Transystems Services

TRANSYSTEMS SERVICES 765 Transystems Services, a General Partnership and Robert Jones, Kevin C. Wittmayer, and Frank Lewis. Cases 18-CA-11031, 18-CA-11031-2, and 18-CA-11086 September 21, 1990 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIAIT On May 30, 1990, Admimstrative Law Judge Richard A Scully issued the attached decision Charging Parties Robert Jones and Kevin C Witt- mayer filed exceptions The National Labor Relations Board has delegat- ed its authonty in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and has decided to affirm the judge's rulings, findings,' and conclu- sions and to adopt the recommended Order ORDER The complaint is dismissed Charging Parties Jones and Wittmayer have excepted to certain credibility findings made by the judge It Is the Board's established policy 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 Cm 1951) We have carefully examined the record and find no basis for reversing the findings The Charging Parties further contend that the adnumstrative law judge's credituhty resolutions, findings of fact, and conclusions of law stem from bias and prejudice against the Charging Parties We disagree There is no basis for finding that bias and prejudice existed merely be- cause the judge resolved Important factual conflicts in favor of the Re- spondent's witnesses As the Supreme Court stated in NLRB v Pittsburgh Steamship Co, 337 U S 656, 659 (1949), "Motal rejection of an opposed view cannot of Itself impugn the mtegnty or competence of a tner of fact" Moreover, our review of the record reveals no evidence that the judge prejudged the case, made prejudicial rulings, or demonstrated any bias Everett Rotenberiy, Esq , for the General Counsel Richard S Mandelson, Esq , of Denver, Colorado, for the Respondent DECISION RICHARD A SCULLY, Adimmstrative Law Judge On charges filed by Robert Jones, Kevin C Wittmayer, and Frank Lewis on September 18, September 28, and No- vember 3, 1989, respectively, the Regional Director for Region 18, National Labor Relations Board (the Board), issued a consolidated complaint on December 22, 1989, alleging that Transystems Services (the Respondent) vio- lated Section 8(a)(1) and (3) of the of the National Labor Relations Act (the Act), by failing to recall for employ- ment Charging Parties Wittmayer and Lewis, and violat- ed Section 8(a)(1), (3), and (4) by failing to recall for em- ployment Charging Party Jones The Respondent filed a timely answer denying that it had committed any viola- tion of the Act A hearing was held in Grand Forks, North Dakota, on February 20 and 21, 1990, at which all parties were given a full opportunity to participate, to examine and cross-examine witnesses and to present other evidence and argument Briefs submitted on behalf of the General Counsel and the Respondent have been given due con- sideration On the entire record' and from my observa- tion of the demeanor of the witnessess, I make the fol- lowing FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT At all times material, the Respondent was a general partnership with an office and place of business in Grand Forks, North Dakota, and facilities at other locations in North Dakota and Minnesota and has been engaged in the business of providing interstate transportation of freight and commodities During the calendar year ending December 31, 1989, the Respondent, in the course and conduct of its business, derived gross reve- nues in excess of $50,000 from the interstate transporta- tion of freight and commodities from the State of Mmne- sota directly to points withm the State of North Dakota and from the State of North Dakota directly to points within the State of Minnesota The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that at all times material, the International Umon of Operating Engineers, Local 49, AFL-CIO (Operating Engineers), and the General Drivers and Helpers, Local 581 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters), were labor organizations within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background The Respondent had its headquarters m Great Falls, Montana Its Eastern Division consists of its operations in the Red River Valley, which includes parts of North Dakota and Minnesota, where since 1983, pursuant to contracts with American Crystal Sugar (American), it has hauled sugar beets from stock piles at which the beets are deposited by farmers to American's processing plants The business is seasonal with each "campaign" beginning about mid-September and extending to the fol- lowing February on early March During the campaign, beets are hauled from the piles to the plants 24 hours a day, 7 days a week, in tractor-trailers driven by employ- ees known as line drivers, who work 12-hour shifts 4 'Counsel for the General Counsel's unopposed motion to correct the hearing transcript LS hereby granted 299 NLRB No 118 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD days a week, alternating a week of days and a week of nights The Respondent also employs mechanics who service and repair its equipment, loader operators who operate front-end loaders, which load the beets in the piles onto the trucks, and yard drivers who drive trucks hauling beets that have been deposited at the plants to the processing areas, but do not drive on the road During the 1988-1989 beet campaign, the Respondent had approximately 225 employees in the Red River Valley At some point prior to the 1988-1989 beet campaign, the loader operators had been represented by the Operat- ing Engineers, but were not so represented at that time In October 1988, the Teamsters began an organizing drive among the Respondent's line dnvers and filed a representation petition with the Board on December 21, 1988 On the same date, the Operating Engineers filed a