Apa Transport Corp.

928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APA Transport Corporation and Robert I. Balfour. Case 1-CA-23980 21 September 1987 DECISION AND ORDER BY CHAIRMAN DO'TSON AND MEMBERS JOHANSEN AND CRACRAFT On 22 April 1987 Administrative Law Judge Mi- chael O. Miller issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions and a brief supporting its exceptions and answering the Respondent's 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,1 and conclusions2 and to adopt -the _ recommended Orders as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, APA Transport Corporation, Lewiston, Maine, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. Insert the following as paragraph 2(c) and relet- ter the subsequent paragraphs. "(c) Preserve and, on, request, make available to the Board or its agents for examination and copy- 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 2 We find it unnecessary to pass on the judge's conclusion that APA Regional Manager Robert Reichenburg's statements to Charging Party Robert Balfour on 3 March 1986 ("if you ever pull that on me again, you and me will not be walking on the same turf" and that, had Balfour ever "done that" to Arthur, a former manager, Arthur would have thrown Balfour out of the building or off the dock) violated Sec. 8(a)(1), as any violation found regarding this incident is cumulative as to the remedy and does not affect the Order 3 The General Counsel excepts to the judge's denial of a visitatorial clause We affirm the denial In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) What effect, if any, Balfour's "bid" of a new starting time on 3 March 1986 has on the amount of lost overtime earnings to which he is entitled under the Order's backpay provision is left to compliance ing, all- payroll records, social security payment records, timecards, personnel records- and reports, and" all other records necessary to analyze the amount of backpay due under the terms of this Order." John T. Towns, Esq., for the General Counsel. Herbert New, Esq., of Clifton, New, Jersey, for the Re- spondent. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. This case was heard on 13 January 1987 in Boston, Massachu- setts, based on an unfair labor practice charge filed by Robert I. Balfour, an individual, on 23 June 1986, as amended, and a complaint issued by the Action Regional Director of Region 1 of the National Labor Relations Board (the Board), on 11 August 1986. The complaint al- leges that APA Transport Corporation (Respondent), violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act), by discriminating against Bal- four in the assignment of work and work requirements because of his union and other protected concerted ac- tivities and by otherwise interfering with, restraining, and coercing,employees in the exercise of statutorily pro- tected activities. Respondent's timely filed answer denies the commission of any unfair labor practices. All parties -were afforded full opportunity to appear, to examine and, to cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were 'filed on behalf of the General Counsel and Re- spondent. Based on- the entire record, including my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW Respondent is a corporation engaged in the interstate transportation of freight with terminals in various cities, including Lewiston, Maine. Jurisdiction is not in issue. The complaint alleges facts sufficient to establish, Re- spondent admits, and I find and conclude that Respond- ent is, and has always been, and employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent's employees are represented for the pur- pose of collective bargaining by Teamsters Union Local 340, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union). The complaint alleges, Respondent admits, and I find and conclude that the, Union is now, and has been, at all times material, a labor organization within the meaning of Section 2(5) of the Act. 285 NLRB No. 124 APA TRANSPORT CORP. 929 II. THE UNFAIR LABOR PRACTICES A. The Facts 1. Protected activity Robert Balfour has been employed as a truckdriver at Respondent's Lewiston, Maine terminal since August 1983. He is a member of the Union but holds no position in it. The Lewiston terminal is one of eight that came under the supervision of APA's regional manager, Robert Reichenburg, in September 1985. In January 1986,1 Reichenburg held two meetings with the drivers at the Lewiston terminal. Balfour spoke up at both, raising concerns that the employees had earli- er discussed with their union steward, Fernand Richard. In the first meeting, held in early to mid-January, Rei- chenburg spoke about the state of the Company and called for questions. Balfour asked if he -could raise some labor-related matters. With Reichenburg's permission, he questioned the practice of calling employees in before their regular starting time and the propriety of working the employees more than 60 hours, per week. Reichen- burg replied that the Company could call employees in early as long as it did not do so habitually and paid them overtime and could work employees in excess of 60 hours as long as they spent some of that time working on the dock rather than driving. Similarly, Reichenburg