Alan Ritchey, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 2006

346 N.L.R.B. 241 (N.L.R.B. 2006)

ALAN RITCHEY, INC.
346 NLRB No. 26
241
Alan Ritchey, Inc. and David LaValley and Alan
Ritchey Drivers Employed under USPS Con-
tract HCR 75120, 38121 (Relaying from Flag-
staff, Arizona). Cases 28–CA–18282, 28–CA–
18351, and 28–CA–18381
January 13, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On July 3, 2003, Administrative Law Judge Gerald A.
Wacknov issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed a response.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
In adopting the judge’s finding that the Respondent did
not violate Section 8(a)(3) of the Act by discharging em-
ployee Dave LaValley, we note that the judge failed to
articulate his analysis in terms of Wright Line.1 Accord-
ingly, we set forth our analysis below.
The judge also failed to give adequate reasons for his
finding that the Respondent did not violate Section
8(a)(5), (2), and (1) of the Act by conducting its Decem-
ber 13, 20022 poll of employees as to whether they
wanted LaValley to represent them. Our reasoning on
this matter is set forth below.
Facts Concerning the Discharge
The Respondent and the Union, Alan Ritchey Mail
Transportation Drivers Mutual Cooperation Association,
were signatories to a first contract running from January
30, 2001, until May 30, 2003, and covering a unit of
drivers. The Union is a loose-knit, informal group with
no officers, no constitution or bylaws, no dues structure,
and no regular meetings. David LaValley negotiated the
first contract for the Union.
LaValley’s driving record was without blemish. How-
ever, LaValley had a history of abusive language and
excessive use of profanity, and he sometimes demon-
strated a volatile temper. His immediate supervisor and
friend, Don Ash, testified that he had given LaValley
many informal, friendly warnings about his behavior,
and told him that some day his mouth would get him into
trouble. According to Ash, Respondent’s operations

1 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
2 All dates are in 2002, unless otherwise indicated.
manager, Billy Williams, “called me and asked me to
verbally have a talk with [LaValley] and try to settle
[LaValley] down,” and that Ash had done so “more than
once.”
In September, LaValley was involved in two incidents
of misconduct. In the first incident, LaValley left a bel-
ligerent voice mail for Supervisor Eddy Goins after
Goins reprimanded him for leaving personal belongings
in a company truck. LaValley used language such as
“goddamn truck . . . [t]his isn’t your damn business. . . .
Keep out of my business.” In the second one, on Sep-
tember 13, LaValley visited the Concentra Medical
Clinic for the physical exam required for his employ-
ment.3 LaValley became exasperated when he allegedly
received an unfriendly reception upon asking for a doctor
by her first name, when he waited for some time, and
when a clinic employee demanded that he pay $15 for
one of the required forms. LaValley became loud and
abusive, and engaged in name calling, swearing, and
shaking his finger. Two nurses were intimidated by
LaValley’s conduct and asked him to leave. When
LaValley failed to do so, the nurses threatened to call the
police. LaValley then left the clinic. The nurses re-
ported that LaValley called them “broads” and yelled,
“piss on all the doctors just piss on them all.”
The clinic notified the Respondent of the incident and
informed the Respondent that LaValley was not permit-
ted to return to the clinic. The Respondent’s safety
committee, consisting of Operations Manager Williams,
Safety Director Tom Riddle, and Human Resources Di-
rector Debra Norwood, investigated the incident over the
next few days. The committee prepared memoranda of
their conversations with witnesses from the clinic and
ultimately decided to terminate LaValley. LaValley did
not deny creating the disturbance and using profanity. In
fact, LaValley faxed an apology for his behavior to the
clinic 2 days after the incident. The Respondent dis-
charged LaValley on September 20, citing the Concentra
Clinic incident. At the hearing, the Respondent asserted
that the angry voice mail was also a factor in LaValley’s
termination.
Facts Concerning the Polling
The contract between the Respondent and the Union
was scheduled to expire in May 2003. However, Re-
spondent’s operations manager, Williams, learned in
October 2002, that a new contract had to be in place by
January 30, 2003. This was because the Postal Service
(the Respondent’s customer) had set that date as a dead-
line for a new collective-bargaining agreement. If there
were no agreement in effect by that date, the Postal Ser-

