Consolidated Freightways Corp.

90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Consolidated Freightways Corporation of Delaware and Teamsters Local Union No. 579, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Cases 30-CA-8929 and 30-CA- 9218 3 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 10 November 1986 Administrative Law Judge Wallace H. Nations issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief and the Respondent filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions, to modify the remedy, 2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Consolidat- ed Freightways Corporation of Delaware, Janes- ville, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Order. In adopting the finding of the judge regarding the temporary nature of the position filled by Jensen we note specifically that the Respondent had three positions when Tollefson took maternity leave: terminal manag- er, dispatcher/foreman, and part-time billing clerk. Jensen replaced Tol- lefson as the part-time billing clerk That Jensen was hired as a temporary replacement for Tollefson evinced by the notations on the request submitted by the terminal manag- er for a replacement for Tollefson and the authorization to hire. Howev- er, when the terminal manager took a week off, the office was again shorthanded At the request of the Respondent, Tollefson returned early from maternity leave. When the terminal manager returned, he felt that an additional employee was needed and, contrary to his instructions, re- tained Jensen. When this action was brought to the attention of higher management, the terminal manager was reminded that Jensen was hired temporarily to replace Tollefson and that she would have to be released. Based on the foregoing we agree with the judge that Jensen's position with the Respondent was temporary. We also note that no exception was taken to the finding of a violation of Sec. 8(a)(3) of the Act in the discharge of Jensen 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S.0 § 6621 Paul Bosanac, Esq., for the General Counsel. John M. Loomis, Esq., of Milwaukee, Wisconsin, for the Respondent. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. On 10 September 1985 1 Teamsters Local Union No. 579, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (the Union) filed an unfair labor practice charge against Consolidated Freightways Corporation of Dela- ware (Respondent). On 24 October the Regional Direc- tor for Region 30 issued a complaint and notice of hear- ing alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. A hearing was held before me on 18 December 1985 and briefs were submit- ted by the parties. On 23 June 1986 the Regional Director for Region 30 issued a complaint and notice of hearing in Case 30-CA- 9218 involving the same parties as in Case 30-CA-8929. In addition to the allegations of the complaint in Case 30-CA-8929, the new complaint alleges additional viola- tions of Section 8(a)(1) and (3) of the Act by Respond- ent. Concurrently, with the issuance of the new com- plaint, the General Counsel filed a motion to reopen the record in Case 30-CA-8929 and consolidate it with Case 30-CA-9218. After issuing a Notice to Show Cause and considering the matter and the responses to the notice, I granted the motion of the General Counsel and reopened the record in Case 30-CA-8929 and consolidated that case with Case 30-CA-9218. Further hearing in these matters was held in Janesville, Wisconsin, on 4 Septem- ber 1986. At the request of the parties, additional briefs were submitted. FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation with an office and place of business in Milton, Wisconsin, has been and is engaged in operating a truck terminal providing truck- ing and warehousing services. Respondent admits the ju- risdictional allegations of the complaint, and I find that Respondent is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED All parties admit that the Union is now, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The alleged unfair labor practices in this proceeding are substantially related and will be discussed below. Ba- sically, the issues presented by the facts and pleadings in this case are: (1) Whether Respondent violated Section 8(a)(1) of the Act by stating, in the context of union activities, that Georgieann Jensen's job would have to be eliminated. All dates are in 1985 unless otherwise indicated 284 NLRB No. 13 CONSOLIDATED FREIGHTWAYS CORP. 91 (2) Whether Respondent violated Section 8(a)(1) and (3) by terminating Georgieann Jensen on 9 September. (3) Whether Respondent violated Section 8(a)(1) and (3) by hiring Jack Ziebarth rather than recalling to work Georgiann Jensen on 14 January 1986. (4) Whether Respondent violated Section 8(a)(1) and (3) of the Act by failing to recall Georgieann Jensen on or about 28 July 1986, when the employment of Jack Ziebarth ended through his resignation and his position was offered to Kristy Tollefson. (5) Whether Respondent violated Section 8(a)(1) of the Act by reducing th hours of work of Kristy Tollefson about 14 February 1986 and further, by issuing written warnings to Tollefson in June 1986. (6) Whether Respondent violated Section 8(a)(1) and (5) by withdrawing recognition from the Union on 30 August as the exclusive representative of its clerical em- ployees. (7) Whether Respondent has violated Section 8(a)(1) and (5) by its continued refusal to recognize the Union as the exclusive representative of its clerical employees. A. Background Respondent is one of the largest trucking companies in the United States, employing approximately 13,000 em- ployees, 70 