Adair Express L.L.C.

National Labor Relations Board - Board Decisions

Sep 21, 2001

335 N.L.R.B. 1224 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224
Adair Express L.L.C. and Package & General Utility
Drivers, Local No. 396, International Brother-
hood of Teamsters, AFL–CIO. Cases 31–CA–
24291 and 31–CA–24484
September 21, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On June 18, 2001, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The General
Counsel and the Charging Party each filed limited excep-
tions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Adair
Express L.L.C., take the action as set forth in the Order
as modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days from the date of this Order, offer
Craig Smith, Rolando Estrada, Jofre Macoy, Eddie
Zamora, Gary Bailey, Gerardo Lachica, and Mario Rod-
riguez reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges previously enjoyed

1 The Respondent has not filed any exceptions. The General Coun-
sel has excepted to the judge’s description in the recommended Order
of the affected bargaining unit, which is inconsistent with the unit de-
scription contained in his decision. The General Counsel has also
excepted to the language in the recommended Order regarding posting
of the notice on the basis that it is incomplete. We find merit in these
exceptions and modify the Order accordingly. We also make the paral-
lel changes to the notice. With regard to the notice, the General Coun-
sel has excepted to the effective date of the make-whole remedy as
being inconsistent with the stipulated facts and the judge’s analysis.
We shall modify the notice to reflect the proper date.
The Charging Party has excepted to the absence of an affirmative
bargaining order. The judge’s recommended Order, however, includes
an affirmative bargaining order and, therefore, we find this exception to
be without merit.
Finally, we shall modify the judge’s recommended order in accor-
dance with our decisions in Indian Hills Care Center, 321 NLRB 144
(1996), Excel Container, 325 NLRB 17 (1997), and Ferguson Electric
Co., 335 NLRB 142 (2001).
“(b) Make Craig Smith, Rolando Estrada, Jofre Ma-
coy, Eddie Zamora, Gary Bailey, Gerardo Lachica, and
Mario Rodriguez whole for any loss of earnings and
other benefits they may have suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.”
2. Substitute the following for paragraph 2(d).
“(d) 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, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region post at
its Van Nuys, California location copies of the attached
notice marked Appendix.4 Copies of the notice, on forms
provided by the Regional Director for Region 31, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since January 10, 2000.”
4. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
335 NLRB No. 96
ADAIR EXPRESS L.L.C. 1225
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities

WE WILL NOT refuse to hire job applicants because
they participated in the Union’s organizing or because of
their union affiliation or otherwise discriminate against
employees to avoid having to recognize and bargain with
the Union.
WE WILL NOT refuse to recognize and bargain in
good faith with the Union as the exclusive collective-
bargaining representative of our employees in the follow-
ing appropriate unit:
Included: All full time and regular part-time drivers
employed by Adair Express L.L.C. at 15041 Keswick
Street, Van Nuys, California.
Excluded: All other employees, office clerical em-
ployees, guards and supervisors as defined in the Act,
as amended.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Craig Smith, Rolando Estrada, Jofre
Macoy, Eddie Zamora, Gary Bailey, Gerardo Lachica,
and Mario Rodriguez full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Craig Smith, Rolando Estrada, Jofre
Macoy, Eddie Zamora, Gary Bailey, Gerardo Lachica,
and Mario Rodriguez whole for any loss of earnings and
other benefits they may have suffered by reason of our
unlawful refusal to employ them, less any net interim
earnings, with interest.
WE WILL recognize and, on request, bargain collec-
tively with the Union as the exclusive representative of
our employees in the unit above, with respect to rates of
pay, wages, hours, and other terms and conditions of
employment, and, if an agreement is reached, embody it
in a signed document.
WE WILL, on request of the Union, rescind any
changes from terms and conditions of employment that
existed immediately prior to our takeover of the prede-
cessor, retroactively restoring preexisting terms and con-
ditions of employment, including wage rates and benefit
plans, and WE WILL make whole the bargaining unit
employees by remitting all wages and benefits that would
have been paid absent such unilateral changes from on or
about January 10, 2000.
ADAIR EXPRESS L.L.C.

