Great Western Produce, Inc

362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Great Western Produce, Inc and Construction, Building Materials and Miscellaneous Drivers, Local Union No 83, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO 1 Case 28-CA-8699 March 21, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On November 25, 1987, Administrative Law Judge Jay R Pollack issued the attached decision The Respondent and the General Counsel filed ex- ceptions and supporting bnefs, and the Respondent filed an answering 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,2 findings,3 and conclusions only to the extent consistent with this Decision and Order and to adopt the recom- mended Order4 as modified The General Counsel has excepted to the judge's conclusion that the Respondent did not violate Section 8(a)(1), (3), and (4) when, on reinstatement, employees Frank Wasilowski and William Tromb- ley were not reassigned to the same trucks and driving assignments they had before their dis charges We find merit in the General Counsel's exceptions The facts are not in material dispute The Re- spondent is engaged in the distribution of produce In October or November 1985, the Respondent's truckdrivers and warehousemen began a union or ganizing effort that culminated in the Union being certified as the collective-bargaining representative i Effective November 1 1987 Teamsters International Union was readmitted to the AFL-CIO 2 The General Counsel has excepted to the judge s finding that be cause the Regional Director declined to set aside the settlement agree merit in Case 28-CA-8368 and issue a consolidated complaint alleging both presettlement and postsettlement conduct as unfair labor practices the General Counsel was foreclosed from relying on testimony of presett lenient events even as background evidence We find it unnecessary to pass on any statement or finding relating to this issue in the judge s deci sion The record amply supports his finding that the Respondent violated Sec 8(a)(1) (3) and (4) of the Act therefore the testimony would not alter the outcome of this case 3 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 4 The General Counsel s request for a visitatonal clause is denied as unnecessary Cherokee Marine Terminal 287 NLRB 1080 (1988) of the Respondent's truckdrivers, warehousemen, lumpers, mechanics, and repackers on July 16, 1986 5 On July 10, 1986,6 the Respondent and the Union entered into an informal settlement agree- ment that provided, in part, for the Respondent to offer employees Wasilowski, Trombley, and three others "immediate and full reinstatement to their former jobs, dismissing, if necessary, any employee who replaced them without prejudice to their seniority or other rights and privileges " It is undisputed that from September 1985 until his December 1985 layoff and termination, Wasi- lowski drove semitruck 10, and delivered regularly to Smitty's stores 5, 11, and 22 and to Tucson at least once or twice a week Trombley, prior to his discharge, drove semitruck 11, described by him as one of the Respondent's nicest trucks, and regular ly delivered to Tucson When the Tucson route was unavailable, he delivered to Smitty's stores 12, 18, and 21 until his termination in February The Tucson route was preferred because it resulted in overtime On reinstatement, Wasilowski was assigned to se mitruck 2, which he testified was unsafe because it leaked oil and air and had no heat, air-conditioning, or power steering On August 4, he was given sev- eral citations by the Arizona Department of Public Transportation including one for "unsafe vehicle in operation " For the 4 to 5 months truck 2 was in repairs, Wasilowski worked in the warehouse and drove a bobtail truck ,7 which he had not done before his termination Following reinstatement, Trombley was assigned truck 8, which broke down frequently and was finally trashed" by the Re spondent in December Trombley was then reas signed to another semitruck that was frequently in need of repairs Wasilowski was assigned to deliver to Smitty's stores 9 and 14 Trombley was assigned to deliver to Smitty's stores 6 and 19 certain days, Smitty's stores 11 and 22 on others and, when Wa silowski was absent, to stores 9 and 14 Wasilowski testified that the assignment of stores 3, 9, and 14 was known as the "punishment run" because it was difficult to back in and unload the truck Thus, on reinstatement, Wasilowski and Trombley were forced to drive poorly conditioned and unsafe trucks as their primary vehicles and were assigned undesirable delivery routes We disagree with the judge that these actions by the Respondent did not violate Section 8(a)(1), (3), and (4) of the Act The pertinent section of the set- a Great Western Produce 282 NLRB No 17 (Nov 12 1986) (not re ported in NLRB volumes) enfd 839 F 2d 555 (9th Cir 1988) s All subsequent dates are in 1986 unless otherwise specified Bobtail trucks are smaller than the semi or tractor trailer ngs and are used for hauling smaller loads 293 NLRB No 44 GREAT WESTERN PRODUCE tlement agreement provided for Wasilowski and Trombley to be reinstated to their "former jobs " We find sufficient evidence to establish that Wasi- lowski's "former job" consisted of driving semi- truck 10,8 delivering to stores 5, 11, and 22 and at least once a week to Tucson Trombley's "former job" consisted of driving truck 11 and making reg- ular daily deliveries to Tucson The fact that the agreement provided for dismissal of any employee who replaced them is further evidence that the agreement contemplated that employees Wasi- lowski and Trombley were to be assigned to the same trucks and routes they had before they were discharged The judge found that the Respondent violated Section 8(a)(1), (3), and (4) of the Act by retaliating against its employees because of their union activities and/or because they assisted the Union in filing charges We agree with this finding, but also find that the assignment of unsafe and poorly conditioned vehicles and undesirable work- ing routes was part and parcel of the Respondent's effort to evade the terms of the settlement agree- ment and to punish employees Wasilowski and Trombley for engaging in protected activity The Respondent's failure, on reinstatement, to assign Wasilowski and Trombley to the same trucks and delivery routes they had prior to their termination was, in our view, another attempt by the Respond ent to evade the terms of its settlement agreement and to retaliate against them for their union and other protected activities, and constituted further violations of Section 8(a)(1), (3), and (4) of the Act Accordingly, we shall modify the judge's recom- mended Order to conform with our findings 9 fi Truck 10 was sold by the Respondent before Wasilowski s reinstate ment This does not affect our conclusion It does however necessitate that as pan of the remedy the Respondent assigned Wasilowski a sub stantially equivalent truck 9 Applying the test set forth in Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 US 989 (1982) Member Cracraft concurs in the result See Heck s Properties 264 NLRB 501 (1982) enfd 725 F 2d 676 (4th Cir 1983) Member Cracraft finds that the General Counsel has made a puma facie showing sufficient to support the inference that protected conduct was a motivating factor in the Respondents decision not to reinstate Wasilowski and Trombley to their former jobs In this regard she notes that as described above the Respondents failure to reinstate the employees to their former jobs is contrary to the plain language of the settlement agreement the Respond ent signed and that as the judge found the Respondent exhibited strong animus toward Wasilowski Trombley and other employees engaged in union and protected activities Member Cracraft further finds that the Respondent has