Airport Distributors, Inc.

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Airport Distributors, Inc. and Danny Edwards and Teamsters Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 7-CA-24297 and 7- CA-24297(2) 30 June 1986 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND STEPHENS On 19 December 1985 Administrative Law Judge Thomas R. Wilks issued the attached deci- sion . The Respondent filed exceptions and a sup- porting brief, the General Counsel filed cross-ex- ceptions and a brief in support, and the Respondent filed a brief in reply to the General Counsel's cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. I 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings We are also satisfied that the Respondent's contention that the judge was biased is without merit There is nothing in the record to suggest that his conduct at the hearing or his evidentiary and procedural rulings were based on either bias or prejudice 2 In adopting the judge's determination that the Respondent violated Sec 8(a)(3) and (1) of the Act by discharging Joseph Clairmount, we reject the Respondent's assertion that the reason Clairmount was fired was his failure to comply with a company rule requiring that all acci- dents with company equipment be reported to the Company The Re- spondent contends that Clairmount returned an accident-damaged truck to the terminal on 13 February and that he left the facility without advis- ing the Respondent in any way of the damage Although the evidence relied on by the judge establishes that the truck Clairmount was driving was damaged, there is no evidence that Clairmount was involved in an accident or that he was aware that the truck was damaged In contrast to its stated policy of investigating accidents, the Respond- ent never asked Clairmount how the damage was caused or why he ne- glected to tell the Respondent about it Instead, upon discovering the problem, the Respondent simply sent its most senior driver a telegram ad- vising him that he was terminated immediately The telegram, in contrast to the position taken by the Respondent at the hearing and subsequently, cited as the basis for the discharge not only the failure to report the damage but also the Respondent's belief (from unnamed "witnesses") that Clairmount had "negligently and/or maliciously attempted to destroy the drive train" of the vehicle At the hearing both the Respondent's president and its terminal manag- er claimed responsibility for having made the final decision to terminate Clairmount and, notably, their accounts of the discussion of the issue on the morning of 14 February differ in material respects as described in the judge's decision In addition , in its zeal to reinforce its position that the truck had been damaged as the result of an accident, the Respondent pre- sented a repair bill which contained a handwritten notation attributing the damage to a jackknife accident However, the reliability of this evi- ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Airport Dis- tributors, Inc., Romulus, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. dence is seriously undercut by the testimony of the manager of the body shop that performed the repairs, who stated that he made that notation at the specific request of the Respondent We conclude that the General Counsel has established a prima facie case and that the Respondent has not met its burden of showing that Clairmount's discharge would have occurred even in the absence of his union activity We base that conclusion on the following factors- the timing of Clairmount's discharge (within 2 weeks of the Respondent's en- tering into a strike-settling recognition agreement with the Union), the Respondent's demonstrated animus toward the Union and toward em- ployees who supported the Union, the Respondent's awareness of Clair- mount's support for the Union and of his participation in the strike and picketing activity, the abruptness of the Respondent's action taken with- out even confronting Clairmount with the condition of the truck, the de- viation from its customary policy of investigating the circumstances of the accident, the absence of any evidence of similar treatment of other employees, and shifting and mutually inconsistent accounts of the reasons for and the circumstances of the discharge K. C. Hortop, Esq., for the General Counsel. Leonard Meldman, Esq., of Detroit, Michigan, for the Respondent. Vincent Monticello, for the Union. DECISION STATEMENT OF THE CASE THOMAS R. WILxs, Administrative Law Judge. This case was tried before me at Detroit, Michigan, on 22-24 July 1985. The unfair labor practice charge in Case 7- CA-24297 was filed on 15 February 1985 by Danny Ed- wards, an individual. The charge in Case 7-CA-24927(2) was filed on 29 February 1985 by Teamsters Local 299 (the Union). i The order consolidating cases, complaint, and notice of hearing was issued by the Board's Regional Director on 25 April The complaint alleges that the Re- spondent in mid-January rejected the Union' s demand for recognition as its employees' bargaining agent and en- gaged in various acts of coercion of its employees throughout the balance of the month and during an em- ployee-supported recognitional strike. It further alleges that Respondent engaged in discriminatory conduct toward certain of its employees, including Charging Party Edwards, because of their union support. The dis- criminatory acts consisted of improper discipline of Ed- wards, withdrawal of certain seniority privileges from employee Dennis Clairmount, and the discharge of em- ployee and stockholder Joseph Clairmount. The com- plaint also alleges that although Respondent recognized the Union as the bargaining agent for its truckdrivers and warehousemen, as reflected in an executed recogni- tion agreement dated 2 February, it thereafter on 4 Feb- ruary refused to bargain with the Union by refusing to t All dates herein are 1985 unless otherwise indicated 280 NLRB No. 91 AIRPORT DISTRIBUTORS recognize Edwards as the Union's designated bargaining agent. The complaint also alleges that since 4 February Respondent discriminatorily and in breach of bargaining obligations subcontracted bargaining unit work and re- fused to call back to work the laid-off employees who had been on strike. The Respondent timely filed an answer which it subse- quently amended. The Respondent admitted the assertion of Board jurisdiction, supervisory allegations, the desig- nation of the Union by employees, and its recognition of the Union as the employee bargaining agent . It denied that it had engaged in unlawful acts of coercion or dis- crimination, and asserted that it was obliged to hire "bro- kers" to perform unit work because it was financially unable to repair extensive damage to four of its five trucks suffered during the recognition strike. In the amended answer Respondent asserted that the recogni- tion agreement of 2 February embodied a settlement of all prior claims which precludes litigation of pre-Febru- ary alleged unfair labor practices. All parties were given full opportunity at the trial to introduce relevant evidence, to examine and to cross-ex- amine witnesses, to argue orally, and to submit briefs. In- stead of oral argument, the parties elected to file written briefs which were received at my office by 25 October 1985. On the entire record, including my observation of the witnesses, and on review of the comprehensive posttrial briefs, I make the following FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is, and has been at all times material, a corporation duly organized under, and existing by virtue of, the laws of the State of New Jersey, and has main- tained its principal office and place of business at 29200 Airport Drive, Romulus, Michigan (Romulus terminal). Respondent maintains another terminal in Illinois. Re- spondent is, and has been at all times material, engaged in the interstate transportation of air freight and related products. Respondent's terminal located at Romulus, Michigan, is the only facility involved in this proceeding. During the calendar year ending 31 December 1984, Re- spondent, in the course and conduct of its business oper- ations, derived gross revenues in excess of $50,000 for the transportation of freight and commodities from the State of Michigan directly to points located outside the State of Michigan. It is admitted, and I find, that Respondent is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. LABOR ORGANIZATION It is admitted, and I find, that the Charging Party Union is, and has been at all times material, a labor orga- nization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES 1145 A. Issues The issues, as presented by the General Counsel, are as follows: 1. Whether Respondent, in mid-January 1985, coer- cively interrogated its employees regarding their union activities, sympathies, and desires in violation of Section 8(a)(1) of the Act. 2. Whether Respondent's president, Joseph Suriano, unlawfully threatened an employee in mid-January 1985 with implementation of stricter disciplinary measures be- cause the Charging Party Union had requested recogni- tion from Respondent as the employees collective-bar- gaining agent. 3. Whether, about January 17, Suriano created the im- pression that he was observing employees's union activi- ties in violation of Section 8(a)(1) by telling an employee he knew that the employee had signed a union authoriza- tion card and attended a union organizing meeting. 4. Whether Suriano unlawfully promised an employee a wage increase during the week of 21 January to dis- courage the employee's union support. 5. Whether, about 29 January, Respondent's agent, Ed Vieregger, threatened employees with bodily harm in violation of Section 8(a)(1) of the Act by pointing a fire- arm in their direction while they were engaged in a pro- tected concerted work stoppage in support of the Union. 