Ann Cronin-Oizumi, Esq., for the General Counsel.
Bruce D. May, Esq. (Stradling, Yocca, Carlson, & Rauth), of
Newport Beach, California, for the Respondent.
Jim Smith, of Covina, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried in Los Angeles, California, on August 21–23 and
September 15, 2000, based on charges by the Package & Gen-
eral Utility Drivers, Local 396, International Brotherhood of
Teamsters, AFL–CIO in Cases 31–CA–24291 and 31–CA–
24484, filed on January 11 and April 28, 2000, respectively.
The consolidated complaint which issued on May 25, 2000,
alleges that Adair Express L.L.C., the Respondent, has been
engaging in unfair labor practices as set forth in the National
Labor Relations Act (the Act). More specifically, the com-
plaint alleges that the Respondent refused to offer employment
to several individuals because of their union activities and that
the Respondent refused to bargain collectively and in good faith
with the Union, in violation of Section 8(a)(1)(3) and (5) of the
Act.
The Respondent filed a timely answer, denying the commis-
sion of any unfair labor practices.
Based on my observation of the witnesses and my considera-
tion of the entire record in this case, including briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Adair Express L.L.C., an Arizona corporation, with an office
and place of business at 15041 Keswick Street, Van Nuys, Cali-
fornia, is in the trucking business, providing local delivery for,
among others, Airborne Express. With services valued in ex-
cess of $50,000 for, among others, Airborne Express, an entity
directly engaged in interstate commerce and, with gross reve-
nues in excess of $250,000, the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
At all material times the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As of January 10, 2000, the Respondent, Adair Express,
L.L.C., succeeded to the operation of a company known as,
Assured Transportation & Delivery, Inc. (ATD) which pro-
vided delivery services for Airborne Express. Adair continued
ATD’s services in the same facility and hired several of ATD’s
drivers.
In September 1999, the Union commenced an organizational
drive among the drivers employed by Respondent’s predeces-
sor, ATD. The campaign progressed to a filing of a petition
with the Board on November 9, 1999, and to a stipulation on
November 23, 1999, between the parties agreeing to an election
to be held on December 13, 1999 (GC Exh. 4).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226
Among the 22 eligible voters, 12 voted in favor of union rep-
resentation and no one voted against the Union (GC Exh. 5).
The Union was certified on December 22, 1999, at ATD for the
following unit of employees for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act (GC Exh. 6):

Included: All full-time and regular part-time drivers em-
ployed by Adair Express L.L.C. at 15041 Keswick Street,
Van Nuys, California.

Excluded: All other employees, office clerical employees,
guards and supervisors as defined in the Act, as amended.

As a result of this scenario, the Respondent’s conduct with
respect to the Union is under scrutiny. The question to be re-
solved are whether Adair is a successor to ATD for purposes of
union recognition and whether the Respondent violated the Act
by refusing to hire certain former employees of ATD.
The facts of this case are based, inter alia, on a stipulation,
signed on August 21, 2000 (GC Exh. 2):

IT IS HEREBY STIPULATED by and among Adair
Express, L.L.C. (Respondent); Package & General Utility
Drivers, Local No. 396, International Brotherhood of
Teamsters, AFL–CIO (the Charging Party or the Union);
and Counsel for the General Counsel of the National La-
bor Relations Board, as follows:

1. (a) Since January 10, 2000, Respondent, an Arizona
limited liability company, has been engaged in the truck-
ing business and has provided local delivery by van or
truck for Airborne Express, with an office and place of
business located at 15041 Keswick Street, Van Nuys, Cali-
fornia.
(b) Respondent, in conducting its business operations
described in subparagraph 2(a) above, annually provides
services valued in excess of $50,000 to Airborne Express,
an entity that is directly engaged in interstate commerce.
2. At all material times, Respondent has been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
3. From at least January 1, 1997, through on or about
January 9, 2000, Assured Transportation & Delivery, Inc.
(ATD) provided services to Airborne Express at its facility
located at 15041 Keswick Street, Van Nuys, California.
4. On January 10, 2000, Respondent began to provide
services to Airborne Express out of the 15041 Keswick
Street, Van Nuys, California facility formerly used by
ATD through January 9, 2000.
5. On January 10, 2000, Respondent began to provide
services to Airborne Express out of the 15041 Keswick
Street, Van Nuys, California facility formerly used by
ATD immediately after ATD ceased providing such ser-
vices to Airborne Express, without any hiatus in the opera-
tion of providing such services to Airborne Express.
6. Since January 10, 2000, Respondent has continued
to provide the same services to Airborne Express as the
services previously provided by ATD, in basically the
same form, and from the same facility as that used by
ATD, the facility located at 15041 Keswick Street, Van
Nuys, California, on 11 of the approximately 17 delivery
routes previously serviced by ATD.
7. Commencing on January 10, 2000, the following in-
dividuals held the positions set forth opposite their respec-
tive names, and have been supervisors of Respondent
within the meaning of Section 2(11) of the Act and/or
agents of Respondent within the meaning of Section 2(13)
of the Act:

