RIVER CITY ASPHALT, INC.

372 NLRB No. 87 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be in- cluded in the bound volumes. River City Asphalt, Inc. and Lee Jastram. Cases 18– CA–280068 and 18–CA–283815 May 11, 2023 DECISION AND ORDER BY MEMBERS KAPLAN, WILCOX, AND PROUTY On July 21, 2022, Administrative Law Judge Ira San- dron issued the attached decision. The Respondent and the General Counsel filed exceptions and supporting briefs, and both parties filed answering briefs. The Re- spondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard 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. Relying on a settlement agreement that it entered with Charging Party Lee Jastram prior to the issuance of the complaint, the Respondent argues that Jastram waived his right to relief under the Act. We agree with the judge that the Respondent’s invocation of the settlement agreement for the first time in its posthearing brief was untimely and, accordingly, we do not consider it. 2 We amend the judge’s remedy to provide that the make-whole rem- edy shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than with F.W. Woolworth Co., 90 NLRB 289 (1950). The Ogle Protection for- mula applies where, as here, the Board is remedying “a violation of the Act which does not involve cessation of employment status or interim earnings that would in the course of time reduce backpay.” Ogle Pro- tection Service, supra at 683; see also Pepsi-America, Inc., 339 NLRB 986, 986 fn. 2 (2003). We have amended the judge’s conclusions of law and remedy and substituted a new notice consistent with our findings herein. We have also modified the judge’s recommended Order to conform to the Board’s standard remedial language and in accordance with our decisions in Thyrv, Inc., 372 NLRB No. 22 (2022), and Paragon Systems, Inc., 371 NLRB No. 104 (2022). Unlike his colleagues, Member Kaplan would require the Respondent to compensate these employees for other pecuniary harms only insofar as the losses were directly caused by the unlawful discrimination, or indirectly caused by the unlawful discrimi- nation where the causal link between the loss and the unfair labor prac- tice is sufficiently clear, consistent with his partial dissent in Thryv, Inc., supra. Member Kaplan also acknowledges and applies Paragon Systems as Board precedent, although he expressed disagreement there with the Board’s approach and would have adhered to the position the Board adopted in Danbury Ambulance, 369 NLRB No. 68 (2020). 3 In finding that the Respondent violated Sec. 8(a)(3) and (1) in sev- eral respects, the judge applied the Board’s holding in Tschiggfrie Prop- erties, Ltd., 368 NLRB No. 120 (2019), that the evidence must establish The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with the Decision and Order.2 We agree with the judge that, under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),3 the Respondent violated Section 8(a)(3) and (1) by: (1) imposing more onerous and rigorous terms and conditions of employment on Charging Party and employee steward Lee Jastram by removing him from his regular truck and reassigning him to a less desirable truck on May 8, 2021,4 after allegedly inspecting trucks on May 7 and finding the cab of Jastram’s regular truck to be in unsatisfactory con- dition;5 (2) disciplining Jastram on May 13 for the alleged unsatisfactory condition of his truck’s cab on May 7; (3) disciplining Jastram on May 18 for alleged improper maintenance of his truck; and (4) disciplining six drivers on May 18 for alleged improper maintenance of their a causal relationship between the employee’s protected activity and the employer’s adverse action. In adopting the judge’s findings of these vi- olations, Member Wilcox notes her agreement with Chairman McFer- ran’s concurring opinion in Tschiggfrie, wherein she found the major- ity’s “clarification” of Wright Line principles was unnecessary as the “concepts [discussed by the majority there] are already embedded in the Wright Line framework and reflected in the Board’s body of Wright Line cases.” Id., slip op. at 10. 4 All dates are in 2021 unless otherwise noted. 5 We reject the Respondent’s argument that the reassignment was not an adverse action because “the only ‘disadvantage’ of switching trucks was lost time,” and Jastram was compensated for the time spent switch- ing trucks. We find that the Respondent’s removal of Jastram from his preferred regular truck, which he chose because it was “in the best con- dition…[and] had the least amount of miles of all the trucks,” and his reassignment to two trucks that were initially inoperable and required two hours of maintenance, was an adverse action. Jastram testified that he “lost time and efficiency to [himself] and the company” when chang- ing trucks because his usual truck was “preset” and “organized,” mean- ing that he knew where to locate necessary tools and documents. He and another driver testified about the benefits of driver familiarity with their regular vehicle—knowing the “ins and outs, the equipment, what things…to watch for, like mechanical issues, what things to keep up on”—and that drivers preferred certain trucks because they are in better condition as they have more power, better lifts, and better maneuverabil- ity. We find that the lack of familiarity, which presumably interferes with efficiency, and inferior equipment, on top of the additional work required to make the assigned vehicle operable, worsened Jastram’s terms and conditions of employment and, therefore, constituted an ad- verse action. See St. Louis Cardinals, LLC, 369 NLRB No. 3, slip op. at 3 (2020) (noting that, under Wright Line, the General Counsel must show that, in response to protected activity, “the individual’s prospects for em- ployment or continued employment have been diminished or that some legally cognizable term or condition of employment has changed for the worse”). We also reject the Respondent’s argument that it was unaware of Jastram’s protected activity at the time it inspected his truck. The record clearly establishes that Jastram notified the Respondent that he would be “attending to Union matters” related to the lockout on May 5, 2 days before the Respondent inspected his truck. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 trucks.6 We also agree with the judge that the Respondent violated Section 8(a)(1) by threatening Jastram with ter- mination on May 24 because he filed grievances. Con- trary to the judge, however, we find that the Respondent also violated Section 8(a)(1) when it interrogated several drivers about whether they approved of and supported a grievance filed by Jastram. ALLEGED UNLAWFUL INTERROGATION On May 14, following discussions with drivers about the Respondent’s use of nonunit drivers and payment for attendance at mandatory safety/training meetings, Jastram emailed a grievance to Supervisor Joseph Hurney and Fi- nancial Controller Ross Lange, which he signed “On be- half of the CLA drivers, Lee Jastram.”7 Shortly after re- ceiving the grievance, Hurney forwarded it to six drivers unprompted. Relying on Hurney’s own admission and a May 17 email from Lange, the judge found that Hurney spoke to some of the drivers about the grievance at Lange’s direc- tion. Specifically, the judge found that Hurney asked whether the drivers knew and approved of the May 14 grievance. On May 15, Hurney spoke to driver Rosalio Chavez (referred to as “Jr.” in some exhibits) in person after a safety meeting and to driver Justin Olson by tele- phone. On May 16, Hurney spoke to drivers Matt Ofstie and Kevin Clark in person at the yard. Finally, on May 17, Hurney telephoned and spoke to driver Randy (last name unknown). In determining whether questioning was coercive, the Board considers the totality of the circumstances, includ- ing: (1) background between the employer and union, i.e., 6 We agree with the judge that the Respondent disciplined the six drivers in retaliation for the grievances filed by Steward Jastram. See Brad Snodgrass, Inc., 338 NLRB 917, 925–926 (2003) (finding that an employer violated Sec. 8(a)(1) and (3) when it laid off 13 employees be- cause of their union’s business agent’s protected activity of filing griev- ances on their behalf, which he did without their knowledge). We find that the Respondent designed the disciplines to discourage employees and their steward from filing grievances and to retaliate against them for the ones already filed. We reject the Respondent’s argument that the General Counsel failed to demonstrate that the disciplined drivers engaged in union activity or that the Respondent was aware of their union activity. The Board has stated that “it is well settled that the General Counsel need not prove that each individual discriminatee was a union supporter or that the Respond- ent was aware of each discriminatee’s union support where an employer takes adverse action against employees, regardless of their individual sentiments toward union representation, ‘in order to punish the employ- ees as a group ‘to discourage union activity or in retaliation for the pro- tected activity of some.’” Napleton Cadillac of Libertyville, 367 NLRB No. 6, slip op. at 14 (2018) (quoting Electro-Voice, Inc., 320 NLRB 1094, 1095 fn. 4 (1996)), enfd. sub nom. Napleton 1050, Inc. v. NLRB, 976 F.3d 30 (D.C. Cir. 2020). The General Counsel need not establish that the disciplines were retaliation for individual protected activity, as whether there is a history of employer hostility and dis- crimination; (2) nature of the information sought; (3) iden- tity and rank of the questioner; (4) place and method of the interrogation; and (5) truthfulness of the reply. Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom. HERE LOCAL 11 V. NLRB, 760 F.2d 1006 (9th Cir. 1985); Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). The Board also considers the timing and whether other un- fair labor practices were occurring or had occurred. See, e.g., Seton Co., 332 NLRB 979, 982 (2000) (finding an unlawful interrogation and noting that the interrogation “occurred against a background of numerous other unfair labor practices”), enfd. mem. 276 F.3d 579 (3d Cir. 2001). Applying Rossmore House and Bourne, the judge found that the nature of the information sought weighed in favor of finding a violation because the Respondent failed to es- tablish a valid reason for inquiring into employee knowledge and support of the grievance.8 As for the re- maining factors, the judge either found them to weigh against finding an unlawful interrogation or declined to make findings on them. Accordingly, he dismissed the al- legation. The General Counsel excepts, arguing that the question- ing was unlawful. We agree. The record establishes that Hurney sent the grievance to the six drivers unprompted and then admittedly initiated conversations with some of them in person or phoned oth- ers shortly after retaliating against Jastram, their sole steward, for filing grievances over conduct that affected all drivers. These facts support a conclusion that, in addi- tion to factor 2, factors 1, 3, and 4 also weigh in favor of finding Hurney’s questioning coercive.9 “general retaliation by an employer against the workforce can discourage the exercise of Sec. 7 self-organization and collective bargaining rights just as effectively as adverse action against only known union support- ers,” and, therefore, also constitutes a 8(a)(3) violation. See Napleton 1050, Inc. v. NLRB, supra at 439 (and cases cited therein). The central focus of the Wright Line analysis is on “the employer’s motivation,” not on the affected employee’s union sentiments. Id. (citing NLRB v. Frigid Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991)). 7 This was Jastram’s third grievance. Prior to this, Jastram filed a grievance on May 7 in which he claimed that the Respondent’s April 30 lockout of unit drivers and subsequent use of nonunit drivers violated the parties’ collective-bargaining agreement. He also filed an individual grievance on May 10 over his May 8 truck reassignment. 8 Although the Respondent excepted to this finding, it failed to pro- vide any supporting arguments in its brief in support of exceptions. Con- sistent with the Board’s rules, we disregard the Respondent’s exception to the judge’s finding on this factor. See Board Rules and Regulations, Sec. 102.46(a)(1)(ii) (“Any exception which fails to comply with the foregoing requirements [including providing argument in support of the exception] may be disregarded.”) 9 We agree with the judge that there is insufficient evidence to make a determination on factor 5—truthfulness of the reply. RIVER CITY ASPHALT 3 We find that factor 1—background between employer and union—supports finding the questioning coercive as, at the time of the questioning, the relationship between the Respondent and the Union (and Jastram) was strained. While the Respondent and Union might not have been hostile in the past, the record reveals that their relationship was tense at the time of Hurney’s questioning. In the weeks surrounding the questioning, the Respondent had locked drivers out when the parties failed to reach a new collective-bargaining agreement, which the record sug- gests was contrary to past practice; disciplined Jastram, who had filed grievances over conduct that impacted all drivers; and disciplined drivers in retaliation for the griev- ances. Accordingly, we find that the background between the parties weighs in favor of an unlawful interrogation. We also find that factor 3—identity and rank of ques- tioner—supports finding the questioning coercive as Hur- ney was a first-line supervisor who, at the time of the ques- tioning, was engaged in contemporaneous unfair labor practices. See, e.g., Boydston Electric, Inc., 331 NLRB 1450, 1450 (2000) (finding that a frontline supervisor’s questioning of an employee, with whom the supervisor had a friendly relationship, constituted coercive interroga- tion where it occurred alongside an unlawful threat of un- specified reprisals). As noted above, Hurney had recently unlawfully removed steward Jastram from his usual and preferred truck and disciplined him after he engaged in un- ion activity (including filing two grievances). Addition- ally, the Board has found that questioning from a direct supervisor tends to make questioning more threatening. See Kumho Tires Georgia, 370 NLRB No. 32, slip op. at 5 (2020) (citing Intertape Polymer Corp., 360 NLRB 957, 958 (2014), enfd. in relevant part 801 F.3d 224 (4th Cir. 2015)). Accordingly, we find that the identity and rank of questioner Hurney also weighs in favor of finding an un- lawful interrogation. Lastly, we find that factor 4—place and method of the interrogation—also supports finding that the questioning was coercive. Hurney initiated the interrogations by for- warding the grievance and then approaching or calling some of the drivers to inquire about their support of the grievance. As to factor 2—the nature of the information sought—in addition to the evidence cited by the judge in support of his conclusion that the Re- spondent failed to establish a valid reason for the inquiries, Members Wilcox and Prouty note that Hurney’s line of questioning invaded the Union’s grievance-handling process, which the Supreme Court noted in Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578, 581 (1960), is an aspect of the “continuous collective bargaining process,” and which employees and their steward are entitled to engage in without being re- quired to divulge their internal discussions to management. See In sum, having considered each of the factors, we find under the totality of the circumstances that the interroga- tions were coercive. Accordingly, we reverse the judge and find that, by this conduct, the Respondent violated Section 8(a)(1). AMENDED CONCLUSIONS OF LAW 1. Insert the following as paragraph 4(b). “(b) Coercively interrogated employees about their in- volvement with a grievance.” ORDER The National Labor Relations Board orders that the Re- spondent, River City Asphalt, Inc., Shakopee, Minnesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Disciplining stewards for filing grievances on their own behalf or on behalf of other employees. (b) Disciplining employees because stewards have filed grievances on their behalf. (c) Threatening stewards for filing grievances on their own behalf or on behalf of other employees. (d) Coercively questioning employees about their in- volvement with a grievance. (e) 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 Timothy Brenner, Rosalio Chavez, Kevin Clark, John Keller, Omar Mendez, and Justin Olsen whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the discrimination against them in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (b) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 18, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year(s) for each employee. Berbiglia, Inc., 233 NLRB 1476, 1495 (1977) (“If collective bargaining is to work, the parties must be able to formulate their positions and devise their strategies without fear of exposure. This necessity is so self-evident as apparently never to have been questioned."); see also Patrick Cudahy, Inc., 288 NLRB 968, 971 (1988). In their opinion, Hurney’s conduct, at Lange’s direction, was for an illegitimate purpose and sought infor- mation to which the Respondent was not entitled, and thus weighs strongly in favor of finding the questioning coercive. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 (c) File with the Regional Director for Region 18, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. (d) Remove from its files all references to the discipline that Lee Jastram received on May 13, 2021, and notify him in writing that this has been done and that the discipline will not be used against him in any way. (e) Remove from its files all references to the disci- plines that Timothy Brenner, Rosalio Chavez, Kevin Clark, John Keller, Omar Mendez, Justin Olsen and Lee Jastram received on May 18, 2021, and notify them in writing that this has been done and that the disciplines will not be used against them in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (g) Post at its facility in Shakopee, Minnesota, copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Re- gion 18, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. If during the pendency of these proceedings, the Respondent has gone out of business or closed its facility, the Respondent shall duplicate and mail, at its own 10 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 8, 2021.10 (h) Within 21 days after service by the Region, file with the Regional Director for Region 18 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. May 11, 2023 ______________________________________ Marvin E. Kaplan, Member ________________________________________ Gwynne A. Wilcox, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” RIVER CITY ASPHALT 5 WE WILL NOT discipline or otherwise discriminate against union stewards for filing grievances on their own behalf or on behalf of other employees, or against you for filing grievances. WE WILL NOT discipline or otherwise discriminate against you because union stewards have filed griev- ances on their own behalf or on your behalf. WE WILL NOT threaten union stewards with termina- tion or any other adverse action because they have filed grievances on their own behalf or on your behalf. WE WILL NOT coercively question you about your in- volvement with any grievance. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL make Timothy Bremer, Rosalio Chavez, Kevin Clark, John Keller, Omar Mendez, and Justin Ol- son whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, plus interest, and WE WILL also make these employees whole for any other direct or foreseeable pecuniary harms suffered as a result of our discrimination against them, plus interest. WE WILL compensate Timothy Bremer, Rosalio Chavez, Kevin Clark, John Keller, Omar Mendez, and Justin Olson for the adverse tax consequences, if any, of receiving lump sum backpay awards, and WE WILL file with the Regional Director for Region 18, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL file with the Regional Director for Region 18, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s correspond- ing W-2 form(s) reflecting the backpay award. WE WILL , within 14 days from the date of the Board’s Order, remove from our files any reference to the un- lawful discipline issued to Lee Jastram on May 13, 2021, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discipline will not be used against him in any way. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the un- lawful disciplines issued to Lee Jastram, Timothy Bremer, Rosalio Chavez, Kevin Clark, John Keller, 1 All dates hereinafter occurred in 2021 unless otherwise indicated or clear from context. Omar Mendez, and Justin Olson on May 18, 2021, and WE WILL , within 3 days thereafter, notify them in writ- ing that this has been done and that the disciplines will not be used against them in any way. RIVER CITY ASPHALT, INC. The Board’s decision can be found at http://www.nlrb.gov/case/18-CA-280068 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. Rachel M. Simon-Miller and Nicole L. Harville, Esqs., for the General Counsel. Grant T. Collins, Esq. (Felhaber Larson), for the Respondent. DECISION STATEMENT OF THE CASE IRA SANDRON, Administrative Law Judge. The case arises from a consolidated complaint issued on December 22, 20211 (the complaint), based on charges that Lee Jastram (Jastram) in- itially filed on July 19 against the Respondent (the Company or RCA). Pursuant to notice, I conducted a hearing on April 19 and 20, 2022, in Minneapolis, Minnesota, at which I afforded the parties a full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence. All COVID protocols of the General Counsel were followed. ISSUES (1) Did Dispatcher Joseph (Joe) Hurney (Hurney), in mid- May, interrogate drivers about their knowledge and support for a grievance that Jastram filed as steward of the Christian Labor Association, Local 78 (the Union or CLA)? (2) Did Owner and President Richard Carron (Carron), on May 24, threaten Jastram with termination because he filed griev- ances? (3) Did the Respondent, on May 8, impose more onerous and rigorous terms and conditions of employment on Jastram by removing him from his assigned truck and assigning him to a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 less desirable truck, allegedly for the unsatisfactory condition of the interior of the cab of his truck, because he filed a griev- ance? (4) Did the Respondent, (a) on May 13, discipline Jastram for the alleged unsatisfactory condition of the interior of his cab; and (b) on May 18, discipline Jastram and six other drivers for alleged improper maintenance of their trucks, because Jastram filed grievances? Paragraph 5 of the complaint alleges that on about May 8, Hurney, outside the Respondent’s facility, threatened employees about the condition of their trucks because the employees filed a grievance. This presumably related to Hurney’s conversation with Jastram when he removed Jastram from his truck. How- ever, counsel for the General Counsel (the General Counsel) does not pursue this allegation in her brief, and I conclude that it has been effectively withdrawn and is no longer before me. WITNESSES AND CREDIBILITY The General Counsel called Jastram; current employee Omar Mendez (Mendez); Joni Tulenchik (Tulenchik), the Union’s na- tional representative; and, as an adverse witness under Section 611(c), Controller Ross Lange. The Respondent called Lange, Carron, and Hurney. When credibility resolution is not based on observations of witnesses’ testimonial demeanor, the choice between conflicting testimonies rests on the weight of the evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn from the record as a whole. Taylor Motors, Inc., 366 NLRB No. 69, slip op. at 1 fn. 3 (2018); Lignotock Corp., 298 NLRB 209, 209 fn. 1 (1990). In assessing Mendez’ credibility, I take into account that ‘“the testimony of current employees which contradicts statements of their supervisors is likely to be particularly reliable because these witnesses are testifying adversely to their pecuniary interest.’” PPG Aerospace Industries, 355 NLRB 103, 104 (2010), quoting Flexsteel Industries, 316 NLRB 745, 745 (1995), enfd. mem. 83 F.3d 419 (5th Cir. 1996). In this regard, Mendez answered ques- tions readily with no apparent efforts to embellish his accounts of what occurred or to either help or hurt the General Counsel’s case, and some of his answers were favorable to the Respondent. Accordingly, I find Mendez a credible witness. Jastram was also a credible witness. He, too, readily and can- didly answered questions on direct and cross-examination. Thus, when he was asked on cross-examination whether he had garbage in his truck on May 8, he readily answered, “There was some garbage in the truck.”2 When asked on cross-examination with whom he was disappointed in the first weekend of May, he readily answered, “My employer and my union.”3 Mendez cor- roborated Jastram on the Company’s practices and the support of some employees for Jastram’s collective grievances, and Tu- lenchik substantially corroborated him on what was said at the May 24 grievances meeting. 2 Tr. 167. 3 Tr. 166. As I will later discuss, Carron and Hurney were not believable in their accounts of the circumstances of their May 7 inspections of trucks, nor was Hurney consistent regarding his questioning of employees as to their knowledge and support of Jastram’s May 17 grievance. Furthermore, Lange’s testimony that he con- cluded that Jastram should be terminated for dishonesty was wholly unpersuasive. I also note that as Carron testified, he was demonstrably emotional, displaying distress at the employees’ complaints. This lends support to Jastram’s and Tulenchik’s ac- counts of his conduct at the May 24 grievances meeting, as op- posed to those of Carron and Lange. Accordingly, I credit the General Counsel’s witnesses over the Respondent’s, where their testimony diverged. FACTS Based on the entire record, including testimony and my obser- vations of witness demeanor, documents, stipulations, and the thoughtful posttrial briefs of the General Counsel and the Re- spondent, I find the following. Board jurisdiction as alleged in the complaint is admitted, and I so find. The Respondent is a corporation with an office and place of business in Shakopee, Minnesota (the facility), where it operates as a contractor engaged in transportation of road con- struction materials. Carron started RCA in the mid-1980s to take over transporta- tion functions that Valley Paving, Inc. (VPI), his company, was performing along with construction functions. Carron is RCA’s owner and president, and his son Brent is vice president and also the owner of VPI. Counsels for the General Counsel and the Respondent agreed at trial that no further evidence was necessary regarding the