repreentation petition seeking to represent the Respond- ent's equipment operators After a Board heanng on Jan- uary 11, 1989, the Regional Director issued a Decision and Direction of Election on January 30, 1989, in which he concluded that there should be a single bargaining unit made up of all line drivers, yard drivers, and loader operators Thereafter, the Teamsters withdrew its peti- tion and an election was held on November 17, 1989, in which the employees voted 131 to 64 against representa- tion by the Operating Engineers No objections to the election were filed and the result was certified by the Regional Director on November 24, 1989 B Frank Lewis Frank Lewis was one of the first drivers hired by the Respondent prior to the 1983-1984 campaign, its first pursuant to 5-year contract with America Lewis worked as a line driver each year through the 1988-1989 cam- paign He signed an authorization card for the Teamsters in October 1988 and later signed one for the Operating Engineers m February 1989 Lewis testified that while he talked in favor of unionization with the people on his shift, he did not "actually get out and do any campaign- ing" However, in late December or early January, when he felt that the union activities were bearing fruit and that an election would be held, he became "quite vocal," encouraging people on his shift to sign cards and vote in favor of the Union He spoke in favor of the Union to other drivers over the CB radio with which his truck was equipped until his last day of work on the beet cam- paign, February 6, 1989 Lewis testified that on two oc- casions after January 1, 1989, he spoke in favor of the Union in conversations with his supervisor, Mike Bilben, and in a conversation with company vice president, Ray Cloward, at which Bilben and supervisor Dennis Greany may also have been present Lewis testified that a week or 10 days after the end of the beet campaign, when he went in to pick up his last paycheck, he spoke to Bilben about switching to a posi- tion as a yard driver in the next campaign as they worked only 8-hour shifts compared to the 12-hour shifts worked by line drivers Bilben responded that he saw no problem and that Lewis should let him know a month before the next campaign started so they could make the change in their schedule Sometime later Lewis received a letter from Francis Rick, the Respondent's director of operations for the Red River Valley, which informed him that he was not eligible for rehire for the 1989-1990 beet campaign Lewis telephoned Rick after receiving the letter and asked why he was not eligible for hire Rick responded that he did not have the file in front of him but it was his recollection that the reason was that Lewis was always "hardassmg" people Rick said he did not have the time to meet with Lewis right, then and that he wanted Bilben present He told Lewis to call him back in 2 weeks and they would talk it over, Lewis did not call back and no meeting was held After Lewis filed a charge with the Board m November 1989, he received a letter from Rick offering him the opportunity to return to work if he so desired Lewis did not respond to the letter and has not been reemployed by the Respondent Lewis testified that during the 1988-1989 beet cam- paign he was never spoken to by any supervisor about "hardassmg" people, accused of doing so or given any warning for doing so Francis Rick testified that at the end of each cam- paign, supervisors fill out a termination report for each employee and indicate whether they are eligible for rehire for the next cEunpgign With respect to those that the supervisor determines to be ineligible, Rick reviews those determinations with the supervisor and a final deci- sion about rehire is made Rick agreed to sign off on a no-hire letter to Lewis after discussing the matter with his supervisor, Bilben, who said that Lewis was never satisfied with what was happening, that he was hard to get along with, that he was distracting and bringing down the morale of other employees, and that Bilben had no success in getting Lewis' attitude corrected Rick was also aware from spealung with Lewis that he was dissatisfied about a wage cut imposed at the beginning of the 1988-1989 campaign After Lewis received the letter and contacted him, Rick told him the reason was that he was hard to get along with and suggested that he, Lewis, and Bilben meet to work things out Rick then spoke to Bilben and they agreed that if, after meeting with Lewis he agreed to improve his "general working attitude," he would be allowed to return for the 1989-1990 campaign Michael Bilben testified that he decided not to rehire Lewis after the end of the 1988-1989 campaign of his complaining during that campaign Lewis complained about the cut in wages and constantly gave the mechan- ics who serviced his truck a bad time which resulted in friction between the mechanics and the drivers Mechan- ics repeatedly complained to Bilben about Lewis and he spoke to Lewis about the problem a couple of times during the first half of the campaign, but did not consid- er suspending him or threatening him with termination He also advised Rick that Lewis was adversely affecting morale during the campaign and conferred with him before the no-rehire letter was sent Thereafter, he agreed to meet with Lewis and Rick, but the meeting was never arranged After Lewis filed a charge with the Board, he did not oppose Rick's decision to offer Lewis employment since he figured that if Rick, who had known Lewis a long time, spoke with him "that would do the job" TRANSYSTEMS SERVICES 767 C Robert Jones Robert Jones began working for the Respondent as a line driver during the 1984-1985 campaign in the Red River Valley and worked in each campaign through 1988-1989 Jones also work for the Respondent