Fedco Freightlines, Inc. And Kty Leasing Co., Inc.

FEDCO FREIGHTLINES 399 Fedco Freightlines, Inc. and KTY Leasing Co., Inc. and Robert Rogers. Case 9-CA-17745 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 4 May 1984 Administrative Law Judge James T. Youngblood issued the attached decision. The Respondent KTY Leasing Co., Inc. filed ex- ceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions 2 as modified and to adopt the recom- mended Order as modified.3 The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 Cu- 1951) We have carefully examined the record and find no basis for reversing the findings No exceptions were filed to the judge's finding that Trans-State was not a successor to Fedco and KTY under the standard set forth in Golden State Bottling Co v NLRB, 414 U S 168 (1973) The judge found 'Fedco and KTY are a "single integrated enterprise and a joint employer" We find, as the complaint alleges, that Fedco and KTY simply constitute a single employer To determine whether two entities are sufficiently Integrated to be considered a single employer, the Board and courts examine four princi- pal factors (1) common management, (2) centralized control of labor re- lations, (3) interrelation of operations, (4) common ownership Radio Union v Broadcast Service, 380 U S 255, 256 (1965), NLRB v Browning- Ferris Industries, 691 F 2d 1117, 1122 (3d Cir 1982), Shellmaker, Inc , 265, NLRB 749, 754 (1982) While none of these factors, viewed separately, has been held controlling, the Board has stressed the first three factors, particularly centralized control of labor relations Parklane Hosiery Go, 203 NLRB 597, 612 (1973) Single-employer status depends on all of the circumstances and has been characterized as an absence of the "arm's length relationship found among unintegrated companies" Blumenfeld Theatres Circuit, 240 NLRB 206, 215 (1979), enfd 626 F 2c1 ,865 (9th Cir 1980) While we agree with the judge that all four factors are present here, we emphasize certain evidence supporting the findings of common man- agement and centralized control of labor relations Loren King, president and sole owner of Fedco and . KTY, exercised complete control of labor relations and personnel policies for both enti- ties including hiring, firing, wage rates, and fringe benefits King's son, Maynard, was general manager of Fedco and a supervisor at KTY and made recommendations concerning hiring and firing for both concerns The drivers at both locations performed identical work under the same work rules and conditions, and were supervised, dispatched, and disci- plined by the same individuals We disavow fn 2 of the judge's decision concerning Fedco's recogni- tion of the Congress of Independent Unions because, as the judge noted, it is not an issue in this case drivers Hofer, Thornton, Muncy, and Evans, and mechanic-Jones 16 October 1981, 4 because of their union and/or concerted activities. We agree with the judge's conclusion, but modify his rationale as described below. In assessing the legality of the layoffs, we are guided by our Wright Line5 analysis. Our initial in- quiry under Wright Line concerns whether the General Counsel has shown that protected activity was "a motivating factor" in the employer's deci- sion to lay off the alleged discriminatees. For rea- sons fully set forth in the judge's decision, we find that the General Counsel has sustained this burden. Briefly, the undisputed record shows that each of the five employees had become the object of man- agement's attention and animosity by seeking to en- force their contractual rights, indicating their pref- erence for a rival union, or engaging in other pro- tected activity. As the General Counsel has made out a prima facie case of unlawful motivation, the remaining question under Wright Line is whether the Re- spondent has demonstrated that the layoff of the five named employees would have occurred absent their protected activity. Both in its' layoff letter sent to employees and at the hearing, the Respond- ent alleged "a severe downturn in business" as the justification for the layoff. In 'concluding that the asserted reason was "purely and simply a pretext" designed to "rid itself of the Union and all of the Union adherents including the five alleged discri- minatees," the judge stated that "[a] review of the financial information submitted . . . indicates that [Fedco's] load level was increasing not decreasing prior to the layoff." Contrary to the judge's find- ing, the relevant exhibits show that the load level had declined for 4 straight weeks preceding, the 2 In fn 9 of the decision, the judge found that, by Maynard King's statement to employees present at a spnng 1981 safety meeting that he would close the doors if the Teamsters came to Fedco, the Respondent violated Sec 8(a)(1) of the Act As the statement was not alleged as a violation in the complaint, nor fully litigated at the hearing, we reverse See Carchvan Go, 271 NLRB 563 (1984), NLRB v Pepsi Cola Bottling Go, 613 F 2d 267, 273-275 (10th Or 1980) In any event, finding the vio- lation would be cumulative and would not affect the remedy, as the judge found a similar statement made in September 1981, and alleged in the complaint, constituted a violation of Sec 8(a)(1) We will amend Conclusion of Law 4 to reflect the judge's finding the Respondent violated Sec 8(a)(3) and (1) by "laying off" rather than "ter- minating" employees Rich Hofer, Charles Thornton, Rufus Muncy, Wes Evans, and Mike Jones 3 We will amend the Order to reflect the judge's finding that the Re- spondent violated Sec 8(a)(1) of the Act by threatening to transfer em- ployee Jones to the third shift for filing a gnevance and to include broad remedial language consistent with Hickmott Foods, 242 NLRB 1357 (1979) We will also issue a new nonce to employees 4 All dates are 1981 unless otherwise indicated 5 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Or 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Manage- ment Carp, 462 U S 393 (1983) 273 NLRB No. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layoff. 6 In addition, the total .monthly load level, though somewhat erratic, had generally been de- clining since May 1981.7 Week Loads/Unit Sept. 18 176 Sept. 25 162 Oct. 2 152 Oct. 9 145 Oct.16 - 114 Month Loads January • 813. February 712 March . 689 April 732 May 819 June 707 July 763 August 633 September 631 October 655 November 456 December 498 Nevertheless, we find the Respondent's econom- ic defense lacks merit. Of the 17 employees laid off on 16 October, 8 were eMployed at the Cincinnati facility and 9 at the Effingham, Illinois terininal.8 The nine Effingham employees were placed on voluntary layoff and given the option of transfer- ring to Cincinnati, although none chose to do so. The five alleged diicriminatees were Cincinnati- based employees. They were placed on involuntary layoff and told they could return only if business improved. Since the Respondent offered Effingham employees work at its Cincinnati facility, a decline in business there cannot account for the layoff of the alleged discriminatees unless there is a neutral reason, such as seniority, for giving the Effingham employees the opportunity to transfer. 