re- sponded to a question from Balfour that questioned su- pervisors performing unit work by stating that this was okay in a pinch, but not as a routine matter .2 _ In a second meeting, held about 20 or 21 January, Rei- chenburg commented on the drivers missing freight pick- ups. Balfour again spoke up, stating that they ' were car- rying heavy loads with apparently no consideration being given to their ability to make pickups before the customers closed. Both Balfour and another employee, Charles Montgomery, questioned the workloads and asked whether something was going to be done about the long hours they were regularly working. Reichen- burg replied, according to Balfour's credibly offered tes- timony, "[A]s business picked up that the overtime would probably increase, and due to the nature of the business, that the overtime was a necessary aspect of the business, and' that it would probably increase." Reichen- burg went on to say,"[I]f any of us continued to com- plain about the amount of overtime that we was [sic] forced to work that he would turn us around on our peddle [run] under the eight hours even if it cost the company money to do so and return us to the terminal, and ...' he'd be standing there to give us our paycheck with a smile on his- face ... .x'3 i All dates are in 1986 unless otherwise specified 2 The collective-bargaining agreement, art 16, sec 2, prohibits the as- signment of drivers to dangerous conditions of work or to assignments in violation of law. Art 3, sec 4, prohibits assignment of unit work to per- sons outside the unit Art 43, sec 1, provides for the employees' selec- tion of starting times. 3 Balfour's testimony was corroborated by Fernand Richard and not contradicted by Paul Grobski, the terminal manager, who was present at this meeting I credit the testimony of Balfour and Richard over Reichen- burg's denial 2. Discrimination From August 1985 until January 1986, Balfour had worked full time on the Bangor "peddle" run, driving from the Lewiston terminal to Bangor, about 100 miles, to make deliveries and pickups in and around Bangor. The "stem time," i.e., the time from the terminal to the first stop, on the Bangor run averaged about 1 hour and 45 minutes. This run involved considerable amounts of overtime even though overtime was not paid until the employee had worked 9 hours in a day. On 25 January, Reichenhurg reassigned Balfour to the Lewiston run, making pickups and deliveries in Lewiston and nearby areas. The stem time on this latter run varied from 5 to 20 minutes and, although overtime was paid on this run for time worked beyond 8 hours per day, the workdays were shorter and less overtime was required. On the Bangor run, Balfour worked a weekly average of 13.25 overtime hours. Driving the Lewiston run, his average weekly overtime was only 2.65 hours. At the same time that his run was changed, Balfour was instructed, at Reichenburg's direction, to call in from every stop. This had not been required of him prior to the changed assignment and was not required of other drivers.,The usual practice was to require drivers to call in as directed by the terminal manager before they left on their runs or from their first stop and thereafter as di- rected. Instructions contained on the manifests stated that the drivers were to call in to report mechanical problems, refused deliveries, and "when in doubt" and to notify the dispatcher of any delay exceeding 5 minutes. Drivers usually' called in several times each day. Paul Grobski, the terminal ' manager, further ordered Balfour to account for every minute of his time on his manifest Balfour's manifests for February contain detailed hand- written explanations of his time and notations of each call to the terminal; he called in, according to those manifests, from '3 to 11 times each day. The manifests for the other drivers for the same period of time do not in- clude similar detail and show few notations regarding calling in. It 'would appear that only the manifests of Richard, the union steward, regularly note calling in; he called in between two and six times each day. The re- quirements that Balfour call in at each stop and account for all his time' were revoked about the first of March. 3. Other interference On 2 February and again on 14 February, Balfour filed grievances alleging that Respondent had breached the collective-bargaining agreement by assigning more over- time to a man junior to him who was assigned the same starting time.4 On 3 March, as he came in from a run, Balfour was told by Grobski that Reichenburg wanted to see him. Balfour declined Grobski's offer of union repre- sentation. Balfour went into the office and was told, with respect to his grievance filing,5 "If you ever pull that on 4 Under the agreement, the employees bid for particular starting times and can be assigned whatever runs are scheduled for their starting time. The more senior man in each time slot is entitled to the most overtime 5 Balfour's testimony was given in response to the General Counsel's question "Did you have occasion to have any conversation with Mr Reichenburg concerning [these grievances]" 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD me again, you and me will not be walking on the same turf." Reichenburg further