at one of its Western Division jobsites in Riverton, Wyoming, during 1988 and 1989, which involved hauling uranium tailings In October 1988, Jones signed an authorized card for the Teamsters and later signed one for the Operating En- gineers After he signed the Teamsters' card, Jones called a meeting of drivers at a restaurant and had a umon official come in to give advice and explain things Jones contacted other employees about the meeting either by speaking to them personally or over his CB radio He solicited authorization cards from about 15 people at the meeting and at the Board hearing m Janu- ary, he was the only rank-and-file employee to appear as a witness During the organizing drive, he often spoke in favor of untomzation on the job both at the shop and over the CB radio and when off work by telephoning employees on a few occasions After the end of the 1988-1989 beet campaign, Jones received a letter from the Respondent, dated May 9, 1989, Informing him that he was eligible for rehire for the 1989-1990 beet campaign, Jones received a letter from the Respondent, dated May 9, 1989, informing him that he was eligible for rehire for the 1989-1990 beet campaign Jones returned the letter indicating that he would be working in that campaign However, by letter dated August 31, 1989, the Respondent informed Jones that because he had voluntarily quit his last job with the company at the Riverton project, the supervisors there had determined that he was not eligible for rehire at Riv- erton and that this ineligibility extended to all divisions of the company, consequently, he would not be eligible for rehire in the upcoming Red River Valley beet cam- paign Jones was not rehired for the 1989-1990 cam- paign Jones testified that he had worked at the Riverton project during the summer of 1988 for 6 or 7 weeks starting about the first of August and continuing until he returned to North Dakota for the start of the beet cam- paign He worked approximately 50 hours a week at Riverton in 1988 He returned to Riverton in May 1989 with the understanding that he would receive the same number of hours of work as in 1988 At an orientation meeting, Supervisor George Littlefield said that they would attempt to give the drivers from out of town as many extra bonus hours as they could However, in the 3 weeks he was there he worked only 6 days On May 17, Jones spoke with Littlefield and asked if he would be given the hours of work promised He said Littlefield re- ponded that "the company couldn't see it was clear to give me the extra hours" Jones then asked for a layoff so he could return home and Littlefield asked when he wanted the layoff to take effect Jones said on May 19, the end of the pay period, and on the date he picked up his paycheck and left for home According to Jones, Littlefield said nothing about his leaving disqualifying him from future work or that he was leaving the compa- ny shorthanded On cross-examination, Jones testified about an incident at Riverton during 1988 when he became so upset with an inspector, who verbally "jumped all over" 1nm and cussed him out for not properly decontaminating his truck, that he got out of his truck and walked off Jones encountered Bilben, then a supervisor at Riveton, who laughed about the incident, told Jones to get back in his truck and go back to work and said, "you know if you leave here, if you quit, you won't be eligible for rehire in the Red River Valley again" Jones returned to his truck and finished out his job at Riverton George Littlefield testified that during May 1989 Jones worked a few more hours than the average driver as they tried to give the out-of-state drivers more hours, if possible, but that he had not made an announcement to that effect at the orientation meeting On May 19, he had a conversation with Jones wherein Jones asked to be given more hours because, otherwise, he could not afford to stay there and he would have to quit and go home Littlefield said that they had no control over the weather which had caused there to be several days when there was no work 2, When Jones said he was quitting and heading home Littlefield said, "Bob if that's what you've got to do, that's what you've got to do" D Kevin Wittmayer Kevin Wittmayer was employed by the Respondent beginning in January 1986, when he worked as a line driver hauling coal to Falkirk, North Dakota After the end of that project, he went to Salt Lake City where he hauled gravel for a highway project After 2 months on that job, he told his supervisor Bill Schulenberg that he was too far from his home and family and was going to quit Schulenberg said he was sorry to see him go and agreed to Wittmayer's request to term his leaving a layoff for unemployment compensation purposes In the fall of 1986, Wittmayer was lured as a line driver for the beet campaign after putting in an application and being given a driving test He also worked during the 1987- 1988 beet campaign After the end of that campaign, he sought a job at the Riverton project and worked there as a line driver and doing other odd jobs from the end of July until September Wittmayer testified that he and line driver Donald LaCoursiere, who had gone with him to Riverton, asked Ray Cloward if they could leave a week early to go back to North Dakota to take care of some business and to work in the 1988-1989 beet campaign Cloward contacted Rick in North Dakota and told them that Rick had said they could return to North Dakota and he would put them to work They left immediately and returned home by way of Great Falls, Montana, where they dropped off a truck for the Respondent at its headquarters and picked up another truck which they drove to North Dakota They started work on the beet campaign a week or 10 days after leaving Riverton 2 According to Littlefield's