3 The Respondent had arranged for employees to use the clinic.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD242
vice’s payments to the Respondent would reflect the
wages of the prior contract, and those wages would re-
main in effect for a year or two.4
Williams mistakenly believed that LaValley could not
represent the employees because he was no longer em-
ployed by the Respondent. There was also confusion
among the employees, some expressing concern about
having LaValley represent them, and LaValley himself
assuming that he would be the negotiator for the new
contract. Another employee, Martin Aldrich, volun-
teered to become the spokesperson for the drivers. On
December 9, employee Ed Bender sent a memorandum
to all the drivers and to Williams expressing his confu-
sion and the need for more formal organization in the
Union. Bender indicated that he was opposed to having
LaValley represent the drivers and noted that LaValley
had the support of only 8 out of 20 drivers. Bender ex-
pressed his hope that the situation could be resolved
speedily because time was of the essence with respect to
the forthcoming negotiations for the second contract.
On December 13, Williams decided to address the em-
ployees’ concerns by polling the drivers. Each driver
was given a memorandum asking him to state whether he
wanted LaValley to remain as his “bargaining representa-
tive.” The memorandum stated that “[i]t is important
that we know who your bargaining representative is so
that we may communicate with and negotiate with that
person pursuant to the mutual cooperative agreement.”
The drivers were asked to complete the memo, sign it,
and return it. Fifteen drivers indicated that they did not
want LaValley; 8 drivers indicated that they did. On
January 3, 2003, Williams notified LaValley of the vote
and stated that he would be negotiating with the drivers’
newly selected representative, unless otherwise notified
by the drivers. Subsequently, employee Aldrich notified
Williams that he was the drivers’ representative. Al-
drich, with LaValley’s assistance, negotiated a new 2-
year agreement with the Respondent.
Judge’s Decision and Analysis
1. LaValley discharge
The judge dismissed the allegation that the Respondent
discharged LaValley in violation of Section 8(a)(3) of the
Act. We agree. The burden and allocation of proof is set
forth in Wright Line, supra: The General Counsel must
first prove, by a preponderance of the evidence, that the
employee’s protected activity was a motivating factor in
the employer’s adverse action.5 Once the General Coun-
sel makes this showing, the burden of persuasion

4 This was pursuant to a contract between the Respondent and the
United States Postal Service (USPS).
5 See Manno Electric, Inc., 321 NLRB 278 (1996).
“shift[s] to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct.”6 Wright Line, supra at 1089.
Here, the judge in essence found that the General
Counsel failed to meet his initial burden. The judge
noted that there was no showing that Operating Manager
Williams harbored antiunion animus. The judge specifi-
cally credited Williams’ and Safety Director Riddle’s
testimony that LaValley’s status as negotiator had noth-
ing to do with the decision of the safety committee to
discharge him. The judge also credited Supervisor Ash’s
denial that Ash told LaValley that Williams had not hired
a union advocate applicant. Further, the judge found that
the Respondent was not concerned that LaValley’s posi-
tion as a negotiator would somehow be detrimental to the
Respondent’s interests during future negotiations. Fi-
nally, the judge essentially found that, even assuming the
General Counsel met his initial Wright Line burden, the
Respondent carried its rebuttal burden. Thus the judge
found that LaValley had engaged in misconduct, and that
he had been previously warned many times about his
inability to control his language and his temper.
Assuming arguendo that the General Counsel made his
initial showing, we agree that the Respondent has met its
burden under Wright Line. Ash made it clear that Wil-
liams had asked Ash to reprimand LaValley on more
than one occasion concerning LaValley’s volatile tem-
perament and use of abusive language, and that Ash had
done so. LaValley’s behavior at the Concentra Medical
Clinic amounted to a public demonstration that he could
control neither his temper nor his language. LaValley
himself acknowledged his inappropriate behavior. He
did not deny that he had created a disturbance and used
profanity. He in fact forwarded an apology to the clinic
within 2 days of the incident. Under these facts, we are