9 No such reason is evidenced in the record" or, in any event, advanced by the Respondent. In fall 1980, the Respondent began a "Driver of the Year" contest to encourage driver safety and better work performance. Drivers were ranked nu- merically by Maynard King based on information he obtained in discussions with the safety director, operations manager, dispatchers, department super- 6 G C Exh 14 indicates the following load per unit figures calculated on a weekly basis The monthly load level in 1981 was 8 The judge inadvertently stated 16 rather than 17 employees were laid off 16 October We correct the error ° We also rely on Dispatcher-Supervisor Heritage's unrefuted state- ment that he was "just as desperate to move loads the day before the layoff as 6 months before the layoff," as indicating business had not slowed such as to create the need for layoffs " Loren King admitted seniority was not the basis for the transfer offers made to Effingham employees, and the record falls to disclose an- other legitimate basis visors, and the operations manager , at the ter- minals." The Respondent contends the "Driver of the Year" ranking was the sole criterion used to deter- mine the 16 October layoffs. However, the record shows, as the judge found, that many of the em- ployees retained either were not rated or did not even work for the Respondent during the relevant period, 12 while two of four employees laid off were on the ranking list." Additionally, the Re- spondent has failed to explain why the four alleged discriminatees were laid off, when three drivers with lower ratings than Thornton and one driver with a lower rating than Evans were given the option of continuing to work.14 An examination of Fedco's hiring practices before and after the layoff conclusively establishes that the layoff could not have been due to a de- cline in its need for drivers. Prior to the layoff, the Respondent had been using temporary drivers and had actually used them with increasing frequency in the 2 months preceding 16 October." Most sig- nificantly, the judge overlooked undisputed evi- dence that Loren King hired as many as four new permanent drivers between 16 October and the fol- lowing 1 June. Though hired ostensibly by KTY Leasing, the new drivers performed the same work and drove the same trucks as the laid-off Fedco employees." The Respondent offered no explana- tion for failing to recall its experienced drivers other than Loren King's statement that he "didn't want to." 17 When an employer lays off employees " The information obtained by Maynard King was used to make nu- merical entries on driver rating forms, filled out on a quarterly basis Points were deducted for various deficiencies in work performance with accident record and attitude being of primary importance in the calcula- tion Drivers were later ranked according to the most points accumulated for the year 12 For example, the Respondent recorded no yearly ranking for driv- ers Webster, Pelcha, Molt, and Troutman, apparently because they had not worked for the entire rating period Nevertheless, all four employees were retained, while Thornton and Evans, two ranked drivers, were laid off Drivers Lorentz and Jim Rogers, former employees of Fedco, were working for other companies during the summer, yet were still retained 13 The drivers were Charles Thornton and Wesley Evans We correct, however, the judge's inadvertent error in stating that Thornton ranked 2d rather than 17th on the "Driver of the Year" list i4 Hoard, Croy, and Brooks, three of the voluntary layoffs from Ef- fingham, were ranked lower than Thornton on the list Brooks was also ranked lower than Evans 18 In sec III, par 11, of his decision the judge stated Fedco continued to use temporary drivers after the layoff Though there is no evidence the Respondent did not continue using temporaries after the layoff, the record falls affirmatively to so state " In any event, as we have found, Fedco and KTY are a single em- ployer 17 At one point in his testimony Loren King stated that he did not recall laid-off employees because the new lures were paid less, and he felt the laid-off employees would not want the lower paying jobs The record, however, clearly indicates the laid-off employees wanted the jobs and had even filed a gnevance over the matter FEDCO FREIGHTLINES 401 assertedly for economic reasons, then hires new employees to replace them, it is patent evidence that its assertion is pretextual. 18 Accordingly, we find the Respondent has not overcome the General Counsel's prima facie case and that laying off em- ployees Hofer, Thornton, Muncy, and Evans vio- lated Section 8(a)(3) and (1) of the Act. We also find that the layoff of mechanic Jones was unlawful. Jones was laid off at a time when the Respondent's volume of business would suggest a continuing if not increasing demand for his serv- ices. Jones testified without contradiction that the mechanics were unable to keep up with demand for repair services during the entire month preced- ing the layoff, and that one mechanic worked over- time. AMENDED CONCLUSION OF LAW Substitute the following for Conclusion Of Law 4. "4. By discharging Robert Rogers because of his union and protected concerted activities, and by laying off Rick Hofer, Charles Thornton, Rufus Muncy, Wes Evans, and Mike Jones because of their union activities and protected concerted ac- tivities, the Respondent has violated Section 8(a)(3) and (1) of the Act." - ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Fedco Freightlines, Inc. and KTY Leas- ing Co., Inc., Cincinnati, Ohio; its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(b) and re- letter the subsequent paragraphs. "(b) Threatening to transfer employees for filing grievances." 2. Substitute the following for paragraph 1(d). "(d) In any other manner 'interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 3. Substitute the attached notice for that of the administrative law judge. 18 See Sumco Mfg Co, 251 NLRB 427, 436 (1980), enfd mem 678 F 2d 46 (6th Cir 1982), Waukegan-North Chicago Transit Go, 225 NLRB 833, 847-848 (1976) - APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD. An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten you with closure of our facility because of your union support or activities. WE WILL NOT threaten to transfer you for filing grievances. WE WILL NOT coercively question you about union support or activities. WE WILL NOT lay you off or otherwise discrimi- nate against any of you for supporting the Con- gress of Independent Unions or any other union. - WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Robert Rogers, Rick Hofer, Charles Thornton, Rufus Muncy, Wes Evans, and Mike Jones immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed, and WE WILL make them whole for any loss of earnings and other benefits resulting from their layoffs, less any net interim earnings, plus interest. - FEDCO FREIGHTLINES; INC. AND KTY LEASING CO., INC. DECISION STATEMENT OF THE CASE JAMES T. YOUNGBLOOD, Administrative Law Judge. The amended complaint which was issued on April 7, 1983, alleges that Fedco Freightlines, Inc. (Fedco) and KTY Leasing Co., Inc. (KTY and collectively Respond- ents) are joint employers within the meaning of the Act and that Trans-State Express, Inc. (Trans-State) is a suc- cessor employer to the garage operations of Respondents Fedco and KTY. The complaint also alleges that Re- spondents discharged Robert Rogers and laid off certain other employees in violation of Section 8(a)(3) and (1) of the Act, and engaged in other threats and interrogations of its employees in violation of Section 8(a)(1) of the Act. Respondents deny the commission of any unfair labor practices. In addition, Trans-State raises the