credible and uncontradicted testimony, due to the fact that the Riverton project involved hauling contaminated mate- rial, there could be no hauling if It rained because the resulting mud on the trucks' tires would contaminate public highways If It rained, the de- termination as to whether or not there would be any hauling was made by the prune contractor, M K Ferguson, not by the Respondent 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In October 1988, after discussing the possibility of seeking union representation with other drivers, Witt- mayer went to the Teamsters office in Grand Forks and spoke with Truman Sorenson, an official of the local union While there, Watmayer signed a union authoriza- tion card and obtained other cards which he proceeded to get drivers to sign He solicited signatures on these cards from line drivers on and off the job and over his CB radio He obtained between 20 and 29 signatures on cards which he turned over to Sorenson Once it was de- termined that the Operating Engineers would be the po- tential bargaining representative of all employees, Witt- mayer signed an authorization card for it and urged others to sign and support the Union, in person and on the CB radio He testified that during the 1988-1989 beet campaign he wore a jacket to work which had the name and logo of laborers Union, Local 580, on it One on oc- casion, Supervisor Bill Schulenberg told him he "better get that damn thing out of here," referring to Witt- mayer's jacket Wittmayer told Schulenberg it was his work jacket and he continued to wear the jacket until the end of the beet campaign Wittmayer testified that in January 1989, he received a letter from the Respondent informing him that he was el- igible for rehire at Riverton in 1989, which he returned indicating his willingness to work there in 1989 He was not contacted about returning to Riverton and, when he telephoned the Respondent about a job there, George Littlefield told him no drivers were needed at that time Thereafter, here received a letter from the Respondent dated May 9, 1989, telling him he was not eligible for rehire for the 1989-1990 beet campaign After receiving that letter, Watmayer wrote to Rick in June 1989, asking for the reasons why he was not being rehired and for a recommendation to use in securing other employment He has received no reply to his letter to Rick Michael Bilben testified that he made the decision not to rehire Wittmayer for the 1989-1990 beet campaign According to Bilben, who had been Wittmayer's supervi- sor since the 1986-1987 beet campaign, he had originally decided not to rehire him after the 1987-1988 campaign because of various problems dunng the campaign Bilben said he felt that Wittmayer had a bad attitude and was unhappy with his wages and with the company's policies and regulations and that when he tried to speak to him about his deficiencies Watmayer got defensive or ig- nored him During that campaign Bilben had talked to Wittmayer on numerous occasions and had given him a verbal warning on October 5, 1987, for failing to proper- ly check over his truck and two additional verbal warn- ings on January 25, 1988, for speeding and failing to clean the top rail of his truck 3 On the same date Witt- mayer was given a 2-day suspension, 1 day for failure to clean the top rail and 1 day for his "attitude" to the su- pervisor who reprimanded him about speeding and not cleaning the rail Although designated as "verbal," the warnings were in writing and copies were given to Witt- 3 Company rules require drivers to check and see that the rail which goes around the top of the trailer is clear of beets or other material before going out on the road because of the possibility that they could fall off and cause damage to other vehicles mayer The warning given in connection with Witt- mayer's suspension also informed him that if his "attitude does not improve it could result in termination" testified that, after these warnings and ths suspension, Wittmayer's job performance and attitude improved to the point that he felt Wittmayer "would do things the way the company wanted" and that it would be worth "taking him back for another chance" Consequently, Bilben changed his recommendation so that Wittmayer was eligible for rehire for the 1988-1989 campaign Bilben testified that during the 1988-1989 campaign, after about a month, Watmayer "got right back into the same thing and it was the same stuff all over again" He complained about the speed limit, about his wages which had been reduced at the beginning of the campaign under the new contract, and about company rules such a cleaning top rails Bilben said he felt that Wittmayer had a bad attitude toward the Company and, after talking with Wittmayer, he became convinced that he was not going to change his ways He had decided about 1-1/2 to 2 months into the campaign that he was not going to bring Watmayer back for the next campaign He had au- thority to terminate Watmayer, but did not do so be- cause it would have been difficult for him to find an- other job at that time and he felt he could tolerate him until the end of the campaign He did not give Witt- mayer any written warnings during the 1988-1989 cam- paign although he did talk to him about speeding Bilben said he did not consider further official warnings or an- other suspension becuase he did not believe it would do any good and because he had already decided that he would not bring Wittmayer back E Analysis and Conclusions The complaint alleges that the Respondent did not rehire Lewis, Jones, and Watmayer for the 1989-1990 beet campaign because of their support for and activity on behalf of the Teamsters and the Operating Engineers during the 1988-1989 campaign The Respondent denies this and contends that each was not rehired for reasons