Martana Foltz Co-Owner
Keith Moore Co-Owner
Chris Woods Spervisor
Eric (Vincent) Quijano Supervisor
Jorge Garcia Supervisor

8. The following persons listed in Groups A and B be-
low were employed as drivers by ATD beginning on the
dates listed for each below and continuing through on or
about January 9, 2000.
Group A
(All are alleged discriminatees herein)

Gary Steven Bailey May 11, 1998
Rolando Estrada April 15, 1997
Gerardo M. Lachica January 16, 1998
John A. Macoy March 17, 1995
Craig Smith April 1, 1995
Mario Rodriguez August 24, 1999
Eddie Cesar Zamora September 23, 1997

Group B
(All were hired by Respondent effective January 10, 2000)

Charles Hernandez March 26, 1998
Henry Hernandez December 8, 1998
Muhammad Shazrill Johanni September 16, 1999
Michael Lamont Moore June 21, 1999
Mario Wilson Torres August 4, 1999
Bobbie Jean Varela September 28, 1999

9. On January 10, 2000, Respondent employed about
14 drivers, including 6 drivers employed by ATD on about
January 9, 2000 (named in para. 8 above, Group B), and
about 8 drivers not employed by ATD during the period
immediately before January 10, 2000.

The stipulation also provided for the admission of cer-
tain relevant documents as exhibits.
B. Analysis
The new company, Adair Express, is clearly a successor to
the predecessor, ATD, under the criteria set forth in NLRB v.
Burns Security Services, 406 U.S. 272 (1972). Summarizing
those criteria, in Fall River Dyeing Corp. v. NLRB, 482 U.S. 27
(1987), the court stated as follows:

This approach, which is primarily factual in nature and
is based upon the totality of the circumstances of a given
situation, requires that the Board focus on whether the new
company has “acquired substantial assets of its predeces-
sor and continued, without interruption or substantial
change, the predecessor’s business operations.” Golden
ADAIR EXPRESS L.L.C. 1227
State Bottling Co. v. NLRB, 414 U.S. at 184. Hence, the
focus is on whether there is “substantial continuity” be-
tween the enterprises. Under this approach, the Board ex-
amines a number of factors: whether the business of both
employers is essentially the same; whether the employees
of the new company are doing the same jobs in the same
working conditions under the same supervisors; and
whether the new entity has the same production process,
produces the same products, and basically has the same
body of customers. See Burns, 406 U.S. at 280, fn. 4.

It is uncontested that ATD discontinued its operation with
Airborne Express at the Van Ways facility because of the Un-
ion. Adair submitted bids to Airborne and was successful in
obtaining 11 of the 17 routes, which had been operated by
ATD. Like ATD, Adair contracted with Airborne to service the
routes previously owned by ATD. In addition, Adair hired
ATD’s supervisors, Vincent Eric Quijano and Christopher
Wood; it also hired six of ATD’s drivers. Adair operated out of
ATD’s former facility and employed the same dispatchers.
Like ATD’s drivers, Adair’s drivers wear Airborne uniforms.
They also drive vans marked with Airborne’s logo. Adair be-
gan its operation on January 10, 2000, on a Monday night after
ATD had ceased its business on Sunday, January 9, 2000. Ac-
cordingly, there was no interruption in the service. While the
Respondent had fewer routes than ATD, the geographic area
was essentially the same. Under these circumstances, where
the record so clearly shows that there is a substantial continuity
between the employing enterprises, it is obvious and I find that
the Respondent must be considered a Burns successor.
The implications of the successor status were explained as
follows in NLRB v. Horizons Hotel Corp., 49 F.3d 795 (1st Cir.
1995):
Generally, a successor employer has the right to oper-
ate its business as it wishes. See Elastic Nut Shop Div. of
Harvard Ind. v. NLRB, 921 F.2d 1275, 1279 [135 LRRM
32571] (D.C. Cir. 1990) (citing NLRB v. Burns Interna-
tional Security Services, Inc., 406 U.S. 272, 287–288 [80
LRRM 2225] (1972)). Within this prerogative is the suc-
cessor’s freedom to hire its own work force: “nothing in
the federal labor laws ‘requires that an employer . . . who
purchases the assets of a business be obligated to hire all
of the employees of the predecessor . . .” Id. (quoting
Howard Johnson Co. v. Detroit Local Executive Board,
417 U.S. 249, 261 [86 LRRM 2449] (1974) (citation omit-
ted)). The successor employer may not, however, dis-
criminate against union employees in its hiring. See Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 40
[125 LRRM 2441] (1987) (citations omitted).