ques- tion of the Board's jurisdiction over it in this matter be- cause of insufficient service of process. A hearing was held on April 18 through 21 and August 30, 1983. All parties were represented at the hearing, and Respondent KTY, the General Counsel, and 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Charging Party filed briefs which have been duly considered. On the entire record in this matter, and from my ob- servations of the witnesses and their demeanor and after due consideration of the briefs filed herein, I make the following - FINDINGS AND CONCLUSIONS' I. THE BUSINESS OF THE COMPANIES INVOLVED •Fedco at all times material herein until it ceased doing business in December 1982 was a contract freight carrier operating under an ICC permit. It maintained an office and place of business at 4870 Este Avenue, Cincinnati, Ohio, where it was engaged in the operation of an inter- state trucking service, and it maintained terminals in Ohio and Illinois. Also at all times material herein KTY, an Illinois cor- poration, maintained an office and place of business at Effingham, Illinois, and 4870 Este Avenue, Cincinnati, Ohio, where it was engaged in the business of leasing trucks and furnishing truckdnvers to Respondent Fedco and of leasing trucks to other customers. Respondents admit, and I find, that they are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Around December 1, 1982, Trans-State began operat- ing as an Illinois corporation with an office and place of business in Cincinnati, Ohio, and since that time has been engaged in the interstate transportation of freight and general commodities II THE LABOR ORGANIZATIONS INVOLVED The Respondents admit, and I find, that Congress of Independent Unions (CIU) is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Respondents admit, and I find, that at all times material herein International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters) has been a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES During the period 1979 until It ceased business in De- cember 1982, Fedco was a contract freight carrier with its principal terminal located in Cincinnati, Ohio, where it was engaged in hauling freight for Proctor & Gamble in Indiana and Illinois. Proctor & Gamble was its only customer. Fedco maintained terminals in Chicago, St. Louis, and at one time in Tennessee. Its home office was in Effingham, Illinois. KTY, a leasing company, provid- , 1 The facts found herein are a compilation of the credited testimony, the exhibits, and the stipulations of fact viewed in light of logical consist- ency and inherent probability Although these findings may not contain or refer to all of the evidence, all has been weighed and considered To the extent that any testimony or other evidence not mentioned in this de- cision may appear to contradict my findings of fact, I have not disregard- ed that evidence but have rejected it as incredible, lacking in probative weight, surplusage, or irrelevant Credibility resolutions have been made on the basis of the whole record, indluding the inherent probabilities of the testimony and the demeanor of the - witnesses Where It may be re- quired, I will set forth specific credibility findings ed all of Fedco's trucks, most of its trailers, and its garage and office equipment. KTY's only location was a garage in Effingham, Illinois, where it also maintained an office Approximately 75 percent of KTY's total business consisted of leasing trucks to Fedco Fedco in turn em- ployed truckdnvers to -drive the leased equipment from KTY and additionally employed a few owner-operators. Loren King was the owner and president of Fedco and also owned KTY. Maynard King, the son of Loren King, was the general manager of Fedco. These two in turn were the supervisors of KTY. Thus, it is clear that Loren King and Maynard King, the president and gener- al manager of Fedco, controlled not only Fedco but KTY as well. Prior to October 1981, KTY employed no drivers. In the spring of 1980, Fedco recognized the CIU as the representative of its drivers and mechanics and signed a contract which included a union-security clause In the summer of 1980, Bob Rogers was elected union steward for the CIU. During the fall of 1980, Fedco began a "DnVer of the Year" program as a part of Fedco's safety program to reduce insurance cost The prize for the top driver was a trip to Hawaii. Maynard King and Safety Director Jim Lankster prepared the forms for rating the drivers, which were to be gathered quarterly. The information compiled was used to determine each driver's numerical standing. In this connection Maynard King spoke ,to the safety director, the garage employees, the supeivisors, the dispatchers, the operations manager, and the terminal managers at Fedco's other locations to determine the drivers' ratings. At the spring 1981 safety meeting, which was held at a Cincinnati restaurant, the/rankings and point totals of the Fedco drivers were announced During that meeting, Maynard King told the assembled drivers that if they tried to bring in the Teamsters Union Fedco could not afford it and they would close the doors. 2 In the early summer of 1981 certain drivers heard that Loren King planned to sell some of the KTY trucks to existing drivers. Some of the drivers met to dis- cuss what terms they would seek if any of them did pur- chase a truck and to ensure whatever protection from ar- bitrary treatment they could obtain by acting in concert as opposed to negotiating separately with King. At the same time the drivers contacted Union Representative Richard Davis concerning the possible sale of trucks. In late August or early September 1981, Bob Rogers, the union steward, put a notice on the wall of the drivers' room announcing a meeting for all "Road Boss" dnvers. The term "Road Boss" is a make of truck and KTY owned several of these trucks which it had leased to Fedco. It was these trucks that King had indicated an in- terest in selling. On August 28, 1981, Bob Rogers met with Richard Davis, the union representative, and Loren King to discuss the rumored sale of the trucks and the Although It is not alleged as a violation, It appears that the General Counsel feels that the CIU recognition was not totally aboveboard in that to a certain extent it was employer sponsored The record also reflects that many of the employees were unaware of the CIU's existence until they were notified to pay their union dues or be discharged The record also reflects that there was some dissatisfaction with the CIU as the rep- resentative of the employees FEDCO FREIGHTLINES 403 forced resignation of driver Terry Hamblin On August 29, 1981, Richard Davis met with all of the drivers to discuss their complaints. Bob Rogers had been an active union steward since his election in the summer of 1981 and was the primary con- _ duit between CIU and management and earned a reputa- tion as a forceful, effective representative. It was obvious that management resented his actions. In this regard Rogers engaged in both concerted and union activities as a spokesman for the employees shortly before his dis- charge when he set up the Road Boss drivers' meeting. Additionally, he advised mechanic Mike Jones about the contract provisions regarding the payment of overtime when Jones worked a double shift. According to the credited testimony of Rogers, he presented employee problems to members of management and discussed these problems with management on the average of two to .three