unrelated to protected activity on his part In cases where the alleged violations of the Act turn on the employer's motivation, the Board requires an analysis pursuant to Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 800 (1st Ca 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Manage- ment Corp, 462 U S 393 (1983) Under Wright Line, the General Counsel must make a prima fame showing suffi- cient to support the inference that protected conduct was a motivating factor in the Respondent's decisions not to rehire the Charging Parties for the 1989-1990 beet cam- paign Once this has been done, the burden shifts to the Respondent to demonstrate that it would have taken the same action even in the absence of protected activity It must first be established that the Charging Parties engaged in protected activity and that the Respondent had knowledge of that activity In the cases of Jones and Wittmayer, the evidence is clear that they were two of the leading organizers for the Teamsters during the 1988-1989 beet campaign among the line drivers Each solicited signatures on union authorization cards both on TRANSYSTEMS SERVICES 769 and oft' the job and used their CB radios while working to enlist the support of other drivers for the Union There was evidence that the Respondent's supervisors closely watched the drivers and trucks while they were operating and that supervisors also monitored the driv- ers' CB radio transmissions Supervisor Michael Bilben testified that throughout the entire 1988-1989 beet cam- paign he had a CB radio in his company truck and that he monitored the channel used by the line drivers "all the time" Jones was also the only rank-and-file employ- ees to testify at the Board's representation hearing in Jan- uary 1989 According to the testimony of Lewis, he was not ac- tively involved in organizing activity and did not speak out in favor of unionization until late December or early January 1989, once he felt that the union activities were bearing fruit and he was sure that there was going to be an election 4 From that point until the end of the beet campaign, he spoke in favor of the Umon on his CB radio while working at least once a night Given the evidence that Jones testified on behalf of the Teamsters at the Board hearing, that all of the Charging Parties spoke in favor of the Union on the CB radio, that the Respondent's supervisors, particularly Bilben, regularly monitored the drivers' CB communica- tions and, more important the lack of any denial by Bilben that he heard their proumon comments, 5 I infer that the Respondent had knowledge of the support for and activity on behalf of the Union by Wittmayer and Jones While Lewis' activity was limited to verbal sup- port for the Umon, I find that the Respondent was aware of his support In addition to knowledge of protected activity, the General Counsel must establish union animus on the part of the Respodent and that "the hostility or opposition to the union manifested is strong enough to support a con- clusion that the Respondent was willing to violate the law, by discriminating against employees, in order to keep the Union out 6 The attempts to organize the Re- spondent's Red River Valley employees by the Team- sters and Operating Engineers began in October 1988 and extended through the election, which was held on November 17, 1989, albeit there was no work being per- formed by rank-and-file employees between early Febru- ary and September 1989 There were no objections filed in connection with the election and apart from the alle- gations of 8(a)(1) and (3) violations concerning the three Charging Parties, there are no allegations of any inde- pendent violations of Section 8(a)(1) However, there was evidence offered at the hearing which, if credited, could support a finding of animus on the Respondent's 4 Lewis' testimony is unclear as to what convinced him that there was going to be an election The Regional Director did not Issue his Decision and Direction of Election until January 30, 1989, only about a week before the campaign ended Since I believed Lewis' testimony about speaking out in favor of the Union, I presume he was referring to the filing of the representation petition by the Teamsters on December 21, 1988, about the time he said he began to speak out 6 In this regard, Bdben said only that he did not know that any of the three Charging Parties had signed cards on behalf of the Teamsters or Operating Engineers 6 Raysel-IDE, Inc , 284 NLRB 879, 880 (1987) part even though not alleged as violations in the com- plaint Robert Jones testified that in December 1988, right before Christmas, Bilben called him into the office and gave him "hell" for what he had been saying over the CB radio, telling him, "Bob, you either shut the hell up about the union and the company or we are going to get rid of your ass" Jones also testified that at the end of January 1989, Supervisor Bill Schulenberg rode in his truck from the Reynolds stockpile to Grand Forks During the course of this trip, Schulenberg asked Jones what was going on with different employees with re- spect to the Union and, specifically, about the activities of Larry Olson and Kevin Wittmayer, asking what Jones knew about them, if and how they were involved with the Union Jones responded that he did not know as the guys were kind of close-mouthed about the Union On cross-examination, when confronted with an affida- vit he had given the Board in which he stated that Bilben did not use the word "union" during the Decem- ber 1988 conversation, Jones admitted that this was the case Bilben credibly testified that he had a conversation with Jones about his CB transmissions in December 1988, in which he told Jones, who "had a tendency to curse over the radio a lot," not to do it, as he had on numerous