stated that if Balfour had ever done that to a former manager he would have been thrown off the dock or out of the building. Reichenburg did not contradict Balfour's testimony. On 18 April, Balfour asked Grobski for Thursday and Friday off for personal business under the contract's floating' holiday provision. Later that same day, Balfour was told that he could not have the requested leave be- cause he had failed to give a week's notice of his request. Not being aware of this rule, he called the union business agent, who confirmed it. In the course of their conversa- tion, Balfour told the business agent of the Company's failure to post the vacation schedule as required. On the following day, Grobski told Balfour that he could give Balfour Thursday off but not Friday because he could not find someone to fill in for him. Stating that his business required 2 consecutive days, Balfour asked for Thursday and Friday of the following week,' thereby giving sufficient advance notice. Grobski replied, accord- ing to Balfour, "that he would work with me on that in spite of the fact that I had gone to the Union about the vacation not being posted."s Respondent's manifests contains the following as rule 18: "Notify dispatcher immediately-of any delay which exceeds five (5) minutes." On 7 May Balfour was given a warning for failing to call in a delay time that exceeded 5 minutes. The warning stated that Balfour had been cautioned on 5 May about a similar failure and had been expressly instructed to comply with the rule. Balfour did not contend that he had not been cautioned or that he had not violated the -printed rule. Rather, he stated that he had never been given such a warning before. Re- spondent introduced two warnings it had issued to other employees; both were for alleged misuse of time. Re- spondent introduced no examples of other employees re- ceiving warnings for failure to call in delays. Union Steward Richard testified, without contradiction, that he only called in delays of 10 minutes or more. Manifests of other employees show no consistent pattern of calls to report delays. Some delays 'were reported, either immedi- ately or later in the day. Some delays, of 5 minutes or more, went unreported. On 3 June, management held a breakfast with the Lewiston employees, attended by both the president, Armond Pohan, and the vice president of operations, Andrew Park. Following the breakfast, Park asked Bal- four -what his problem was and stated that Balfour had slipped through their employee screening process. Ac- cording to Park, they discussed the overtime situation, with Balfour commenting that his new hours were 'the best thing that had happened to him even though he rec- ognized that it was costing the Company money to have 6 Grobski acknowledged that he had been told, by another employee, that Balfour had brought the Company's failure to post the vacation schedule to the Union's attention However, he denied telling Balfour that he would work with him on his leave problem in spite of his having gone to the Union I credit Balfour, noting in addition to demeanor, the detail contained in his narrative Moreover, the statement attributed to Grobski is consistent with management's attitude toward grievance-relat- ed activities as demonstrated by other incidents, undenied and/or admit- ted or proven. him work just straight time while others worked over- time. Park then told Balfour, who still had his two griev- ances pending, that he had heard from another employee of Balfour bragging that he could outlast Park. Balfour denied saying that. At some point in the conversation, Park opined that Balfour was not very happy working for APA and asked if he had thought about pursuing something else. Balfour replied that he had but that the time was not right. Pohan came into the discussion and repeated some of what Park had said. He said they should get the "thing" straightened out and suggested that Balfour sit down with Reichenburg. Pursuant to Park's suggestion, Balfour spoke with Reichenburg. According to Balfour, Reichen- burg "was interested in getting me to drop the griev- ance." Reichenburg denied asking Balfour to drop his grievances, but acknowledged saying that the cost of grievances did not come out of his pocket. A, few days later, about 6 June, Grobski spoke with Balfour as Balfour came off his run. He asked whether Balfour had ever thought of quitting. Balfour replied that Park had asked him that at the breakfast. Grobski then asked whether they had discussed the grievance. Balfour questioned why Grobski was so concerned about it, stat- ing that Reichenburg did not care whether the grievance was paid or not because it did not come out of his (Rei- chenburg's) pocket. Grobski asked Balfour whether he really believed that and told him that the money for grievances came out of the expenses of the terminal. "That's why I wanted you to drop the G- damn griev- ance," Grobski stated 7 On 6 or 7 June, Balfour was given a written warning for failing to turn in his papers and money. He had never been warned for this before, although he had forgotten to do so on earlier occasions. Similarly, Richard testified that he had, on occasion, failed to turn his money and papers in without having been given any written warn- ings. In October, Balfour prevailed and was paid backpay pursuant to his grievances. 