times a week He talked to Maynard King about payment for glass loads delivered to Marian and Win- chester, Indiana, when the drivers received only $10 for such loads and the contract called for $40. Rogers also complained to the dispatchers and to Maynard King about desirable loads not being assigned to the more senior drivers. At least on one occasion he threatened to take the Company to court if they deducted the amount of shortages from the drivers' paychecks. In the summer of 1981, Rogers represented employee Rufus Muncy, who was .to be discharged for supposedly refusing to carry a load. After Rogers' intervention, Muncy was returned to work and Rogers even attempt- - ed to get Muncy pay for the time he had lost during his disciplinary meeting. Also during the summer of 1981, Jim Heritage,. a dis- patcher-supervisor, warned Rogers that he was stirring up trouble and bringing pressure on the Company.3 The General Counsel alleges and Respondents deny that James Her- itage, a dispatcher, was a supervisor within the meaning of the Act Her- itage was employed as a dispatcher and worked primarily on the second shift from 4 p m to midnight Heritage was the only member of manage- ment present on most days after 5 p m He was responsible for resolving any and all problems that arose during his shift, which might include me- chanical problems with company vehicles, labor relations matters, and customer demands Heritage testified that he had discharged an employee for refusing to take a load In this case a dnver refused to take a truck- load to Chicago for unknown reasons and Heritage ordered that driver to return to the terminal as a passenger in another company vehicle The driver was then fired Heritage made other arrangements to have that load delivered to the customers Heritage credibly testified that he rec- ommended the hire of an employee and had the authority to pledge a substantial sum of Respondents' credit by hiring drivers from Transporta- tion Unlimited In this connection, Heritage would determine his need for drivers and then contact Transportation Unlimited and advise them to provide the needed number of drivers Any driver who experienced diffi- culty while on the road from 4 p m to midnight would contact Heritage It was Heritage's responsibility to take any action necessary to resolve these problems Respondents complain that Heritage is not a statutory supervisor be- cause he had to check with members of management before taking any action regarding problems or hiring The facts in this case do not bear out Respondents' contention It is clear that Heritage was the only person with any authority after 5 p m in the evening It is unlikely that Re- spondents would leave the operation totally unattended without any member of management or any supervisory authority during the period from 5 p m until 7 a m the following morning The factors enumerated above clearly indicate to me that Heritage was a supervisor as defined in the Act, and I so find On September 24, 1981, 4 Rogers returned to the Cin- cinnati terminal from a run about 3 or 3:30 p.m He was driving truck No 93, a sleeper; at the time, which he parked in the lot before going home. Although he was not scheduled to work on September 25 he went to the terminal around noon to submit - his paperwork and log and to pick up his paycheck. The record reflects that early in the morning on Sep- tember 25 Maynard King had found a small foil-wrapped package in truck No. 93 under • the mattress. When Rogers arrived at the terminal he was told by dispatcher Galen Kirby that Maynard King wanted to see him. Rogers went to King's office, and King asked for his registration and told him that he had found something in Rogers' truck. Rogers indicated that he was not sur- prised because people . leave things in his truck all the time. Maynard King advised Rogers that he had found marijuana and that if Rogers did not resign he would have him arrested. Rogers' refused to resign and King called the police When the police officer arrived, King told the officer that the marijuana was- found in Rogers' truck and that Rogers had admitted .ownership. Rogers denied this. The police officer cited :Rogers for posses- sion of marijuana. As indicated,- Rogers was discharged on September 24 when he refused to resign. A trial date was eventually set for October 28, but the case was dis- missed for lack of prosecution. After the charges of pos- session of marijuana were dismissed, Rogers returned to Fedco and requested his job back. According to the credited testimony of Jim Heritage,3 on the evening of September 25 when he arrived at work, he' was called into Maynard King's office and in- formed of the events leading up to the dischkge of Rogers.. He testified that it was mentioned that Rogers had admitted that the marijuana belonged to him Herit- age testified that later that evening or the following evening a driver named Wesley _Evans, after learning that Rogers had been discharged, admitted that he put the marijuana in the truck. Heritage said the next day he brought this to the attention of Maynard King and when he mentioned it to King almost ,simultaneously King 'stated that he knew Wesley Evans had put the marijuana into the tractor. As noted above, Rogers' trial date was eventually set for October 28, but the case was dismissed for lack of prosecution. After the charges of possession of marijuana were dismissed, Rogers returned to Fedco and requested his job back. His request was refused. It is apparent that, when Rogers returned in October to ask for his job back, Fedco was aware of the fact that the marijuana did not belong to Rogers, that it had been put in Rogers' truck by Wesley Evans, and that it was put-in there for another individual who Evans thought would be driving, that truck. In other words, Respondents knew completely that Bob Rogers was totally innocent of the 4 Unless otherwise indiCated all dates refer to 1981 . 5 I have carefully reviewed the testimony of both Maynard and Loren King and have concluded that their testimony is not worthy of belief In this connection It is my conclusion that both of the Kings had a very selective memory Their testimony was not straightforward and did not have a ring of truth Therefore to the extent that their testimony is con- trary to that of other of the General Counsel's witnesses their testimony has not been credited 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge of possessing marijuana, using marijuana, or in any way carrying marijuana on Respondents' vehicles. Nevertheless, Respondents refused to reinstate Rogers to his job. This record makes it very clear that Fedco made no further attempt to investigate the marijuana problems at its premises or to discipline any of the other employ- ees involved in the incident. Rogers filed a grievance over his discharge and even- tually an arbitration award was granted in his favor; however, Fedco has refused to abide by the terms of this award. On October 16, 16- Fedco employees were laid off. These included drivers based in Effingham as well as Cincinnati. Among the drivers laid off were Rick Hofer, Charles Thornton, Rufus Muncy, Wesley Evans, and me- chanic Mike Jones, along with dispatchers Jim Heritage, Galen Kirby, and Kim Bannings. These employees were laid off allegedly for lack of work. This record reflects that at the time the layoffs occurred Fedco was very busy. It had been using temporary dnvers6 frequently in the weeks immediately preceding the layoffs and, in fact, had recently hired five drivers in Herrin, Illinois, less than 1 month before the layoffs. This record also reflects that following the layoffs Fedco continued to use tempo- rary drivers. Also the record reflects that shortly after the layoffs Fedco's business increased so much that it needed to hire more drivers. However, it did not recall any of its experienced laid-off drivers, but hired new drivers. In this regard, the new drivers ostensibly were not hired by the entity Fedco.