interrelationship between the two companies. The Union has represented a unit of RCA’s truckdrivers and quality control employees since before the 1990s. Tulenchik, the Union’s national representative, has had responsibility over the facility since February 2011. At all times material, the collec- tive-bargaining agreement between RCA and the CLA has pro- vided for the appointment of one union steward (R. Exh. 76 at 9) 4 and for a grievance procedure consisting of four steps culmi- nating in arbitration. Id. at 9–11. In Tulenchik’s tenure as na- tional representative, the Union filed only one grievance prior to May 2021, and it was not filed by a steward. In May 2021, there were about 10 drivers. The direct super- visor of RCA drivers is Hurney, the truck dispatcher since July 20, 2020 (GC Exh. 24 at 1), who has the responsibility for all day-to-day trucking operations, including giving dispatch orders, assigning trucks, and monitoring truck maintenance. RCA owns several types of dump trucks and semi-trucks. Hurney often has the need to use the trucks and drivers of other companies, includ- ing VPI. He exercises oversight over those drivers. VPI drivers are represented by a different union. Drivers are seasonally employed from about April until about Thanksgiving, depending on weather conditions. They often work long hours during the season, including on weekends. As per the collective-bargaining agreement, they are paid more per 4 The Respondent used the nomenclature “Er. Exh.” for its exhibits. RIVER CITY ASPHALT 7 hour for Federal or State government-funded jobs. At the end of each season, they are laid off until the start of the next season. Jastram’s Employment Jastram started as a driver in July 2017. On about May 1, 2020, the drivers elected him the steward by voice vote. Tu- lenchik explained to him that he would be a liaison in communi- cations between her and the drivers regarding working condi- tions and benefits. Hurney filled out Jastram’s yearend review on November 21, 2020 (R. Exh. 2), in conjunction with Jastram’s seasonal layoff. He commented, “[V]ery good driver: takes decent care required as far as greasing, and making sure everything works. Tends to get other drivers worked up about things he thinks Valley Paving should do different[sic], which leads to poor moral[sic] on the job.” In April 2021, the Company discovered a massive fuel spill in its yard that was traced to Jastram, who did not report it. On April 24, he received a corrective action for causing the spill and failing to notify management. (R. Exh. 12.) On November 8, Jastram signed a release of employment claims and voluntary resignation pursuant to a worker’s compen- sation settlement for a back injury that he had suffered in Octo- ber. (R. Exh. 85.) This predated the initial charge that he filed herein. The General Counsel does not contend that he is entitled to any financial remuneration from the Respondent. The Respondent now argues for the first time (R. Br. at 20– 22) that by signing the settlement agreement, Jastram expressly waived his right to relief under the NLRA and that his claims against RCA are now barred. However, severance agree- ments/releases that are contended to bar relief under the Act are affirmative defenses that must be timely raised. Webco Indus- tries, 334 NLRB 608, 625 (2001). Affirmative defenses not raised in the answer to the complaint or at trial but raised for the first time in a posttrial brief are un- timely. Richfield Hospitality, Inc., 368 NLRB No. 44, slip op. 11 (2019); Arts Way Vessels, Inc., 355 NLRB 1142, 1142 fn. 10 (2010); SEIU Healthcare Workers-West, 350 NLRB 284, 284 fn. 1 (2007), enfd. 574 F.3d 1213 (9th Cir. 2009), cases involving the defense of a grievance resolution. Indeed, allowing the Re- spondent to now raise this defense would unfairly deprive the General Counsel and the Charging Party an opportunity to re- spond, absent reopening the record and causing undue delay and expense for all parties involved. Accordingly, this defense has been untimely raised and I will not consider it.5 Lockout Grievance, May 7 In the spring of 2021, the latest collective-bargaining agree- ment (R. Exh. 76) was set to expire on April 30, 2021, and RCA and the CLA engaged in negotiations via email for a new con- tract. (Jt. Exh. 1; R. Exh. 10.) Jastram and other drivers were scheduled to work the first 5 If the Respondent contends that Jastram breached the terms of their agreement, this is not the proper forum. 6 All communications hereinafter were by email unless otherwise in- dicated. weekend in May. However, by email of April 30 (GC Exh. 16),6 Hurney notified them that the contract expired at 11:59 p.m. that day, there was no agreement on a new contract, and there would be no further dispatches until a new contract was reached. There was an immediate flurry of phone calls and texts between the drivers, and Jastram notified Tulenchik that the drivers wanted her to accept the Company’s last offer as soon as possible. Tulenchik so notified RCA that there was agreement over the terms of a new contract, which was executed and became effec- tive as of May 1. (GC Exh. 15.) The drivers did not work that weekend but were called back on subsequent days. During the week that followed, Jastram had multiple individual or confer- ence calls and text chats with drivers. On May 5, Jastram notified Lange and Ross by text that the drivers were unhappy over the lockout and wanted to know the roles RCA and the CLA played in the events leading up to it. (GC Exh. 2). He further informed them that he would be work- ing on union matters. Ibid. On May 7, Jastram filed a grievance by phone, a 9:12 p.m. text to Carron, and a 9:17 p.m. email to Lange and Hurney (GC Exhs. 3, 49), contending that locking out RCA drivers and instead us- ing non-RCA drivers the previous weekend violated the collec- tive-bargaining agreement. Mendez candidly testified that most of the drivers did not think the lockout was fair but that only he, Jastram, and one other driver wanted to go forward with a griev- ance; the others decided to let the matter go. May 7 Truck Inspections Carron and Hurney testified that they conducted an inspection of RCA trucks on the evening of May 7, which led to Jastrow’s truck reassignment from truck 1017 (no. 1017) and subsequent discipline. I find their testimony on the subject unreliable and therefore do not credit them. Neither of them offered persuasive reasons for the timing of their inspections on May 7, coincidentally the date of Jastram’s grievance, or how they happened to find that only the interior of Jastram’s cab was unsatisfactory. Hurney was evasive and nonresponsive when I asked him how many times he and Carron had gone out and checked the condi- tion of the trucks prior to May: “That was—I can’t recall how many times we had gone out. Here and there, if he was out in the yard, we would walk through the yard and discuss operations and whatnot, but. . . . [did not finish sentence].”7 Hurney testi- fied that cab interiors are not normally checked for having gar- bage at the end of the drivers’ shift and that he checked them on May 7 because “I happened to this time,”8 an answer devoid of any meaningful explanation. I find to be exaggerated Hurney’s description of Jastram’s cab as constituting “a definite safety hazard”9 because loose items could roll underneath a foot pedal and cause the driver to be un- able to stop. I have to wonder, too, why, according to Hurney, he felt it necessary to take a photo of a cab interior in good order 7 Tr. 456. 8 Ibid. 9 Tr. 416. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 (R. Exh. 115) to contrast with Jastram’s (R. Exh.114). This leads me to believe that the accusations against Jastram were staged. Moreover, Hurney’s testimony that he moved Jastram to a truck without military insignia because Jastram had shown disrespect for his truck by the disarray inside was patently unconvincing in the absence of any reason to believe that anyone would look in- side the cab of a truck that Jastram was driving. Hurney’s cred- ibility was also undermined by his testimony that he never ob- served any problems inside trucks before May 7. Carron’s testimony about the circumstances of his and Hur- ney’s conducting truck inspections on May 7 was similarly un- believable. He alleged that a driver complained to him about dirty trucks and that later that day or the following week, he hap- pened to be in the yard on a busy evening. According to Carron, he pointed to every one of the trucks and said to Hurney, “Why are they so dirty?”10 They proceeded to look into the interiors of the cabs. According to Carron, the first truck happened to be Jastram’s. They looked inside the cab and found the condition to be an embarrassment. Carron told Hurney to park it (put it out of service). They then checked the inside of the cabs of at least six other trucks and found all of them satisfactory. I find this series of coincidences highly implausible. The Respondent (R. Br. 30) argues