Thus, where a successor employer refuses to hire its
predecessor’s employees because of their union affiliation,
it may violate §8(a)(3), 29 U.S.C. §158(a)(3). The test is
as follows: If it is proved that the former employees’ pro-
tected conduct was a substantial or motivating factor for
the successor’s refusal to hire, the refusal to hire violates
§8(a)(3), 29 U.S.C. 158(a)(3), unless the successor proves
by a preponderance of the evidence that it “would have
taken the same action for wholly permissible reasons.”
NLRB v. Transportation Management Corp., 462 U.S.
393, 399 [113 LRRM 2857] (1983). See also Elastic Stop
Nut. Div. of Harvard Ind., 921 F.2d at 1280; Horizon Air
Services, Inc., 761 F.2d at 27. “[I]f the employer [refuses
to hire] an employee for having engaged in union activities
and has no other basis for the discharge, or if the reasons
that [it] proffers are pretextual, the employer commits an
unfair labor practice.” Transportation Management Corp.,
462 U.S. at 398.

In this regard, the record shows that the Respondent refused
to hire seven former employees of ATD who were known to
certain members of management as union adherents. The hir-
ing decisions for the new company, Adair Express, were made
by the new owner, Marlana Foltz. She relied on the advice of
Christopher Wood, manager, and Vincent Quijano, assistant
manager. During their tenure as supervisors at ATD, Supervi-
sors Wood and Quijano were opposed to the union drive from
its inception in September 1999. They used their managerial
positions to persuade the employees to vote against the Union.
For example, Wood testified that he spoke to the drivers about
the Union almost constantly or like every day. He admitted
that he knew which driver supported the Union as well as those
who were opposed to the Union. According to Wood, the
strongest supporters were Mario Rodriguez and Rolando
Estrada. Wood also testified that ATD did not want to spend
the money to fight the Union or to negotiate with the Union,
and that he knew that they would be canceling the contract with
Airborne. He also told several drivers that they should post-
pone the union election until after everybody knew what ATD
would do about its contract. Wood denied being concerned
about loosing his own job because of the union campaign. He
explained that he and Quijano, along with two other drivers,
had made a bid for the ATD routes. He learned that his bid was
unsuccessful, on about January 3 or 4 when Marlana Foltz was
announced as the winning bidder. On January 5, Wood learned
that Foltz decided to retain him as an employee and as the man-
ager for her new company. According to Wood, Foltz and
Wood met several times for lunch and discussed each driver,
but Wood denied ever speaking to Foltz about the Union or
mentioning to her who among the drivers were the union sup-
porter. Indeed, Wood testified that Foltz informed him that she
was not interested in hearing about the Union.
The other supervisor at ATD who was retained by Adair Ex-
press as the assistant manager was Vincent Eric Quijano. Qui-
jano similarly testified that during the union campaign, he
would speak about the Union with the drivers of ATD on a
daily basis and that he knew the identities of the principal union
supporters, such as Rolando Estrada. He also knew and identi-
fied the drivers who opposed the Union. Like Wood, Quijano
confirmed that ATD had canceled its contract with the Airborne
because of the union campaign. He testified that he was afraid
of loosing his job at ATD because of the Union. On December
13, 1999, during the union election, Quijano admittedly ob-
served the area where the election took place. He testified that
saw and observed the drivers as they came into the area to vote.
He denied spying on the election, because, in his words, he
already knew who was for and who was against the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228
Quijano conceded that he blamed the Union and the drivers
who supported the Union for ATD’s decision to cancel its con-
tract. He testified that he was angry about it.
The ultimate hiring decisions were made by Marlana Foltz,
the new owner of Adair Express. In her testimony, Foltz admit-
ted that she discussed the drivers with Wood and Quijano.
Foltz testified that she learned on December 29, 1999, that her
bid was accepted by Airborne. But the drivers did not learn of
the new employer until January 5, 2000, when Wood and Qui-
jano informed the employees at a pizza party on the same day
that they could fill out application forms for the new company.
The Respondent hired a total of 14 drivers. Of those, six were
former drivers of ATD. They were Charles Hernandez, Henry
Hernandez, Muhammad Shez1 Johanni, Mario Torres, Mike
Moore, and Bobbie Valera. All except Torres had opposed the
Union during the union campaign. Torres had voted for the
Union, but he had subsequently signed an antiunion petition
circulated by Bobbie Valera. Foltz also hired eight employees
as drivers who had no prior connection with ATD. Many of
them were inexperienced and required training, because they
had never worked as drivers. They were: Jorge Lavin, Larry
Page, Larry Steinberg, Robert McQuitty, James Mock, and
Roland Bastion. However, Foltz refused to hire seven former
ATD drivers, ostensibly because of certain deficiencies con-
veyed to her in her discussion with Wood and Quijano.
The drivers formerly employed by ATD, who were not hired
were Rolando Estrada, Gary Steven Barley, Geraldo M. La-
chica, Craig Smith, Mario Rodriguez, Eddie Zamora, and Jofre2
Macoy. Foltz testified that she did not know that the seven had
supported the Union. Indeed, Foltz testified that she did not
think it [the union campaign] had anything to do with me. She
also testified that she was totally unaware that the six ATD
drivers whom she hired were antiunion, or that the seven who
were not hired were prounion. Foltz also testified that she had
never operated a business with a union in the picture.
The Respondent accordingly argues that the record does not
contain a shred of evidence that Marlana Foltz ever displayed
any antiunion bias and that she is a simple business person who
walked into a hornet’s nest caused by ATD’s antiunion cam-
paign and that she made honest decisions in a hurry about the
best qualified drivers which had nothing to do with protected
activities.
Foltz impressed me as a courageous and well meaning entre-
preneur, but she did not strike me as unsophisticated and cer-
tainly not so naïve, as to intentionally avoid being informed by
her managers about the very reasons for the predecessor’s deci-
sion to discontinue its operations. She testified that she had
been affiliated with Airborne Express for 13 years and had
worked in the trucking business for 20 years.
In short, the Respondent hired six of the former ATD driv-
ers, all of whom were known to Wood and Quijano to be op-
posed to the Union. The Respondent refused to hire seven of
the former ATD drivers, all of whom had voted for the Union
or had refused to sign the antiunion petition. Instead, the Re-
spondent hired a number of employees who were totally inex-

