensboro, Kentucky, copies of the attached notice marked “Appendix.”21 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 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 in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since December 19, 1999. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES 21 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected con- certed activities. WE WILL NOT tell employees that they were disciplined because they engaged in union activity and in protected con- certed activity. WE WILL NOT threaten employees with reprisals for hav- ing engaged in union and protected concerted activity. WE WILL NOT suspend, discharge, or otherwise discrimi- nating against employees because they engaged in protected concerted activity. WE WILL NOT suspend, discharge, or otherwise discrimi- nating against employees because we believe that they engaged in union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guar- anteed them by Section 7 of the Act. WE WILL make Richard Ashby, Kenneth Hanks, and Jef- frey Horton whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Or- der, offer Richard Ashby, Kenneth Hanks, and Jeffrey Horton full reinstatement to their former jobs or, if those jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL, within 14 days from the date of the Board’s Or- der, remove from our files any reference to the unlawful sus- pensions and discharges of Richard Ashby, Kenneth Hanks, and Jeffrey Horton and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the suspensions and discharges will not be used against them in any way. BOWLING TRANSPORTATION, INC.