6 Regarding the Wright Line analysis, Member Schaumber notes that
the General Counsel’s initial burden of showing discriminatory motiva-
tion involves proving the employee’s union activity, employer knowl-
edge of the union activity, and animus against the employee’s protected
conduct. The Board and circuit courts of appeals have variously de-
scribed the evidentiary elements of the General Counsel’s initial burden
of proof under Wright Line, sometimes adding as a fourth element,
what is otherwise inferred under the Wright Line analysis, the necessity
for there to be a causal nexus between the union animus (i.e., Sec. 7
animus) and the adverse employment action. See, e.g., American Gar-
dens Management Co., 338 NLRB 644, 645 (2002). As stated in
Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), Member
Schaumber agrees with this addition to the formulation.
ALAN RITCHEY, INC. 243
satisfied that the Respondent has shown that it would
have discharged LaValley even in the absence of any
union activity. See Mediplex of Stanford, 334 NLRB
903 (2001).
2. Polling of employees
The General Counsel also alleged that the Respon-
dent’s poll of the drivers concerning whether they
wanted employee LaValley to represent them violated
Section 8(a)(1), (2), and (5) of the Act. The judge dis-
missed all three aspects of the allegation, but discussed
only the 8(a)(1) allegation. The judge observed that the
Respondent was not trying to withdraw recognition from
the Union and found that the Respondent’s poll was non-
coercive. The judge also noted several other factors:
“time was of the essence; the drivers were clearly in-
volved in an intra-union dispute; the poll was conducted
for a legitimate reason; it was factual and the Respondent
did not indicate a preference for one negotiator over an-
other; all the drivers were aware of the surrounding cir-
cumstances; there was no anti-union animus by the Re-
spondent; and there were no contemporaneous unfair
labor practices that would cause the Respondent’s mo-
tives to be suspect.” In sum, the judge found that the
Respondent was anxious to begin negotiations on the
second contract for the benefit of the drivers and the Re-
spondent “simply and legitimately wanted to know with
whom to negotiate.” We agree with the judge, for the
reasons he states, that the Respondent’s poll did not vio-
late Section 8(a)(1) of the Act. The Respondent’s con-
duct did not tend to interfere with the free exercise of
employee rights under the Act. See Williamhouse of
California, Inc., 317 NLRB 699, 713 (1995).
We also agree with the judge that the Respondent’s
poll did not amount to direct dealing, and therefore did
not violate Section 8(a)(5) of the Act. The criteria to be
applied in determining whether an employer has engaged
in direct dealing are: (1) was the employer communicat-
ing directly with union-represented employees; (2) was
the discussion for the purpose of establishing or changing
wages, hours, and terms and conditions of employment,
or undercutting the union’s role in bargaining; and (3)
was such communication made to the exclusion of the
union. See Southern California Gas Co., 316 NLRB
979, 982 (1995). Certainly, when the Respondent polled
the drivers as to whether they wanted LaValley to repre-
sent them, it was communicating directly with union-
represented employees. However, neither of the other
two criteria are present here. The Respondent polled the
drivers only to resolve the dilemma of the identity of the
drivers’ representative for the forthcoming negotiations.
Terms and conditions of employment were not discussed,
and the Respondent in no way denigrated the Union. As
to the third factor, the communication was not for the
purpose of excluding the union. To the contrary, the
purpose was to assure that the union, through a represen-
tative, would be involved in the bargaining. Indeed, the
Respondent’s memorandum to the drivers indicated that
the Respondent desired to begin negotiating for a succes-
sor collective-bargaining agreement. The Respondent
did, in fact, bargain with the Union, and the parties suc-
cessfully negotiated a second agreement. We therefore
find that there was no unlawful direct dealing. See Per-
manente Medical Group, Inc., 332 NLRB 1143, 1145
(2000) (no direct dealing where “Respondent always
made clear that its bargaining obligation ran to the Un-
ions, and it honored that obligation”).
With further respect to the “direct dealing” contention,
our colleague suggests that the Respondent should have
contacted LaValley as to whether he should be regarded
as the chosen representative. However, LaValley was
obviously not a disinterested observer. Thus, we think
that the Respondent acted properly by going to the em-
ployees.
We recognize that, under Section 8(a)(2), an employer
may not “interfere with the . . . administration” of a un-
ion. We also recognize that selection of a representative
is normally an internal matter for a union. However, in
the special circumstances of this case, we find no 8(a)(2)
violation. The Respondent was under time pressure to
negotiate with someone from the Union. It was unclear
who that someone would be. The Union was so loosely
organized that it was virtually impossible to find out
from an authorized person who the representative would
be. Accordingly, on a one-time basis, the Respondent
took the prudent step of letting the employees choose a
representative. In these circumstances, we perceive no
unlawful effort to interfere with the administration of the
Union.
Our dissenting colleague would find that the Respon-
dent’s poll of its employees violated Section 8(a)(1) and
(2) of the Act. In so reasoning, our colleague misapplies
precedent. First, she likens the Respondent’s poll to
those that violate the Act because the employer is seek-
ing to justify either withdrawing recognition from a un-
ion7 or recognizing a favored union over another.8 As
the judge correctly observed, however, and as we empha-
size, those cases are inapposite here. The Respondent
was not attempting to determine whether the employees
wanted a union, nor was it trying to rid itself of the driv-
ers’ union, nor even of the obligation to deal with any
particular negotiator. Rather, the Respondent was simply