1 Also referred to as Shazrill.
2 Also referred to as John.
perienced and required training by either Wood and Quijano.
Moreover, six of the recently hired employees who had not
come from ATD left their jobs already after 1 or 2 days and
were gone by January 11, 2000. In spite of this uncontested
scenario, the Respondent refused to hire any of the seven for-
mer ATD drivers and insists that the Union played no role in
the hiring decision. Instead, the Respondent advanced certain
deficiencies of the discriminatees that Wood conveyed to Foltz
as reasons the Respondent’s refusal to hire them. The record,
however, convinces me otherwise, these deficiencies were pre-
textual and not the true reasons for Respondent’s conduct. Not
only is the Respondent’s scenario incredible, it is also implau-
sible and unconvincing. In Glenn Trucking Co., 332 NLRB
784 (1999), the Board found blatant disparity in the Respon-
dent’s treatment of the applicants and agreed with the judge
that “the possibilities of the Respondent’s lawfully filling . . .
vacancies without hiring one employee on the Union’s ‘Prefer-
ential Hiring List’ are at minimum statistically remote,’ and his
further finding that ‘[t]he extreme [Union versus non union
hiring] ratios clearly demonstrate animus against the employ-
ees’” who were union supporters. There, as here, the Respon-
dent’s reasons for its refusal were pretextual. I accordingly find
that the General Counsel met the initial evidentiary burden
under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), with respect
to the Respondent’s refusal to hire the named discriminatees.
My conclusions in this regard are supported by the antiunion
campaign at ATD by Wood and Quijano, such as warning driv-
ers repeatedly that the Union would make it too expensive for
ATD to continue its operations and that it would be unable to
pay union wages, and by trying to persuade the drivers to ac-
cept ATD’s proposal to change their employee status into that
of independent contractors. The Respondent concedes that
Wood and Quijano carried on ATD’s antiunion campaign, al-
beit under the direction of ATD, stating that the antiunion cam-
paign was foisted on Wood and Quijano by ATD . . . [that]
Wood and Quijano never had such designs . . . . [and] no per-
sonal bias against the Union (R. Br. at 3). The record, however,
shows that the two managers, in anticipation of the new owner-
ship, encouraged at least two drivers to sign the antiunion peti-
tion, which Bobbie Valera had drafted. For example, Jofre
Macoy, a driver, testified that on January 5, 2000, he was about
to fill out his application for Adair when Wood approached him
at the scanning room and said that if he signed the petition,
showing that he had no union affiliation, he could keep his job
with the new company. Another driver, Eddie Zamora, simi-
larly testified that after he had turned in his job application for
the new company, Quijano spoke to him at the conveyor belt as
follows (Tr. 80):

He told me if I wanted to get hired by Adair I would have to
sign a piece of paper saying that I would not want to go union
if I get hired.