percent of whom are drivers. It has divided its nationwide operation into several areas, one of which is the central area, within which there are several divi- sions, including the Wisconsin Division that employs ap- proximately 600 employees at 16 terminal locations throughout the State of Wisconsin. The area vice presi- dent is John Campbell and the area personnel manager is Jim Biller. Robert Donahue is the division manager for the Wisconsin Division and is responsible for the 16 company terminals in Wisconsin It is Respondent's policy that only Charlie Schmalz, Respondent's central area labor relations manager, can take binding actions with regard to recognition or other labor relations mat- ters. Respondent has operated a terminal in Janesville, Wis- consin, since 1981. Prior to 1981, the Janesville work was performed by Respondent's Madison, Wisconsin, and Rockford, Illinois terminal operations. Respondent maintains an eight-door terminal facility at Janesville, the home-base for eight drivers represented by the local union. Within Respondent's organizational structure, Janes- ville is classified as a "grade 5" terminal, as are the Wis- consin terminals located in Racine, Slinger, Sheboygan, Madison, and Green Bay. The Janesville terminal has an office staff, including managerial, supervisory, and cleri- cal employees. The Janesville terminal staff has undergone a number of changes, due in part to an austerity program imple- mented by Respondent during 1985 because of declining business in the first half of the year. In January 1984 the office was staffed by Joe Deschepper, terminal manager; Joe Sesek, account manager; and Kristy Fritzke, office clerical. A short time thereafter, billing functions previ- ously performed in Peru, Illinois, were transferred to Janesville. Kristy Tollefson was hired in March 1984 as a part-time billing clerk to post the bills on the terminal's computer. Fritzke was responsible for assisting in dispatch oper- ations, posting bills, manifesting, t-conning, and ensuring that shipments were delivered properly. In February 1985 Fritzke resigned and, shortly thereafter, Steve An- akler was hired as a salaried dispatcher/foreman, per- forming many of the work duties performed previously by Fritzke. Respondent, as part of its austerity program, instituted a number of personnel changes affecting the Janesville terminal in June. Specifically, in mid-June, Joe Sesek was offered the position of terminal manager in LaCrosse, Wisconsin, and Joe Deschepper was down classified from his position of terminal manager in Madison, was transferred from Janesville to Madison. At this same time, Tollefson took maternity leave. On assuming his duties in Janesville, Scharping re- quested that Pat Sugden, a part-time billing clerk in Madison, perform the billing work in Janesville and Sugden then transferred to Janesville. Scharping worked only 2 weeks in Janesville when he left Respondent's em- ployment. Sesek, who was designated to work in La- Crosse, had not left Janesville as the terminal manager and Sesek agreed. At the time Sesek assumed the termi- nal manager's position, the Janesville office was staffed by Deschepper and Sugden. At the end of July, Sugden resigned his employment at Janesville because of insuffi- cient pay to cover the additional cost of commuting from Madison. On Monday, 29 July, following Sugden's departure, Georgieann Jensen began work in the Janes- ville office. Jensen was primarily assigned billing duties, although she performed some other clerical tasks. Sesek was absent from work the week of 5 August to attend his father's funeral. During Sesek's absence, Des- chepper telephoned Tollefson to inform her of Sesek's father's death and during the conversation asked Tollef- son to return to work because the office was hectic. Tol- lefson returned to work the same day. Jensen continued to perform billing work and Tollefson processed claims at the telephone, and handled O.S.D. paperwork. During August, Tollefson reported to work at 1 p.m. and worked to approximately 7 p.m. and Jensen worked from approximately 5 to 10 p.m. On the afternoon of 29 August, Harley French, a Local 579 organizer and business agent, and Local 579 President Marvin Lewis went to see Sesek at the Janes- ville terminal. French handed Sesek a letter stating that Respondent recognized Local 579 as its exclusive bar- gaining representative for the Janesville office employ- ees. Sesek signed the letter and Lewis witnessed it with his signature. French then asked Sesek if he wanted to see the authorization cards. French then showed Sesek two authorization cards signed by Tollefson and Jensen. On examining the cards, Sesek asked French why he had not been shown the cards before he was presented with the letter. French replied that the letter was clear. Sesek then asked if he could photocopy the recognition letter and French handed it to Sesek who copied and returned it to French. The two union representatives then left. 