occasions before Bilben also testified that he did not threaten Jones with loss of employment during the conversation After observing his demeanor while testifying, I found Jones to be a hostile, contentions, and argumentative witness and I do not credit his testimony about this and other incidents discussed below I credit the testimony of Bilben that this conversation mvolved a routine reprimand concerning Jones' tendency to curse over the CB radio, a tendency that was amply demon- strated during the course of Jones' hearing testimony Although Schulenberg was not called as a witness and Jones' testimony about their alleged conversation on a trip from Reynolds to Grand Forks is uncontradicted, I did not believe it According to Jones, the conversattion took place in late January 1989, which would have been shortly after Jones testified on behalf of the Teamsters at a Board hearing on January 11 I find it incredible that a supervisor would seek out Jones, who at that point was the most prominent and only openly acknowledged union supporter in the Respondent's employ, and seek to extensively interrogate him about the union activities of other employees Given my conclusions as to Jones' gen- eral lack of veracity, I fmd that he fabricated this alleged incident Jones also testified to an alleged plot on the Respond- ent's part whereby he was lured to the Riverton job site in the spnng of 1989 with the promise of 50 to 55 hours of employment per week, but given fewer hours than other drivers Because of this he was forced to quit, which the Respondent used as the basis for denying him further employment with it in the Red River Valley, all because of his union activity In addition to finding the theory far fetched, I found much of Jones' testimony about the whole matter to be incorrect or deliberately false Although he initially testified that Rick called his home and asked him to go to Riverton, on cross-exami- 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nation, after being shown the affidavit he gave the Board, he said it was he who had asked for the opportu- nity to go to Riverton in 1989 He testified that at an on- entation meeting at Riverton, Littlefield promised that they would try to give the drivers from out of town that came a long way to work there all the extra hours they could Littlefield credibly denied making such a state- ment, remarking that he would have had a not on his hands if he did Jones testified that on May 14, 15, and 16, 1989, al- though he was scheduled to work, he was not allowed to While admitting that it rained one or two of those days, he claimed that drivers were being called m to work and that trucks were hauling The Respondent's records for May 14 through 16 show that there was no production on any of those days because of rain Little- field's testimony established that the decision not to work on those days was made by the prime contractor on the project, not the Respondent Considering all of the evidence, I find there is nothing to indicate that Jones was the victim of discriminatory treatment while at the Riverton project or that would suggest the Re- spondent intentionally reduced his hours so that he would quit and thereby disqualify himself for future em- ployment There is nothing in the Respondent's conduct with respect to Jones' employment at Riverton that dem- onstrates any animus on its part toward Jones or the umons Frank Lewis testified that during the 1988-1989 cam- paign he had conversations with Supervisors Bilben and Cloward about the Union He could not specify the dates of his conversations with Bilben but said it was after Jan- uary 1, 1989, and the "gist of it" was Bilben would ask what Lewis thought he would get out of bringing the Union in Lewis replied that it would provide job securi- ty and that they had been taking a beating on wages Bilben told him the only thing a union would do was cost Lewis money Lewis also testified that he was asked by Cloward what the Respondent could do to discour- age the men from voting for the Union Cloward also told him that since an election was assured he could not promise anything, but "we'll do what we can to make concessions for the dnvers " According to Lewis, Cloward also said that Federal law prohibited him from making any offers to sway votes, but that if the vote was in favor of the Union, "he would see to it that there was one hell of a long drawn out fight before there is any contract settled" Kevin Wittmayer testified to hearing a similar statement by Cloward Lewis also testified that at the drivers' banquet at the end of the 1988-1989 beet campaign, Cloward told the drivers he hoped there wouldn't be a union to fight with Bilben testified that he talked to everyone who worked under him and expressed his views about the Unions He said he did not single anyone out to talk to and did not have a one-on-one conversation about the Union with Lewis Cloward testified that he spoke to employees on several occasions dunng the union cam- paign, that he usually spoke to small groups of employ- ees and argued against union representation which he did not feel would do the people any good Cloward said he did make comments about negotiating a contract in which he attempted to explain the process whereby after an election the parties would have to sit down and bar- gain for a contract Although the argument can be made that Lewis' testi- mony establishes that the Respondent engaged in unlaw- ful interrogation, solicitation of grievances, promises of benefits and suggested that the employees' union support would be futile, all of which would demonstrate union animus on its part, I do not find this to be the case Lewis' testimony as to the "gist" of what Bilben said to him does not purport to relate any specific statement or comment by Bilben