that Hurney had no knowledge of Jastram’s grievance prior to 9:17 p.m. on May 7, pointing out that his pictures of Jastram’s cab were taken 2 hours earlier. However, because Hurney was an unreliable witness, and his description of the May 7 inspections so farfetched, I do not credit his testimony as to timing. In any event, on May 5, Jastram had expressed the discontent of the drivers with RCA and the CLA and said that he was taking time to work on union business. May 8 Truck Reassignment and May 10 Grievance The collective bargaining agreement contains no provision re- garding the use of seniority in making truck assignments. How- ever, I credit Jastram and Mendez that the practice was for driv- ers to select their trucks in order of seniority. In April 2020, at the start of the 2020 season, Jastram selected no. 1017 because of its good condition, and he resumed driving it at the start of the 2021 season. Drivers drive their designated vehicles unless they are out for repair, or for a short-term assignment. Mendez ex- plained that each truck has its own peculiarities and that drivers prefer to drive vehicles with which they are familiar. When Jastram reported to work as scheduled on May 8 at about 5:30 a.m., he saw that no. 1017 was running and had a relatively new driver inside (even though Carron testified that he told Hurney the truck should be put out of service). Hurney in- formed him that he was not going to be driving no. 1017 any longer because it was dirty and that he would be moved to a dif- ferent truck. Jastram asked Hurney to show him where it was dirty, and they walked over to the truck. Hurney stated the truck was “filthy, disorganized, and trashed,”11 to which Jastram re- plied that the inside was the way it had always been in no. 1017 and in previous trucks he had operated for RCA. Hurney pointed 10 Tr. 473. 11 Tr. 106. to food wrapping trash in a small Menards bag hanging from the dash and told him to remove his personal items. Hurney first assigned him to no. 1023, but it was not licensed to drive, and he was moved to no. 1022, which had a flat tire and dead batteries. It had been parked for the previous season and had not been recently cleaned. The switchover took approxi- mately 2 hours. On May 10, Jastram filed a grievance over the reassignment, alleging discrimination for exercising collective-bargaining rights and that the Company’s use of a non-RCA driver to drive no. 1017 on May 8 violated the collective-bargaining agreement. (GC. Exh. 5.) I credit Mendez’ testimony that it is “pretty much left up to each individual driver” what personal items are kept in the truck.12 He further testified that he also has a plastic bag in his truck for garbage and empties it when it is full, either at the end of the day or the next morning. He has never been reprimanded for having a dirty cab. Hurney conceded on cross-examination that he never removed someone from a truck prior to May 8. May 13 Discipline Hurney wrote up a written discipline that he signed on May 13, stating that when he performed a “routine inspection of all RCA trucks,” on May 7, he found no. 1017 in “total disarray.” (GC Exh. 7.) He went on to say, “The severity of the condition of 1017 was, to say the least, alarming. . . .1017 could have easily caused unsafe conditions while driving down the road.” It is noteworthy that the discipline was not acknowledged by Jastram and never presented to him in person; indeed, Jastram testified that he did not become aware of it until August, and the Respondent offered no contrary evidence. The hyperbole in Hurney’s description of what he allegedly observed strikes me as a gross exaggeration, especially in light of what he stated in Jastram’s 2020 review and the fact that there is nothing in the record to indicate that in the 4 years of Jastram’s employment the Company had any issues with the way he maintained the in- terior of his cab. In fact, Hurney conceded on cross-examination that he had never previously warned Jastram about keeping his cab clean. Third Grievance, May 14 During the weeks following the lockout, drivers raised con- cerns with Jastram about the Respondent using VPI drivers in- stead of unit members, as well as payment for attendance at man- datory safety/training meetings. These issues formed the basis for the grievance that he filed on May 14. (GC Exh. 9.) Jastram stated therein that it was “[o]n behalf of the CLA drivers.” Tu- lenchik testified that the Union does not require that everyone sign a group grievance, although this is a common practice. On May 17, Lange responded by asking Jastram if the griev- ance was his alone or if he was speaking for the entire group. (GC Exh. 10.) Jastram replied that it included himself and others in the group. Ibid. Also that day, Lange forwarded to Carron Jastram’s original charge in this matter. (GC Exh. 43.) 12 Tr. 197. RIVER CITY ASPHALT 9 Questioning of Drivers About the Grievance The Respondent contends that it had good cause to question Jastram’s honesty about representing that he was filing the griev- ance on behalf of other employees because he demonstrated dis- honesty by (1) not reporting the fuel spill in April 2021; and (2) asking Trista Welter, the Respondent’s payroll specialist, to un- lawfully “fudge” his payroll records in early May so that he could continue collecting unemployment compensation. (R. Br. at 10 fn. 5, 25 fn. 7.) Jastram denied the latter, and the Respondent did not call Wel- ter to testify or assert that she was unavailable. Our system of jurisprudence has what is called the “missing witness rule” that gives a judge discretion to draw an adverse inference based on a party’s failure to call a witness who may reasonably be assumed to be favorably disposed to the party and who could reasonably be expected to corroborate its version of events, particularly when the witness is the party’s agent and thus within its authority or control. Natural Life, Inc., 366 NLRB No. 53 (2018), slip op. at 1 fn. 1, citing Electrical Workers IBEW Local 3 (Teknion, Inc.), 329 NLRB 337, 337 fn. 1 (1999); see also Reno Hilton Resorts, 326 NLRB 1421, 1421 fn. 1 (1998), enfd. 196 F.3d 1275 (D.C. Cir. 1999). In such event, it is appropriate to draw an ad- verse inference regarding any factual question on which the wit- ness is likely to have knowledge. International Automated Ma- chine, Inc., 285 NLRB 1122, 1123 (1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988); see also Interstate Circuit v. U.S., 306 U.S. 208, 225–226 (1939). Accordingly, I draw an adverse inference from Welter’s fail- ure to testify and accept Jastrow’s denial. Therefore, I will not consider any contention by the Respondent that it had good cause to question his honesty regarding the grievance because he had engaged in dishonest conduct by soliciting her to commit viola- tions of the law. I further note that the Respondent submitted nothing in writing that documented any such alleged misconduct. On May 17, Lange recommended to Carron that (1) Hurney reach out to drivers and get affidavits indicating that they were not in agreement with the grievance; (2) notify Tulenchik that Jastram would be terminated for falsely filing grievances on be- half of employees who did not wish them to be filed; and (3) terminate Jastram for the fuel issue, the correction performance for not caring for his truck, and now for filing false information on behalf of other employees.13 (GC Exh. 44.) He sent a second email to Carron 10 minutes later, suggesting that Tulenchik cor- respond with the members, to which Carron agreed subject to legal advice. Ibid. Almost immediately after those emails, Lange communicated with Tulenchik. (GC Exh. 28.) He told her that a couple of members had expressed that Jastram had filed the grievance without their knowledge, and he was requesting the Union step in and intervene to validate whether (1) the members were aware of the grievance; and (2) whether they wanted to be represented by the grievance. Lange went on to state that if other members 13 I note that he mentioned nothing about Jastram’s alleged request to Welter to falsify his payroll records. were not aware of the grievance and did not want to be repre- sented, “[W]e have no choice but to terminate Mr. Lee Jastram for providing false information to the Company which per past and current contract, does not need advanced warning notice for termination under these circumstances.”14 I credit Tulenchik’s unrebutted testimony about a conversa- tion she had with Carron on about May 17, as follows, noting that her account was consistent on direct and cross-examination. He called her and stated that “this could not continue like this, that there had to be something done with Lee due to all these grievances being filed.”15 General Counsel’s Exhibits 29, 38, and 39 reflect communi- cations between Lange and Tulenchik on May 19. To summa- rize, she advised him that five drivers had responded that they knew of the grievance but did not want to be involved. Lange expressed concern