failed to demonstrate that it would have taken the same action even in the absence of the employees union and protected activi ties Member Cracraft notes that the theory of the violation in the instant case is distinct from the theory of the violation in cases decided under Poole Foundry Co v NLRB 192 F 2d 740 (4th Cir 1951) cert denied 342 US 954 (1952) in which a respondents refusal to comply with a bargaining obligation set forth in a settlement agreement without more constitutes a violation of the Act See generally her dissenting opinion in Milk Marketing 292 NLRB 47 (1988) 363 AMENDED CONCLUSIONS OF LAW Insert the following as paragraphs 6 and 7 "6 The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act by not reinstating employees Wasilowski and Trombley to their former jobs because of their union activities "7 The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (4) of the Act by not reinstating employees Wasilowski and Trombley to their former jobs because they as sisted the Union in filing charges and/or because they benefited as a result of those charges " ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Great Western Produce, Inc, Glendale, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Insert the following as paragraph 1(d) and re- letter the subsequent paragraph "(d) Failing to reinstate employees to their former jobs because of their union activities, be- cause they assisted the Union in filing charges, and/or because they benefited as a result of those charges " 2 Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs "(c) Remove from its files any reference to the unlawful failure to reinstate Wasilowski and Trombley and notify the employees in writing that this has been done and that the unlawful conduct will not be used against them in any way " 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT discriminate against employees in the assignment of trucks and deliveries for support mg or engaging in union activities on behalf of Construction, Building Material and Miscellaneous Drivers, Local Union No 83, an affiliate of Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO or any other labor organization WE WILL NOT discourage employees from giving testimony or filing charges pursuant to the Nation- al Labor Relations Act by discriminating against them in the assignment of equipment or deliveries or in any other manner discriminate against them with respect to their wages, hours, or tenure of em- ployment WE WILL NOT threaten employees with physical harm, closing or selling the business, or any other form of retaliation for engaging in union activities or for giving testimony or filing charges under the Act WE WILL NOT fail to reinstate employees to their former jobs because of their union activities, be cause they assisted the Union in filing charges, and/or because they benefited as a result of those charges WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL make Frank Wasilowski, William Trombley, and Donald Lowell whole for any loss of earnings and other benefits they may have suf fered because of the discrimination against them, with interest WE WILL remove from our files any reference to the unlawful failure to reinstate Frank Wasilowski and William Trombley and notify them in writing that this has been done and that the unlawful con- duct will not be used against them in any way GREAT WESTERN PRODUCE, INC Kenneth D Meadows Esq for the General Counsel Joseph A Schenk Esq (Beus Gilbert Wake & Morrill), of Phoenix Arizona for the Respondent Gerald R Barrett Esq (Ward & Keenan), of Phoenix Arizona, for the Union DECISION STATEMENT OF THE CASE JAY R POLLACK, Administrative Law Judge I heard this case in trial at Phoenix, Arizona on May 19, 20, and 21, 1987 Pursuant to a charge filed against Great West ern Produce, Inc (Respondent) on January 23 and amended on February 27 and March 27, 1987, by Con struction Building Materials and Miscellaneous Drivers Local Union No 83, an affiliate of International Brother hood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO (the Union), the Regional Director for Region 28 of the National Labor Relations Board issued a complaint and notice of hearing on March 12 subsequently amended on March 19 and April 3, alleging in substance that Respondent engaged in cer tam violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) All parties were given full opportunity to appear, to introduce relevant evidence, to examine and cross exam me witnesses, to argue orally and to file briefs Briefs which have been carefully considered, were filed on behalf of the General Counsel and Respondent Based on the entire record' and from my observation of the de meanor of the witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS I JURISDICTION Respondent is an Arizona corporation with an office and principal place of business located in Glendale, An zona where it is engaged in the distribution of produce During the 12 month period prior to the issuance of the complaint, Respondent purchased goods and materials valued in excess of $50 000 which were transported in interstate commerce and delivered to its place of business in the State of Arizona directly from suppliers located in States of the United States other than the State of Arizo na The complaint alleges the answer admits and I find that Respondent is now and at all times material has been an employer engaged in and affecting commerce within the meaning of Section 2(2) (6), and (7) of the Act The complaint alleges the answer admits and I find 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 II THE ALLEGED UNFAIR LABOR PRACTICES A Background As noted above, Respondent distributes produce from a facility in Glendale, Arizona Union organizing efforts among Respondents truckdrivers and warehousemen began in October or November 1985 A petition for rep resentation was filed by Teamsters Local 104 a sister local of the Union Thereafter the representation petition I On July 9 1987 counsel for the General Counsel made a motion to correct the record As the motion was unopposed the corrections con tamed therein are granted and incorporated sua sponte into the record as ALJ Exh I On August 25 1987 counsel for the General Counsel filed a motion to reopen record and consolidate cases for hearing The motion was granted and the instant case was consolidated for hearing with Case 28-CA-8864 However on November 12 I approved a settlement in Case 28-CA- 8864 severed the cases and closed the record in the instant case GREAT WESTERN PRODUCE of Teamsters Local 104 was withdrawn and the Union filed a representation petition in Case 28-RC-4313 on December 30 1985 The Union was certified as the col lective bargaining representative of the Respondent s truckdnvers warehousemen , lumpers, mechanics, and re packers on July 16, 1986, pursuant to a representation election conducted on February 28, 1986 2 The Union s July 16 certification and the Respondent's challenge to that certification are currently pending before the United States Court of Appeals for the Ninth Circuit On July 10, 1986 in Case 28-CA-8368, the Respond ent and the Union entered into an informal Board settle ment agreement approved by the Acting Regional Direc tor for Region 28 The settlement agreement provided for the payment of specified amounts of backpay to nine named individuals, including Frank Wasilowski, William Trombley and Don Lowell and the reinstatement of five named individuals including Wasilowski and Trombley The settlement agreement also provided for a notice posting and Respondents agreement to undertake certain affirmative and ongoing commitments to comply with the terms and provisions of the settlement agreement Specifically, the settlement agreement provided, in perti nent part, that the Respondent would offer Wasilowski and Trombley