6. Whether Suriano, in mid-January 1985, changed the seniority date of employee Dennis Clairmount in viola- tion of Section 8(a)(3) of the Act. 7. Whether Vieregger issued a written warning to Charging Party Edwards on 12 February in violation of Section 8(a)(3) of the Act. 8. Whether Vieregger's termination of Joseph Clair- mount on or about 14 February violated Section 8(aX3) of the Act. 9. Whether Respondent failed and refused to bargain with the Charging Party about 4 February 1985 and again about 16 February 1985 by refusing to recognize Charging Party Edwards as the Union's designated agent, in violation of Section 8(a)(1) and (5) of the Act. 10. Whether Respondent has, since about 4 February and continuing to date, subcontracted bargaining unit work and refused to recall laid-off former strikers to per- form the work in violation of Section 8(aX3) of the Act. B. Facts 1. Background Respondent's Michigan facility is located near the De- troit Metropolitan Airport in Romulus, from which it transports' freight to points West, including if not primar- ily to its Chicago, Illinois terminal. It utilizes a ware- house and loading and unloading facilities, as well as over-the-road "line haul" tractor-trailer transport combi- nations or "rigs." In October 1984, it had used six over- the-road tractors, i.e., trucks. It also maintained three local trucks. In that month one truck was stolen and not replaced, at least by January. Undisputed testimony es- tablishes that at times when its own trucks were unable 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to satisfy all its hauling requirements , i.e., when its own trucks were being used, Respondent had engaged the services of brokers, i.e., nonemployee rig or tractor owners and drivers. In 1984, business had been sufficient- ly abundant to require such subcontracting, but the exact extent of it either in tonnage , sales volume, or frequency is not clearly established. By the first of January, it is clear that all five over-the-road trucks were in full use. It is not clear why the sixth truck was not replaced be- tween October and January, nor whether it was replaced by a broker-owned truck. Undisputed testimony indicates that the past practice of Respondent was to subcontract to brokers during times when a Respondent truck was temporarily disabled by repairs. There is no evidence concerning the dates, duration, or frequency of these oc- casions. However, there is evidence of a past practice of Respondent leasing trucks to be used by employee driv- ers normally assigned to a disabled Respondent-owned truck. Since 1982, Joseph Suriano has been the president, chief managing officer, and a stockholder of Respondent. Subordinate to Suriano were Edward Vieregger, Larry Springer, and David Genrich. From 1 September 1984 until 1 April 1985 when he terminated employment, Vieregger was the operations or terminal manager, and an admitted supervisor. The complaint does not allege supervisory status of Springer and Genrich, although the General Counsel sought to elicit testimony concerning Genrich's exercise of independent discretion. Vieregger testified that he delegated the assignment of particular loads to specific drivers to the "dispatch people" whom he named as Springer and Genrich. The former appears to have worked the daytime, and the latter the evenings. Although Genrich's testimony tended to negate the possession of supervisor indicia, Suriano characterized his daytime counterpart Springer as a terminal manager who had instituted the use of a driver assignment system of "first in, first out," manifested in a posted board with movable driver identifications, i.e., a returning driver's "name" would be transferred from the "out" column to a position in line to go out. Furthermore, Springer issued a memorandum to employees advising that Genrich was the evening operations manager. As will be discussed below, Genrich was involved in the incident leading to the discharge of Joseph Clairmount. He will be more fully discussed at that point of this narrative. 2. Union activity During the last week of December 1984, under undis- closed circumstances, the following Respondent drivers testified that they applied for membership in the Union: Joseph and Dennis Clairmount, Danny Edwards, Garry Hasselbach, Charles Kainz, Jonathan Lester , and Craig Loader. All were line-haul drivers, except for city driver Loader. Danny Edwards, a line-haul driver, commenced his employment in January and joined the Union during that month. On 14 January, 8 am., at the Romulus facility, Union Business Agents Vince Monticello and Frank Munoz met with and demanded from Suriano recognition of the Union as employee bargaining agent based on employee- executed authorization cards. According to Suriano's tes- timony, he first learned of any employee union activity when on that day the two union agents "walked through the door" and made that demand which , in his words, left him "totally stunned." Suriano rejected that request. The Union instituted a 1-week recognitional strike against Respondent which commenced with employee picketing on Sunday, 27 January. Concurrent with the organizing efforts engaged in by the Union, Suriano testified that Respondent 's trucks ex- perienced a high degree of mechanical problems and damage. He testified that approximately the second week of January two tractors were "put down" because of a "blown engine" in one tractor in Chicago and because of a transmission failure in the other. Further, he testified that during the week just prior to the strike a third trac- tor was put down because of a transmission failure. During the strike another tractor "suffered a hole in its cooling system, put in by a pipe or sharp object," and it also was no longer utilized. The fifth truck, he testified, was put in protective storage in the warehouse. During the strike Suriano subcontracted unit work to "other companies." Suriano testified that it was in December 1984 that the cost of repairs tripled from the norm. Repair costs were $12,168 in December, $15,750.66 in January, and $24,992.57 in February. Thus the initial tripling of repair costs actually preceded the rejection of the union recog- nition demand and reached a peak after the strike' was settled on 2 February. 3. Alleged antiunion coercion a. Credibility resolutions2 Generalized categorical denials were elicited from Vieregger and Suriano regarding alleged coercive con- versations between them and employee witnesses. These cryptic blanket denials were accompanied by an uncon- vincing demeanor, and were, I conclude, most improb- able. Suriano, who was "stunned" by employee union ac- tivity, and who clearly suspected the Union of responsi- bility for damaged trucks, and who gave every appear- ance of being a spontaneously expressive person, cannot be believed when only after direct examination and in re- sponse to my question, he categorically denied having "any" conversation with any employee in which any ref- erence to the subject of the Union was made . In fact, Suriano admitted that immediately after the demand for recognition he questioned Vieregger "to find out what was going on." He did not reveal what Vieregger re- sponded. Vieregger did not testify what response he made. Despite Suriano's desire to discover "what was going on" from Vieregger, the latter testified with a cat- egorical "no" to Respondent counsel's questions whether he could "recall" ever discussing the Union or union ac- tivities with employees Joseph Clairmount, Edwards, 8 I denied Respondent's motion to exclude all pre-February evidence of alleged Respondent coercion, which, of course, is directly relevant to the issue of alleged discriminatorily motivated postatrike subcontracting. It is unnecessary to discuss this ruling any further than to state that, inter aha, Respondent's postsettlement conduct, if found true , would constitute a breach of that "settlement agreement" sufficient to set it aside. AIRPORT DISTRIBUTORS Hasselbach, or Loader. He offered the same response to counsel's question whether he "interrogated" employees concerning "union" activities. Vieregger, and to a greater extent Suriano, in other areas were internally inconsistent in testimony, and at times evasive. They were also mutually inconsistent. I reject Respondent's argument that Vieregger must be credited because he is no longer employed by Respond- ent and, as such, is a disinterested party. Clearly he is in- terested in self-vindication, and clearly he resented the Union for what he suspected was purposeful vandalism to the trucks. A former managerial employee cannot be presumed to be free of a bias in favor of his former em- ployer, particularly when his own conduct is entwined in the litigation. As a former employer, Respondent, at the least, has potential influence about the future employ- ment of the witness as a work reference . It is in Viereg- ger's interest to maintain the good will of his former em- ployer. He is not a disinterested witness. The testimony of the General Counsel's witnesses con- cerning individual encounters with Suriano or Vieregger is detailed and vivid. Their demeanor was assured, spon- taneous, and convincing . Respondent argues that em- ployee Kainz, who had been discharged by the Respond- ent, should be discredited as a disgruntled employee, biased against his former employer. Kainz also was the subject of an unfair labor practice charge which alleged his discharge as discriminatory, but which the Regional Director found was not meritorious. Kainz thus had equal reason to be disgruntled with the General Counsel. Furthermore, he will derive no personal gain from this litigation. On balance, I found him to be a more convinc- ing witness than Suriano. Kainz appeared to be a dispas- sionate witness of solid certitude and fluent recollection. Respondent argues that Loader should be discredited on the grounds that he had admitted to having pled guilty to a charge of assault and battery in January. I find that the admission enhances his credibility inasmuch as the circumstances of the admission and the bar room fight giving rise to the incident were spontaneously of- fered by Loader in a very detailed explanation given in cross-examination concerning why he related an alleged coercive conversation with Suriano to a particular date, i.e., it was concurrent with the assault incident. Loader gave the impression of being an extremely candid wit- ness. Thus, unless as otherwise indicated , the following alleged coercive confrontation occurred as based on the credited testimony of General Counsel's witnesses. b. The 8(a)(1) allegations and findings 1. Interrogations-complaint paragraph 9(a) Suriano testified that when on January 14 the union agents demanded recognition, they offered to prove ma- jority status by signed employee authorization cards. It was immediately after the rejection of the offer that Vieregger was questioned about what was "going on.,, Vieregger thereafter sought to find out. Early in the afternoon Vieregger utilized an opportunity to do so during a ride to the terminal with Loader from Loader's disabled truck in Vieregger's truck . As soon as he en- tered the truck, Vieregger asked him whether he had 1147 signed an authorization card. On denial, Vieregger per- sisted by saying "Yeah you lying s-you did too." Vier- egger further said that the Union was "no good" and that "those guys would be over with when the Union got this deep voiced call from New York," and that Sur- iano "was so mad that his hair was standing up." I con- clude that such persistent, vitrolic questioning was mani- festly coercive and violative of Section 8(a)(1) of the Act. Kainz testified that he had attended a union organizing meeting at the end of December and 1 or 2 weeks later he had a confrontation with Suriano. His uncertainty concerning the precise date does not detract from his credibility. It clearly occurred after the recognition demand, as the visit of the business agents was the topic of employees' conversation immediately preceding it. Kainz had returned from a delivery and was in the dis- patch area. Suriano came out of his office and summoned Kainz. Alone, in Suriano's office, without explanation or assurances against reprisals, he was peremptorily asked by Suriano if he had signed a union authorization card. After a denial, he was asked the identity of any other employee who had signed. He denied such knowledge. Two days later, Suriano resumed his private interroga- tion on Kainz' return from a Chicago delivery, and he again asked if Kainz had signed a union card. After an- other denial, Suriano stated, "They're telling me that you did." After a further denial, Suriano persisted and de- manded to know whether Kainz had attended a union meeting. Again, after a denial, Suriano insisted, "They are telling me, you did." Kainz again denied it. As in the cases of Loader and the other drivers, no insignia or other indicia of the employee's union sentiments were publicized. No justification for the interrogation nor any assurances against reprisal were offered for this sharply persistent, personal, private examination. I find this con- duct coercive and violative of Section 8(a)(1) of the Act. Driver Lester3 testified that on a date between his late December 1984 union membership application and the start of the employee-supported recognitional strike on 17 January, he was summoned to Suriano's office at the terminal where, in the presence of Joe Vitale, he was in- terrogated by Suriano. Lester characterized Vitale as a company representative. His status is not alleged in the complaint nor was it litigated. Respondent makes much of the General Counsel's so-called failure to adduce the testimony of Vitale. Respondent, however, offers no ex- planation for its own failure to produce Vitale's testimo- ny. Vitale not only accompanied Suriano during the in- terrogation of Lester, but he was also placed as Viereg- ger's companion in a picket line incident to be discussed below, and in a February restaurant meeting between Vieregger and Union Business Agent Frank Munoz. By association, he appears to have been held up to employ- ees and the Union as a confidant, if not agent, of the Re- spondent. If any question is to be raised at the nonpro- ductivity of his testimony, such question should be more reasonably directed to the Respondent. His failure to ® Lester's name is incorrectly spelled in the transcript which I now correct. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contradict Lester does not detract from his testimony but, rather, the failure of his proffered testimony to con- tradict Lester enhances Lester's credibility. Although Lester was led by counsel for General Counsel about subjects of conversation, he was otherwise a spontaneous and fluent witness. With respect to the January interrogation of Lester, when called into the office, Suriano forthwith ordered him to disclose his knowledge of "what was going on" regarding the Union. Lester denied such knowledge. Vitale persisted with a variation of the same question and received the same answer. Suriano then stated that he had expended much personal effort into building the Company up to "where it was," and that he would "hate to lose that." Lester testified that there was a statement "between" Vitale and Suriano that "they had narrowed it down to three or something to that effect-three people that were involved with the Union activity." Sur- iano further questioned Lester whether he signed a union authorization card and when told, "no," instructed him to discuss it with Suriano before he did so. I find that this persistent, unwarranted, hostile interro- gation was coercive and violative of Section 8(a)(1) of the Act. Line-haul driver Joseph Clairmount was also ques- tioned by Vieregger and Suriano during the same period of time. The first incident occurred early one morning at the terminal when he was inspecting a tractor. Vieregger was present alone with him. Vieregger asked him to dis- close whLt he knew about the Union's attempt to orga- nize the employees . Vieregger professed ignorance. One week later when Vieregger had arrived at the Chicago terminal, he was summoned to the telephone, whereupon Suriano asked him whether he had executed a union au- thorization card. I find that this sequence of repeated in- terrogations, executed without proffered explanations and assurances against reprisals, were coercive and viola- tive of Section 8(axl) of the Act.4 Road driver Garry Hasselbach testified to an incident of interrogation by Vieregger during the same prestrike period. On a Saturday morning, Hasselbach was giving assistance in moving Respondent's equipment to a new terminal building . Late in the morning, when in front of the office of the vacated building, and standing 25 feet away from other employees, Hasselbach was approached by Vieregger who directly asked him whether he knew "anything about this union [excrement]?" Upon receiving a negative reply, Vieregger stated: You know [Suriano] would not stand for anything like the Union ... the union is not worth crap any- more. All it is going to do is get you out of a job. Based on Hasselbach's credited testimony, I find that this interrogation, coupled with the threat of a loss of em- ployment and an expression of antipathy, is coercive and a violation of Section 8(axl) of the Act. * Clairmount's status as an employee stockholder will be discussed below. 2. Threat of stricter disciplinary measures- complaint paragraph 9(b) Driver Dennis Clairmount was originally employed by the Respondent in June 1982. Clairmount testified with- out contradiction that in October 1984 he had requested from Manager Springer a leave of absence and, accord- ingly, took such leave for the purpose of trying out for a position at another employer. Springer's managerial status and authority is clear from the record. Clairmount testified that the method of assignment of runs to each driver for the commencement of the week is pursuant to seniority and that for the balance of the week it is ac- cording to who had returned first from an earlier run, i.e., "first in first out." He testified that except for Joseph Clairmount, he was the most senior driver and usually was assigned to a run which departed Sunday night or Monday morning. On Monday morning, 14 January, Dennis Clairmount sought a confrontation with Suriano in his office after he had not been assigned an early run. Clairmount wanted to know why he had not been sent out and whether he would be assigned a Monday evening run. Present with Suriano was Robert Baker, the president of J.G .S. Haul- age Corp. which entity shares space with Respondent at its Romulus facility. According to Clairmount when he questioned Suriano, he was told that he had terminated his employment in October and having returned, the other drivers complained that he not be assigned the No. 2 slot. Accordingly, he was placed at the bottom of the "list." Clairmount protested that he had not quit in Octo- ber. He testified that Suriano retorted: Well, if you want to play games, we will play. Now that the union has knocked on my door, we are going by the book. Clairmount responded, "Fine, we will go by the book," and departed, Clairmount testified that since his return, this was the first time his seniority preference was chal- lenged and that he did not get his customary early run. Suriano did not deny that the 14 January confrontation had occurred. He did not deny Clairmount's account of it. The record merely contains his general denial of inter- rogation and discussing the subject of the Union with employees. Suriano and Vieregger testified that there was no seniority preference for route assignments. They testified that the first-in-first-out rotation rule is "univer- sally" applied, and the occurrence of all drivers return- ing at the same time is virtually nonexistent . No other driver corroborated Clairmount regarding the seniority preference practice. Suriano described the rotational system as implemented by Springer who posted an as- signment board. He testified that prior to October he had dissuaded Dennis Clairmount from quitting, but that in October Clairmount did quit to obtain other local em- ployment and that he was returned with no stated agree- ment on seniority rights. Suriano testified that on Clair- mount's return to employment, other drivers came to him and insisted that he "goes to the bottom." In view of his testimony of the absence of a seniority preference practice, such employee concern is inexplicable. If no AIRPORT DISTRIBUTORS preference list exists, how can one "go to the bottom?" At this point in his testimony, Suriano paused, reflected a bit, then continued: My answer to them was anybody comes in goes back out again, so it really does not matter. Suriano was neither contradicted nor corroborated by the two drivers whom he named, i .e., Jim Logan and Lester. However, Springer did not contradict Clair- mount with respect to the leave-of-absence request. Baker, who testified on behalf of Respondent on another point and was clearly favorably disposed to Respondent, did not contradict Clairmount. For these and previously discussed reasons, I credit Clairmount's testimony about the 14 February confrontation, and that Suriano did tell him that because of the union organizing effort he was "going by the book." I credit Suriano that employees did complain to him and did insist that Clairmount be placed at the bottom of a seniority assignment preference list. I therefore con- clude that such seniority assignment preference must necessarily have come into consideration , otherwise such complaint would have been nonsensical . I discredit Sur- iano's disingenuous and unconvincing attempt to rehabili- tate his damaging admission . I conclude that Suriano seized on the driver's complaints as a means of giving an employee a taste of what it would be like under union representation, and thus he told Clairmount that playing games, i.e., seeking union representation , would result in a strict enforcement of work rules. Respondent, in its brief, argues that no evidence was adduced to reveal any threat of stricter enforcement of discipline. This incident was litigated as integral to the core of the 8(aX3) allegation concerning Dennis Clair- mount. I conclude that a threat to enforce stricter work rules necessarily encompasses rules of discipline . I there- fore conclude that the complaint sufficiently set forth the alleged violation and that it was fully litigated. I fmd that Respondent coerced employees by threatening Dennis Clairmount with stricter enforcement of work rules in retaliation for union organizing activities of its employees and thus violated Section 8(a)(1) of the Act. 3. Impression of surveillance-complaint paragraph 9(a) This allegation is premised by the General Counsel on the facts described above with respect to the coercive in- terrogation by Suriano of driver Kainz during which Re- spondent created the impression that it had sources of in- formation, i.e., surveillance by which it had learned of his union activity. The evidence also discloses further such conduct during the interrogation of driver Lester by Suriano, during which the conversation between Sur- iano and Vitale gave the impression of a partially suc- cessful effort to ascertain the identity of union activists. I find that by such conduct Respondent violated Section 8(aXl) by giving the impression of surveillance of its em- ployees' union activities. David's, 271 NLRB 536, 552 (1984). 