that Jastram was acting on his own, stating that prior to her questioning, six drivers had already confirmed directly with the Company that they were not aware of his filing the grievance. There is no question that Hurney talked with drivers about their knowledge and support of Jastram’s May 17 grievance. See General Counsel’s Exhibit 12, his notes of how he communi- cated with six drivers between May 15 and May 19. They do not indicate anything that he or they said. Hurney’s testimony on the subject was unreliable. He testi- fied on direct examination that he forwarded the grievance to the drivers because Jastram stated at the bottom that it was on behalf of all drivers but offered no explanation for why he did this. He also testified on direct examination that after that, several drivers came up to him and expressed their disagreement with the griev- ance. However, on cross-examination, he admitted that he ap- proached (some) drivers and asked them if they knew of the grievance and if they supported it. He also equivocated on whether Lange asked him to question drivers about their knowledge and support of Jastram’s third grievance, first testify- ing no and then testifying that he could not recall. Based on Hur- ney’s own admission and Lange’s May 17 email, it is clear that Hurney questioned at least some drivers at Lange’s direction. However, no drivers testified about the circumstances of his questioning or what he said to them. May 18 Truck Inspections Unquestionably, company policy is that proper maintenance of vehicles, including maintaining cleanliness, proper fuel levels and sufficient greasing, is a responsibility of drivers. See, e.g., GC Exh. 25, equipment maintenance responsibility acknowledg- ments; R. Exh. 8, driver expectations sent to drivers on April 11, at the beginning of the season. Notes of a management meeting on May 11 (R. Exh. 26 at 1), 4 days after the first grievance was filed, reflect a plan to have mechanic Eddie Bolt (Bolt) do an inspection of trucks in a week or two. 14 See art. II sec. 7 of the collective-bargaining agreement (R. Exh. 76 at 2), providing that providing false information to the Company or other dishonesty constitutes grounds for immediate discharge. 15 Tr. 315. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 On the morning of May 18, Bolt and Carron carried out a greasing/maintenance inspection. There is no evidence that Car- ron had ever done this before. Seven drivers, including Jastram, were found to have failed to properly grease their vehicles. The six others were Mendez, Timothy Bremer, Rosalio Chavez, Kevin Clark, John Keller, and Justin Olson. On May 18 at shortly after 1 p.m., Hurney advised the above seven drivers that, as a result of the maintenance check of equip- ment that morning, their trucks were tagged out of service until maintenance was complete.16 (GC Exh. 18.) He gave them the opportunity to come in that afternoon or the following morning prior to the start of their shift to perform the greasing (see R. Exh. 105). Drivers are paid at a regular pay rate when they perform maintenance work, as opposed to the higher government contract rates. On May 20, Hurney signed and emailed disciplines to seven drivers, including Jastram and Mendez, for lack of grease and causing trucks to be put out of service. (GC Exh. 14.) Neither Mendez nor Jastram were aware of any trucks red- tagged for maintenance, or any reprimands issued for improper maintenance prior to May 18. Jastram testified that in the past, when mechanics found trucks lacked grease, the supervisors only talked to the driver. The only pre-May 18 reprimand for im- proper maintenance that the Respondent provided was a perfor- mance correction notice issued to Chavez on April 25. (R. Exh. 111 at 3.) It is unclear what the maintenance issues were. There is no evidence that the truck was taken out of service. Neither Mendez nor Jastram were aware of a schedule of in- spections for maintenance until after May 18. Both testified that after the reprimands, there was stricter enforcement of mainte- nance rules. General Counsel’s Exhibit 30 at 4 shows a schedule of maintenance (grease inspection) laminated on Hurney’s desk next to where the drivers turn in their paperwork at the ends of their shifts. I credit Jastram and Mendez that they did not see it there until after May 18 over Hurney’s testimony that it was so placed at the beginning of the season. I further credit Mendez that this was the first time he became aware of any such schedule. May 24 Grievances Meeting In attendance were Carron, Lange, Welter, Jastram, Tu- lenchik, CLA Local President David Larson, and Brent Carron (who came in during the meeting). According to Tulenchik, Jastram attended both as the steward and as a grievant. Carron, Jastram, Lange, and Tulenchik testified about the meeting. All of them agreed that the three grievances were dis- cussed but remained unresolved at the end of the meeting. I credit Jastram’s and Tulenchik’s accounts of what occurred. Their descriptions of the meeting were consistent and more de- tailed than Carron’s and Lange’s, very similar as to what Carron said, and their accounts were supported by the brief notes that Tulenchik took at the meeting. (GC Exh. 27.) On cross-exami- nation, Tulenchik clarified that the notations “screamed” and “rude comments” in her notes referred to Carron. Moreover, Lange indirectly supported their accounts of Carron’s demeanor: 16 Mendez testified that he received the notice from Hurney by text. 17 Tr. 385. Carron was “a little bit louder, but that’s his demeanor.”17 Addi- tionally, Carron denied screaming but conceded that “[m]aybe my voice was elevated,” to get his points across.18 As I previ- ously stated, Carron became visibly upset when testifying about the grievances. The meeting lasted for about 2 hours. Most of the talking was between Tulenchik and Lange and Welter. During the course of the meeting, Lange brought up the oil spill incident, and Welter raised Jastram’s alleged payroll records impropriety. About halfway through the meeting, Lange stated that the Company had contacted all the drivers and only one had agreed to the filing of the third grievance, and Jastram responded that was funny. To- ward the end of meeting, Carron talked about how the grievances were disrupting work and the Company was having to use time and expense to chase down grievances with which they disa- greed. According to Jastram, Carron stated that “they felt I was going rogue with the grievances, especially the third one, I was being disruptive, and that he could not have any employee doing any of that stuff with his company, and I had to go.”19 Carron further stated that he had forwarded papers for Jastram’s re- moval, to which Tulenchik responded that the Company could not just terminate him but had to go through the grievance pro- cedure. After the meeting, Tulenchik sought legal assistance from the Union’s counsel regarding how to proceed further with the griev- ances. They were filed for arbitration but then withdrawn. Jastram filed charges against the Union for failing to handle or arbitrarily dropping the grievances, and Tulenchik signed a set- tlement agreement on November 29. (GC Exh. 22.) Jastram re- mained a designated union steward until his resignation. ANALYSIS AND CONCLUSIONS Independent 8(a)(1) Allegations Hurney’s interrogation of employees Clearly, Hurney questioned at least some employees about whether they knew of, and approved of, Jastram’s May 14 griev- ance. Questioning employees about their union activities or those of others has long been carefully scrutinized “because of its natural tendency to instill in the minds of employees fear of discrimina- tion on the basis of the information the employer has obtained.” NLRB v. West Coast Casket Co., 305 F.3d 902, 904 (9th Cir. 1953). In assessing whether questioning amounts to unlawful inter- rogation, the Board applies the totality of circumstances test set out in Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). U.S. Cosmetics Corp., 368 NLRB No. 21, slip op. 6 (2019). In applying this test, the factors set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) (“Bourne factors”) are considered: (1) the truthfulness of the replies from the employee being questioned; (2) the nature of the information sought; (3) the identity and rank of the questioner; (4) the place and method 18 Tr. 479. 