immediate and full reinstatement to their former jobs, dismissing, if necessary, any employee who replaced them without prejudice to their seniority or other rights and privileges Respondent also agreed not to discharge, lay off or reduce the work opportune ties of [its] employees in retaliation of their union activi ties The agreement further provided that the Respond ent did not admit the commission of any unfair labor practices Although the settlement agreement does not provide for any damages in the event Respondent does not comply with the agreement, by law the Regional Di rector may set aside the settlement where independent evidence of subsequent or continuing unfair labor prac tices reveals a breach of the agreement Aurora & East Denver Trash Disposal, 218 NLRB 1, 9 (1975), Tompkins Motor Lines 142 NLRB 1 3 (1963) enf denied on other grounds 337 F 2d 325 (6th Cir 1964) The complaint as amended alleges that Respondent continued to discriminate against Wasilowski , Trombley and Lowell following the settlement agreement by re quiring them to drive unsafe and poorly conditioned ve hides Further the General Counsel contends that these three truckdrivers were given undesirable driving routes and were required to perform undesirable nondriving work tasks The General Counsel contends that the more onerous working conditions described above reduced the working hours of the three named employees because of their union activities or activities in support of the charges in Case 28-CA-8368 (the settled case) The re maining allegations of the complaint allege independent violations of the Act based on statements threatening Wasilowski with physical harm and causing him to clock out early on specific occasions Finally, the com plaint alleges that Scott Crispo, a day shift foreman threatened employees by telling them that Respondent 2 See Great Western Produce 282 NLRB No 17 (Nov 12 1986) (not reported in Board volumes) 365 reserved its less desirable trucks for employees that sup ported the Union In the instant case the General Counsel contended that Respondent had failed to honor its obligations under the settlement agreement by discriminating against Wasi lowski Trombley, and Lowell in regard to their driving assignments and by engaging in separate additional viola tions of Section 8(a)(1), (3), and (4) However, the Re gional Director determined not to set aside the settle ment agreement but rather attempted to establish viola tions committed against Wasilowski, Trombley, and Lowell prior to the settlement agreement as back ground evidence to establish the unlawful motivation for the postsettlement conduct alleged to be unlawful In Laborers Local 185 (Josephs Landscaping) 154 NLRB 1384 fn 1 (1965), enfd 389 F 2d 721 (9th Cir 1968), the Board permitted the use of presettlement conduct as background evidence establishing the motive or object of a respondent in its postsettlement activities In Joseph s Landscaping, the Regional Director had with drawn his approval of a settlement and issued a new con solidated complaint alleging both the presettlement and postsettlement conduct as unfair labor practices In the instant case however, the Regional Director declined to follow such a course In Heck s Properties 264 NLRB 501, 503 (1982), under circumstances in which the Regional Director refused to set aside the prior settlement Administrative Law Judge Joel A Harmatz foreclosed the General Counsel from relying on testimony of presettlement events even as background evidence ' Judge Harmatz cited two then recent decisions Wright Motors, 237 NLRB 570 fn 3 (1978) and Edgewood Nursing Center 230 NLRB 1021 fn 1 (1977) The Board found it unnecessary to pass on this finding of Judge Harmatz decision because it did not affect the ultimate finding of a violation or the result ant backpay and reinstatement remedy ordered by Judge Harmatz 264 NLRB at 501 fn 1 The Heck s Properties case, therefore creates uncertainty about whether pre settlement events can be used as background evidence where the Regional Director fails or refuses to set aside the settlement In an earlier case Electrical Workers IBEW Local 613 (MHE Contracting), 227 NLRB 1954 fn 1 (1977), the Board had held that presettlement events could be used as background evidence to establish motive or object of postsettlement conduct even where the Regional Director had not set aside the settlement agreement Thus it appeared at the time of the instant hearing that the Board had not yet determined the best policy to follow in such a circumstance I believe that public policy would best be served by permitting the General Counsel to litigate presettlement events only where the settlement agreement has been set aside Thus under the reasoning of Joseph's Landscaping, if the General Counsel can establish postsettlement viola tions the setting aside of the settlement agreement will be sustained and a remedial order for all violations will issue If the General Counsel cannot establish postsettle ment violations the settlement will be reinstated and the complaint dismissed without regard to whether presettle ment violations were found However, if the Regional 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Director refuses to set aside the settlement, it is distinctly unfair to allow the Regional Director to retain the bene fits of the agreement while being relieved of his obliga tions under the agreement Many respondents settle cases on the basis that it is more economical to settle than to litigate Such a settlement is not an admission of guilt and is frequently the basis on which respondents settle It would be unfair to require a respondent that has settled to avoid litigation costs to litigate the case anyway Fur ther, a policy such as that of Electrical Workers IBEW Local 613, would be contrary to the Board' s strong policy of encouraging settlements No hardship is placed on charging parties or the General Counsel by the fair application of Joseph's Landscaping If a respondent has not complied with the settlement or has continued to violate the Act, the Regional Director may set aside the settlement and issue a consolidated complaint including the presettlement and postsettlement conduct That is ex actly what happened in Joseph's Landscaping In such a case the General Counsel must establish postsettlement violations but may use presettlement events to establish motivation Once postsettlement violations are estab lashed, the presettlement conduct can be evaluated to es tablish violations and is a basis for a remedial order The facts of the instant case reveal the unfairness of the rule the General Counsel proposes The presettle ment events would require a much more lengthy trial than the postsettlement events at issue herein Thus the General Counsel seeks to selectively litigate presettle ment conduct "as background" and avoid unduly (for her purposes) prolonging the hearing The selective liti gation of presettlement conduct would enable the Gener al Counsel to unfairly utilize the cost of litigation to force a settlement of a case regardless of merit Such a concern for the Government s litigation posture resulted in Congress passing the Equal Access to Justice Act Respondent concedes nothing in the instant case It claims it settled the first case for purely economic rea sons and denies any violations whether included for background or any other reason Further it argues per suasively that it has paid for the privilege of not litigat ing these events and that if it must litigate these events anyway the entire settlement should be set aside Clear ly logic is on Respondents side The General Counsel is not precluded from litigating the presettlement conduct, she is only so precluded if she does not wish to set aside the settlement agreement Because the choice is with the General Counsel based