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sesek immediately telephoned Donahue and reported that he had just signed a letter recognizing the Union as the bargaining agent for the office employees. On 4 Sep- tember Sesek sent Lewis a letter stating he lacked au- thority to recognize the Union. Five days later, Jensen was terminated. B. Jensen 's. Employment, Union Involvement, and Termination The background facts stated above are virtually undis- puted. Questions however, arise with respect to the nature of Sugden's employment and its duration, and the same with Jensen's employment and the permanency of the position filled by Jensen. As Jensen was hired as a replacement for Sugden, the nature of Sugden's employ- ment is significant. Sugden presented evidence that Scharping asked him to stay permanently. Sugden also testified that Sesek re- quested him to continue his employment indefinitely. On the other hand, Sesek testified that he did not have a talk with Sugden about his position when he took over the terminal manager's position, but also stated that he had never told Sugden he could only work until Tollefson returned from maternity leave. Respondent contends that Sugden was employed in Janesville only as a temporary replacement for Kristy Tollefson while she was on ma- ternity leave, Respondent's Exhibits 1 and 2, which are personnel forms relating to Sugden, reflect that Sugden was being transferred to Janesville as a "supplemental re- placement for Knsty Tollefson" and also that he was being "transferred from Madison to assist at Janesville during the absence of existing clerk K. Tollefson who is on maternity leave." As will be shown to be the case also with Jensen, the paperwork describing the duration of employment for the Sugden/Jensen position varies significantly from what was told to the two employees. As the General Counsel argues on brief, if, as Respondent maintains, Sugden was only a temporary replacement for Tollefson, why was he not offered his previous Madison billing clerk job at the end of July when he indicated that he was having financial difficulties commuting to Janesville? Sugden had only worked a little more than a month in Janesville and there should have been no difficulty in re- suming his previous Madison duties, unless his Madison job was filled. Sugden testified he saw a female billing clerk replacement in Madison. Respondent suggested that the woman performing billing work in Madison had been hired before Sugden began his Madison employ- ment and was a regular assigned employee. On the other hand as pointed out by the General Counsel, if the woman was not a replacement for Sugden, there should have been enough work for him to return to Madison, as there had been enough work between January and June when Sugden worked at the Madison terminal. The Gen- eral Counsel argues that the only reasonable conclusion to draw is that Sugden, after working a short time in Janesville, was considered to be permanently assigned there. For the reasons argued ' by the General Counsel, and based on the testimony of Sugden and Sesek, I agree with the General Counsel's contention and find that Sugden was intended to be a permanent part-time em- ployee by the terminal managers, Scharping and Sesek. This finding is further supported by the timing of Jen- sen's hiring and Tollefson's return and Sugden's last day of work. Sugden resigned on 26 July, Jensen was hired on 29 July; and Tollefson returned to work on 5 August. Tollefson was scheduled to return to work about 19 August. Even assuming that Tollefson could not have re- turned as early as she did and would have been out until 19 August, it would have been simply obvious for Re- spondent to have encouraged Sugden to stay on for the additional 2 to 3 weeks than to hire a totally new em- ployee who was unfamiliar in the position. Moreover, Sugden had requested to stay on but also with a raise that would have made the commute from Madison to Janesville financially feasible for him. Again, to pay Sugden a small amount more for 3 weeks would have made far more sense than to hire a new untrained em- ployee, if that employee were only to hold the part-time position until Tollefson's return. As noted, Sugden's last day of work was to be 26 July. Sesek initially contacted his superior, Donahue, by tele- phone and during the conversation was told he could only hire someone temporarily until Tollefson returned from maternity leave. During the conversation Donahue told Sesek to attempt to obtain assistance through tempo- rary employment agencies such as "Kelly Girl," Sesek informed Donahue that such temporary agencies were not available in Janesville and Donahue orally authorized Sesek to hire a temporary part-time person. Due to Re- spondent's austerity program, Sesek was required to pro- vide written justification for replacing Sugden. Respond- ent's Exhibits 3 and 4 constitute the paperwork justifica- tion for the hiring of Jensen. Respondent's Exhibit 3, dated 25 July, is a letter from Donahue to his superior and is entitled, "Request For New Hire—Replacement at Janesville." After acknowledging the attached justifica- tion submitted by Sesek for the new hire, the request states: "I concur with Mr. Sesek's need for a part-time clerk and would appreciate review and approval of the attached request." The handwriting on this request, relied on in part by Respondent on brief, was excluded by me as hearsay. Respondent's Exhibit 4 is a memorandum from Jim Biller, to Bob Donahue dated 1 August, relating to the same subject, Respondent's Exhibit 4 states in substantive part: "Your request replaces supplemental clerical posi- tion at Janesville caused by the resignation of Pat Sugden has been reviewed and approved. However, the replacement is effective until the billing clerk returns from maternity leave." Neither Sesek's request, nor Donahue's 25 July letter makes reference to the replacement position being limit- ed in duration to Tollefson's maternity leave. The Gener- al Counsel notes that the difference in titles given to the position sought and that held by Tollefson also indicates that Sesek, at least, was seeking a permanent part-time person in addition to Tollefson. I agree with the General Counsel's contention and find further support for this po- sition