or to place it in context His testimo- ny appears to be in interpretation of what Bilben said in the course of one or more conversations about the merits of unionization The same is true of Lewis' testimony abut Cloward's remarks which was quite vague and somewhat contradictory Considering all of the testimo- ny, I cannot conclude that in context, Cloward's remarks about negotiation of the contract in the event of a union victory amount to anything more than a lawful statement of what may result from the negobatmg process There was one indication of union animus established on the Respondent's part through the uncontradicted tes- timony of Wittmayer that Supervisor Schulenberg saw him wearing a jacket with a laborers union logo on it during the period the Unions were attempting to orga- nize the Respondent's employees and told him to "get that damn thing out of here" The General Counsel argues there is also evidence of unlawful motivation on the Respondent's part in the weakness of the reasons given for its refusal to rehire the Charging Parties The Board recognized that the weak- ness of an employer's explanation for an adverse person- nel action is "a factor raising a suspicion of unlawful mo- tivation," but also that suspicion alone is not enough, there must be a positive finding that protected activity was a contributing factor in the employer's decision 7 In the case of Frank Lewis, he was a long time em- ployee who had had no problems prior to the 1988-1989 beet campaign Accordmg to Bilben, who made the deci- sion that Lewis would not be eligible for rehire, Lewis' unhappiness with his job and the wage cut instituted at the start of that campaign resulted in constant complain- ing and friction with company's mechanics and that he had spoken to Lewis about the problems more than once Lewis didn't deny this, he said only that he had never been accused of "hardassing," the term Lewis said was used by Rick when Lewis asked him why he was ineligible for rehire I find that the evidence indicates that there was not much to support the Respondent's decision not to rehire Lewis, but that it also indicates that its decision concern- ing Lewis, whose protected activity was limited to ex- pressing his support for unionization, was not unlawfully motivated The credited testimony of Rick and Bilben convinces me that Lewis' union support played no role in the Respondent's decision and that had he followed up on his telephone request for a meeting after he received the no-rehire letter and agreed to stop his complaining, 7 Raysel-IDE Inc , supra at 880, Bnanvood Hilton, 22 NLRB 986 (1976) TRANSYSTEMS SERVICES 771 he would have been eligible for rehire Rick testified that no-rehire decisions had been reversed after meetings be- tween himself, the employee and the supervisor on four or five occasions during his tenure He described a situa- tion mvolvmg Donald LaCoursiere, who was given a no- rehire letter at the end of the 1988-1989 campaign, met with Rick and the supervisor, and after they discussed the specific problems, the decision not to rehire him was reversed In summary, considering Lewis' limited role in the union campaign, Bilben's credited testimony that he was fed up with Lewis' complaining and that of Bilben and Rick and that had Lewis agreed to mend his ways he would have been rehired, I conclude that Lewis' union support was not a motivating factor in the Respondent's decision not to rehire him In the case of Kevin Wittmayer, it appears that he was a marginal employee whom Bilben considered to have an "attitude" problem long before the 1988-1989 beet cam- paign, during which his union activity began 8 After being warned and suspended, Wittmayer, by his own ad- mission, "cleaned up [his] act a little bit" Bilben said he observed some improvement m Wittmayer's attitude and work during the last month of the 1987-1988 campaign, enough so that he changed his decision not to rehire him for the 1988-1989 campaign Within a month or two after the start of the 1988-1989 beet campaign, Bilben had determined that Wittmayer was "back into the same thing" and that he "wasn't going to change his ways" Bilben spoke with Wittmayer at least three times during the 1988-1989 campaign and told him he wasn't happy with his attitude and the things he was doing He did not give Wittmayer any further warnings or suspensions be- cause he felt they would do no good and he tolerated Wittmayer until the end of the beet campaign because he knew he would not be coming back Contrary to the ar- gument of the General Counsel, Bilben did not testify that Wittmayer's speeding violations were limited to the 1987-1988 campaign, he testified that, while he did not write Wittmayer up, he did on occasions catch him speeding during the 1988-1989 campaign, confronted him about it and listened to Wittmayer complain about the company's 55-mile-per-hour speed limit Based on Bilben's credited testimony, I find that the Respondent's reasons for not rehiring Wittmayer were not pretextual It appears that Wittmayer, who was nearly terminated after the 1987-1988 campaign, contin- ued during the 1988-1989 beet campaign to display the same attitude and disregard for the rules that had brought him to that point Notwithstanding the fact that Wittmayer was one of the most active participants in the Teamsters attempt to organize the line drivers during the 1988-1989 campaign, I find the evidence does not estab- ° The term "attitude" has sometimes been used as an indirect reference to umon activities or sympathies See Virginia Meralcrafters, 158 NLRB 958, 961-962 (1966), Winn-Dixie Greenville, Inc , 157 NLRB 657, 662 (1966) That is not the case here The evidence indicates that Wittmayer was warned about his bad attitude toward his job during the 1987-1988 beet campaign and told