4. Respondent's explanations According to Reichenburg, Balfour's assignment was changed on 25 January because he was inefficient and because he had problems dealing with two female office employees, not'as retaliation for his outspoken objections to certain company practices. Thus, Reichenburg testi- fied that he began to review the daily operations charts and the employees' efficiency when he became regional manager in September 1985. According to Reichenburg, each employee was measured against himself for efficien- cy, in a sophisticated measurement system, taking into account such things as the number of miles driven and the number of stops made. Basically, however, in re- viewing Balfour's efficiency, he considered the total number of hours expended. Reichenburg did not look at Balfour's efficiency prior to September and did not com- pare Balfour with the employee who drove that run 7 Grobski admitted asking Balfour to drop the grievance He did not specifically deny the other remarks attributed to him and I credit Balfour APA TRANSPORT CORP. 931 before Balfour assumed it in August 1985, Reichenburg did not contend that there was any sudden change in Balfour's performance; rather, he claimed that it took him until around 25 January 1986 to conclude that Bal- four was inefficient on the Bangor run. In support of this contention, Respondent adduced evi- dence to show that between July and the end of Decem- ber 1985, Balfour averaged 13.25 hours per week of overtime while his replacement, Ken Barrows, averaged only 11.06 hours per week in the weeks from 8 March through 13 July. e Respondent did not offer the daily op- erations charts. Neither did it offer any of its engineering studies concerning Balfour's efficiency measured either against his own performance or that of any other em- ployee, notwithstanding that Reichenburg claimed that Respondent made careful engineering studies of its em- ployees' efficiency and continuously monitored and up- dated them. With respect to Balfour's alleged inability to deal with the two female employees, Lyla Pinkham and Luanne Sequin, Reichenburg testified that Sequin had com- plained to him that Balfour was uncooperative and dis- courteous. He then asked Lylas Pinkham, the dispatcher and an admitted supervisor, about Sequin's complaint and Pinkham added her complaints about the hard time Balfour gave her concerning the order of pickups and deliveries, her difficulties in keeping track of him and his tone of voice. Neither Sequin nor Pinkham testified. Ac- cording to Reichenburg, the change in Balfour's assign- ment resulted in his returning to the terminal earlier in the day, when male supervision was present, thereby eliminating the need for communication between Balfour and either Sequin or Pinkham. According to Reichenburg, "[I]t is pretty much com- pany policy that we counsel the people in regards to any offense." Respondent also issues written warnings to em- ployees whom it deems to be working inefficiently or taking unauthorized time. Thus, in October 1985, Grobski issued a written warning to Richard for dilatory work practices as revealed by the fact that Richard worked faster on 3 days when Grobski rode along with him than he did when he worked alone. The warning threatened Richard with ' further disciplinary action for any similar violations but no other action was taken against him. Similarly, another employee was accused of "theft of time" and threatened with further disciplinary action for two unexplained stops totaling 20 minutes and the over-extension of a break by 5 minutes.9 Respondent never counseled with Balfour with regard to his alleged inefficiency on the Bangor run. Neither was he coun- seled nor questioned concerning the alleged problems in 8 Allegedly, nearly all of Balfour's hours were spent in driving while Barrows' included about 5 hours per week spent working on the dock. Respondent offered no evidence to support this contention other than the testimony of Reichenburg, who was not in the terminal on a daily basis. His testimony would appear to be inconsistent with his reply to Balfour's question in January, wherein he told Balfour that the long hours were permissible as long as the employee worked part of the time on the dock, .thereby suggesting that Balfour also worked some of his hours on the dock. 8 The employee, in a letter to APA's management, expressed under- standable umbrage at the accusation of theft, explained the delays, ten- dered a check for the time allegedly stolen, and quit his dealings with Sequin and Pinkham until some time in February, after he was put on a different route. He was not given any written warnings for either of these al- leged problems prior to his reassignment. Balfour transferred to a different terminal as of 1 Oc- tober and the parties stipulated that whatever violations existed prior thereto were cured at that time. B. Analysis and Conclusions 1. The 8(a)(1) allegations The complaint alleges and I have found that Reichen- burg threatened to eliminate the overtime of any employ- ee who complained about excessive overtime. A threat of loss of overtime earnings to discourage pursuit of pro- tected concerted