19 Tr. 144. RIVER CITY ASPHALT 11 of the interrogation; and (5) the background between the em- ployer and union, i.e., whether there is a history of employer hos- tility and discrimination. Factor 2 weighs in favor of finding a violation, because the Respondent has not established a valid reason for inquiring into employees’ knowledge and support of the grievance. However, factor 3 weighs in the other direction because Hurney was a first- line supervisor with whom drivers interacted daily, not a high- ranking company official with whom they had infrequent con- tact. Factor 5 is problematic because the record reflects that the Respondent and the Union had what apparently was a very har- monious relationship, but any hostility and discrimination was aimed at Jastram for his recent filing of grievances. The problem for the General Counsel is that no employees who were ques- tioned were called as witnesses, and therefore I can make no findings regarding the truthfulness of their replies or the place and method of questioning. The burden is on the General Coun- sel to establish unlawful interrogation, and I cannot find that the circumstances of Hurney’s questioning are sufficiently known to enable me to reach such a conclusion. Accordingly, I dismiss this allegation. Carron’s threat to terminate Jastram Carron at the grievances meeting on May 24, expressly told Jastram that he was going to be terminated because his filing of grievances was disruptive. Jastram filed one grievance solely on his own behalf and two grievances on behalf of the drivers as a group. Indisputably, fil- ing a grievance is protected activity under Section 7 of the Act. NLRB v. City Disposal Systems, 465 U.S. 822, 836 (1984). It follows that interfering, restraining, or coercing employees in their grievance-filing activities violates the Act. Yellow Trans- portation, Inc., 343 NLRB 43, 47 (2004); Prime Time Shuttle Int’l, Inc., 314 NLRB 838, 841 (1994). The merits of a com- plaint or grievance are irrelevant so long as the complaint was not made in bad faith or with malice. Brad Snodgrass, Inc., 338 NLB 917, 923 (2003), citing Wagner-Smith Co., 262 NLRB 999, 999 fn. 2 (1982); Afro-Urban Transportation, Inc., 220 NLRB 1371, 1371 (1975); see also NLRB v. City Disposal Systems, above at 840. I do not find that Jastram acted in bad faith or with malice, and the Respondent does not contend that the manner in which he filed or processed the grievances was egregious or oth- erwise removed his activity from the Act’s protection. Regarding Jastram’s individual grievance, the Board has con- sistently held that an employer violates Section 8(a)(1) of the Act when it discriminates against an employee who, in good faith, files a grievance even where the grievance is on his or her own behalf and does not concern other employees. Town & Country LP Gas Service Co., 255 NLRB (1981); Selwyn Shoe Manufac- turing Corp., 172 NLRB 674, 681 (1968), enfd. in relevant part 428 F.2d 217 (8th Cir. 1970). As to the group grievances, union stewards who are fulfilling their union obligations by filing and processing grievances are also protected under Section 7 of the Act. Roadmaster Corp., 288 NLRB 1195, 1197 (1988), enfd. 874 F.2d 448 (7th Cir. 1989); Union Fork & Hoe Co., 241 NLRB 907, 908 (1979); Clara Barton Terrace Convalescent Center, 225 NLRB 1028, 1033 (1976); Thor Power Tool Co., 148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th Cir. 1965). The fact that Jastram as steward alone signed the May 14 grievance on behalf of the drivers as a group and that one or more of the drivers “may not have been aware or may not have directly participated in [the] decision” to file the grievance is immaterial. CDA, Inc., 349 NLRB 627. 632 (2007), citing Brad Snodgrass, above at 923; see also OPW Fueling Components, 343 NLRB 1034 (2004), affd. 443 F.3d 490 (2006), wherein a steward who wrote in employees’ names on a grievance without their permis- sion was found not to have lost the Act’s protection. Accordingly, Jastram’s grievance activities were protected under Section 7. Therefore, by threatening Jastram with termi- nation because he filed grievances, Carron violated Section 8(a)(1) of the Act. See Management & Training Corp., 366 NLRB No. 134, slip op. 8 (2018); Sysco Food Services of Cleve- land, Inc., 347 NLRB 1024, 1033 (2006). 8(a)(3) framework In cases in which the issue is the motive behind an employer’s action against an employee (was it legitimate or based on animus on account of the employee’s protected concerted activities?), the appropriate analysis is provided by Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); see also Auto Nation, Inc., 360 NLRB 1298, 1301 (2014), enfd. 801 F.3d 767 (7th Cir. 2015). Under Wright Line, the General Counsel bears the initial bur- den of establishing that an employee’s union or other protected concerted activity was a motivating factor in the employer’s ad- verse employment action. Wright Line, above at 1089. The Board has held that the General Counsel can meet this burden by establishing (1) union or other protected activity by the em- ployee, (2) employer knowledge of that activity, and (3) anti- union animus, or animus against protected activity, on the em- ployer’s part. See, e.g., Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). In Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 5–8 (2019), the Board clarified the animus element of this test, ex- plaining that the General Counsel “does not invariably sustain his burden of proof under Wright Line whenever, in addition to protected activity and knowledge thereof, the record contains any evidence of the employer’s animus or hostility toward union or other protected activity.” Id., slip op. at 7 (emphasis in origi- nal). “Instead, the evidence must be sufficient to establish that a causal relationship exists between the employee’s protected ac- tivity and the employer’s adverse action against the employee.” Id., slip op. at 8. Once the General Counsel makes out a prima facie case, the burden shifts to the respondent to show that the same action would have taken place even in the absence of the protected ac- tivity. Wright Line, above at 1089; Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996). To establish this affirmative de- fense, an employer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity. East End Bus Lines, Inc., 366 NLRB No. 180, slip op. at 1 (2018); Consolidated Bus Transit, 350 NLRB 1064, 1066 (2007). Where the General Counsel has made a strong showing of discriminatory motivation, the employer’s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 defense burden is substantial. East End Bus Lines, Ibid; Bally’s Park Place, Inc., 355 NLRB 1319, 1321 (2010), enfd. 646 F.3d 929 (D.C. Cir. 2011). If a respondent’s proffered justification for its action is found pretextual, it must be determined whether surrounding facts tend to reinforce that inference of unlawful motivation. Electrolux Home Products, Inc., 368 NLRB No. 34, slip op. at 3–4 (2019), citing Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Jastram The General Counsel contends that the Respondent violated Section 8(a)(3) by (1) removing Jastram from his assigned truck and reassigning him to a less desirable truck on May 8; (2) issu- ing him a discipline on May 13, both actions allegedly for the poor condition of the inside of his cab on May 7; and (3) issuing him a discipline on May 17 for allegedly improper maintenance of his truck. I will address this last allegation along with the allegation that six other drivers received the same discipline. As stated earlier, Jastram engaged in protected activity, which was known to the employer. Express animus against Jastram for that activity is found in Carron’s statement to Tulenchik on about May 17 that something had to be done about Jastram because of the grievances he was filing and Carron’s telling Jastram at the May 24 grievances meeting that he was going to be terminated for “going rogue with the grievances.” Therefore, the General Counsel has made out a prima facie case of unlawful discrimina- tion. The Respondent has failed to rebut that prima facie case. It is beyond belief that the Respondent, which had never before given Jastram any warnings about the inside of his cab in the almost 4 years he was a driver before May 2021, suddenly found serious problems with its condition the day that he filed his first griev- ance and 2 days after, in his role as steward, he expressed the drivers’ unhappiness about the lockout. The timing of Carron’s and Hurney’s alleged discovery of this dereliction raises a strong inference of unlawful animus. Cf. Healthy Minds, Inc., 371 NLRB No. 6, slip op. at 7 (2021); Mondelez Global, LLC, above, slip op. at 1; Velox Express, Inc., 368 NLRB No. 61, slip op. at 10–11 (2019). I also find incredulous Carron’s testimony that they just happened to look inside Jastram’s cab first on May 7 and that his was the only one that was unsatisfactory. Moreover, neither Carron nor Hurney gave definite answers as to whether and when they had performed similar inspections in the past. In sum, the series of coincidences related by Carron and Hurney are too extraordinary to be believable. Significantly, Hurney admittedly never before removed any other driver from his truck, and there is no evidence that any other driver has ever been disciplined for the condition of the inside of his cab. I therefore conclude that the Respondent’s reasons for remov- ing Jastram from his truck on May 8 and issuing him a discipline on May 13 were pretextual and that the surrounding facts tend to reinforce the inference