in what was told to Jensen at the time of her hiring. CONSOLIDATED FREIGHTWAYS CORP. 93 , Sesek interviewed Jensen on 27 July, the Saturday after Sugden quit. Sesek testified he told Jensen at that time her position would last only until Tollefson re- turned from maternity leave. Jensen denied she was told her job was temporary. According to Jensen, Sesek said both women' would work at night once Tollefson re- turned from maternity leave. In July, Tollefson was also told by Sesek there would be two part-timers, one to be strictly billing. Tollefson's July conversation with Sesek was not denied or contradicted. Based on the demeanor of the witnesses and on all the other evidence of record, I credit Jensen's version of her interview with Sesek and do not credit Sesek's version. I also credit Tollefson's version. In further support of this position, the General Counsel argues that Jensen would not have accepted a part-time job of approximately 3 weeks' duration as her full-time job was in jeopardy because of a rumored move of that employer to the South. She testified that she was seeking a job that held out the possibility of continued future employment. Respondent notes that the 1 August written authoriza- tion for the hiring of Jensen (R. Exh. 4) was transmitted to Respondent's Milwaukee terminal and received there on 5 August. A copy of the authorization was then trans- ferred to the Janesville office, received sometime be- tween 5 and 10 August. However, on 5 August, Sesek learned of his father's death in Minnesota and left imme- diately to make arrangements for the funeral. He was away from the Janesville terminal for a week. The writ- ten authorization was received at the Janesville while Sesek was away and Joe Deschepper filed it away with- out Sesek seeing it. As noted above, Tollefson was requested to return to work early by Deschepper and did so on 5 August. Tol- lefson and Jensen then worked side by side. If, as stated by Sesek, Jensen was only to work until Tollefson's return from maternity leave, Jensen should have been let go either on 5 August or, at the latest, on Sesek's return from his father's funeral the following week. Although Deschepper may have filed away com- pany correspondence indicating Jensen's position was au- thorized only until Tollefson's return, Sesek testified he had hired Jensen on that basis and would have known of the need to release her on Tollefson's return. I find from the evidence set out above that Sesek led Jensen to believe that she was being hired as a perma- nent part-time employee and intended to retain Jensen in this capacity for as long as he could. I also find that Sesek's superiors had authorized only a temporary part- time employee to replace Tollefson during her maternity leave because of Respondent's ongoing austerity pro- gram. Apparently both Sesek and his predecessor as ter- minal managers saw a need for two part-time clerical employees and presumably hoped that upper manage- ment would change its position on the number of such positions that the Janesville terminal would be author- ized or hoped that they could keep the position filled by Sugden and then Jensen for a substantial period of time, beyond Tollefson's return. As Jensen was still employed after Tollefson's return without anything being said about her termination date and without upper manage- ment discovering her continued employment (until the union recognition) I find that Sesek could have contin- ued her employment for an indefinite period of time. Sesek testified, on cross-examination, that Jensen's job was not eliminated because there was no work for her to do but because of the documentation not authorizing her position, beyond Tollefson's return. Donahue, who was aware of the documentation limit- ing Jensen's employment, admittedly told Deschepper, "Keep them both employed that week," while Sesek was away at the funeral. Donahue's admission demonstrates that the documentation was not an absolute restriction on Jensen's tenure, or else Donahue would have no au- thority to countermand its clear terms without seeking higher authority. Second, if Donahue had instructed Deschepper to keep both women for only a week, it would have been Deschepper's responsibility to ensure her termination. Deschepper did not terminate Jensen, did not pass the word to Sesek, and did not testify. One would assume that Donahue, aware that both women were employed contrary to the terms of the documenta- tion, would have made a followup check, but either did not or if he did not act upon finding that both women were still employed. In the latter part of August, Jensen and Tollefson signed authorization cards on behalf of the Union. As noted earlier, union officials took the cards and a letter stating that Respondent recognized the Union as the bar- gaining agent for the clerical employees to Sesek on 29 August. After signing the recognition letter and seeing the authorization cards, Sesek called his superior, Dona- hue, to notify him of his actions. Donahue did not direct Sesek to immediately termi- nate Jensen in their 29 August conversation. Donahue testified that he authorized Sesek to keep Jensen 1 more week, demonstrating the flexibility Donahue had in re- taining Jensen for a period time beyond Tollefson's return. I find that the General Counsel has established that Respondent terminated Jensen at the time it did because of her union activity. The timing of her discharge coming as it did immediately after Sesek notified Dona- hue of the authorization cards and his extending recogni- tion to the Union is conclusive. _ Two other factors support the General Counsel's