on her determination of whether she can establish postsettlement violations there is no hardship or prejudice with such a rule On the other hand to hold a contrary view gives the General Counsel an unfair advantage prejudices the Respondent and cre ates an impediment to the highly favored policy of en couraging the compromise and settlement of unfair labor practice cases Accordingly, I reaffirm my ruling at trial that the General Counsel was barred by the settlement agreement from litigating the presettlement conduct, even as back ground evidence B The Facts Frank Wasilowski was first employed by Respondent as a night shift warehouse supervisor in June or July 1984 In September 1985 Wasilowski became a nonsuper visory truckdriver at his on request From September 1985 until his December 11, 1985 layoff and December 23, 1985 termination, Wasilowski was assigned truck 10 3 Prior to December 1985 Wasilowski was assigned to make deliveries to Smitty s Super Markets, stores 11, 22, and 5 in Mesa, Arizona 4 Wasilowski would make his first trip to each of these stops and then return to the warehouse for additional deliveries These additional trips would consist of backfills of products that were not in stock at the time of the first run or additional deliv ernes to the trade stores or other Smitty s stores Al though each driver's first delivery route was the same on a daily basis, the additional deliveries varied each day ac cording to a variety of circumstances During the period of September through December 1985, Wasilowski worked 8-14 hours a day, making four to five trips or runs a day in his semitruck This resulted often in a 70- 80 hour workweek As noted earlier Wasilowski instituted the union orga nizing effort among Respondent's employees in October or November 1985 Wasilowski was assisted in soliciting employees to sign authorization cards by fellow drivers Trombley and Don Lowell On July 10, 1986, the Re spondent and the Union entered into the settlement agreement approved by the Acting Regional Director Pursuant to the agreement, backpay was paid to nine em ployees, including Wasilowski, Trombley and Lowell Further, five employees were reinstated including Wasi lowski and Trombley Wasilowski and Trombley were scheduled to be rein stated on July 17 at the commencement of the 3 am shift Wasilowski reported early in order to speak with the employees on the different shifts in the warehouse Wasilowski, wearing a Teamsters Union hat and T shirt told the employees that the Union had won the election and that Respondent was now a union shop 5 He told the employees to follow the orders of their supervisors and that if the employees had complaints to see him The employees were to give the supervisors no excuses to discipline them They were to follow orders and Wa silowski would have the Union file charges later Wasi lowski further cautioned the employees not to do any damage to any of Respondents property Ron Kohatsu shift supervisor attended each of the meetings held by Wasilowski After being reinstated, Wasilowski continued his orga nizing efforts by speaking to new employees about join mg the Union and distributing union hats and jackets to those employees who wanted them 9 As noted earlier Wasilowski s layoff and termination in December 1985 were the subject of a prior settlement agreement I can draw no in ference that the prior layoff or termination was unlawful * Respondent has two types of customers the Smitty s retail grocery store chain Respondents largest customer and smaller stores referred to by the witnesses as trade stores s Wasilowski was unaware that Respondent intended to test the Union s certification by refusing to bargain GREAT WESTERN PRODUCE On or about July 23, within a week of his reinstate ment, Wasilowski had a conversation with Vic Crispo, Respondent's president Wasilowski testified that Crispo accused him of harassing a customer According to Wa silowski, he answered that he had responded truthfully to a question asked him by the customer Crispo told Wasilowski that he would take the truckdrivers to court like Wasilowski had taken Crispo to court Crispo claimed that Wasilowski had already cost the company $100,000 Crispo told Wasilowski not to wear his union hat and that Respondent was not Union Wasilowski dis agreed and said that the Union had won the election Wasilowski refused to take off his union hat This con versation was not specifically denied by Crispo, although he denied any and all antiunion comments In any event, I find Wasilowski to be a credible witness On the other hand, I find Vic Crispo s denials of anything and every thing less than credible He made no attempt to testify to facts but rather simply sought to deny any wrongdoing Don Lowell testified that shortly after July 23 while talking with other employees, he was approached by Piziak, warehouse superintendent One of the employees told Piziak that the employees were having a union bull session Piziak told the employees that Respondent did not like union talk and if they ever heard any more union talk Respondent would have to dismiss them 6 On reinstatement, Wasilowski was assigned truck 2, Little Mary,' a semitruck contended to be unsafe by Wasilowski and the General Counsel Wasilowski testi feed that Little Mary leaked oil and air, had no heat no air conditioning, and no power steering His former semi truck 10 had power steering However, truck 10 had been sold prior to Wasilowski s reinstatement Wasi lowski testified that the lack of power steering made it very difficult to back into the store docks Three drivers with less seniority and two drivers with more seniority than Wasilowski had new tractor trailers On August 4, Wasilowski was stopped by officers of the Arizona Department of Public Transportation His truck Little Mary, was cited for a lack of Arizona regis tration 7 fuel leaks no brake action in steering axle, wheels losing fluid, excess oil loss, and air loss Because the truck lacked proper registration and license plates the officers would not allow it to be driven The truck was towed and Wasilowski was driven back to the ware house On returning to Respondents premises Wasi lowski spoke to Neal Crispo, a supervisor and stepson of Vic Crispo, and Piziak Neal Cnspo told Wasilowski that he could not believe the truck got six citations Wasi lowski responded that he could not believe that Re spondent would send him out without a registration Piziak told Wasilowski to punch out and go home Little Mary had not had Arizona registration or li cerise plates for over 2 years It was properly registered on November 12 1986, but not placed back into service until January 1987, after repairs had been made When Little Mary was placed back into service, it was again assigned to Wasilowski According to Wasilowski even 6 Piziak was not questioned about this conversation and consequently did not deny this testimony 7 The proper registration had not yet been forwarded from California 367 after the repairs, Little Mary still had air and oil leaks, fuel leaks, and possible brake problems Wasilowski testified that while Little Mary was out of service, Wasilowski asked Piziak if he could be assigned to a new truck Piziak answered that it would be a long time before Wasilowski would get a new truck Piziak denied that Wasilowski ever requested an assignment to one of the new trucks Wasilowski's testimony is credited and Piziak s denial is not While Little Mary was out of service, Wasilowski worked in the warehouse and drove one of Respondent s bobtail trucks During this 4 to 5 month period, Wasi lowski did not have an assigned truck Wasilowski was not permitted to drive another tractor trailer even when a truck assigned to another driver was available, 1 day a week William Trombley was hired on April 5, 1985, by Wayne Piziak, warehouse