• Loren King hired the new road drivers and made them employees of KTY and as- signed- them to drive for Fedco. These employees were paid on a mileage basis rather than by load. Also, new city drivers were hired rather than recalling the old ern- . ployees. After the discharge- of Rogers several of the drivers, including Charles Thornton, 7 discussed going out on •strike to protest his discharge because in their view Rogers had been set up and discharged because of his ac- tivities as a union steward. When the drivers learned that 'employee Wes Evans had placed the marijuana in Rogers' truck andthat this fact had been communicated to management, they reconsidered the strike and no strike occurred. A review of the financial information submitted during the course of this proceeding indicates that Fedco's load level was increasing and not decreasing prior to the layoff of October 16. Also its gross revenues were show- ing a steady increase during the several months prior to the layoff. It is apparent from this overall record that Respondent Fedco had some financial problems which ultimately resulted in its bankruptcy during the instant hearing. However, the economic information available suggests that business was getting stronger, not weaker, during the months preceding the layoff in October: On the evidence as presented I cannot conclude that Fedco's • 6 These temporary drivers were supplied to Fedco by Transportation Unlimited, Inc , a company specializing in driver leasing 7 Thornton had been elected union steward on August 28 at a union meeting over dissatisfaction with the Company and the Union layoff of October was economically justified. Additional- ly, James Heritage testified that he overheard Operations Manager Gary Krutsinger refuse loads from Proctor & Gamble on several occasions prior to the layoff. This would also suggest that there was no merit to the claim that business was declining. .Although Respondent may have wanted to get out of the trucking business, it does not appear that the motive for that was lack of business. Moreover, it would appear that much of the loss or debts attributed to Fedco were debts which it owed to KTY, the other Respondent, which is wholly owned by Loren King, the owner of Fedco. This debt was merely a paper transaction. Respondents also contend that the employees were al- legedly selected for layoff on the basis of their numerical standing in the driver-of-the-year contest. However, this record does not support this contention for many of the employees retained were either not rated during this time or did not even work for Respondents during this entire period of time. As indicated, the General Counsel contends that the layoff of the five named employees was because of their concerted activities and activities on behalf of the Union and not as alleged by Respondents. Charles Thornton had the second highest rating of those employees rated in the driver-of-the-year contest and also had been elected union steward on August 28. His election as union steward was at the union meeting which the drivers had demanded because of their dissat- isfaction with the Company and the Union. Thornton protested many practices of Respondents, including the dispatching of casual drivers when regular road drivers were available. He consistently complained to the dis- patchers about Fedco's failure to pay for certain runs to Winchester and Marion, Indiana, the so-called glass loads, in accordance with the rates specified in the con- tract. He complained to dispatcher Jim Heritage about Fedco's failure to pay for a motel room for a driver who was sleeping on the floor of his cab. He assisted employ- ee Mike Jones in contacting the Union about an overtime problem, and spoke to Gary Krutsinger about the basis for -computing vacation pay. He had numerous conversa- tions with other drivers in which he encouraged them to get behind the Union as a group to get their problems rectified. Around October 1, Heritage advised Thornton that since he was made union steward he was drawing the attention of the front office about the many com- plaints he was making Rufus Muncy at One time had been close to Maynard King. At one point he wanted to get out of driving and because of his friendship with King he was allowed to take a job as a mechanic. When he was tired of being a mechanic he was allowed to go back on the road. How- ever, when he went back to driving in August he showed a propensity for enforcing his contractual rights and for engaging in certain other activities. In this regard he attended the Road Boss meeting set up by Rogers. He also discussed with other drivers their problems in get- ting paid according to the CIU contract and also the possibility of voting out the CIU and getting the Team- sters in. He talked to Maynard King about these prob- FEDCO FREIGHTLINES 405 lems and advised King that all the drivers were having problems with dispatching and with the pay for the Win- chester loads under the contract. He also told Maynard King the drivers could vote out the CIU and vote the Teamsters in. Maynard King replied that Fedco would lock the gates before it would let the Teamsters in. To demonstrate that Respondents were aware of the Road Boss meeting, Maynard King asked Muncy what had 'happened at that meeting. In September Muncy asked Bob Rogers to accompany him.as union steward to a meeting with management as Muncy was fearful he might be discharged for refusing to take a load. After the meeting Maynard King immedi- ately told Muncy that he did not need Rogers. After it had been agreed that Muncy's failure to take the load re- sulted from a misunderstanding, Rogers asked Fedco if they would pay Muncy for losing a day's pay. When King refused, Rogers threatened to file a girevance. Fol- lowing this meeting Muncy was told that he had a bad attitude and immediately assigned to drug loads. Because of the idle time involved the drug loads were considered to be the least favorable driving job. On one occasion be- cause he liked to keep his equipment in safe operating condition, Muncy went to the head mechanic, Maynard King, Gary Krutinger, and finally Loren King before a bad 'tire on his truck was fixed Thus, it is apparent 'that Respondents knew that Muncy was around, and that he would exercise his rights and use' the union contract and insist upon it being enforced. About a month prior to the layoff, Muncy, Rogers, and several other drivers were arguing with dispatcher Gary Krutsinger about pay for the Winchester loads Muncy told Krustinger that, if the Company and the Union could not get them pay for these loãds, they would get the Teamsters in. Thus, it is also apparent that Respondents were aware that the employees were not only dissatisfied with Respondents' treatment, but also they were dissatisfied with the Union and at least on two occasions had mentioned the fact that they might at- tempt to bring in another union, namely, the Teamsters. Rick Hofer, who was laid off