that its actions were unlawfully moti- vated. Accordingly, I conclude that the Respondent violated Section 8(a)(3) and (1) by the above actions against Jastram. May 18 Disciplines The General counsel contends that the Respondent issued dis- ciplines to Jastram and six other employees on May 18, allegedly for improper greasing of their vehicles, due to Jastram’s filing grievances on their behalf. An employer’s retaliation against employees because a union has filed grievances on their behalf violates Section 8(a)(3) and (1). Brad Snodgrass, above, at 925–926; 127 Restaurant Corp., 331 NLRB 269, 269 (2000); Uforma/Shelby Business Forms, Inc., 320 NLRB 71, 77 (1995), reversed in part 111 F.3d 1284 (6th Cir. 1997); Miami Systems Corp., 320 NLRB 71, 77 (1995). As stated earlier, the filing of the grievances was protected activity known to the Respondent, and Carron expressed antag- onism toward Jastram for filing them. The General Counsel has therefore made out a prima facie case. The Respondent provided evidence that as of May 11, it had plans to conduct a maintenance inspection of trucks in a week or two. It is noteworthy that this postdated the filing of the first grievance by 4 days. Even if the Respondent had announced maintenance checks before May 7, there is nothing showing that it took steps to implement them before May 18. Neither Mendez nor Jastram were aware of any trucks red-tagged for mainte- nance, or any reprimands issued for improper maintenance prior to May 18. The Respondent submitted only one pre-May 18 rep- rimand for that reason, but the extent of the maintenance defects is unclear, and the truck was not taken out of service. Again, the timing of the maintenance inspections on all trucks on May 17 raises the red flag that it was tied to the filing of grievances and not to any need to conduct it—for the first time—on that date. I note, too, with specific reference to Jastram, that Hurney spe- cifically commented in Jastram’s layoff review in 2020, “very good driver: takes decent care required as far as greasing and making sure everything works.” In sum, the Respondent has not shown a legitimate justifica- tion for the timing of its first-ever multidriver disciplines for un- satisfactory truck maintenance. Therefore, it has failed to rebut the General Counsel’s prima facie case. Accordingly, I conclude that the Respondent violated Section 8(a)(3) and (1) by disciplin- ing Jastram and the six other drivers because Jastram filed griev- ances on their behalf. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Christian Labor Association (the Union) is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By the following conduct, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)(3) and (1) of the Act: (a) Removed Jastram from his assigned truck on May 8, 2021. (b) Disciplined Jastram on May 13, 2021. (c) Disciplined Jastram and six other drivers on May 18, 2021. 4. By the following conduct, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of RIVER CITY ASPHALT 13 Section 2(6) and (7) of the Act and violated Section 8(a)(1) of the Act: (a) Threatened Jastram with termination because he filed grievances. REMEDY Because I have found that the Respondent has engaged in cer- tain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative actions designed to ef- fectuate the policies of the Act. The amount of financial compensation due the discriminatees is limited in this case. Because Jastram signed a waiver and release, the General Counsel is not seeking any monetary compensation for him. The amount of backpay owing to the six other drivers who were dis- ciplined on May 18 is for only a matter of hours. I have tailored the remedy to reflect this. Because the Respondent discriminatorily disciplined Timothy Bremer, Rosalio Chavez, Kevin Clark, John Keller, Omar Men- dez, and Justin Olson, it must make them whole for any losses of earnings and other benefits suffered as a result of that discrimi- nation. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). The General Counsel requests that my recommended Order provide the following special remedies: (1) the Respondent have Carron read the notice to employees on worktime in the presence of a Board agent, or require that a Board agent read the notice to employees during worktime in the presence of a Respondent’s representative; (2) the Respondent will schedule with Region 18 a mandatory 45-minute training session, to take place during the supervisors’ and managers’ workday, to be conducted by a Board agent. Such special remedies are appropriate where a normal remedy is inadequate because a respondent’s unfair labor practices are “so numerous, pervasive, and outrageous” that they are needed to “dissipate fully the coercive effects” of those unfair labor practices. Fieldcrest Cannon, Inc., 318 NLRB 470, 473 (1995), enfd. in relevant part 97 F.3d 65 (4th Cir. 1996); see also Feder- ated Logistics & Operations, 340 NLRB 255, 256–257 (2003). I do not find that the Respondent’s unfair practices here rise to the level of egregiousness making a normal remedy inade- quate. The only independent 8(a)(1) violation was a threat made in the presence of only one employee (Jastram), and the only 8(a)(3) violation entails a small amount of backpay. There is no history of the Respondent committing unfair labor practices. Ac- cordingly, I decline the General Counsel’s request to impose the above special remedies. ORDER The Respondent, River City Asphalt, Inc., Shakopee, 20 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the Minnesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discipling stewards for filing grievances on their own be- half or on behalf of other employees. (b) Discipling employees because stewards have filed griev- ances on their behalf. (c) Threatening stewards for filing grievances on their own behalf or on behalf of other employees. (d) In any like or related manner interfering with, restraining, 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 effectu- ate the policies of the Act: (a) Make Timothy Bremer, Rosalio Chavez, Kevin Clark, John Keller, Omar Mendez, and Justin Olson whole for any loss of earnings and other benefits suffered as a result of the discrim- ination against them in the manner set forth in the remedy section of the decision. (b) Remove from our files all references to the disciplines that the above employees and Lee Jastram received on May 18, 2021, and notify them in writing that this has been done and that the disciplines will not be used against them in any way. (c) Remove from our files all references to the discipline that Lee Jastram received on May 13, 2021, and notify him in writing that this has been done and that the discipline will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (e) Within 14 days after service by the Region, post at its fa- cility in Skakopee, Minnesota, copies of the attached notice marked “Appendix.”20 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspic- uous places including all places where notices to employees are customarily posted. In addition to physical posting of paper no- tices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or cov- ered by any other material. If during the pendency of these pro- ceedings, the Respondent has gone out of business or closed its facility, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 8, 2021. United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. The complaint is dismissed insofar as it alleges violations of the Act that I have not specifically found. Dated, Washington, D.C. July 21, 2022 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT do anything to prevent you from exercising the above rights. WE WILL NOT discriminate against union stewards for filing grievances on their own behalf or on behalf other employees, or against you for filing grievances. WE WILL NOT discriminate against you because union stewards have filed grievances on their own behalf or on your behalf. WE WILL NOT threaten stewards with termination or any other adverse action because they have filed grievances on their own behalf or on your behalf, or threaten you for filing grievances. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Timothy Bremer, Rosalio Chavez, Kevin Clark, John Keller, Omar Mendez, and Justin Olson whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. WE WILL remove from our files any reference to the unlawful discipline issued to Lee Jastram on May 13, 2021, and within 3 days thereafter notify him in writing that this has been done and that the discipline will not be used against him in any way. WE WILL remove from our files any reference to the unlawful disciplines issued on May 18, 2021, to the above-named employ- ees, and within 3 days thereafter notify them in writing that this has been done and that the disciplines will not be used against them in any way. RIVER CITY ASPHALT, INC. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/12-CA-271025 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.