superintendent, to be a truck driver Trombley drove semitruck 1 (one of Respond ent s nicest trucks) and was assigned the delivery run to Tucson, Arizona (contended by the General Counsel to be a preferred route) Initially, Trombley drove to Tucson every day but that was reduced to three times a week when Respondent lost one of its biggest Tucson customers His trips to Tucson were suspended in late 1985 because of a strike at one of Respondents custom ers Trombley was laid off in December 1985, then sus pended and terminated in February 1986 On his reinstatement in July 1986, William Trombley was assigned to a tractor trailer truck 8 His former truck, semi 11 , was then being driven by Gary Koehler, a driver hired after Trombley s and Wasilowski s dis charges but prior to their reinstatement Trombley testi fled that truck 8 was the worst truck in Respondent s fleet According to Trombley, the transmission bolts would not hold the clutch and flywheel sheered off and the transmission mount could never be secured properly Trombley's truck 8 broke down frequently and Trombley had to deal with Holly Bingham, Respond ent s mechanic shop foreman 8 According to Trombley, he complained to Bingham that the longer it took to fix Trombley s truck the less hours of work the driver got Bingham replied Now that you guys got the Union in, you are going to starve Bingham denied making these comments Trombley s testimony is credited over Bingh am s denial In December Respondent ceased using truck 8 and Trombley was reassigned to another semi truck, Big Nicko This truck was also in the repair shop more than Respondents other trucks Respondent had a total of six bobtail trucks The three newest bobtails are assigned to full time bobtail drivers Respondent has three older bobtail trucks which are not assigned to regular drivers and are used for backfills and smaller deliveries The bobtail trucks are more economi cal to run than a semitruck and are easier to maneuver Therefore, the bobtails are used for smaller deliveries which do not require a full size tractor trailer 8I find Bingham to be a supervisor within the meaning of the Act based on his authority to hire fire assign and direct the two employees in the mechanic shop 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD During his first 3 months as a driver, Wasilowski was not required to drive a smaller bobtail truck However after his reinstatement, he was frequently assigned to drive one of the older bobtail trucks During the 4 to 5 month period that Little Mary was out of service Wasi lowski drove one of these vehicles exclusively Wasi lowski and Leon Franking another driver, both testified that these trucks were in poor condition Supervisor Vic Vaughn and Mechanic Supervisor Holly Bingham admit ted that lots of drivers did not like to drive these older bobtails Scott Foster, a truckdriver and union supporter testi fled that on or about February 10, 1987, he complained to Shift Foreman Scott Crispo about how unsafe the gas Ford bobtail and Isuzu bobtail were how they did not handle correctly and how they leaned to the side Scott Crispo replied that those were union trucks and were for the union supporters Scott Crispo denied making this statement but his denial is not credited Scott Cnspo was a particularly unbelievable witness who seemed intent on aiding Respondents case, regardless of the truth On or about May 12, 1987, Lowell had a discussion with Vic Vaughn shift foreman, and Bingham Lowell s truck had broken down and was being repaired Lowell was inquiring about the truck s availability Bingham said it would take several days for Lowell s truck to be ready Then Bingham referred to one of the undesirable bobtail trucks and said that they were going to keep that union truck ready for Lowell The General Counsel objects to the assignments of Wasilowski and Trombley since their reinstatement However there is no evidence that such assignments were based on seniority either before or after the union organizing campaign The General Counsel complains of the lack of assignments to Tucson for Trombley and to a lesser extent Wasilowski Although the driving to Tucson may be more desirable because it can result in more hours of work, there is no evidence that these as signments were ever made on the basis of seniority Re spondent is apparently pleased with the performance of both drivers handling the Tucson runs One driver had received customer compliments and the other is bilin gual an advantage for the Tucson run The General Counsel further argues that Respondent has sought to reduce the hours of union supporters par ticularly Wasilowski, Trombley, and Lowell Wasilowski has the least average regular hours worked of all truck drivers and his average overtime hours were less than the other drivers Lowell and Trombley were also below the collective average in overtime hours with Lowell also below the average for regular hours worked Re spondent argues that while Wasilowski and Lowell worked less hours than average, in neither case was the difference between hours worked by the employees and the average for all drivers significant Respondent con tends that the variance in hours resulted from the nature of Respondents operation and not from any discrimina tory motive Wayne Piziak Scott Crispo and Vic Vaughn, the foremen responsible for assigning work to drivers, all tes tified that driving assignments were distributed solely on the basis of need and availability Respondent sought to reduce the amount of overtime worked by its drivers Because drivers are paid time and a half wages for over time work, there is a strong economic incentive for Re spondent to utilize more regular time and less overtime work This reduction of overtime has impacted on all truckdrivers whether union or nonunion Former warehouse employee Doug Kastens worked on Vic Vaughn s crew and was assigned to load incom ing trucks Kastens testified that he observed that Wasi lowski and Lowell were usually the first drivers back in the warehouse for a second run According to Kastens Lowell and Wasilowski were not given the second loads they should have gotten The first driver in would nor mally be given the first load to go out However, Wasi lowski and Lowell were given smaller loads to be deliv ered in the old bobtails while the other drivers were sent out in the semitrucks Kastens testified that Wasilowski and Lowell were not given the proper load at least three times a week and more frequently in the last 3 months prior to the hearing Kastens testified that on the morn ing of January 30, 1987,9 Lowell was given less than the full load that would have been placed on his tractor trail er when Vaughn found out the truck to be loaded was that driven by Lowell Vaughn testified before Kastens and did not specifically deny this testimony In any event, I found Kastens to be a credible witness and credit his testimony 10 Leon Franking, a driver also tes tified that loads were manipulated to deprive Lowell Wasilowski, and Trombley of work Franking testified that on many occasions he was given additional driving assignments after the three union adherents had been sent home Both Franking and Kastens testified to unusual con duct by Respondent when they wore union hats Kastens testified that on the one day that all warehousemen wore their union hats Vic Crispo who almost never spends time in the warehouse stood in the warehouse and stared at the employees Franking testified that he wore a base ball cap without incident but on the one day that he wore a union hat he was sent home early by Piziak and Scott Crispo Franking said he observed that there was still work to be done when he was sent home early On October 20 1986, the Union filed an unfair labor practice charge against Respondent in Case 28-CA-8623 alleging violations of Section 8(a)(1) (3), and (5) of the Act by the introduction of an employee handbook Wasi lowski had initiated the filing of the charge by bringing the newly initiated handbook to the Union s attorney On October 23, Wasilowski went to see Vic Crispo concern mg another matter According to Wasilowski Vic Crispo told the driver that he was upset about Wasi lowski having pressed charges against Respondent concerning the handbook Wasilowski defended the charges by saying that the handbook was unfair and was 9 Kastens had a loading sheet which established the correct date for this event 10 Respondent argues that Lowell worked a total of 9 35 hours on Jan uary 30 However the fact that Lowell worked overtime does not con tradict the fact that the load was changed because Lowell one of the leading union supporters was the driver available for the load Lowell might have earned more overtime had Vaughn not discnmmatonly changed the load GREAT WESTERN PRODUCE 369 nothing more than 50 ways to fire the employees Wa silowski said that he had signed for his copy of the hand book under protest because he would not get his pay check unless he signed for a handbook Vic Crispo re plied that he had had it up to here with Wasilowski filing charges Crispo told Wasilowski that his partners did not like what Wasilowski was doing and that Crispo could not be responsible for what his partners might do to Wasilowski The conversation turned to a discussion of a union contract and Wasilowski suggested that Vic Crispo meet with the Union Wasilowski said that if Cnspo met with the Union, Wasilowski would get the Company an easy contract as the first contract Crispo answered that he would be defeating his own purposes and that he would not sign a contract until they put a pen in his hand and forced him to sign one Crispo said he would either sell the business or close the doors Wa silowski answered that if Cnspo sold the Company, the Union would go with the business Vic Cnspo denied having any such conversation with Wasilowski This blanket denial is not credited Vic Cnspo testified that he had only one partner his older brother, who could not possibly do Wasilowski any harm However, that is im material The question is whether Vic Crispo made the statements attributed to him I find Wasilowski to be a much more credible witness than Vic Crispo and I find the conversation occurred as testified to by Wasilowski In December 1986, Wasilowski again asked Vic Crispo to get together with the Union about signing a contract Wasilowski again offered to get Crispo an easy contract Crispo answered that he was not going to sign a contract and would not sign a contract until he was forced to do so On or about January 19 1987 when Wasilowski had finished his driving duties, he asked Piziak if he should help Lowell finish unloading a trailer Piziak told Wasi lowski to assist Lowell While assisting Lowell, Wasi lowski waved to a former employee Dave Willis Willis had been discharged in December 1986 and had been the subject of unfair labor practice charges filed against the Respondent by the Union Wasilowski had spoken to Willis foreman, Ron Kohatsu, and had threatened to file the charges if Willis was not rehired The charges were filed shortly after Wasilowski's conversation with Ko hatsu Immediately after Wasilowski waved to Willis Piziak told Wasilowski to punch out and go home Wasilowski protested that he was not finished helping Lowell Piziak ordered Wasilowski to punch out and go home Wasi lowski punched out and went over to speak with Willis Thereafter Wasilowski was confronted by Vic Crispo Cnspo said You are a prick You can t be a nice guy Wasilowski responded that Cnspo was not a nice guy, making him drive all the unsafe equipment Cnspo ac cused Wasilowski of breaking the equipment Wasiloswki denied doing any damage to Respondent 's trucks or equipment Cnspo told Wasilowski to tell your men to stop ruining my pallet jacks and walls Wasilowski an swered that the damage was done years ago and that he talked the employees out of doing damage Cnspo or dered Wasilowski to get the fuck off my property and go home ' Piziak denies that he ordered Wasilowski to leave be cause of waving to Willis or anyone else Wasilowski s timecard reveals that he worked overtime on the date in question However, that is immaterial If Wasilowski was discriminatorily sent home before he finished his assign ment it is no defense that he was already on overtime Wasilowski would have worked more overtime had he not been discriminatorily sent home Although both Piziak and Vic Crispo deny that Crispo threatened Wasi lowski, I find Wasilowski to be a more credible witness than either Piziak or Vic Crispo Crispo simply denied all wrongdoing and made no attempt to truthfully relate facts Piziak appeared more interested in protecting Vic Cnspo s position than in truthfully testifying to the facts The complaint alleges that Victor Vaughn , third shift foreman, refused to allow Wasilowski to take an electnc pallet jack with him on a delivery on January 23, 1987 I find no violation of the Act but rather a misunderstand ing occurred on this date Respondent has as many as five or six electric pallet jacks but they are constantly in use and must be placed on battery chargers for several hours between uses On the date in question Wasilowski went to get an electric pallet jack to take with his deliv ery to a particular market where he felt the jack was needed Vaughn, believing that the jack was not neces sary for the delivery because the market had a forklift available, told Wasilowski not to take an electric jack but rather a manual pallet jack Although Vaughn had good reasons for wanting to keep the electric jack available for other deliveries, he did not give these reasons to Wa silowski Wasilowski believing that this was another form of harassment for his union activities , argued with Vaughn Vaughn yelled at Wasilowski that the driver should take the manual jack or punch out Wasilowski, after arguing with Piziak went home As indicated above, I do not find that the facts establish a violation of the Act Piziak had legitimate reasons for not wanting an electric jack to leave the warehouse he needed them for other drivers and the store in question had a forklift available However Piziak never explained his reasons to Wasilowski and the two got involved in a shouting con test Wasilowski having never before been denied the use of an electric jack, simply assumed that he was being harassed again because of his union activities Thus, Wa silowski punched out rather than make the delivery with out the electric jack and never learned that the forklift was available The General Counsel further contends that Wasilowski and the other union adherents were discriminatonly as signed nondriving tasks not uniformly required of driv ers However the evidence is inconclusive on this issue On several occasions Wasilowski and Trombley were re quired to 'lump trucks Lumping consists of taking an unpalletized load of produce and stacking it by hand onto pallets The evidence reveals that the lumping as signments are infrequent Further, most, if not all of Re spondent's drivers and supervisors have done lumping on occasion This occurs when there is not enough driving work to be done or when the warehousemen need assist ance On these occasions drivers are given the option of doing the lumping work or going home early Drivers 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are not penalized for choosing to go home early rather than perform lumping work C Conclusions Regarding 8(a)(1) Issues 1 As found earlier, on or about October 23, 1986, Vic Cnspo told Wasilowski that he had it up to here' with Wasilowski because the truckdriver had filed charges against Respondent Crispo threatened that "his part ners" did not like what Wasilowski was doing