that if it did not improve he faced termination This was long before his umon activity commenced I find that Bilben's reference to Wittmayer's "attitude" connotes his disposition or feelmg toward his job and does not refer to his union activities lish or support the inference that his union activity was a factor in the Respondent's decision not to rehire him In the case of Robert Jones, the evidence establishes that he was disqualified from further employment with the Respondent because he voluntarily qua his employ- ment with it at the Riverton project in May 1989 While there was evidence that, in several instances, employees who had left the Respondent's jobsites before a project was completed had been rehired, none involved a cir- cumstance similar to that of Jones Two instances were described by Wittmayer where he left before a job was completed and was not disqualified In each case he spe- cifically sought and obtained permission from his super- visor before leaving the job In one instance he prevailed on the supervisor to consider it a layoff and in the other he assisted the Respondent by transporting trucks for it while at the same time returning to work in the Red River Valley beet campaign The evidence convinces me that the Respondent had a policy not to rehire employ- ees who voluntarily quit before a job was fimshed and that the policy was quite flexible and exceptions to it were often made, but it does not establish that it was ap- plied to Jones in a disparate manner Not only did Jones not seek an exception to the policy, of which he was ad- mittedly aware, before he left Riverton, 9 but from all that appears, he never sought one once he learned he was not eligible for rehire in the 1989-1990 beet cam- paign, as did Lewis and LaCoursiere As discussed above, I find no basis for concluding that the Respondent had a scheme whereby Jones was lured to Riverton and then denied work in order to cause him to quit and disqualify himself from future employment, which Jones urges The circumstances surrounding Jones' employment at Riverton, many of which were beyond the control of the Respondent, simply do not support what is, at best, a questionable theory The Gen- eral Counsel, however, has a different theory, based upon an employment document concerning Jones, enti- tled "Request for Payroll Change," which was prepared at the end of 1988-1989 beet campaign and bears the no- tation "not eligible for rehire" on it The source of this entry on the document has not been established The document was one of several put into evidence by the Respondent, but there was no testimony or other expla- nation concerning the documents except that they were termination reports and request for payroll changes relat- ing to employees who had quit their employment and were ineligible for rehire in the 1989-1990 beet cam- paign Counsel for the General Counsel contends that since the document relating to Jones was prepared at the end of the 1988-1989 campaign and says he was not eligible for rehire, the events at Riverton had no bearing on the Respondent's decision not to rehire him for the 1989- 1990 beet campaign, thus, establishing that the Respond- ent's stated reason was a pretext The problem with this theory is that it is pure speculation Not only is there no ° I do not credit Jones' testimony winch suggests that Littlefield agreed that Jones' leaving Riverton would be considered a layoff Ac- cording to Littlefield's credible testimony, nothing was said about a layoff when Jones voluntarily quit 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD evidence that the "not eligible for rehire" notation was put on the document before Jones went to Riverton in May 1989, there is substantial direct and circumstantial evidence to the contrary Most significant is the credible testimony of Bilben that he had recommended Jones for rehire at the end of the 1988-1989 campaign This testi- mony is consistent with and supported by an "Employee Termination Report" form concernmg Jones, which Bilben filled out, dated February 5, 1989 (the same date as the "Request for Payroll Change" form in question) on which after the question, "would you rehire this person?," Bilben has checked "Yes" Also consistent with and supporting Bilben's testimony is the fact that Jones was sent a letter, dated May 9, 1989 (before he quit a Riverton) informing him that he was eligible for rehire for the 1989-1990 beet campaign Considering this evidence, I find no reason to beheve that the "not eligi- ble for rehire" entry was made on the form prior to Jones' leaving the Riverton job or that the Respondent had decided not to rehire Jones in the Red River Valley before he quit at Riverton Based on the foregoing, I find the evidence fails to es- tablish that the Respondent entertained hostility or oppo- sition to the Unions which was strong enough to support the conclusion that it was willing to violate the law by refusing to rehire the three Charging Parties in order to keep a union out Inasmuch as the evidence fails to sup- port the inference of discriminatory motivation under Wright Line, supra, I find that the General Counsel has not made out a prima facie case and I shall recommend that the consolidated complaint be dismissed CONCLUSIONS OF LAW 1 The Respondent, Transystems Services, is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act 2 International Union of Operating Engineers, Local 49, AFL-CIO, and General Drivers and Helpers, Local 581, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act 3 The Respondent did not engage in the unfair labor practices alleged in the consolidated complaint On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed10 ORDER The consolidated complaint is dismissed in its entirety '° 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