7 See, e.g., Struksnes Construction Co., 165 NLRB 1062 (1967).
8 See, e.g., Modern Drop Forge Co., 326 NLRB 1335 (1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD244
attempting to determine who would represent the drivers’
union in bargaining, and to resolve that question as
quickly as possible given the circumstances.9
Our dissenting colleague states that the Respondent
seized on the employees’ concern that LaValley was not
a suitable bargaining representative and “ran with it.”
She further states that the Respondent’s poll placed em-
ployees “on the spot,” by eliciting their views about a
representative (LaValley) who “they would reasonably
believe was disfavored by their employer.” We disagree.
The memorandum does not indicate the Respondent’s
views concerning LaValley as a negotiator. The memo-
randum simply recites the fact that many of the employ-
ees had said that they did not want LaValley as their ne-
gotiator. The Respondent then merely asked employees
to indicate their views. The memorandum said: “It is
important that we know who your bargaining representa-
tive is so that we may communicate with and negotiate
with that person pursuant to the mutual cooperation
agreement.” The memorandum did not disparage LaVal-
ley; rather, it accurately stated that there was a question
concerning whether employees wanted him as their ne-
gotiator, and the Respondent desired to open negotiations
with the Union as soon as possible. The employees all
knew that a possible pay raise was dependent on negotia-
tions being completed by January 30, 2003. We con-
clude that those employees would reasonably understand
the Respondent’s action as an effort to meet that dead-
line, and one that had nothing to do with the Respon-
dent’s view (if it had one) of LaValley.
Our dissenting colleague also criticizes the judge’s and
our reliance on a number of factors, notably the absence
of animus, in finding an absence of interference or coer-
cion. She states that “[n]either the judge nor the majority
explains the basis in law for treating these criteria as pro-
bative” and that a finding of coercion is “independent of
motivation.” Our reliance on those criteria, however,
merely reflects the well-established test of the totality of
the circumstances for finding interference or coercion.
See, e.g., Grinnell Fire Protection Systems Co., 328
NLRB 585, 587 (1999), enfd. 236 F.3d 187 (4th Cir.
2000), cert. denied 534 U.S. 818 (2001) (threats and in-
ducements); Demco New York Corp., 337 NLRB 850,
850–851 (2002) (interrogations). The absence of animus

9 Indeed, each of the cases cited by our dissenting colleague was
marked by an employer’s interference with its employees’ right to be
represented in their chosen manner. In Modern Drop Forge, for exam-
ple, the Board found that the employer’s rush to negotiate with one
group of employees rather than the lawfully designated agents of the
union was an “extreme case of employer interference. . . .” Id. at 1336.
By contrast, the Respondent here was not seeking to negotiate with one
group over another. It was simply trying to determine the appropriate
person with whom to negotiate.
is a legitimate consideration in this case, and merely one
among many supporting our finding that the Respon-
dent’s poll of its employees did not interfere with em-
ployee rights.
Finally, our dissenting colleague suggests that the Re-
spondent’s action interfered with the drivers’ own “ac-
tive[]” efforts to “choose a representative for the upcom-
ing negotiations.” In our view, our colleague overstates
the pace and progress of those efforts. Although em-
ployee Bender had communicated with his fellow em-
ployees, in an attempt to get them to address the issue,
the employees had done nothing in response when the
Respondent sent its December 13 memorandum to em-
ployees. While it is true, as our colleague points out, that
LaValley circulated a petition among the employees from
December 7 through 14, seeking to ascertain whether
they still regarded him as their representative, LaValley
did not present this petition to the Respondent or the em-
ployees, nor even inform the Respondent of the petition’s
existence. Accordingly, LaValley’s action did not re-
lieve the Respondent of the dilemma it faced as of De-
cember 13, and the mere fact that LaValley circulated the
petition does not indicate that the Union would have re-
solved the matter on its own in a timely fashion. In view
of the upcoming holiday season and the January 30 dead-
line, we conclude that the Respondent did not interfere
when it simply asked employees to indicate whether they
wanted LaValley as their negotiator.10
In sum, we conclude that the Respondent’s poll vio-
lated neither Section 8(a)(1) nor (2) of the Act.
We emphasize the unique facts of this case. The Re-
spondent was “under the gun.” It had to negotiate a con-
tract by January 30, 2003. If it did not, the employees
would be a prime loser. At the same time, it had bona
fide doubts about the basic issue concerning with whom
to negotiate. It turned to the employees for an answer to
that question. We recognize that, in general, an em-
ployer may not go to the employees with respect to this
matter. But, unique circumstances call for a reasonable
legal result. We reach that result with no intention of
upsetting general legal principles.
We also conclude, unlike our dissenting colleague, that
the Respondent did not violate Section 8(a)(5) and (1) by
refusing to proceed to step two of the parties’ grievance
procedure following LaValley’s discharge. We agree
with the judge, for the reasons he states, that the Respon-
dent had legitimate reasons for concluding that LaValley