1149 4. The promise of wage increase-complaint paragraph 9(d) About 1 week prior to the start of the strike on 27 Jan- uary, driver Loader was approached by Suriano at its fa- cility and spoken to privately near the dispatch window. About 8:30 a.m. Suriano asked him what it "would take" to discourage his support of the Union and asked him whether he desired a raise of $ 1 per hour. Loader re- sponded that he would "go with the flow." Suriano asked him "in other words if they are out there striking, you would be out there with them too?" Loader an- swered, "Probably so." Suriano then retorted by deni- grating Loader with an obscenity. Not only does this in- cident constitute another act of coercive interrogation, it also constitutes an unlawful promise of a wage increase for the purpose of dissuading an employee from union support, and is violative of Section 8(a)(1) of the Act. 5. The alleged threat with a firearm by Vieregger- complaint paragraph 9(e) The employee-supported strike started Sunday, 27 Jan- uary. The designated picket line captain was driver Ed- wards who testified to the following account. On one oc- casion he observed Vieregger and Vitale sitting in Sur- iano's automobile parked on the driveway approach to Respondent's new terminal building. Edwards ap- proached the car to request that it back away because, in his opinion, it encroached upon the 25-foot space permit- ted to the pickets by police officers. Two feet from the car he observed Vieregger menacingly lift a handgun, lay it across his arm, and point it out the window at him. Police officers were summoned. The car was searched, but only a short but legal-sized shotgun was found in the car. Prior to the arrival of the police, Baker had come from the warehouse, approached the car wearing a long coat, and returned to the warehouse with the coat clutched very closely to his body. Clairmount vividly testified that he was on picket duty during the incident which occurred on a dark winter's night. From 30 feet behind and several feet to the side of Edwards, he observed Edwards approach the car. He saw Vieregger lift and point something at Edwards. He thought it was a handgun but was not certain, and he could not swear that it was a handgun. He saw Edwards return. He observed Edwards and saw that he looked stricken and that his face was "white as a ghost." Vieregger recalled the incident when a striker had ap- proached him while he was seated in a car. He also re- called later having been searched by police officers who only discovered an unloaded shotgun in the car and who ordered him to put it in the trunk of the car. Vieregger denied that he carried a pistol that night or that he point- ed a pistol at Edwards. Baker denied retrieving a pistol. He testified that he probably clutched his coat closely because of the cold weather. Vieregger testified that he had carried no shells for the shotgun , which he carried during the strike, and had placed it on the front seat of the car. He did so because he had heard that the pickets were armed. Vitale was not called to contradict Ed- wards. Despite Edwards' confusion whether another picket was next to him, I found him and particularly 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clairmount most convincing and credible. I credit Ed- wards that a firearm of some sort was pointed at him in the intimidating fashion as he described. Whether it was the fore barrel of a shotgun grasped to look like a hand- gun, or an actual pistol, is not important . The calculated, unprovoked intimidation was transparent . Such conduct would appear to inhibit employee engagement in the union activity of picketing and thus violated Section 8(aXl) of the Act. c. The 8(a)(3) allegations 1. Seniority date discrimination against Danny Edwards-complaint paragraph This allegation rests on the facts set forth above with respect to the loss of seniority assignment preference by Edwards. I credit Edwards' uncontradicted testimony that he had requested a leave of absence from Springer and that he did not resign . I fmd that although some em- ployees, perhaps unaware of the leave of absence, may have protested Edwards' seniority reinstatement, Suriano did not react to those complaints until after the onset of union activity, several months after Edwards' return. In any event, regardless of whether Edwards did in fact quit, the reinstatement of his seniority date was denied because, as Suriano stated, he and other employees had decided to seek union representation . I find, however, that Respondent violated Section 8(a)(3) and (1) as al- leged in the complaint by changing Edwards' seniority date for discriminatory reasons under the Act. 2. Discriminatory reprimand to Edwards- complaint paragraph 11 On 4 February, Edwards personally presented Suriano with a letter from the Union which designated him as union steward. Edwards testified that Suriano told him that he would not recognize him as a steward.5 By letter dated 12 February signed by Suriano, Respondent repri- manded Edwards for 11 alleged incidents of work un- availability during the months of January and February. The reprimand, received on 14 February, warned of dis- charge and was self-characterized as a "final warning." Edwards testified credibly without contradiction that he had not received any prior oral or written reprimands al- though on occasion he was tardy or had refused assign- ments. On 15 February, Edwards disputed the allegations of the letter in a meeting with Vieregger. In particular he demonstrated to Vieregger by reference to the driver logs that certain of the allegations were demonstrably false. Edwards testified without contradiction that Vier- egger acknowledged that Edwards could be correct with respect to one assertion and was silent when Edwards al- luded to the logs in verification of another assertion. Also he testified without contradiction that when he verified by logs that he did work on certain disputed days, Vieregger dryly observed that there were 24 hours in a day. Edwards' testimony that Department of Trans- * For the previously discussed reasons, set forth above, regarding 8(axl) evaluations, I discredit Suriano's implicit denial . More will be said about Suriano's credibility below. portation regulations precluded him from additional work on those dates is undisputed. Suriano testified that prior to the strike no written rep- rimands were issued to employees except in instances of repeated misconduct. He explained that his relationship with employees had been informal and he testified, "We were really a close bunch, all of us." He testified that after union recognition he was advised by union agent Pellerito to memorialize incidents of discipline as a means of better grievance handling, but he conceded that he did not construe that advice to mean that he should reprimand employees. Respondent's argument centers only on the written form of the reprimand. The gravamen of the alleged dis- crimination is not necessarily the form of the reprimand alone, but rather the reprimand itself as discriminatorily motivated. Edwards' testimony concerning the lack of merit of numerous allegations in that reprimand is undis- puted and credible. In view of the background of ani- mosity to the Union in general and Edwards in particu- lar, the timing of the reprimand, the evidence of lack of justification, a necessary inference arises of unlawful dis- criminatory motivation. There is no rebuttal of that infer- ence. I therefore find that Respondent violated Section 8(aX3) and (1) of the Act by issuing the February writ- ten reprimand to Edwards because he supported the Union and because of Respondent's general discriminato- ry retaliatory intent to "go by the book." 3. The 14 February discharge of Joseph Clairmount-complaint paragraph 12 At the trial, the Respondent appeared to take the posi- tion that driver Joseph Clairmount is not an employee within the meaning of the Act because of his status as a 10-percent stockholder of the Respondent . In its brief, however, Respondent does not raise that defense, but rather argues that Clairmount was discharged for viola- tion of an employee work rule "well known to all em- ployees." The General Counsel, citing Red & White Airway Cab Co., 123 NLRB 83 (1958), correctly argues that stock ownership is not the determinative factor of nonprotected status, but rather that the degree of partici- pation in management and/or labor policy formulation is relevant. Clairmount served as a member of the Respondent corporation board of directors but has not attended a board meeting since 1982. At one time in the past he be- lieved that he may have have been given some prefer- ence in assignments. There was no evidence adduced by the Respondent that he received any preference because of his stock ownership, nor any evidence that he partici- pated in the formulation of any policies involving man- agement or employee relations. I conclude that his stock ownership does not divest him of the protection of the Act. In the early morning of 12 February, Joseph Clair- mount departed with truck 3 on his assigned run to Chi- cago from the Romulus terminal . This trip involves 6 hours of driving time in each direction. The normal total trip took about 24 hours. In foul weather it took as high as 35 hours. On this particular trip Clairmount encoun- AIRPORT DISTRIBUTORS 1151 tered the worst snow and ice storm in his 35 years of driving experience. He encountered numerous "jack- nifed" tractors and trailers at the Indiana and Illinois state lines. He testified on direct examination that on the return trip he encountered mechanical problems. A trac- tor wheel brake malfunction occurred on one of eight wheels on the two rear axles , he observed the wheel "flopping," at a point 165 miles from Romulus on the interstate freeway 1-94, during the storm. He testified that he pulled to the side of the road in the face of high velocity winds and waited during the entire day until he was able to obtain a ride on another truck to a nearby gasoline station. On learning that there was no qualified mechanic available, he testified that he telephoned Springer at Romulus, who turned him over to Vieregger. In the telephone conversation from that gasoline station, according to Clairmount's uncontradicted testimony, he conveyed his situation, i.e., broken wheel. Vieregger then said, "Hold on for a minute, I have got to call Joe [Suriano], he is our little buddy in Chicago." Thereafter Vieregger told him to return "the best damn way" he knew. Clairmount testified that he telephoned "this fellow" who removed the wheel and thus rendered the tractor drivable. He testified that he returned the truck to the terminal at 8:03 p .m. on the night of 13 February, that it was undamaged, that he had no other problems, that he had not jacknifed the truck, and that he had no commu- nication with either Vieregger or Suriano until he re- ceived a telephonic Western Union Telegram message between 11 a.m. and 12 noon of 14 February. The mes- sage read to him and subsequently received by him is as follows: ON FEBRUARY 13 1985 AT APPROXIMATELY 11 PM I WAS MADE AWARE OF THE FACT THAT YOUR AS- SIGNED UNIT #3 HAD SUFFERED SEVERE DAMAGE TO ITS EXTERIOR. YOU HAVE FAILED TO REPORT THE DAMAGE EITHER VERBALLY OR IN WRITING. IN ADDITION THERE ARE WITNESSES TO THE FACT THAT YOU NEGLIGENTLY AND/OR MALICIOUSLY AT- TEMPTED TO DESTROY THE DRIVE TRAIN OF YOUR ASSIGNED VEHICLE WHILE YOU WERE ENROUTE TO YOUR DOMICILE TERMINAL ON 2/13/85. AS A STOCKHOLDER AND DIRECTOR OF AIRPORT DIS- TRIBUTORS INC. YOU YOURSELF HAVE SET THE COM- PANY POLICY TO THE EFFECT THAT FAILURE TO REPORT AN ACCIDENT OR THE NEGLIGENTLY AND/OR MALICIOUS DESTRUCTION OF COMPANY PROPERTY IS CAUSE FOR IMMEDIATE DISCHARGE. THEREFORE IT IS MY DUTY TO TERMINATE YOUR EMPLOYMENT EFFECTIVE IMMEDIATELY FROM AIR- PORT DISTRIBUTORS INC. SINCERELY AIRPORT DISTRIBUTORS, INC ED VIEREGGER OPERATIONS SUPV/SAFETY DIRECTOR On cross-examination, Clairmount admitted that the "fellow" who removed the faulty wheel was from "Gene's Truck Repair" of Benton Harbor , Michigan, and that his wrecker was obliged to pull the tractor from where it had been stuck in the snow. He denied that the wrecker driver had discussed with him "the fact that [Clairmount] had almost burnt the clutch" in an attempt to get free of the snow. He