The two drivers refused to sign the petition. They were not
hired. On the other hand, Mario Torres, another driver at ATD,
testified that he did sign the petition and that he was promptly
hired by Adair. Clearly, Wood and Quijano were acting in the
interest of the Respondent and, as argued by the General Coun-
ADAIR EXPRESS L.L.C. 1229
sel, as agents for Adair Express. Their threats were not idle
observations, but reflected Respondent’s course of conduct.
Obviously their jobs depended on the new company’s success-
ful operation. It is all the more apparent that the Respondent
hired the drivers based upon their union identities, rather than
the pretextual reasons contained in Foltz’ testimony. Signifi-
cantly, even after the Respondent discharged two drivers on
January 10, 2000, and even after several of the new hires failed
to report for work after January 11, 2000, the Respondent con-
tinued its rejection of the seven discriminatees. Having con-
cluded that the Respondent’s asserted business reasons were
pretextual, I also find that the Respondent failed to satisfy its
Wright Line burden of showing that it would not have hired the
discriminatees even in the absence of their union sympathy.
See FES, 331 NLRB 9, 12 (2000).
Foltz testified that she considered the written applications,
which most ATD drivers had submitted, and that she consulted
with her managers in the selection process. Here are Respon-
dent’s asserted reasons for rejecting the seven former ATD
drivers:
Roland Estrada. The Respondent refused to hire Roland
Estrada, who, as the Respondent concedes, was the acknowl-
edged leader of the union campaign. According to Foltz, she
did not hire him, because he had no calls, no shows on his re-
cord with ATD, and I viewed him handling freight. It was
atrocious to me. Foltz never interviewed Estrada, because she
didn’t have a lot of time and, as she stated, “[h]is work history
speaks for itself’’ (Tr. 557). Foltz admitted that she knew
Estrada to be a strong union supporter. According to Wood,
Estrada was a really incredible driver for 3 years, but his per-
formance had deteriorated after the union campaign, when
ATD decided to cancel the contract. Estrada’s work record
showed that over a 3-year period he had one accident, one sus-
pension, and eight warnings, several of which he received after
the commencement of the union campaign (R. Exh. 1).
Gary S. Bailey. Foltz refused to hire Gary Bailey because
she had reviewed his driver’s manifest, which showed eight
mistakes, such as illegible signatures or no signatures at all.
The manifest was the driver’s record of daily deliveries. A
customer is expected to sign and print the name on a manifest
to show that the delivery had been made. Foltz further stated
that she also relied on his ATD work history. His personnel
record included two accidents, a customer complaint, a suspen-
sion, and several warnings, three of which were incurred after
the commencement of the union campaign (R. Exh. 2). Wood’s
testimony was that Bailey had failed to download certain in-
formation in a timely manner and was therefore not considered.
Craig Smith. Smith was rejected, according to Foltz, “be-
cause he made a terrible impression with [her], the first time
[she] met him. . . . He was very disrespectful . . . and rude” (Tr.
558).’’ She also testified that she had been told that Smith was
a prima donna who was pampered by one of the dispatchers and
that she considered his work record as poor. His ATD record
shows that he had incurred two minor traffic accidents in a 4-
year period, received two warning notices and that he reported
a dog bite and a back injury (R. Exh. 6). Wood testified that he
didn’t like Smith, but that he was a good driver.
Geraldo M. Lachica. Foltz rejected Lachica because his re-
cord with Airborne Express was not very good (Tr. 558). In his
2 years with ATD, he received five disciplinary warning no-
tices, three of which occurred after the Union began its cam-
paign. He had no record of accidents (R. Exh. 4). According to
Wood, Lachica had an attendance problem.
Jofre Macoy. Foltz rejected Macoy because he needed a
month off to go to the Philippines. She conceded that Macoy
was a good driver who, according to Wood was about as close
to perfect as you can get (Tr. 403). His ATD record shows that
he had a nearly trouble-free work history for more than 4 years
(R. Exh. 3). But Foltz declined even to interview Macoy.
Eddie Zamora. According to Foltz, he had an obvious seri-
ous problem with being late to work (Tr. 559). Quijano testi-
fied that he and Wood had strongly recommended Zamora,
because he had a reputation as a really fast worker. His ATD
work record shows that he had one accident and seven warning
notices dealing with tardiness (R. Exh. 5).
Mario Rodriguez. According to the Respondent, Rodriguez
was not hired because he had failed to submit an application.
Yet Rodriguez testified that he had completed the application
on January 5, and that he personally handed the application to
Foltz during the pizza event on that day. Wood testified that
Rodriguez had a bad attitude and made mistakes.
The record shows that the work histories of the ATD drivers
who were hired by Adair Express were not superior and in
some instances even worse, particularly considering their rela-
tively shorter tenure as ATD drivers. For example, Muhammad
Shez Johanni’s work record shows one accident and one warn-
ing during his employment with ATD of less than 1 year (R.
Exh. 12). Michael Moore had incurred two warnings and one
“management discussion” during his ATD employment of less
than 1 year (R. Exh. 11). Henry A. Hernandez had incurred
two accidents and a warning notice. He also had a DMV con-
viction on his record during his ATD employment of less than 2
years (R. Exh. 9). Charles Hernandez’ work record shows two
accidents, one incident of tardiness, and various DMV convic-
tions in less than 2 years’ employment with ATD. The two
drivers, Mario Wilson Torres and Bobbie Varlera, who had
been employed at ATD for only a few months had not yet ac-
cumulated any adverse job actions (R. Exhs. 10, 13).
Clearly, the Respondent’s asserted reasons for its refusal to
hire the prounion candidates are insincere and pretextual. I find
Foltz’ testimony, as well as the explanations of Wood and Qui-
jano, not credible and in any case, unpersuasive. I conclude
that the Respondent has failed to show that it would have re-
jected the discriminatees even in the absence of their union
sympathies, particularly considering the Respondent’s obvious
difficulties with the retention of the employees who had no
prior ATD experience. I accordingly find that the Respondent,
as a successor employer, intentionally avoided recognizing and
bargaining with the Union by discriminating in hiring to ensure
that a majority of the employees in the new unit would not be
employees of the predecessor. Galloway School Lines, 321
NLRB 1422, 1427 (1996). Triple A Series, 321 NLRB 873
(1996). Here, it is clear that Respondent’s complement of em-
ployees consisted of 14 employees, including the 6 former
ATD drivers (including Mario Torres who had voted for the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230
Union and who had subsequently signed the antiunion petition).
The Respondent’s refusal to hire involved seven former ATD
employees who, absent the Respondent’s unlawful conduct,
would have constituted a sufficient number of predecessor em-
ployees to assure the Union’s majority status. In Galloway,
supra at 1429, the Board stated as follows:

Therefore, because the Respondent unlawfully refused
to hire certain of the predecessor’s employees in order to
avoid recognizing and bargaining with the Union, it is ap-
propriate to find that the Respondent had a statutory obli-
gation to adhere to the employment conditions of the col-
lective bargaining agreement between the Union and Laid-
law from the initiation of its successor operation, and a
statutory obligation to bargain with the Union before mak-
ing changes in that status quo. We further find that the
Respondent violated Section 8(a)(5) not only by refusing
to recognize the Union as the majority representative of its
employees, but by making unilateral changes in employ-
ment conditions without first bargaining with the Union.
Finally, we find that the appropriate remedy for these
8(a)(5) violations is to require the Respondent to recognize
and bargain with the Union, and to retroactively restore
the terms and conditions of employment that existed under
the predecessor’s contract with the Union until such time
as the Respondent and the Union bargain to agreement or
to impasse, and to make whole the bargaining unit em-
ployees in a manner consistent with the contract’s provi-
sions.

The Respondent had made changes in the employment con-
ditions, including changes in pay and benefits as of January 10,
2000. The Union filed its original charges on January 11, 2000,
and made additional requests to bargain, on April 28 and May
11, 2000 (GC Exhs. 7, 9).
CONCLUSIONS OF LAW
1. Adair Express L.L.C. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union, Package & General Utility Drivers, Local No.
396, International Brotherhood of Teamsters, AFL–CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent is a successor employer to Assured
Transportation & Delivery, Inc. (ATD).
4. The following unit, constitutes an appropriate unit for the
purposes of collective bargaining within the meaning of Section
9(b) of the Act:

Included: All full-time and regular part-time drivers em-
ployed by Adair Express L.L.C. at 15041 Keswick Street,
Van Nuys, California.

Excluded: All other employees, office clerical employees,
guards and supervisors as defined in the Act, as amended.