activities is violative of Section 8(a)(1). Tomco Carburetor Co., 275 NLRB 1 (1985). The record further establishes that Reichenburg told Balfour, with respect to his grievance filing, that, "If you ever pull that on me again, you and me will not be walking on the same turf." This was clearly an implied -threat of dis- charge, violative of Section 8(a)(1). Reichenbur$'s fur- ther comment, that the former manager would have thrown Balfour off the dock or out of the building for filing such grievances, is similarly coercive, whether it is viewed as a threat of physical harm or only as a strong expression of the employer's displeasure with employees who file grievances-10 Twice Respondent's agents asked Balfour whether he had considered quitting. In each instance, the question was asked in the context of,discussions concerning Bal- four's overtime complaints and grievances. In one case, the context included a suggestion that Respondent had made a mistake by hiring Balfour. The clear implication of asking such a question in such context is that the filing of grievances or the concerted protesting of working conditions is incompatible with continued employment. To suggest that a protesting or grievance-filing employee should not have been hired or should quit is to threaten that employee with discharge. The threats may have been thinly veiled, but they clearly violate Section 8(a)(1). Heritage Nursing Homes, 269 NLRB 230 (1984), and cases cited at 231. A similar veiled threat is found in Grobski's offer to work with Balfour in spite of the fact that he had gone to the Union concerning Respondent's failure to post a vacation schedule. I further find that Grobski's demand that Balfour drop his grievances vio- lated Section 8(a)(1), particularly in view of the threats of discharge. Norbar, Inc., 267 NLRB 916 (1983), enfd. in pertinent part 752 F.2d 235 (6th Cir. 1985). Accordingly, I find that by each of the acts described above, Respondent has violated Section 8(a)(1). is Par 7(b) of the complaint rnischaracterizes this event as a threat of physical harm resulting from the employee's request for union representa- tion However, counsel for the General Counsel made clear on the record that the above-described testimony concerned the event intended to be dealt with in that subparagraph. With counsel's explanation, I find that this allegation has been fully and fairly litigated 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The 8(a)(3) and (1) allegations-discrimination In Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), the Board delineated the burdens of proof in 8(a)(3) and (1) discharge cases to require that the General Counsel first establish a prima facie showing that protected conduct was a motivating factor in an em- ployer's action against an employee. When the General Counsel has met that burden, the burden of proof shifts to the employer to demonstrate by a preponderance of the evidence that it would have taken the same action even in the absence of protected activity. See Delta Gas, 282 NLRB 1315 (1987). On the basis of the facts set forth above, I must conclude that the General Counsel's burden has been sustained but that Respondent's has not. When Balfour spoke up in the two meetings with Rei- chenburg, he has engaged in both union and protected activities. He questioned company practices concerning reporting times, overtime, permissible hours of work, and supervisors performing unit work. These are matters that come within the collective-bargaining agreement. An employee's invocation of a right grounded in the collec- tive-bargaining agreement is concerted activity protected by Section 7 of the Act. NLRB v. City Disposal Systems, 465 U S. 822 (1984). Moreover, Balfour's objections con- cerning these working conditions were concerted in the traditional sense as well. The issues he raised, particular- ly concerning the large amounts of overtime, had been raised by the employees in discussions with the union steward; the steward had suggested that they bring them up at a meeting with the Employer. Balfour brought them up in terms that made it clear that he was not asking solely on his own behalf and he did so in the pres- ence of other employees in a forum called by the Em- ployer. At least one other employee overtly joined with him and none were heard to disavow his positions- 1 find that he was engaged in protected concerted activity when he raised these issues in the meetings with Rei- chenburg. i i See Meyers Industries, 281 NLRB 882 (1986). I further, find that the evidence warrants the conclu- sion that Balfour's reassignment and other work restric- tions were in retaliation for his having questioned com- pany practices. As I have found, Reichenburg immedi- ately displayed his animus toward such protests; he re- acted ' with anger and hostility to Balfour's questions, threatening to completely eliminate all overtime of any employee who objected to working extensive overtime. Within 3 days, Respondent made good on this threat. The alacrity with which Respondent acted is evidence of its unlawful motivation, particularly when, as here, there was no other intervening or precipitating event that might have warranted the action taken. See Highlift Equipment, 224 NLRB 918, 920 (1976). The