did not specifically deny damage to the clutch, nor that he attempted to free the truck himself. David Genrich was on duty the evening of 13 Febru- ary. No one else in authority was present. By memo dated "May 31, 1984," Terminal Manager Springer for the purpose of "improving the line of communication," notified all employees of the "chain of command, in the company." He designated a Kathy Reedy as "afternoon operations manager" and Genrich as "evening operations manager." Springer testified that Genrich has no author- ity, that he is a working leader, and that his designation was incorrect and a result of his poor facility in drafts- manship. Genrich testified that it is part of his duties to inspect vehicles on their return and to receive accident reports. I do not find it necessary to resolve his actual status as alleged supervisor. On the return of truck 3 by Clairmount , it was parked head-on next to a wall, and "plugged" into an engine or radiator warming device. Clairmount departed. Genrich testified that he immediately checked the tractor and dis- covered damage to the rear of the cab and frame which was clearly visible . Genrich telephoned Vieregger and informed him of the damage. Vieregger, who resided nearby, visited the terminal about 11 p.m . to inspect the damage. Genrich testified that he observed that the truck was not moved that night after Clairmount had parked it. Springer arrived at 7 a.m. There is no basis to discred- it the testimony of Genrich. Vieregger testified that he received Genrich's call be- tween 10:30 p.m. and 11 p.m. He observed the damage and concluded that it must have been caused by a jack- nife accident, based on 25 years of driving experience. In daylight the next morning he photographed the damage. The photographs were received into evidence. Vieregger testified that he had received a telephone call from Gene of Gene's Truck Repair who narrated the following. Gene had offered to free Clairmount from a snowdrift, but was refused. Clairmount was seen unsuccessfully trying to free himself, and was burning up the clutch in the process. Vieregger testified that he instructed Gene to return and pull out the tractor. Vieregger testified that although this conduct might have been given some con- sideration it was not the factor which motivated the dis- charge of Clairmount, i.e., "failure to report the acci- dent." Although called in rebuttal, Clairmount did not deny the clutch incident. As the General Counsel argues, there is no evidence of damage to a trailer , which he contends necessarily results from a jacknife accident. The record is not clear that a trailer was attached to tractor 3 on that night. In any event, Clairmount was less than certain that damage or even telltale scratches necessarily result in every jacknife incident. His uncontradicted testi- mony is that such usually occur . Respondent's witnesses were silent as to trailer damage. Vieregger testified that he inspected the tractor at night to make certain that it was drivable and safe and, if not, to make certain it was not driven. He found the cab bent, the frame bent, and other appendages damaged or 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lost. The bent-in cab and frame are not that apparent in the photographs. It is clear from the testimony that the tractor had no surface damage prior to its departure with Clairmount. Vieregger testified that prior to Clairmount's last trip, [w]e had just put a brand new engine on it .. . [and] it had a new transmission . . . [and the trac- tor] was gone through [inspected] pretty thorough. Vieregger testified that his decision to terminate Clair- mount was determined solely by the policy he had im- plemented and promulgated by memo dated "September 6, 1984" and which states: TO.• All EMPLOYEES All accidents-including minor scratches, etc. with equipment must be reported. All occupational injuries-including scratches, bumps, bruises incurred on the job must be report- ed. Failure to report and things discovered later will result in immeidate [sic] discharge. In plain language-report ALL incidents to your immediate supervisor. /s/ Ed Vieregger Vieregger testified that at 8 to 8:30 on the morning of 14 February he conversed with Suriano who was person- ally present at the terminal. He denied that the decision to discharge Clairmount was the result of this conversa- tion, but rather he insisted that it was a decision he, Vieregger, made pursuant to the policy memo. Suriano testified, however, that on 14 February Vieregger dis- cussed the decision with him by telephone as he was in Chicago and that it was he, Suriano, who made the "final decisions" during the telephone conversation. He admitted that it was within Vieregger's normal authority to make independent decisions with respect to employee discharge. It was about 9:30 a.m. that Vieregger photo- graphed the damage. Vieregger testified in a demeanor of uncertainty that he sent the discharge telegram at 8:40 on the evening of 14 February. He testified, in reference to the discussion with Suriano, "we allowed [Clair- mount] 24 hours to report the accident." Apparently, in contradiction to Suriano, he did not consider the deci- sion "final" yet, i.e., without giving Clairmount an op- portunity to report. Suriano testified that it is Respondent's policy and practice to investigate before it imposes discipline. He claimed that Clairmount's situation was different, i.e., the facts were self-evident that he had an accident and failed to report it. Thus there was no need to interview Clair- mount. However, it is admitted that no one reported such an accident to Respondent. Vieregger testified that he attempted to communicate with Clairmount "about, three times" without success. He conceded that normal procedure entailed suspension before discharge, but that failure to report an accident gave him "the right to ter- minate," instead of suspend. He conceded that during his tenure at Respondent he had never experienced a situa- tion of nonfailure to report an accident, and that the Clairmount incident was unprecedented. Thus it appears that Respondent, although it had been faced with a flurry of accidents which prompted the September memo, was not subjected to failures of reporting of acci- dents. A failure to report an accident was therefore not a pressing problem. Vieregger was questioned again later in his cross-examination about the failure to interview Clairmount before the discharge . He was questioned re- garding the failure to await Clairmount's next appearance for work as a logical opportunity to confront him wheth- er and why he had been in an accident . _cregger then testified: Well, the standard procedure is that they don't just arbitrarily just show up for work, they have to be called to work. If I would have called the man to work by telephone or what, that would automati- cally notify his discharge on the contract. So, why would I call him? This strange response suggests that he did not even try to contact Clairmount. In view of Vieregger's lack of certitude, his inconsist- encies, and evasiveness as a witness, I credit Clairmount that he received the telegram on the morning of 14 Feb- ruary, and not the evening. I conclude that the final de- cision was indeed made by Suriano during that long-dis- tance telephone conversation about a nonpressing un- precedented problem which was not fully investigated and which was based on assumptions of fact, and that no opportunity was given to Clairmount to deny, to admit, and/or explain the damage . It is clear from the testimony that the mere fact of an accident or incurrence of damage did not warrant discharge , particularly without suspension and investigation. It is also clear from testi- mony that the extent of damages was not the determin- ing factor but purportedly rather the mere failure to report was the cause of discharge in seeming contradic- tion to the language of the discharge letter itself . Viereg- ger was very uncertain where and how many estimates he obtained about truck 3 damage . He could not recall the amount of damage . He was uncertain but guessed that truck 3 was not repaired during the remainder of his tenure. He testified that Suriano usually made the deci- sion about the repair of trucks after Vieregger had made a decision to and did obtain repair bids. He "thought" he obtained a bid on truck 3, but was uncertain and had no actual recollection. Suriano testified that the estimated amount of repairs attributed to the damage incurred on truck 3 amounted to $4322. At one point in his testimony Suriano referred to "several" written estimates. But at least at two other points he testified that there were only two estimates. One estimate of $1770 related to external body damage (R. Exh. 4(a)). The other estimate (identified as G.C. Exh. 10), according to Suriano , was for repairs necessary to the engine because of the leakage of oil that resulted from damage to the "fuel lubricator and fueler" in the rear of the tractor cab caused by Clairmount's accident of the 13 February. Respondent was reimbursed by its insurer for all but $500 of the $ 1770 damage. Suriano tes- AIRPORT DISTRIBUTORS tified that internal damage caused by the assumed acci- dent was not insured. The internal damage estimate was positively identified by Suriano as for damage to truck 3 incurred by Clairmount. That document reflects the truck number as 10, but the serial number is identical to that of the estimate for truck 3. Suriano was correct that it applied to truck 3. However, the estimate is dated clearly "2-11-85," or 2 days prior to the alleged accident. Moreover it refers to the following work: Remove old engine and replace with new. Remove and replace transmission. The total cost set forth is $18,627 ,84. Clearly this esti- mate reflected the work described by Vieregger for truck 3 that had been performed prior to the accident, i.e., installation of a new motor and transmission. Sur- iano, earlier in his examination, confirmed Vieregger and testified that a new motor was installed in truck 3 before the alleged accident and identified the same General Counsel's Exhibit 10 as an estimate for that work. In yet another identification elicited by Respondent's counsel, he had identified a repair bill, marked as Respondent's Exhibit 4, as the bill for internal transmission repairs as evidence of preaccident repairs made to truck 3. That bill is for services by the same repair service as in Gener- al Counsel's Exhibit 10, but is dated 1/29/85. There is no evidence that it included any engine repair . There is no serial number given but the transmission number did not coincide with that set forth in General Counsel's Exhibit 10 for truck 3. Thus, on its face , it does not appear to relate to truck 3. Suriano thus made a blatantly false later identification, despite the fact that he was asked to care- fully examine the exhibit. His urgent need to substantiate his assertion of additional damage apparently caused Sur- iano to abandon caution in his self-contradicted testimo- ny. Similarly, the figure of $4322 of damages Suranio at- tributed to the Clairmount damage is identical to the amount of damage on the estimate marked as General Counsel's Exhibit 11. Suriano, elsewhere in his remarka- ble testimony, identified that estimate dated "Feb 7, 1985" as not for truck 3 for which it was noted but for truck 10 which had been involved in an accident when driven by another