and that Crispo could not be responsible for what his partners might do to Wasilowski In the same conversation, Crispo said he would be defeating his own purposes by signing an agreement with the Union and that he would sell the business or "close the doors " Accordingly, I find Vic Crispo's remarks to constitute unlawful threats in violation of Section 8(a)(1) of the Act It is no defense that Crispo had no intention of carrying out the threats 2 On January 19, 1987, Piziak directed Wasilowski to punch out and go home shortly after Wasilowski had waved to Dave Willis, a former employee who had been the subject of an unfair labor practice charge filed by Wasilowski Shortly before Willis appeared, Piziak had told Wasilowski to assist Lowell in unloading a trailer Piziak gave no explanation to Wasilowski for so quickly changing his mind about Wasilowski's assignment Not coincidentally, Vic Crispo confronted Wasilowski before he went home and called him a prick Vic Crispo ac cused Wasilowski of damaging equipment and ordered him to go home Under the circumstances, I find no ex planation, other than Respondents animosity against Wa silowski for filing charges, for Piziak s and Vic Crispo s actions on this date Accordingly, I find Respondent vio lated Section 8(a)(1) of the Act I find no defense in the fact that Wasilowski was working overtime when Piziak sent him home Piziak s unlawful action reduced Wasi lowski s overtime hours for the date in question Appar ently Wasilowski was already working overtime when Piziak told him to assist Lowell 3 On or about January 23 1987, Vaughn and Wasi lowski argued over the use of an electric pallet jack I find no violation of the Act in Vaughn s refusal to permit Wasilowski to use the electric jack Vaughn had nondiscriminatory reasons for wanting to retain the jack at the warehouse, he needed the jack for other deliveries that day and the market in question had an available forklift I further find that because Wasilowski was not given an explanation for Vaughn s refusal and because he had never before experienced such a refusal, he reason ably but mistakenly assumed that Respondent was once again engaging in retaliation for his union activities Thus based on objective considerations, rather than Wa silowski's subjective state of mind I find no violation of the Act in Vaughn s conduct on this date 4 Scott Foster testified that sometime on February 10, 1987, Scott Cnspo 11 in answering a complaint about the bobtail trucks, said that three trucks were union trucks and were reserved for the union supporters Similar statements about the trucks were made by Holly 11 I find Scott Cnspo to be a supervisor within the meaning of the Act based on his authority to discipline assign and to responsibly direct em ployees Bingham to William Trombley and Don Lowell I find such remarks constitute threats that Respondent did re taliate and would retaliate against employees for union activities at its facility D Conclusions Regarding the 8(a)(3) and (4) Allegations The complaint alleges that since July 23, 1986, Re spondent has (1) caused the working hours of Lowell, Trombley, and Wasilowski to be reduced, (2) required Wasilowski to drive less desirable vehicles, (3) required Wasilowski and Trombley to take less desirable driving assignments, and (4) required Wasilowski, Trombley, and Lowell to perform nondriving work tasks (lumping of trucks), allegedly not uniformly required of other truck drivers The General Counsel contends that these actions were taken against the three drivers because of their union activities and because they had either invoked and/or been the beneficiaries of the Board's processes The Board has closely scrutinized the working condi tions of employees who had been reinstated under Board orders and settlement agreements Where the facts show reinstatement of such persons to more arduous work as signments, violations of Section 8(a)(3) and (4) of the Act have been found Nacker Packing Co, 238 NLRB 1134 (1978), California Pacific Signs, 233 NLRB 450 (1977), and Continental Distributing Co, 256 NLRB 654 (1981) In Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 12 the Board announced the following causation test in all cases alleging violations of Section 8(a)(3) or violations of Sec tion 8(a)(1) turning on employer motivation First the General Counsel must make a prima facie showing suffi cient to support the inference that protected conduct was a `motivating factor in the employers decision On such a showing, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct The General Counsel contends that Respondent breached the settlement agreement by failing to properly reinstate Wasilowski and Trombley The General Coun set contends that by giving the employees less desirable trucks and less desirable driving assignments, Respondent has failed its obligations under the settlement agreement However, the Regional Director has not set aside the settlement agreement Further, there is no evidence about whether the settlement contemplated that the dnv ers would be returned to the same trucks and driving as signments More important there is no evidence about how Respondent assigned trucks and delivery routes Al though the General Counsel assumes that Wasilowski and Trombley are entitled to better trucks and assign ments than less senior employees there is no evidence that Respondent utilized seniority in making truck or route assignments Thus I am not inclined to find that Respondent violated the settlement agreement based on the failure to assign Wasilowski and Trombley to the same trucks and delivery assignments as prior to their 11 See NLRB v Transportation Management Corp 462 U S 393 399- 403 (1983) GREAT WESTERN PRODUCE discharges However, this does not resolve the issue of whether Respondent continued to engage in discrimina tion toward the employees in violation of the settlement agreement and the Act Independent of the initial assign ments on reinstatement, there is evidence that Respond ent sought to retaliate against Wasilowski and the other union drivers in regard to the assignment of trucks and in delivery routes First, only 3 days after Wasilowski's reinstatement, Vic Crispo threatened to take Wasilowski to court because the employee had assisted in the filing of charges and or dered Wasilowski to put away his union hat Thereafter, on October 2, Vic Cnspo unlawfully threatened Wasi lowski after the driver had again assisted the Union in filing charges Vic Cnspo implied physical harm to Wa silowski and threatened to sell or close the business to avoid unionization This conduct supports an inference that Respondent was motivated by union animus and animus toward Wasilowski for filing charges against Re spondent On January 19, Piziak ordered Wasilowski to leave the plant before finishing an assignment because the driver had waved to former employee Dave Willis Again, the evidence indicates that Piziak was motivated by the fact that Wasilowski had initiated the Union s filing of a charge against Respondent Before Wasilowski could leave the plant, Vic Crispo called him names, ac cused him of damaging equipment, and ordered him to leave Further, statements of Supervisors Scott Cnspo and Holly Bingham admit that Respondent reserved the worst vehicles for union drivers Second, the testimony of Doug Kastens establishes that Lowell and Wasilowski were not given driving as signments they should have gotten Loads, which were ready for the first driver in, were not given to that driver if he turned out to be Lowell or Wasilowski Rather, Lowell and Wasilowski were given smaller loads to be delivered in the old bobtail trucks Thus, Kasten' testimony establishes that the union trucks" were, in fact used as retaliation against Wasilowski and Lowell It is not unreasonable to infer, as argued by the General