General Counsel's proof of protected concerted activity, Re- spondent's animus, and its precipitate action establishes a strong prima facie case of discriminatory motivation. " That Balfour may have told Parks, some 5 months later, that he was enjoying the shorter hours he was then working is irrelevant to the ques- tion of whether he was engaged in concerted activities when he ques- tioned the long work hours in January Respondent, however, has argued that Balfour's as- signment was changed because he was inefficient and could not get along with the employee and the supervi- sor with whom he had to deal when he worked long overtime hours. Respondent's contentions do not with- stand scrutiny. Reichenburg claimed that Balfour was in- efficient on the Bangor run, but never compared him with the employee who had driven that run before him. Neither did he even refer to Balfour's own efficiency records for the period before or after September. Balfour may have been less efficient on the Bangor run that the Barrow, who replaced him, but Reichenburg would not have known that prior to the reassignment. Moreover, given that Balfour had the Bangor run from September through January while Barrows worked on that run in March through July, it is not altogether clear that Bal- four was any less efficient. They drove the run under dif- ferent weather conditions, with loads that may have been different due to seasonal variations, and Balfour only worked a few hours more per week on that run than did Barrows. Moreover, Respondent was in possession of de- tailed efficiency_ records that took into account the number of miles driven and the number of stops made, but did not rely on them either in making its decision or in presenting its defense, and its failure to do so warrants a conclusion that these records would not have provided such support. Further, Reichenburg's own testimony and Respond- ent's own documentary evidence establish that Respond- ent had a practice of counseling and warning employees for improper work practices, , particularly practices that involve employees wasting time. No such counseling or warning was given to Balfour before he was reassigned and given other restrictive orders. Respondent's failure to follow its normal practices with respect to Balfour is additional evidence that it was not his_ alleged inefficien- cy that caused his reassignment. Similarly, I cannot credit Respondent's assertion that the reassignment was motivated by Balfour's alleged in- ability to get along with Sequin and Pinkham. Again, I note both the absence of, available corroborative evi- dence and Respondent's failure to follow its own discipli-, nary procedures. I further note that even if such a prob- lem existed, Respondent reassigned Balfour before it had fully investigated the allegations against him. Accordingly, I must conclude that the General Coun- sel has established Respondent's unlawful motivation in the reassignment of Balfour and the other restrictions it placed on him in January and Respondent has failed to establish that it would have taken those same actions in the absence of Balfour's protected concerted activity. Similarly, I concluded that the warning given to Bal- four in May and June were discriminatorily motivated. Balfour persisted in engaging in protected activity, bring- ing, Respondent's failure to post the vacation schedule to the Union's attention and pressing his grievances; Re- spondent continued to express its animus against this ac- tivity. Twice, while discussing his grievances , Respond- ent threatened Balfour with discharge. Moreover, each warning followed closely in time on such discussion or activity. And, the warnings he was given, although con- APA TRANSPORT CORP sistent with company rules, were inconsistent with its practices vis-a-vis other employees. Other employees were not warned for failing to call in delays of less than 10 minutes and they were not given written warnings for forgetting to turn in their papers and receipts. Such dis- parate treatment in the existing context of animus is suffi- cient to establish discriminatory motivation. Respondent has not rebutted that evidence. THE REMEDY It having been found that Respondent, APA Transport Corporation, has engaged in unfair labor practices in vio- lation of Section 8(a)(3), and (1) of the Act, it will be rec- ommended that Respondent be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. It having been found that Respondent reassigned Robert I. Balfour to a job involving substantially fewer hours of work per week because he had engaged in union and other protected and concerted activity, I shall direct that Respondent make him whole for any loss of earnings he may have suffered between 25 January 1986, the date on which he was reassigned and 1 October 1986, the date on which the discrimination against him ceased. The backpay due Balfour pursuant to this provi- sion shall be computed with interest thereon as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 ]NLRB 716 (1962). Fur- ther, I shall direct that all references to his assignment, to the more stringent working conditions, and to the warnings that were issued to him in May and June 1986 be removed from Respondent's files and that Respondent notify him, in