posi- tion. The first is Sesek's statement to Tollefson to the effect that Jensen would lose her job because she had signed a union authorization card, discussed later in this decision, and the second is Respondent's withdrawal of recognition from the Union even though it recognized one person unionized clerical units at other terminals. I find that the General Counsel has established a prima facie case that the timing of the discharge of Jensen was motivated by her union activity and Respondent's reluc- tance to recognize the Union as the bargaining represent- ative of a clerical unit at the Janesville terminal. Respondent has offered no convincing evidence of why it would have terminated Jensen at the time it did absent the signing of the authorization card by Jensen. It has, however, documented that Jensen's position would have been terminated at some future date because the po- sition was not permanent part-time but temporary part- 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD time. Therefore, though I conclude that by terminating Jensen on 9 September because of her signing a union authorization card, Respondent violated Section 8(a)(1) and (3) of the Act, I will order that Jensen be paid back- pay for any money she may have lost because of her protective activity, but will not order reinstatement. The General Counsel argues that events occurring sub- sequent to Jensen's termination demonstrate that a second clerical position was subsequently authorized at the Janesville terminal and filled, without the position being offered to Jensen. It is also argued that if the posi- tion that was authorized was not a clerical position that by the promotion of Kristy Tollefson to the new position in July 1986, the billing clerk position was obviously left vacant and should have been offered to Jensen at that time. These assertions are discussed below. On 15 September, 1 week after Jensen's termination, Sesek submitted a request for a additional full-time sala- ried employee at Janesville to his superiors. (G.C. Exh. 11.) The request and Sesek's testimony surrounding the request establish that Sesek was seeking another salaried employee having approximately the same duties as his dispatcher/dock foreman, Deschepper. Among other things, the request notes that because Respondent had eliminated the account manager position at Janesville (previously filled by Steve Anacker), Sesek had to expand the billing clerks hours from 5 to 9 p.m. to 3 to 10 p.m. and expanded the duties of the position to in- clude clerical functions other than billing. Sesek testified that although the Respondent had em- barked on an austerity program in the first part of 1985, after he had taken over as terminal manager at Janes- ville, the tonage handled by the terminal began to grow substantially. Sesek is evidently a successful salesman who continuously expanded the business of the terminal during the kite summer/fall and early winter following his placement in the terminal manager's position. Sesek credibly testified that because of the increase in the workload and his need to perform all of his duties, in- chiding the sales duties, he needed additional supervisory help. His view of the office staff at Janesville, as outlined in his testimony and General Counsel's Exhibit 11, would be one terminal manager (himself); two salaried supervi- sors (Dischepper and a new employee); and one billing clerk (Tollefson). The terminal's operating hours had ex- panded from approximately 7 a.m. to 6 p.m. to 5 a.m. to approximately 10 p.m. Sesek anticipated that if the new supervisory position was authorized, Deschepper would report for work at approximately 4:30 a.m. and work until 2 or 3 p.m. The new supervisor would come in at approximately 10 or 11 a.m. and work until 10 p.m. The terminal's manager would then be able to work from ap- proximately 7 a.m to 6 p.m. Approval for the position requested in the 15 Septem- ber documentation was not immediately forthcoming from Sesek's and Donahue's superiors. Nothing was done with the request until January 1986. At that time, two events occurred almost simultaneously, which required that some action be taken. One was the closing of nation- wide operations of McLean Truck Lines, a major com- petitor of Consolidated Freightways. When McLean ceased its operations due to bankruptcy, two very large customers of that company in the Janesville area turned immediately to Respondent to handle their trucking needs. Respondent experienced an immediate substantial increase in its tonage at the Janesville terminal. Second, the Janesville dispatcher/dock foreman, Deschepper became very ill and required hospitalization. Because of the hospitalization of Deschepper, Sesek was authorized to employ, at least on a temporary basis, a person to fill his position. Jack Ziebarth was employed in January 1986 as a part- time billing clerk at the Madison, Wisconsin terminal of Respondent. When he was hired at Madison, Ziebarth expressed interest in any management opportunities that might become available with the Company. In October 1985, Ziebarth had been interviewed by Sesek's supervi- sor, Donahue, as a potential management trainee. When a need for the replacement for Deschepper came up, Donahue either recommended or told Sesek to interview Ziebarth, who Donahue had interviewed earlier. Sesek interviewed Ziebarth on the January 1986 and Ziebarth reported to work on the following Monday. The General Counsel contends that regardless of the title given to the position filled by Ziebarth, Ziebarth's actual position was substantially similar in duties to that performed by Tollefson and