10 Our dissenting colleague contends that it was the Respondent’s
obligation to address any concerns it had to LaValley. Again, given the
need to resolve its dilemma quickly and accurately, we do not fault the
Respondent for polling the employees rather than seeking a self-serving
assessment from LaValley.
ALAN RITCHEY, INC. 245
did not invoke step two review. Rather, at the end of a
lengthy and confusing fax,11 LaValley asked to start arbi-
tration, the final step of the grievance-arbitration process.
Although our dissenting colleague asserts that LaValley
thereby indicated his desire to proceed with his griev-
ance, she concedes that LaValley “failed to expressly
indicate that he wanted to proceed” to step two. In the
circumstances, we find that the Respondent did not vio-
late the Act by failing to proceed, without request, to step
two of the grievance process.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.
MEMBER LIEBMAN, concurring in part and dissenting in
part.
The Board regards employees’ selection of the agents
of their collective-bargaining representative as “purely an
internal union affair” and as an exercise of Section 7
rights.1 The employer here sent each Union-represented
employee a memorandum asking the employee to iden-
tify whether he continued to support union negotiator,
Dave LaValley, whom the employer had just discharged
(a fact that had no legal bearing on his union role).2 Em-

11 As the judge observed, the 15-page fax was addressed to Ken
Brown, but the Respondent employed no Ken Brown. The copy of the
fax introduced into evidence was missing pp. 2 through 8; no party was
able to explain what was omitted or why. Furthermore, pp. 9 through
12 consisted of press releases from the American Civil Liberties Union,
and pp. 13 and 14 consisted of information pertaining to the Americans
with Disabilities Act. The Respondent’s operations manager testified,
without contradiction, that information on the last page of the fax led
him to believe that LaValley was attempting to resolve the matter
through the ACLU. LaValley himself never testified that he regarded
the fax as a request to go to step two. He relies on a letter he sent on
October 3, which the judge reasonably found was nothing more than a
request for information.
1 See Modern Drop Forge Co., 326 NLRB 1335, 1344–1345 (1998),
citing Howland Hook Marine Terminal Corp., 263 NLRB 453, 454
(1982). Cf. Armored Transport, Inc., 339 NLRB 374, 377–378 (2003)
(employer unlawfully interfered in relationship between employees and
union by disparaging union and inviting decertification and interjected
itself into “internal union affairs upon which an employer is not free to
intrude”).
2 I concur in the dismissal of the allegation that LaValley’s discharge
was unlawful. In so doing, however, I also rely on the testimony of
LaValley’s long-distance driving partner and supervisor, Don Ash, that
he failed to report much of LaValley’s abusive and intemperate behav-
ior during his 8 years working for the Respondent in order not to get
him into trouble. The record reflects that the incidents for which
LaValley was ultimately fired—one of which was a public distur-
bance—were reported directly to Operations Manager Williams.
I dissent from the dismissal of the 8(a)(5) allegations arising from
the Respondent’s treatment of LaValley’s discharge grievance. After
his step 1 grievance was denied, LaValley sent a timely letter stating
that “if this illegal discharge is going to continue please start the final
step, arbitration.” Although he failed to expressly indicate that he
wanted to proceed to step 2 of the grievance process, which preceded
ployees were asked to sign their names to their response.
This nonsecret poll obviously tended to coerce employ-
ees in their selection of a spokesman and unlawfully in-
terfered with internal union matters. Cf. Struksnes Con-
struction Co., 165 NLRB 1062, 1062–1063 (1967) (rec-
ognizing that employer polling of employees to deter-
mine support for union “tends to impinge on Section 7
rights” and establishing requirements for polling, includ-
ing secret ballot).3
The record shows that several employees voiced fears
that LaValley’s discharged status would reflect badly on
the Union generally if he continued to negotiate on its
behalf. Thus, employee Ed Bender expressed concern in
a memo circulated December 9 over the continued repre-
sentation of the Union by LaValley because “he is no
longer employed by Alan Ritchey and by virtue of him
being at the negotiating table (in his current status) may
leave a sour taste with whomever we negotiate with on
behalf of Alan Ritchey.” Bender’s memo also empha-
sized the necessity for the drivers to act quickly.
The Respondent seized on the concern expressed by
Bender and ran with it. It sent a letter to each employee
that stated:
It has recently come to our attention that many of
you do not wish to have Dave LaValley as your bar-
gaining representative because he is no longer em-
ployed by Alan Ritchey. Please indicate on this let-
ter if this is correct or not. . . . It is important that we
know who your bargaining representative is so that
we may communicate with and negotiate with that
person pursuant to the mutual cooperation agree-
ment. Once you have signed the appropriate area,
return the letter to Don Ash. Thank you for your
time in this important matter [and] sign[] the appro-
priate area.