on October 16, was also vocal in pointing out situations to management involving himself and other drivers which he felt should be reme- died by management. Thus, about 1 month before the layoff he protested to Gary Krutsinger about the way driver Roger Baker was being dispatched out of Chica- go Additionally, he attended a meeting of drivers who planned to organize their efforts in case they were ap- proached to buy trucks. He also attended the union meeting on August 29 and the Road Boss meeting called by Rogers. He had made many oral grievances to man- agement shortly before the layoff and had complained to Gary Krutsinger and Maynard King about being lied to by dispatcher Galen Kirby concerning a rush load in Chicago which had cost him a speeding ticket He made several complaints about the safety of his truck and final- ly threatened to redline it (take it out of operation) until it was repaired On one occasion he directed a new driver to call the dispatcher for money for a layover and to use Hofer's name. He also talked to Gary Krutsinger about the Company's failure to pay for loading tractors. At one point he told Jim Heritage that he would like to have the Teamsters in so they cduld get some representa- tion. He also complained about and refused to perform city work for the Chicago terminal where Fedco was working the men in violation of the union contract Hofer had no complaints about his work, no accidents, and in the summer of 1981 Gary Krutsinger had told him to keep up the good work Employee Wesley Evans, who as indicated was in- volved in the marijuana incident with Bob Rogers, was also laid off on October 16, allegedly for lack of work. Evans like the other four employees had made several complaints with Rogers and Muncy concerning the lack of pay for glass loads in Marion and Winchester, Indiana. He also made complaints about the time drivers were forced to wait for glass loads without any compensation. He complained to management about running to Chicago without a sleeper truck because you could not turn around without an 8-hour break under DOT regulations. He did not take an 8-hour break because Fedco would not pay for a motel room. He had been told by Jim Her- itage and Gary Krutsinger that he could not get a motel room unless he had to layover to wait' for a load. He also complained to Maynard King about the condition of his truck and met with other drivers and discussed bringing the Teamsters into the shop. Mike Jones, the other employee laid off on October 16, was a mechanic and normally assigned to work on the second shift. However, in August and September, he was consistently assigned to work a double shift on Friday nights. He felt he should be paid time and a half for working over 8 hours and with this in mind he talked with Garage Superintendent Dan Muller and Union Stewards Bob Rogers and Charles Thornton After Jones had talked to Muller he was called into a meeting with Loren and Maynard King, who asked what were 'his problems. When he explained why he wanted overtime pay Loren King made a statement that he would move 'him permanently from second to third shift. Loren King asked Jones why he had gone to the Union in the first place instead of coming to management and also asked Jones which of the truckdrivers he had talked to On December 18, 1982, Fedco ceased its operations and went out of business At that time Bill Edmund, who had been hired as Fedco's general manager on June 1, 1982, announced the closing at a meeting of Fedco's em- ployees. 8 At the close of the meeting he informed the employees present that he was starting his own trucking company, Trans-State a general commodities carrier, and that he would be employing only owner-operators and would be soliciting new customers It appears that in September 1982 Edmund had pur- chased operating rights from Glaze Trucking Company of Columbus, Ohio. Additionally, he purchased the garage and office equipment which had been used by Fedco from KTY. He operated out of the same facility which had been used by Fedco, leasing it from Proctor & Gamble on a month-to-month basis, and also negotiat- ed leases for terminals in Chicago and St. Louis which 8 All Fedco employees, including the drivers hired as KTY drivers and loaned to Fedco, were terminated 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were located in facilities previously used by Fedeo Edmund also has terminals or agencies in Columbus, Ohio; Toledo, Ohio; Harold, Illinois, West Memphis, Ar- kansas; and Clear Water-Tampa, Florida. Most of the former Fedco and KTY drivers purchased trucks and went to work for Edmund. Six of Fedco's eight office employees went to work for Edmund includ- ing Pat Penn, Jack Hunt, Jim Lanster, Harriet Ferrell, Evelyn Molt, and Tim Rogers Some of these individuals had different positions under Trans-State ' Trans-State employed city drivers, including former Fedco employee Sam Curry, Terry Hamblin, and Rod Allen. Trans-State also uses two garage employees, Tom Dippold and Rod Koch, who were both Fedco garage employees. Their pay and benefits remain basically the same under Trans- State. The mechanics are peforming basically the same work that they performed under Fedco and under the same supervision. The only apparent difference in their work is that the owners of the individual trucks now de- termine what work is to be performed, rather than Fedco management. The General Counsel contends that Trans-State is a successor to, at least, the garage operations of Respond- enti Fedco and KTY and that, as it acquired successor status with knowledge of the pending unfair labor prac- tice proceedings, it is jointly and severally liable for backpay with Fedco and KTY. Discussion and Conclusions Bob Rogers was discharged by Respondent Fedco. on September 24, allegedly because marijuana was found in his truck. The General Counsel contends that the reason assigned for the discharge of Bob Rogers was merely a pretext and that he was actually discharged for his con- certed and union activities. This record reflects that Bob Rogers was an extremely active and vocal union steward. Other employees were aware of this fact, and knew that he was willing to take their problems to management on their behalf. The records clearly reflect that Rogers went to management with the complaints of the other drivers. The records also clearly reflect that Rogers was becoming a thorn in the side of management because Jim Heritage warned Rogers that he was causing too mush trouble for Re- spondent Fedco. Heritage stated that Gary Krutsinger said that Rogers' complaints would ultimately hang him. Thus, it is apparent that the management of Fedco was unhappy with the numerous complaints and grievances of its employees. It was also unhappy with its union stewards because they brought the complaints to man- agement's attention. , It is my conclusion that Fedco was looking for an excuse to rid itself of its chief troublemaker Bob Rogers when Maynard King went searching the trucks to see what he could find, and low and behold he found mari- juana in the truck of union antagonizer Bob Rogers Re- spondent Fedco wasted no time in calling Rogers to ac- count, and even gave him an opportunity to resign before it discharged him without even making an investi- gation Rogers denied that the marijuana was his and in- formed management that many people left things . in the truck for him, particularly things dealing with union business. And even after Fedco learned that