driver. The coincidence is too star- tling to be believable. I conclude Suriano fabricated the $4322 total damage estimate for truck 3, and I find his testimony unreliable. With respect to the other estimate (R. Exh. 4(a)), which is also General Counsel's Exhibit 14(b), Suriano testified that he was unaware of who wrote the words "Damage was result of a jacknife " on its face. He also testified that truck 3 has remained inoperable and "still down" to the date of the trial. This testimony is contra- dicted by the credible testimony of disinterested witness Richard Gunnoe, the body shop manager responsible for the estimate. He testified that he wrote the words at the explicit direction of Suriano. He also testified that the work was performed, paid for, and truck 3 returned to Respondent. Thus Suriano is again discredited. Both parties herein recognize as applicable the Board's ruling in Wright Line, 251 NLRB 1083, 1089 (1980), as approved by the Supreme Court NLRB v. Transportation 1153 Management Corp., 462 U.S. 393 (1983). The General Counsel is required to establish a prima facie showing that the discrimination was motivated , at least in part, because of protected activities. The burden then shifts to the Respondent to prove that the adverse action would have occurred even in the absence of protected activity. The General Counsel has established that the Re- spondent was stunned and angered by the employees' se- lection of this Union as its bargaining agent, that the pre- viously informal, benign employer retaliated , coerced its employees, and promised to enforce its rules without compassion that the discharge of Clairmount, its most ex- perienced and senior driver, was unprecedented for this type of conduct, that no real investigation was made, that no interview was even accorded the accused, that unfounded and unverified assumptions of fact were prof- fered for Respondent's conclusions of misconduct, and that the discharge was executed with undue haste in the absence of any deadline in the cited policy memo, and that Respondent offered shifting, inconsistent, oral, writ- ten, and testimonial explanations for the discharge. The General Counsel, I fmd, has adduced abundant evidence to compel an inference of discriminatory motivation as the sole cause of the discharge , i.e., animosity toward Joseph Clairmount, and all employees who had support- ed the Union. The Respondent has failed to submit any convincing credible rebuttal evidence to rebut that infer- ence. I fmd that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Joseph Clairmount, as alleged in the complaint. 4. The discriminatory subcontracting of bargaining unit work The parties incorporated in their 2 February strike set- tlement union recognition agreement a promise by Re- spondent to continue operations "as is." Suriano testified, and Respondent argues, that it indeed has operated as it has in the past, i.e., because of the inoperability of its trucks it has subcontracted. Suriano testified that if he had the trucks, the drivers would be on the road driving them today . At one point he insisted that there was no poststrike increase in broker usage. This is contradicted by the stipulated facts which disclose that in a 24-day period preceding the strike, 32 of 108 deliveries were subcontracted, whereas for an equal period afterwards 74 of 93 deliveries were contracted. Clearly the rate of sub- contracting almost tripled. The increase in subcontract- ing commenced almost immediately after the strike when between 4 and 9 February 19 of 25 deliveries were by subcontractees, i.e., brokers or independent operators. On 19 February, the following letter was sent to the Union and to 14 of about 23 bargaining unit employees by Vieregger. We regret to inform you that because of the Jan- uary 27, 1985 to February 2, 1985 work stoppage, Airport Distributors, has lost 35 to 40% of our volume revenue. Therefore, you will not be re- called. We will inform you when and if work be- comes available in order of your company seniority. 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition to the 14 employees , others have not worked since the strike. During the strike , Respondent used only one of its own trucks for deliveries . Suriano testified that at the end of the strike at the 2 February meeting with union agents he advised Union Agent Monticello that it would take 1 week to return its trucks to operation, and that in the meantime he would temporarily operate with owner-operators and that the Union approved . He testi- fied that he promised to recall the drivers as the trucks became available. He testified that he did put back into operation three more trucks for a total of four trucks. He testified that during February three more trucks had "gone down," including truck '3 with an inoperable transmission as a result of the Clairmount incident. His testimony that truck 3 remained inoperable was discredit- ed above. He also testified that truck 7 had a "blown engine" and was left in Chicago, that truck 10 was re- paired after the strike but again taken out of service to date after an accident caused a bent frame , that truck 12 was repaired but after two Chicago trips suffered clutch damage, and that the only remaining operating truck is 4. Respondent introduced into evidence testimony about a decline in gross sales reported by its accountant as fol- lows: November 1984 $312,000 December 1984 281,000 January 176,000 February 209,000 March 214,000 April 197,000 May 225,000 June 232,000 Suriano testified to the loss of several accounts which provide substantial amounts of yearly sales, all in the pre- vious year, whereas in 4-1/2 years of experience Re- spondent had not lost an account . These figures are of- fered in a vacuum. There is no evidence of how the above-cited gross sales compare to earlier months and years. Thus it is unknown whether the November 1984 sales were reflective of average sales or whether it was an unusually high figure or whether it was a seasonal high. Furthermore, the loss of substantial sales is mean- ingless without reference to the total financial and busi- ness experience, i.e., there is insufficient evidence to sup- port the assertion in Vieregger's letter that the total sales volume had been reduced by 35 to 40 percent from a volume level necessary to support a full complement of drivers as evident from its entire past practice . There is no evidence whether new accounts replaced the lost ac- counts, nor any evidence of Respondent's total profit- and-loss posture, etc. Respondent's assertion in the brief that its "monetary position" was "shakey" is unsupported by probative record evidence. Clearly by this increased use of subcontractees there was enough work for at least some of the unutilized bar- gaining unit drivers . Suriano admitted in the following testimony: Q. (By Mr. Hortop) If I understand your position correctly regarding the increased use of owner op- erators the fact that you had to increase your use of owner operators, if I understand your position, it is that if you had the trucks for the bargaining unit employees to be operating, they would be doing the work, is that correct? A. You are absolutely right. Thus his testimony indicates that all the unit employees would be working but for the unavailability of the trucks. Accordingly, the reduction in sales volume did not account for the gross reduction in employment, as claimed in Vieregger's letter. Rather, it was allegedly the inoperability of the trucks that deprived the employees of work. As of the date of the trial, only two employee drivers were making deliveries and four unit employees were working in the warehouse. Thereafter, the Respondent felt constrained by the press of business to advertise in a major metropolitan Detroit newspaper on 3 May 1985 for the need of "owner operators." Suriano vigorously denied that such advertisement had been placed, and he averred that he had questioned all Respondent's manage- ment personnel, who had denied knowledge of it. How- ever, Vieregger testified that he had placed that adver- tisement in March. The question then arises , why Respondent did not repair its trucks, as was its claimed promise to the Union on 2 February, or buy or lease other trucks for its own drivers as it had in the past, and promised to do the prior fall? Vieregger and Suriano testified, without foundation, their conclusion that leasing was too expensive . Concern- ing repairs, Suriano testified that he had concluded that the damages to the trucks were due to driver abuse. Sur- iano testified the repair bills were "astronomical." The repairs for February were indeed double that of Decem- ber 1984, but no other comparative data was presented for a longer, more meaningful period of time. Suriano testified, without testimonial or documentary corrobora- tion, that he and the Respondent's unidentified board of directors decided that it was not feasible to spend more money on repairs for 1979 and 1980 vintage vehicles. He testified that he discussed this at a meeting he called at the end of February with Union Agents Rice, McHenry, and Pellerito, and that they sympathized and promised to investigate and determine whether there was any deliber- ate employee harassment responsible for the damage. He further testified that Pellerito acknowledged the need to use brokers inasmuch as "he did not" expect [Respond- ent] to throw away business. Suriano placed Vieregger at this meeting. Vieregger recalled a meeting in February immediately after the strike but he testified that the union representa- tives requested that Respondent purchase or lease other trucks, which request was rejected by Suriano as "too expensive." Vieregger testified that he attended another meeting on the same topic 3 or 4 weeks later with Re- spondent's labor attorney and son, and Union Agents Pellerito, Rice, McHenry, and possibly Monticello. He did not place Suriano at that meeting . His only recollec- tion of what was said was that an unnamed union agent said, "sort of like you have to do what you have to do- that [kind of] thing." That testimony was adduced by a leading question. AIRPORT DISTRIBUTORS Business Agents Rice, Monticello, Munoz, and em- ployee participants of the 2 February strike settlement meeting at the Respondent's Romulus office all testified that there was no reference to the use of nonemployee drivers at that meeting. Elsewhere in testimony, when examined as an adverse witness by counsel for the Gen- eral Counsel, Suriano testified that he first notified the union of use of nonemployee workers not at the 2 Febru- ary meeting , but rather at a meeting in late February. In view of Suriano's uncertainty and inconsistency, and his and Vieregger's general unreliability as witnesses, I con- clude that Suriano made no reference to the use of bro- kers at the 2 February strike settlement meeting . I credit the testimony of Union Business Agent Rice that the first oblique mention by Respondent of nonutilization of available employees was made at a meeting with Re- spondent's attorney and on 26 February at the Book Cadillac Hotel in Detroit, at which McHenry and Peller- ito were not present . According to Rice's credible testi- mony, the very brief 26 February meeting related to the subject of employee grievances, one of which was an employee complaint about the use of owner-operators, which was his first notification of subcontracting. He re- called that Respondent's