writing, that this has been done and that evidence of the unlawful reassignment, more stringent working conditions, and warnings will not be used as a basis for future personnel actions against him. The General Counsel seeks, for compliance purposes, a visitatorial clause in the recommended Order. Such a clause would permit the Board, for compliance purposes, to obtain discovery from the Respondent under the Fed- eral Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Board's Order.' Under the circumstances of this case, including the absence of any indication of prior violations and the straight forwardness of the compliance issues, I deem it unnecessary to include such a clause and shall deny the General Counsel's request. See, for example, Two M, 281 NLRB 502 (1986). CONCLUSIONS OF LAW 1. Respondent APA Transport Corporation is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. By threatening employees with discharge, reduction of overtime earnings, and other reprisals because of their union or other protected concerted activities, and by de- manding that an employee drop grievances filed under the collective-bargaining agreement, Respondent has en- gaged in conduct violative of Section 8(a)(1) of the Act. 3. By reassigning Robert I. Balfour to a job involving fewer overtime hours, by imposing more stringent work- 933 ing conditions on him, and by giving him written warn- ings, all because of his union or other protected concert- ed activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 ORDER The Respondent, APA Transport Corporation, Lewis- ton, Maine, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with discharge, reduced overtime, or other reprisals if they engage in union or other protected concerted activities and demanding that employees forgo their rights to process grievances under the collective-bargaining agreement. (b) Assigning employees to jobs that involve less hours of work, imposing more stringent rules and working con- ditions on them, and giving them written warnings be- cause they engage in union or other protected concerted activities. (c) In any like or related manner interfering with, re- straining, or coercing its 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) Make Robert I. Balfour whole for any loss of earn- ings he may have suffered by reason of Respondent's dis- crimination against him between 25 January 1986 and 1 October 1986 in the manner set forth in the remedy sec- tion of this decision. (b) Remove from Robert I. Balfour's personnel files any references to his unlawful reassignment, the more stringent work rules imposed on him, and the warnings given him in May and June 1986, and notify him, in writ- ing, that this has been done and that evidence of these unlawful acts will not be used as a basis for future per- sonnel actions against him. (c) Post at its Lewiston, Maine facility copies of the attached notice marked "Appendix."12 Copies of the notice, on forms provided by the Regional Director for Region 1, 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 12 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 is 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 " 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the notices are not altered, defaced, or covered by any other material. In the event that the Lewiston, Maine terminal is no longer in operation, Respondent shall, in lieu of posting, mail a copy of the attached notice to each of the bargaining unit employees who were employed at the Lewiston , Maine terminal between January and October 1986. The notice shall be mailed to the last known address of each employee . Copies of the notice, on forms provided by the Regional Director, after being duly signed by Respondent's authorized rep- resentative, shall be mailed immediately on receipt, as di- rected above. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps -the Re- spondent has taken to comply. APPENDIX' NOTICE To EMPLOYEES AND MEMBERS 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. 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 threaten to discharge, to reduce the hours of work, or to take other reprisals against employ- ees who engage in union or protected concerted activi- ties and WE WILL NOT demand that employees drop grievances which they have filed under the collective- bargaining agreement. WE WILL NOT reduce the hours of employees, impose more stringent work rules and conditions on them, or given them written warnings because they have engaged in union or protected concerted activities, including the filing of grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL make Robert I. Balfour whole for any loss of earnings he may have suffered between 25 January and 1 October 1986 as a result of our reassignment of him to a job involving less overtime hours, with interest. WE WILL remove from our files any references to the' reassignment of Robert I. Balfour, any references to the more stringent rules and working conditions imposed on him, and any references to the warnings issued to him in May and June 1986, and WE WILL notify him in writing that this has been done and that evidence of these unlaw- ful acts will not be used as a basis for future personnel actions against him. APA TRANSPORT CORPORATION