Rogers knew nothing about the marijuana, and that it was put in his truck by Wesley Evans, Fedco refused to rehire Rogers. This, in my view, clearly closes the door on any argument by Fedco that it • was merely attempting to rid itself of people who would violate the law by using •marijuana. Moreover, Respondent Fedco made no inves- tigation of the marijuana incident; it took no action toward either Wes Evans or Tim Rogers for whom the manjuana was destined, and as mater of fact seem totally unconcerned with the marijuana problem once Rogers was gone. Under all the circumstances, it is my conclu- sion that Fedco's reasons for the discharge of Bob Rogers were clearly pretextual, , and that it discharged Bob Rogers because of his concerted and union activities in violation of Section 8(a)(3) and (1) of the Act.9 As indicated, the complaint also alleges that Respond- ents violated, Section 8(a)(3) and (1) of the Act by their layoff of five , employees allegedly for economic reasons. The record reflects that in the spring of 1980 the Union claimed to represent a majority of the Fedco employees and that Loren King recognized the Union as the repre- sentative of the drivers and mechanics and signed a col- lective-bargaining agreement which included ,a union-se- curity provision. Shortly after the Union was recognized, Maynard King, the general manager . of Fedco, contacted employee Rufus Muncy and asked him to be the union steward, for which he Would receive $100 a month. •Muncy refused because he did not want the problems as- sociated with the union steward job and thereafter an- • other driver, Don Rowlette, was ,named union steward. By the spring of 1981 Maynard King apparently learned that some of the employees were dissatisfied with the incumbent union, and told the employees at the spring safety meeting in Cincinnati, Ohio, that if they tried to bring in the Teamsters Union Fedco could not afford it and would close its doors. Later, in the summer, some of the drivers learned that Loren King planned to sell certain of the KTY trucks. KTY owned several trucks called Road Boss which it leased to Fedco. It was these trucks which King had in- dicated an interest in selling. When the drivers learned of the probable sale of these trucks, they met to discuss what terms they would seek if any of them purchased a truck and to ensure whatever protection from arbitrary treatment they could obtain by acting in concert as op- 9 The complaint alleges several independent violations of Sec 8(a)(1) involving interrogation and threats to employees Several instances of 8(a)(1) conduct were credibly testified to by the General Counsel's wit- nesses and none were specifically denied by Respondents' witnesses Ad- ditionally, if there Were specific denials by Maynârd or Loren King, those denials would not be credited In any event, these facts were fully litigated and I find that Respondents violated Sec 8(a)(1) by the follow- ing (1) Maynard King's statement at the spring safety meeting that if the Teamsters come in Fedco would close its doors, (2) Maynard King's statement to Rufus Muncy in September that if the Teamsters come in his father would close the doors, (3) Maynard King's interrogation of Rufus Muncy in September concerning a drivers' meeting held for the purpose of discussing , union and protected activities, (4) Loren King's interroga- tion of Mike Jones concerning his conversations with other employees concerning contractual matters and the filing of gnevances, and (5) Loren King's threat to transfer Jones to the third shift if he filed a gnev- ance for overtime FEDCO FREIGHTLINES 407 posed to negotiating separately with King. The drivers contacted Union Representative Richard Davis concern- ing the sale of these trucks In August Bob Rogers, the union steward, put a notice on the wall of the drivers' room announcing a meeting for all Road Boss drivers. On August 28, Bob Rogers met with Richard Davis and Loren King to discuss the rumored sale of the Road Boss trucks and the forced resignation of driver Terry Hamblin On August 29, Richard Davis met with all of the drivers to discuss their complaints. These several in- cidents were a beginning of the employee discontent and the employees taking their complaints to management. This was not to the liking of the Kings because they in- tended to operate Fedco and KTY as they pleased, with no interference from their employees or outsiders. Like Rogers, each of the employees named above, Hofer, Thornton, Evans, Muncy, and Jones, had in some way upset the Kings. Thus, Jones had gone to the Union about overtime pay. Muncy brought a union steward to what he believed was a discriminatory interview, which action was strongly opposed by Maynard King. Addi- tionally, Muncy was the employee who told Maynard King about the drivers' intentions to seek representation by the Teamsters. Thornton was the union steward, and with Hofer showed signs of attempting to enforce the contract, DOT regulations, and safety precautions Each of these five employees in some way, as described above, brought management attention to themselves. Respondents decided early that the way to rid itself of these problems was to get rid of the employees. In this regard it decided that a layoff would be the most feasible way to get rid of those employees that were complain- ing, and all the other employees, as it intended to put Fedco totally out of the trucking business. Thus, in the guise of a layoff Fedco terminated most a its employees, but included in those 16 employees were the 5 employees that were giving it the most problems. Fedco assigned economics as the reason for the layoff. However, as I have indicated, the financial information submitted does not support the proposition that , Fedco's load level was decreasing at the time of-'-the layoff In fact, the evidence shows that prior to the layoff of Octo- ber 16 the load level was increasing. Moreover, it ap- pears that Fedco had been turning down loads that were offered it by Procter & Gamble. Thus, in my view, Re: spondent Fedco's financial problems were more of a smokescreen than anything else and were setup to justi- fy the layoffs. This appears to be borne out by the facts of the layoffs and the fact that, when Fedco needed additional drivers, it did not recall the laid-off employees, but in fact hired new drivers from Transportation Unlimited. In any event, all of Respondent's actions were designed to put Fedco completely out of the trucking business. It is my conclusion that Fedco did this with an eye to rid itself of the Union and all of the union adherents, in -cluding the five alleged discriminatees. It is my conclusion that Re- spondents' assigned reason, that these employees were laid off for economic reasons, is purely and simply a pre- text. Respondents set upon a course of action to rid Fedco of the Union and to put Fedco totally out of busi- ness. It engaged in the foregoing conduct to discourage membership in the Union and to discriminate against its employees in violation of Section 8(a)(3) and (1) of the act, and I so find. The General Counsel alleges that Fedco and KTY are joint employers within the meaning of the Act, and that any order issued herein should run jointly and severally against both Certain critical criteria considered by the Board in de- termining whether two employers are a joint employer or common employer include common ownership or fi- nancial control, integration of operations, common man- agement, and