during her employment, Georgieann Jensen. Consequently, the General Counsel asserts that the position should have been offered to Jensen. Respondent contends, and I agree, that the posi- tion offered to Ziebarth and filled by him was that of a supervisor, not a clerical. As described by Ziebarth, his duties were like these of the afternoon supervisor. He was to supervise drivers, dispatch trucks, make decisions about the flow of freight that would go to other terminals, supervise the loading of the trailers, answer phones, make decisions about the priority of pickups, customer service, and complete the general paperwork that went along with the other duties. He testified that he was told to report to Sesek and work along with Deschepper as a full-time supervisor for all the other employees, including drivers and other office personnel. His base hours were initially from 10 am to 8 p.m. and were increased at a later date from 10 a.m. until the terminal closed. Initially, while Deschepper was in the hospital, Sesek covered the portion of the day when Ziebarth was not at the terminal. When Deschepper returned, and after a short illness on the part of Ziebarth, Deschepper worked from 5 a.m. to 4 p.m. with Ziebarth working from 10 a.m. until the terminal closed. It was Ziebarth's under- standing that he had authority to fire employees, under circumstances similar to those in which the terminal manager, Sesek, had authority to fire personnel. He was authorized to schedule hours of work and shift work schedules according to the needs of the shippers. He had authority to authorize, and did authorize, overtime. He had authority to discipline employees, although the only discipline he actually meted out was a verbal warning. Ziebarth was given written performances and production goals on which either his continuing employment or company bonuses would be contingent. Ziebarth was a salaried employee and estimated, without contradiction, CONSOLIDATED FREIGHTWAYS CORP. 95 that approximately 75 to 80 percent of his time on the job was spent in supervisory or decision-making func- tions and 20 to 25 percent performing clerical functions. As noted earlier, Ziebarth resigned in July 1986 and the position was shortly thereafter filled by Kristy Tol- lefson. Her testimony corroborates the testimony of Zie- barth about the supervisory nature of the job. She now performs the same duties as did Ziebarth, considers her- self as supervisor, and, as described, I find that her job is that of a supervisor and not of a clerical. She no longer performs any of the clerical functions she previously per- formed. Because I find the position created and filled in January 1986 at the Janesville terminal to be a superviso- ry position, I do not find that Respondent has violated the Act by not offering that position to Georgieann Jensen. However, there remains a question of whether the po- sition of billing clerk, which became open in July 1986 when Kristy Tollefson was promoted to the supervisory position, should have been offered as a matter of law to Jensen. When that position became open, Sesek inter- viewed several people ultimately hiring one of the per- sons interviewed. Although Sesek contends that the person hired has a skill level beyond that possessed by Jensen. I do not consider this to be significant. He did not offer the position to Jensen nor did he even inter- view her for the position. Was he legally obligated to make her an offer of employment for the billing clerk position from which she had been terminated in Septem- ber 1985? I conclude that Respondent was not legally required to offer the position vacated by ToIlefson to Jensen. I have heretofore found that the position from which Jensen was unlawfully terminated was a temporary posi- tion. Because of the temporary nature of that position, I did not require Respondent to recreate the position and reinstate Jensen. Respondent has not recreated the posi- tion Jensen filled in 1985 and still was only one perma- nent part-time clerical position at the Janesville terminal. Contrary to the allegations of the complaint in Case 30- CA-9218, Respondent's subesquent actions with respect to the office staffing at Janesville are consistent with the position taken at the first hearing. Jensen's position would have ended without regard to all protected activi- ty and only the timing of her termination was affected by the activity. C. Sesek's Statement and Union Activity The complaint alleges that Respondent, acting through Sesek, violated Section 8(a)(1) of the Act by telling em- ployee Tollefson that the position held by Jensen would have to be eliminated. Tollefson testified that on 30 August, Sesek asked why she wanted to go in the Union and also stated that Jensen's job would be eliminated be- cause she signed an authorization card but admitted he told Tollefson, "Now that Bob Donahue knows that there are two part-time clerical people here, he said as soon as he checks it out, I imagine I am going to have to eliminate one of them." I do not find that Sesek's statement to Tollefson was a threat nor a violation of Section 8(a)(1) of the Act. I agree with Respondent that it was a statement of a su- pervisor who had exceeded his authority, as discussed in detail above, and was aware of the fact being discovered by his superiors. The statement that the position would be eliminated was logical because Sesek knew of docu- mentation mandating the position being eliminated. D. Recognition and Unit Issues The complaint alleges that Respondent violated Sec- tion 8(a)(1) and (5) of the Act by withdrawing recogni- tion from the Union on 30 August as the