Counsel, that this manipulation of loads resulted in a re duction of hours for Lowell and Wasilowski This seems particularly true because both Lowell and Wasilowski worked less hours than the other drivers Wasilowski worked many less hours than before his discharge How ever also contributing to the difference in Wasilowski s hours before and after his reinstatement is the fact that Respondent increased its staff of drivers and attempted to reduce the number of overtime hours Leon Franking, a driver corroborated Kastens evidence to some extent by testifying that after he returned from his initial deliv eries and discovered that Wasilowski, Trombley, and Lowell had been sent home he and other drivers were given additional deliveries Franking also testified that he was sent home early on the one day that he wore a union hat, even though there was additional work to be done For the foregoing reasons I find that the General Counsel has made a prima facie showing that Respond ent was motivated by a desire to retaliate against its em ployees union activities and the filing of charges under the Act in discriminating against Trombley Lowell and 371 Wasilowski with regard to truck and delivery assign ments and that this discrimination resulted in some loss of hours and wages However , I find no discriminatory assignment of nondriving work such as lumping The evidence establishes that on occasion the drivers were asked to perform lumping duties However , most, if not all, of the drivers performed such work, as did supervi sors Although some drivers did not perform such work, that difference may very well be explained by the fact that drivers were given the option of doing lumping or punching out early No punishment was given for choos ing to punch out rather than perform lumping duty Thus, the record establishes a regular practice of lump ing by drivers on an infrequent basis and does not estab lish any greater frequency of such assignments for the al leged discriminatees or any such assignments based on union activities The fact that Wasilowski was not or dered to perform lumping duty prior to his reinstatement may be explained by the fact that he was a driver for only 3 months prior to his layoff and discharge The burden shifts to Respondent to establish that the same action would have been taken even in the absence of the employees protected conduct I find Respondent's evidence to be unconvincing I find no violation in Re spondent's failure to assign Wasilowski and Trombley to Tucson deliveries as the General Counsel has not estab lashed that they were entitled to such routes However there is no credible evidence to rebut the testimony of Kasten and Franking that during the workday, assign ments were manipulated so that Wasilowski and Lowell got smaller loads and less desirable trucks to drive The fact that Wasilowski and Lowell worked less hours than other employees is consistent with such testimony The difficult question is the effect of the manipulation on Lowell s, Wasilowski's, and Trombley s earnings and I will leave that question to the compliance stage of the proceeding I find Respondent's argument concerning truck assign ments to be equally unpersuasive Again , I find no viola tion in Respondent's assignment of a primary vehicle to Wasilowski However the evidence establishes that for backfills and additional orders, the routes were manipu lated so that Wasilowski, Trombley and Lowell were re quired to drive the less desirable bobtails known as the union trucks' Although there is no showing that these trucks were unsafe, by telling employees that these trucks which were the least desirable to drive were re served for union supporters Respondents supervisors clearly conveyed the message that union supporters would pay for their support Again, I leave to the com pliance stage the question of the extent if any the as signment of the less desirable vehicles had on the earn ings of Trombley Wasilowski and Lowell Thus I reject Respondent's argument that the employees suf fered only insignificant harm Accordingly, I find that Respondent discriminated against Wasilowski, Trombley and Lowell because of their support for the Union and/or because of their as sistance in the filing of the charges under the Act, a vio lation of Section 8(a)(4) (3) and (1) of the Act 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1 Respondent Great Western Produce, Inc is an em ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union, Construction Building Materials and Miscellaneous Drivers, Local Union No 83, an affiliate of International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by unlawfully threatening employees with physical harm, the sale or close of the business, and discriminatory vehicle assign ments in order to discourage union activities 4 Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act by unlaw fully discriminating against Wasilowski, Lowell, and Trombley in the assignment of vehicles and delivery routes because of their union activities 5 Respondent has engaged in unfair labor practices in violation of Section 8(a)(4) and (1) by discriminating against Wasilowski, Lowell, and Trombley because they assisted the Union in filing charges and/or because they benefited as a result of those charges THE REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act Respondent shall be ordered to make Frank Wasi lowski, William Trombley, and Donald Lowell whole for any losses they may have suffered as a result of the discrimination against them in the manner set forth in F W Woolworth Co 90 NLRB 289 (1950) with interest computed in the manner set forth in New Horizons for the Retarded 283 NLRB 1173 (1987) 13 See generally Isis Plumbing Co, 138 NLRB 716 (1962) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed14 ORDER The Respondent Great Western Produce Inc Glen dale, Arizona its officers, agents successors, and assigns shall 1 Cease and desist from 19 Under New Horizons interest is computed 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 accrued before January 1 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977) 14 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 put poses (a) Discriminating against employees in the assignment of trucks and deliveries for supporting or engaging in union activities on behalf of Construction, Building Ma terials and Miscellaneous Drivers Local Union No 83, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America AFL-CIO or any other labor organization (b) Discouraging employees from giving testimony or filing charges pursuant to the National Labor Relations Act by discriminating against them in the assignment of equipment or deliveries or in any other manner discrimi nating against them with respect to their wages, hours, or tenure of employment (c) Threatening employees with physical harm, closing or selling the business or any other form of retaliation for engaging in union activities, or for giving testimony or filing charges under the Act (d) In any like or related manner interfering with, re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make Donald Lowell, William Trombley, and Frank Wasilowski whole for any losses they may have suffered because of the discrimination against them in ac cordance with the provisions set forth in the remedy sec tion of this decision (b) Post at its Glendale Arizona facility copies of the attached notice marked Appendix 15 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent's au thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive 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 (c) 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 (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 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found here 15 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