centralized control over labor relations. Here there is no question but that there is common own- ership and financial control. There certainly is an inte- gration of operations in that KTY supplied the trucks and Fedco supplied the employees for one common pur- pose—to operate a trucking company There is no ques- tion but there was common management and that the Kings exercised control over both corporations. There is no question but whatever labor relations existed at KTY were controlled by the Kings as well as the labor, rela-, tions of Fedco. It is my conclusion that the testimony in this case makes it clear that Fedco and KTY meet all the criteria established by the Board for finding a joint em- ployer relationship. While there may have been in fact a corporate separation, this appears to be only an illusion. One company was totally dependent on the other and I conclude that they were a single integrated enterprise and a joint employer of the employees involved herein. Therefore, it is my conclusion that KTY is jointly and severally liable with Fedco for remedying any unfair labor practices found herein, including reinstatement and backpay which shall be ordered. The General Counsel also contends that Trans-State is a successor to the garage mechanic operations of Re- spondents Fedco and KTY. The General Counsel's argu- ment seems to be that, as Trans-State purchased from KTY the garage equipment which had been used in the Fedco garage and retained two of the three mechanics and continued to use the same facility, - it somehow became a successor to Fedco and KTY. Consequently, having taken over this operation knowing about the pending unfair labor practices, Trans-State somehow must share the liability for the unfair labor practices of Fedco and KTY. Thus, the General Counsel argues that Trans-State, insofar as the garage is concerned, meets the test set out in Golden State Bottling Co, 187 NLRB 1017 (1971), enfd. 467 F.2d 164 (9th Cir. 1972), affd. 414 U.S. 168 (1973), for the finding of a successor. I do not agree. The facts herein indicate only that Trans-State retained two employees out of a much larger number of employ- ees, all of whom constituted an appropriate unit. This alone is sufficient to conclude that Trans-State did not employ a majority of the former employees, and could not be a successor I conclude that the General Counsel's evidence is totally insufficient to establish that Trans- State is a successor. Therefore, I shall recommend that the complaint be dismissed in its entirety insofar as it re- lates to Trans-State. 408 DECISIONS OF NATIONAL4ABOR RELATIONS BOARD IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES ' UPON COMMERCE • The activities of Respondents set forth above, occur- ring in connection with Respondents' operations, have a close, intimate, and substantial relationship to -trade, traf- fic, and commerce among the several States, and tend to lead to labor dispute, burdening and obstructing com- merce and free flow of commerce. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that they cease and desist • therefrom, and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondents discnminatonly discharged Robert Rogers on September 16, 1981, in violation of Section 8(a)(3) and (1) of the Act, and unlawfully termi- nated Rick Hofer, Charles Thornton, Rufus MuncY, Wesley Evans, and Mike Jones in violation of Sectiotf 8(a)(3) and (1) of the Act, I shall recommend that Re- spondents be ordered to offer immediate and full rein- statement to these employees, unless reinstatement has al- ready been offered, to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earn- ings they may have suffered as a result of the Respond- ents' discrimination against them, until such time as Re- spondents make them a valid offer of reinstatement, with interest. See E W. Woolworth Co., 90 NLRB 289 (1950), Florida Steel Corp, 231 NLRB 651 (1977).10 On these findings of fact and and the entire record, I issue the following CONCLUSIONS OF LAW - 1. Fedco Freightlines, Inc.- and KTY Leasing CO., Inc., Respondents, are employers- engaged in commeide within the meaning of Section 2(2), (6), and '(7)' of the Act. 2. Fedco Freightlines, Inc. and KTY Leasing Co., Inc , Respondents herein, are a single integrated business enterprise and constitute a single integrated employer within the meaning of the Act. 3. By threatening employees that if the Teamsters Union got in Fedco would close its doors; by interrogat- ing its employees concerning their meetings - and other concerted and protected activities, including the filing of grievances; and by threatening- to transfer employees be- cause of their filing grievances, -Respondents have en- gaged in conduct violative of Section 8(a)(1) of the Act. 4. By discharging Robert Rogers because of his-union and/or concerted activities and by terminating Rick Hofer, Charles Thornton, Rufus Muncy, Wesley Evans, and Mike Jones because of their union and/or concerted activities or because of their support of or assistance to the Union, Respondents have discouraged membership in the Union in violation of Section 8(3) and (1) of the Act. 1 ° I recognize that Fedco is no longer in business and that KTY is not a trucking operation This, however, is a compliance problem 5. Trans-State Express, Inc. has not violated the Act as alleged in the complaint. 6. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On thee findings of fact and conclusions of law and on the entire record, I issue the following recommend"- ORDER The Respondents, Fedco Freightlines, Inc. and KTY Leasing Co., Inc , Cincinnati, Ohio, their officers, agents, successors, and assigns, shall - 1. Cease and desist from (a) Threatening 'employees with closing of Respond- ents' facilities if they continue their support of the Union or continue to engage in union activities or other con- certed activities. (b) Interrogating employees concerning their union ac- tivities or their support for the Union. .(c)' Laying off, discharging, or otherwise discriminat- ing against its 'employees becaiise of their activities on behalf of the Union or any other labor organization to discourage membership in the Union or any labor organi- zation of its employees. (d) 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) Offer immediate and full reinstatement to Robert Ro.gers, Rick Hofer, Charles Thornton, Rufus Muncy, Wesley Evans, and Mike Jones, unless reinstatement has already been offered, to their former jobs or, if those jobs no longer exist, to inbstantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as -a result of the discrimination against them, with interest. (b) Post at their facilities in and around Effingham, Il- linois, and Cincinnati, Ohio, and any other location where they do business, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed, by Respondents' authorized representative, shall be posted by Respondents 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 Respondents to ensure that the notices are not al- tered, defaced, or covered by any other material. " If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses - - 1 ? 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al--Eabor Relations Board" FEDCO FREIGHTLINES 409 (c) Notify the Regional ,Director in writing within 20 .; IT Is FURTHER ORDERED that the complaint be dis- days from the date of this Order what steps Respondents missed insofar as it alleges violations of the Act not has taken to comply. found ,herein.