attorney did state there was a lack of work caused by a lack of business and that trucks were unavailable due to repair work, but that the main purpose and subject of the meeting was an attempt to set up a grievance procedure, and that there was no discus- sion of the merits of any grievance. I credit Monticello's testimony that at the 2 February meeting Suriano prom- ised to recall all striking employees as soon as a dispatch was available for them. Only Suriano recalled a late February meeting at which he was present. He appeared uncertain about the date. Respondent's counsel elicited from Rice the fact that Suriano was absent from the 26 February meeting because of a snowstorm. It is Rice's certain and credible testimony that there were no meetings between 2 and 26 February, and that the third meeting was held on 4 March, at the Ramada Inn, near the airport, as verified by his personal appointment calendar. On 4 March em- ployee subcontracting grievances were discussed, and the Union suggested the use of leased equipment or new truck purchases . Present at that meeting were Suriano, Vieregger, Pellerito, and McHenry. I conclude that Sur- iano did not meet with the Union between 2 February and 4 March. Respondent argues in its brief that "there was an en- trepreneurial decision made that the company could not continue to pour money into used equipment [i.e., repair its trucks]." I conclude that the credible evidence reveals that the Union was not notified in advance of such an entrepreneurial decision, nor was any meaningful oppor- tunity afforded to the Union to negotiate the matter. The notice given to the Union was after the decision was fi- nalized and came in the form of an employee grievance. Respondent's defense rests on the undocumented testi- mony of Suriano to the effect that Respondent could not afford to repair its old trucks, nor to purchase new trucks nor to lease, and thus it did not have available trucks to assign to bargaining unit employees . The evi- dence indicates that as late as December 1984, Respond- 1155 ent spent substantial sums in the leasing and rental of equipment, which was drastically reduced after the strike. The decision not to repair any more trucks be- cause of the age of those trucks was made despite the fact that before the union activity , in December, when repair costs allegedly first tripled , it was considered a feasible course of action . There is no explanation why 60 days' aging of those vehicles made such a difference. De- spite Suriano's testimony that it was not worthwhile to repair trucks of that vintage, there is evidence that re- pairs were made subsequently on the 1979 truck 3, and that it was even serviced as late as June or July. Driver Loader testified that he observed truck 3 being driven on an interstate freeway by nonstriker driver Ritten within a month before the trial. Baker testified that he retrieved Ritten from a truck repairer where Ritten had driven truck 3 for unspecified service. Thus it is clear truck 3 was sufficiently operable to be driven on the freeway. There is no evidence that the truck is inoperable. With respect to the other trucks' ultimate disposition, Suriano testified as follows . Truck 7 was not returned from Chicago but sold "as is" on an unknown date to International Freight Carriers, Ltd., of which he is a stockholder. Truck 12 was sold after the strike to LRT Transport and is now operated by that company, which is one of Respondent's subcontractees . Respondent sub- mitted no evidence concerning the extent of damage sus- tained by trucks 7 and 12. Truck 8 was sold on an un- known date after the strike . The extent of damage to it was unspecified. Truck 10 suffered $4,322.85 estimated damage in the early February Kainz accident. Suriano testified that it remains unrepaired despite his testimony that his collision insurance would have covered those re- pairs. Truck 4 remains operating, as are the two local de- livery trucks. Without explanation Suriano admitted that some trucks that he had operated out of the Romulus terminal before the strike are now being operated in Chi- cago "on lease" to Airport Distributors International Ltd., a company of which he is admittedly the owner. Apparently there are trucks other than those previously described. The mystery of this admission and the confu- sion concerning the actual number of trucks owned and used by Respondent was not resolved. Further undenied credible testimonial evidence reveals that in March Respondent obtained repair estimates for a 1980 vintage tractor which was covered by collision damage insurance . According to Repair Manager Gunnoe, he communicated four or five times with Sur- iano about these repairs, although the owner is listed as "J.G.S. Haulage." After the damage had been incurred and while parked, the truck's alternator and related parts were stolen. All other repairs except finish painting were made and the vehicle is operable except for replacement of the stolen parts. Suriano told Gunnoe that he would "take care of it" by making "another report to the insur- ance company to get the starter and alternator for it." The repair bill for the work done is dated "4-30-85." Baker, the vice president of J.G.S. Haulage, admitted that he has done favors for Respondent in the form of obtaining damage estimates inasmuch as 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [t]here were times when Mr . Suriano wasn't around, just as there were times when I wasn't around to speak on behalf of JGS always. There were times when Mr. Suriano wasn't around to speak on behalf of Airport Distributors and under his directions or his request I helped him sometimes. Finally, the serial number of the tractor, as revealed in the insurance estimates and repair bills, is identical to that in General Counsel's Exhibit 11, which was identi- fied by Suriano as the 7 February repair estimate of an- other repairer for truck 10, a 1980 tractor that had been driven by Kainz and which was involved in an accident which resulted in a twisted frame . That 7 February esti- mate had been obtained by Baker on behalf of Suriano. Thus it is clear that Suriano, despite his testimony re- garding 1979 to 1980 vintage vehicles, in fact, did repair vehicles of that vintage. Furthermore, despite Suriano's testimony that excessive insurance claims resulted in bur- densome rate increases, he did not hesitate to continue making such claims. Why truck 10 was represented to the repairer as being owned by J.G.S. Haulage is a ques- tion that need not be answered, as Suriano's testimony is clear that truck 10 was considered one of Respondent's inoperable trucks as of the date of the trial. I conclude that Suriano's testimony that Respondent decided it was poor business judgment to repair 1979-1980 vintage trucks is rebutted by the facts in the record and thus not credible. I further conclude that his generalized and vague testimony concerning the physical condition of Respondent's trucks is equally of little credible probative value. With respect to Respondent's assertion that it simply could not afford to repair its trucks, there is no defini- tive, corroborated, documented evidence of its financial situation. The assertion rests totally on Suriano's general- ized, conclusionary testimony supported only by selec- tive fragments of sales and repair figures which prove to be inconclusive. Respondent's assertion is ultimately sup- ported only on the testimony of Suriano. Respondent argues in its brief that the General Coun- sel has not proven that Respondent could afford the re- pairs. I conclude that Respondent misreads Wright Line, supra. I find that the General Counsel had established a preponderance of evidence of discriminatory, retaliatory motivation, as it had in the discrimination against Ed- wards and Joseph Clairmount. The General Counsel has established the existence of a virulent antiunion animosity and a desire, intent, and practice of retaliation against employees for their union activities. It is established that immediately after the strike the Respondent drastically increased the subcontracting of unit work. Even without consideration of the shifting and contradictory explana- tions proffered by Respondent for the subcontracting, the evidence compels an inference of unlawful motiva- tion. Accordingly, I conclude that Respondent has the burden of demonstrating that the subcontracting would have occurred in any event. Whether it sustained that burden rests on the credibility of its witnesses and, as we now see, the ultimate credibility of Suriano. As the fore- going findings reveal, Suriano's testimony is convulsed by evasions, contradictions, and inconsistencies, both in- ternal and otherwise, accompanied with a most uncon- vincing demeanor and lack of spontaneity . I conclude that Respondent has not sustained the burden which had shifted to it, i.e., to show with credible evidence that the subcontracting would have been inevitable. In view of the foregoing conclusions, I find that Re- spondent violated Section 8(a)(3) and (1) of the Act by discriminatorily subcontracting bargaining unit work as alleged in the complaint. 4. Breaching of bargaining obligations a. Subcontracting As I have already found, Respondent, without ade- quate prior notice to the Union and meaningful opportu- nity to bargain unilaterally subcontracted bargaining unit work. The very existence of an unlawful discriminatory motivation itself would have rendered any attempt at bargaining mere theatrics. Respondent's reliance on Mil- waukee Spring, 268 NLRB 601 (1984), lends no support for its position. In that case, which reversed Milwaukee Spring I, and negated Los Angeles Marine Hardware Co., 235 NLRB 720 (1978), the Board resolved an issue con- cerning the relocation of bargaining unit work during the term of an existing contract in the absence of an affirma- tive acquiescence by the union. Neither that case nor Los Angeles Marine involved independent evidence of dis- criminatory motivation. Although the Respondent does not argue explicitly that it had no duty to bargain about the decision to trans- fer its delivery work to brokers, it does refer to that de- cision as "entrepreneurial." The Supreme Court in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), exempted certain bona fide business, nonlabor costs factor, unit work elimination decisions from the Act's 8(d) bargaining obligations . Cf. the Board's deci- sion in Otis Elevator Co., 269 NLRB 162 (1984). The Court distinguished the case before it from cases involv- ing independent coercive motivation for example in dis- criminatorily motivated subcontracting coupled with a refusal to bargain, citing, inter alia, Smyth Mfg. Co., 247 NLRB 1139 (1980). The Board, accordingly, has found that discriminatorily motivated subcontracting, such as the increased use of owner-operators violates Section 8(a)(5) and (1) of the Act, as is aptly cited by the Gener- al Counsel in Mashkin Freight Lines, 272 NLRB 427 (1984). Accordingly, I find that by subcontracting bargaining unit work to owner-operators while failing to recall from layoff unit employees to perform that work, since Febru- ary 1985, Respondent has violated Section 8(a)(5) and (1) of the Act. b. The refusal to acknowledge Edwards as steward According to the testimony of Edwards, whom I credit for the reasons explained above, the following events occurred. On 4 February he presented Suriano with a written