5. By failing and refusing to hire applicants because of their
union affiliation, the Respondent violated Section 8(a)(1) and
(3) of the Act.
6. By failing to recognize the Union and by failing and refus-
ing to bargain collectively in good faith with the union as the
exclusive collective-bargaining representative of its employees,
The Respondent violated of Section 8(a)(5) and (1) of the Act.
7. By setting initial terms and conditions of employment for
employees in the unit without bargaining with the Union, by,
inter alia, decreasing wages, and changing benefits, the Re-
spondent violated Section 8(a)(1) and (5) of the Act.
8. The Respondent’s conduct described above constitutes un-
fair labor practices affecting commerce within the meaning of
Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated the National
Labor Relations Act, as amended. I shall recommend that it
cease and desist therefrom, and that it shall take certain affirma-
tive action designed to effectuate the policies of the Act. Hav-
ing found that the Respondent unlawfully and discriminatorily
refused employment to certain former employees of Adair Ex-
press. I shall recommend that these following named employ-
ees: Craig Smith, Rolando Estrada, Jofre Macoy, Eddie
Zamora, Gary Bailey, Gerardo Lachica, and Mario Rodriguez
be offered immediate employment to the positions to which
they applied or, if such positions, no longer exist, to substan-
tially equivalent positions without prejudice to their seniority or
any other rights and privileges; and if necessary, terminating
the service of employees hired in their stead, and to make the
aforesaid individuals whole for wage and benefit losses they
may have suffered by virtue of the discrimination practiced
against them computed on a quarterly basis as prescribed in F.
W. Woolworth, Co., 90 NLRB 289 (1950), less any interim
earnings, with the amounts due and interest thereon computed
in accordance with New Horizons for the Retarded, 283 NLRB
1173 (1987).
Having found that the Respondent failed to recognize and
bargain with the Union, a bargaining order is necessary prohib-
iting the Respondent from unilaterally setting the term and
conditions of employment. Finally, it is necessary that the
Respondent be ordered, on request of the Union, to rescind any
changes in the employees’ working conditions and make the
employees whole.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Adair Express L.L.C., Van Nuys, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire job applicants because they participated
in the Union’s organizing program or because of their union
affiliation, or otherwise discriminating against employees to
avoid having to recognize and bargain with the Union.

3 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.
ADAIR EXPRESS L.L.C. 1231
(b) Refusing to recognize and bargain in good faith with the
Union as the exclusive collective-bargaining representative of
its employees in the following appropriate unit:

Included: All full-time and regular part-time drivers
employed by Adair Express L.L.C. at 15041 Keswick
Street, Van Nuys, California.

Excluded: All other employees, office clerical em-
ployees, guards and supervisors as defined in the Act, as
amended.

(c) Unilaterally changing wages, hours, and other conditions
of employment without bargaining about these changes with
the Union.
(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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to the
following employees of the predecessor, who would have been
employed by the Respondent but for the illegal discrimination
against them, employment as monitors in the Conventry opera-
tion, or, if such positions no longer exist, in substantially
equivalent positions, without prejudice to their seniority and
other rights and privileges previously enjoyed, discharging if
necessary any employees hired in their place. In addition,
make whole these employees for any loss of earnings and other
benefits they may have suffered by reason of the Respondent’s
unlawful refusal to employ them. Backpay shall be computed
as in F. W. Woolworth Co., 90 NLRB 289 (1950)), plus interest
as prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987):

Craig Smith
Rolando Estrada
Jofre Macoy
Eddie Zamora
Gary Bailey
Gerardo Lachica
Mario Rodriguez

(b) Recognize and, on request, bargain collectively with the
Union as the exclusive representative of the Respondent’s em-
ployees in the unit above, with respect to rates of pay, wages,
hours, and other terms and conditions of employment and, if an
agreement is reached, embody it in a signed document.
(c) On request of the Union, rescind any changes from terms
and conditions of employment that existed immediately prior to
the Respondent’s takeover of the predecessor company restor-
ing preexisting terms and conditions of employment, including
wage rates and benefit plans, and make whole the bargaining
unit employees by remitting all wages and benefits that would
have been paid absent such unilateral changes from January 10,
2000, until it negotiates in good faith with the Union to agree-
ment or to impasse. The remission of wages shall be computed
as in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), plus interest as prescribed in New
Horizons for the Retarded, supra.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its
Van Nuys, California location copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since January 10, 2000.
(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 the
Respondent has taken to comply.

4 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 Na-
tional 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.”