exclusive repre- sentative of the clerical employees at the Janesville ter- minal and by its continued refusal to recognize the Union as the representative of the unit. As noted earlier in the Background section of this decision, on 29 August Termi- nal Manager Sesek was presented with signed authoriza- tion cards for Jensen and Tollefson and signed a recogni- tion agreement with the Union. Under the collective-bar- gaining agreement to which Respondent is a signatory, when a majority of the employees in an appropriate unit sign authorization cards they are automatically covered by the agreement. Respondent introduced evidence that authority to rec- ognize the unit did not reside with the terminal manager but existed at the level of the central area labor manage- ment function. On the other hand, I find that Sesek was an agent of Respondent and if an appropriate unit exist- ed, under the collective-bargaining agreement, Sesek could have bound Respondent by signing the recognition form. As a justification for Sesek's signing of the letter rec- ognizing the Union, Respondent introduced evidence that on the day before the union representatives called on Sesek, he received on his computer a notification that the Wisconsin Motor Carrier Bureau would be mailing a census to be filled out by the terminal manager. Re- spondent argues that Sesek believed that he was answer- ing this census when he signed the authorization letter. I find this justification to be totally incredible. Sesek both saw the authorization cards and read the letter, and they clearly had nothing to do with a census by a motor car- rier bureau. Based on Sesek's demeanor when he testified and the other facts surrounding the census I do not find credible Sesek's testimony that he thought he was sign- ing a census. I find, on the other hand, that Sesek knew that he was signing a union recognition letter when he signed it though he may not have known the conse- quences of his actions. However, I do not find that an appropriate unit existed for which the Board could require bargaining. I have, heretofore, found that Jensen, though terminated because she signed an authorization card and thus her presence became known to upper management, was in fact meant to be and at all times was a temporary part-time employ- ee. Temporary employees are excluded from collective- bargaining units and when Jensen is excluded, the unit consists of only one regular employee. This case is simi- lar td one cited by Respondent, Stern Made Dress Co., 218 NLRB 372 (1975), in which an employer who had only one union employee agreed to sign a collective-bar- gaining agreement with the ILGWU. Later, the employ- ee refused to sign the agreement and the Board held that 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD because the unit consistsed of only one employee the ob- ligations of Section 8(a)(5) had been violated must be dis- missed. I find that because the unit consisted of only one regular employee, Respondent was free to withdraw rec- ognition and refuse to bargain with the Union over the terms and conditions of employment of the one person within that unit without violating the Act. The General Counsel argues that Respondent created the one-person unit by unlawfully terminating the em- ployment of Jensen. I do not agree. The timing of the termination of Jensen was unlawful because it was moti- vated by her union activity. The status of Jensen had always been that of a temporary employee and she was not an appropriate member of the unit at any time. I be- lieve the proper remedy for Respondent's unlawful ter- mination of Jensen is as recommended, that is appropri- ate backpay. I do not believe it proper to unilaterally change the status of the position that she held with the Company and thus create a two-person bargaining unit that never really existed. E. Reduction in Tollefson's Hours of Work and Tune 1986 Warnings As noted earlier, Tollefson signed a union authoriza- tion card along with Georgieann Jensen in August 1985. She testified at the initial hearing held in this matter in December 1985. In February 1986, Tollefson's hours were approximately 3 until 10 p.m. When she began work in February 1985, her hours as a billing clerk were 5 to 10 p.m. Prior to the hiring of Jack Ziebarth, Tollef- son had been asked to do more clerical work and differ- ent clerical functions than the billing clerk job entailed. Respondent contends this was because of lack of ade- quate staffing. It is Respondent's position that once Zie- barth and Deschepper were both working at their duties at the terminal, Sesek was able to return Tollefson to her billing duties that would require her only to work from 5 to 10 p.m. Tollefson testified that Sesek told her about 14 Febru- ary that he was cutting back her hours because there was not enough work for her to do to justify coming in at 3 or 3:30 p.m. Tollefson understood that there was not a decrease in work but there was another person working there, Jack Ziebarth, who would be performing some of the nonbilling clerical functions. Respondent's position that Tollefson's hours were reduced because of the change in the office staffmg rings true. When Tollefson was promoted to supervisor, the person hired to replace her as part-time billing clerk was given the same hours, that is, 5 in the evening until 10 at night. Therefore, I find that Tollefson's hours were changed by Respondent in response to a change in the office staffing and not be- cause of her activity on behalf of the Union and her tes- timony given before the Board in December. In June 1986, after the filing of a charge with the Board that