arbitration, his letter makes clear that he wished to continue to pursue
the grievance. The Respondent’s failure to respond to this timely re-
quest, and its subsequent refusal to go forward due to untimeliness
when LaValley followed it with a letter expressly requesting a second
step appeal, were unjustified.
3 The majority insists that the Struksnes line of cases is inapposite
here because those cases are concerned with the employees’ choice
whether or not to be represented by a particular union, rather than
whether to have particular individuals as their union agents for pur-
poses of collective bargaining. I disagree. In both situations, the em-
ployer is interfering with the employees’ free choice of their representa-
tive, whether a particular entity or a particular person. There may be a
difference in the degree of interference, but the interference exists
regardless. See Modern Drop Forge Co., supra, 326 NLRB at 1344
(finding that employer violated Sec. 8(a)(2) and (1) by interfering with
employees’ choice of a union agent, based on same principles applica-
ble in cases where employer favors one union over another, because
“[u]nlawfully recognizing and bargaining with persons other than the
union’s designated agents violates [the Act], the same as recognizing
and bargaining with the wrong union”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD246
. . . .
I want Dave LaValley as my bargaining Repre-
sentative.
__________________
[E]mployee signature
I do not want Dave LaValley as my bargaining
representative.
__________________
Employee signature
In other words, the letter asked each employee to identify
himself as for or against LaValley, tacitly affirming LaVal-
ley’s undesirability in the Respondent’s view as the em-
ployee’s bargaining agent.4 And it placed employees on the
spot, forced to declare whether they were for or against a
bargaining agent whom they would reasonably believe was
disfavored by their employer.
But with its letter, the Respondent injected itself into a
process where its proper role, if any, was at best severely
limited. The Respondent did not simply request employ-
ees to clarify, through the Union, the identity of their
chosen bargaining agent. Rather, it asserted that “many”
employees did not support LaValley “because he is no
longer employed by Alan Ritchey,” without mentioning
support for LaValley among employees. The letter effec-
tively preempted the Union’s own process for resolving
issues surrounding LaValley’s status, and it implied the
Respondent’s preference for someone other than LaVal-
ley, calling attention to his discharge. In short, the letter
was not truly neutral.
The majority asserts that I overstate the efforts under-
way among the union members to select a new represen-
tative. The majority neglects to mention, however, that,
in addition to Bender’s December 9 letter, LaValley had
circulated a petition between December 7 and 14 asking
whether his fellow union members wished for him to
continue to represent them in bargaining. Although only
8 employees out of 20 had signed the petition by Decem-
ber 9 (according to Bender’s letter) the petition accumu-
lated 17 signatures by December 14, according to the
judge. Had the Respondent contacted LaValley to re-
solve its uncertainty about the bargaining representative,
it would have learned that a majority of employees had
again selected him. Instead, the Respondent directly
solicited employees to consider whether they desired
LaValley’s continued representation.5 In so doing, the