letter of appointment as steward . This oc- curred at the dispatch window in the terminal. Suriano stated that he was not going to recognize Edwards as a steward. On 15 February Edwards attempted to present AIRPORT DISTRIBUTORS 16 written employee grievances to Vieregger who de- clined acceptance on the grounds that it was not his job. The next day Edwards tendered the grievances to Sur- iano who refused acceptance and told him that he was not recognizing Edwards as steward, and "not recogniz- ing no union." Suriano complained of damage to the trucks, warned that there better be no further damage, and that Edwards "better not f-" with him. He told Ed- wards that all correspondence must go to his attorney. It is true, as Respondent argues, that subsequent meet- ings were arranged between union representatives and the Respondent with respect to grievance processing. However, until late February it appears that Respondent at least temporarily, in a state of bitterness and resent- ment, considered withdrawing recognition for the Union and did in fact refuse to meet and bargain about griev- ances with the Union's designated agent . If such had oc- curred in the absence of other unlawful acts, it might be dismissed as a transitory release of pent-up emotional frustration. In view of the extensive coercive and retalia- tory conduct of the Respondent, including discrimination against the union steward, it cannot be ignored for what it was, a breach of bargaining obligation. Accordingly, I find that such conduct violated Section 8(a)(5) and (1) as alleged in the complaint. CONCLUSIONS OF LAW 1. Respondent Airport Distributors, Inc. is an employ- er engaged in commerce within the meaning of Section 2(2) and (7) of the Act. 2. Teamsters Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All truckdrivers and warehousemen employed by Respondent at its facility located in Romulus, Michigan, but excluding office clerical employees, confidential employees, and guards and supervisors as defined in the Act. 2. Since about 2 February 1985, and at all times mate- rial herein, the Union has been the designated exclusive collective-bargaining representative of the above unit and since 2 February 1985, the Charging Party Union has been recognized as such representative by Respondent. 3. Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act as found above in this decision by its coercive interrogation of employees, by the threat of stricter imposition of work rules and dis- cipline on its employees in retaliation for their union ac- tivities, by creating the impression it was surveilling its employees' union activities, by promising a wage in- crease to discourage an employee's union support, and by threatening employees with bodily harm to discour- age protected, concerted and union activities. 4. Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act by chang- ing the seniority date of Dennis Clairmount in retaliation 1157 for the union activities of the employees, by issuing a written warning to employee Danny Edwards in reprisal for his and other employees' union activities and support, by discharging employee Joseph Clairmount in punish- ment for his and other employees' union activities and support. 5. Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act when it refused to meet and bargain with the Union by refusing to recognize and deal with its designated steward as rep- resentative of the Union. 6. Respondent has violated Section 8(a)(1), (3), and (5) of the Act since 4 February 1985, by unilaterally subcon- tracting bargaining unit work and refusing to recall to work from layoff unit employees to perform that work in retaliation for its employees' support of the Union and in breach of its bargaining obligation under Section 8(d) of the Act, to meet and bargain in good faith with the Union. 7. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act, including, inter alia, the recall from layoff of unit employees for as- signment to work unlawfully subcontracted, the rein- statement of Joseph Clairmount, the restoration of Dennis Clairmount's seniority date, the rescission and re- moval from its records the unlawful reprimand to Danny Edwards and any record reference to Joseph Clair- mount's discharge. I further recommend that Respondent make whole all those employees who suffered any losses of wages and benefits as a result of the discriminatory unilateral sub- contracting of bargaining unit work described above from 4 February 1985, and also make whole Joseph Clairmount for any losses of wages and benefits he may have suffered as the result of the discrimination against them, computed in the manner set forth in F W. Wool- worth Co., 90 NLRB 289 (1950), plus interest as comput- ed in Florida Steel Corp., 231 NLRB 651 (1977). See gen- erally Isis Plumbing Co., 138 NLRB 716 (1962). I further recommend that Respondent be ordered to bargain collectively, on request, with the Union and its designated representatives as the exclusive employee rep- resentative for the bargaining unit concerning rates of pay, wages, hours, and other terms and conditions of em- ployment, including any decision to subcontract bargain- ing unit work and, if a understanding is reached, to reduce the agreement to writing and sign it. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ede 6 If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Continued 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Airport Distributors, Inc., Romulus, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating its employees about union support or activities. (b) Threatening its employees with stricter enforce- ment of work rules and discipline in retaliation for their union activities. (c) Creating the impression of surveillance of its em- ployees' union activities. (d) Promising a wage increase to discourage employee union support. (e) Threatening employees with bodily harm to dis- courage protected concerted or union activities. (f) Discharging, reprimanding, withdrawing seniority privileges, refusing to recall from layoff, or otherwise discriminating against its employees in retaliation for their activities in behalf or support of Teamsters Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. (g) Refusing, on request, to bargain in good faith with the above-named Union and its designated representa- tives, regarding rates of pay, wages, hours of employ- ment or any other term or conditions of employment, as the exclusive representative of the employees in the ap- propriate unit described below. (h) Unilaterally subcontracting bargaining unit work while refusing to recall from layoff unit employees to perform that work. (i) 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) On request, bargain in good faith with the Union and its designated representatives regarding rates of pay, wages, hours of employment, and other terms and condi- tions of employment for the employees in the appropri- ate unit, and, if an understanding is reached, reduce the agreement to writing and sign it. The appropriate unit is: All truckdrivers and warehousemen employed by Respondent at its facility located in Romulus, Michigan, but excluding office clerical employees, confidential employees, and guards and supervisors as defined in the Act. (b) Offer to those laid-off employees adversely affected by the subcontracting of unit work since 4 February 1985, and to Joseph Clairmount immediate recall and full reinstatement to their former positions or, if those posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, and make those employees whole by providing them with backpay and any benefits lost, for the period from the dates they would have been Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections thereto shall be deemed waived for all purposes recalled to work had it not been for the unlawful sub- contracting, and with respect to Joseph Clairmount, the date of his discharge in the manner set forth in the remedy section of this decision. (c) Restore to Dennis Clairmount his proper seniority date and seniority privileges. (d) Remove from its records and files any references to the reprimand issued to Danny Edwards about 19 February 1985 and to the discharge of Joseph Clair- mount and notify them that evidence of the unlawful conduct against them will not be used as a basis for future personnel action against them. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Romulus, Michigan facility copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY THE 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 or- dered 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 protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT interrogate our employees about their union support or activities. AIRPORT DISTRIBUTORS 1159 WE WILL NOT threaten our employees with stricter work rules and discipline in retaliation for their union ac- tivities. WE WILL NOT create the impression of surveillance of our employees' union activities. WE WILL NOT promise a wage increase to discourage employee union support. WE WILL NOT threaten employee with bodily harm to discourage protected concerted or union activities. WE WILL NOT discharge, reprimand, withdraw seniori- ty privileges, refuse to recall from layoff or otherwise discriminatee against our employees in retaliation for their activities on behalf or support of Teamsters Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America WE WILL NOT refuse, on request, to bargain in good faith with the above-named Union and its designated rep- resentatives regarding the rates of pay, wages, hours of employment, or any other terms or conditions of em- ployment, as the exclusive representative of the employ- ees in the appropriate unit described below. WE WILL NOT subcontract bargaining unit work while refusing to recall from layoff unit employees to perform that work. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request, bargain in good faith with the Union and its designated representatives regarding rates of pay, wages, hours of employment and other terms and conditions of employment for the employees in the ap- propriate unit and, if an understanding is reached, reduce the agreement to writing and sign it. The appropriate unit is: All truckdrivers and warehousemen employed by Respondent at its facility located in Romulus, Michigan, but excluding office clerical employees, confidential employees, and guards and supervisors as defined in the Act. WE WILL offer to those laid-off employees adversely affected by the subcontracting of unit work since 4 Feb- ruary 1985, and to Joseph Clairmount immediate recall and refull reinstatement to their former positions or, if those positions no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed , and make those employees whole by providing them with backpay and any benefits lost for the period from the dates they would have been recalled to work had it not been for the unlawful subcontracting and, with respect to Joseph Clairmount, the date of his discharge, plus interest. WE WILL restore to Dennis Clairmount his proper se- niority date and seniority privileges. WE WILL remove from our records and files any refer- ences to the reprimand issued to Danny Edwards about 14 February 1985 and to the discharge of Joseph Clair- mount and notify them that evidence of the unlawful conduct against them will not be used as a basis for future personnel action against them. AIRPORT DISTRIBUTORS, INC.