her hours had been reduced, Tollefson was given three written warnings about her work perform- ance. The three warnings all involved errors made by Tollefson in billing. The first such warning resulted from an error made by Tollefson that cost one of the Re- spondent's customers approximately $1 million and almost resulted in Respondent losing one of its best cus- tomers in the Janesville area. The other two warnings also reprimanded Tollefson for documented killing errors. The last of the warnings stated that if she. „made further mistakes she may be terminated. Tollefson, testi- fied that she had not received a written warning before June, though she retracted that being , shown a written warning in her file issued by Joe Deschepper at an earli- er date. Sesek testified that the warnings were issued, be- cause of the serious consequences of the one event- that caused the first letter and the continuing "rash" of fur- ther billing errors committed within a short period of time by Tollefson. Immediately prior to the period in which Tollefson was reprimanded, she had been cited for a merit increase by Sesek and in fact received a merit increase in the latter part of June. Also, as noted above in early July, she was promoted from the billing clerk' position to the supervisory position of assistant dispatcher/dock fore- man. The General Counsel contends that the warning were prompted by Tollefson's complaints to the Board about her change in hours. Respondent denies that it had any- thing to do with it. Tollefson, herself, seems to have lost interest in the matter because of her promotion to the su- pervisory position, wherein she makes substantially more money than she made as a billing clerk. Although I would agree with the General Counsel's position that the timing of the warnings, coming as they did immediately after the filing of a new charge, would lead one to be- lieve that the warnings were in response to the filing, Respondent's position that the errors made were seriqus enough to justify the warnings also has merit. I ,wonld agree with Respondent that it cannot simply ignore a billing error that nearly caused it to lose a substantial customer and one which does cost the customer a .very substantial sum of money. It is not disputed that further billing errors occurred by Tollefson that resulted in the subsequent warnings. As the errors did in fact occur,and coming as they did immediately after the earlier very se- rious error, I find that there was resonable business justi- fication for issuing the warnings and there is insufficient evidence to find that they were motivated by Tollefson's actions with respect to the Board. Accordingly, I will recommend that the portions of the complaint -alleging a violation of the Act by the issuance of the warnings, as well as the reduction in hours worked by Tollefson, be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters Local Union No. 579, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By terminating temporary employee Georgieann Jensen on 9 September 1985 because she signed a union authorization card, Respondent has violated Section 8(a)(1) and (3) of the Act. CONSOLIDATED FREIGHTWAYS CORP. 97 4. The unfair labor practice found to have been com- mitted is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not committed any other unfair labor practices as alleged in the consolidated complaint in this proceeding. REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. As I have found that Respondent has violated the Act by terminating the employment of temporary employee Georgieann Jensen on 9 September 1985, I will recom- mend that she be made whole for any losses that she may have suffered by virtue of Respondent's unlawful act. The amount of money owed her shall be determined by the Board and the parties as there are not sufficient facts in this record to determine exactly on what date the temporary employment of Georgieann Jensen would have ceased absent her signing a union authorization card. The amount of backpay determined to be owed to Jensen shall be paid with interest to be computed in ac- cordance with the formula set forth in F. W Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner described in Florida Steel Corp., 231 NLRB 651 (1977), see generally Isis Plumbing Co., 138 NLRB 716 (1962). Reinstatement is not found to be appropriate because the position held by employee Jensen was temporary in nature and would have ceased even in the absence of Re- spondent's unlawful activity. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Consolidated Freightways Corpora- tion of Delaware, Janesville, Wisconsin, its officers, agents, successors, and assigns, shall I. Cease and desist from (a) Terminating employees who sign union authoriza- tion cards or otherwise engage in lawful union activity. 2 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (b) 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) Reimburse Georgiann Jensen for any loss she may have suffered by virtue of Respondent's unlawful activity in a manner described in the remedy section of this deci- sion. (b) Post at its Janesville Wisconsin place of business copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 3 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 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. WE WILL NOT discharge employees because they sign union authorization cards or otherwise engage in lawful union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL reimburse employee Georgieann Jensen for any loss she may have suffered by virtue of our unlawful termination of her employment CONSOLIDATED FREIGHTWAYS