4 Cf. Wire Products Mfg. Corp., 326 NLRB 625, 626 (1998), enfd.
210 F.3d 375 (7th Cir. 2000) (employer violated Sec. 8(a)(1) by implic-
itly soliciting employees to decertify union, despite absence of express
appeal).
5 Although LaValley apparently attempted to contact the Respon-
dent, the Respondent did not contact him directly until January 3 by
Respondent clearly interfered with the Union’s internal
administration and with the employees’ exercise of the
fundamental right to choose their representatives free
from employer influence.
In concluding that the Respondent’s polling was not
coercive, the majority and the judge rely on several fac-
tors: “[T]ime was of the essence; the drivers were
clearly involved in an intra-union dispute; the poll was
conducted for a legitimate reason; it was factual and the
Respondent did not indicate a preference for one negotia-
tor over another; all the drivers were aware of the sur-
rounding circumstances; there was no anti-union animus
by the Respondent; and there were no contemporaneous
unfair labor practices that would cause the Respondent’s
motives to be suspect.” Neither the judge nor the major-
ity explains the basis in law for treating these criteria as
probative.
In any case, I do not agree that the Respondent was
caught in an intraunion dispute regarding choice of a
bargaining agent. As explained, employee Bender’s De-
cember 9 memo to union members proposed implemen-
tation of a formalized system for selecting bargaining
agents. In the meantime, LaValley’s petition was circu-
lating, and, had the Respondent not interfered, would by
December 14 have established him as the employees’
chosen representative in the upcoming negotiations. As
for the surrounding circumstances of which the drivers
were aware, these included LaValley’s recent discharge,
which prompted the concern over his continued represen-
tation of the drivers and made the poll more (not less)
coercive by reminding employees that LaValley was
considered by management to be unfit to work at the
company. Finally, the majority’s reliance on an absence
of animus is misplaced: It has long been established that
a finding of a reasonable tendency to coerce in violation
of Section 8(a)(1) is independent of motivation, similarly
for violations of Section 8(a)(2). E.g., American
Freightways, 124 NLRB 146, 147 (1959); Ladies’ Gar-
ment Workers Union v. NLRB, 366 U.S. 731, 738–739
(1961) (good faith not a defense to violation of Sec.
8(a)(1) and (2) because “nothing in the statutory lan-
guage prescrib[es] scienter as an element of the unfair
labor practices involved”).
In addition to its chilling effect on individual employ-
ees, the Respondent’s polling memorandum interfered
with the Union’s own efforts to reform its selection proc-

letter: “This letter is in response to your voice messages over the past
weeks. A majority of ARI employees have indicated that they no
longer want you to represent them as their bargaining representative;
they have chose [sic] other representatives. Based upon this informa-
tion, I will not be scheduling any upcoming negotiation sessions with
you.”
ALAN RITCHEY, INC. 247
ess and choose a representative for the upcoming nego-
tiations. It is clear from employee Bender’s memo that
the membership was actively seeking to correct the lack
of a formal agent selection process and to identify a bar-
gaining agent. The Respondent directly interrogated
employees about their continued support for LaValley,
rather than leaving this “purely internal union affair” to
the Union. Thus, the Respondent unlawfully interfered
with the administration of the employees’ labor organiza-
tion in violation of Section 8(a)(2). Modern Drop Forge
Co., supra, 326 NLRB at 1335.
The majority insists that the Respondent’s poll was not
unlawful because the Respondent needed to know who it
would be negotiating with and the loose organization of
the Union made it “virtually impossible to find out from
an authorized person who the representative would be.”
The proper course for the Respondent, however, was to
continue to bargain with LaValley unless and until he
was replaced. Even if the Respondent had a legitimate
interest in determining the identity of the Union’s nego-
tiator, the device it used was clearly unlawful, not least
because it forced employees to disclose their individual
preferences and to identify themselves to the Respon-
dent.6 The Respondent was not without less intrusive
alternatives. To begin, it could have and should have
communicated with LaValley himself.
Employers simply are not entitled to intermeddle in
union affairs as the employer here did. Accordingly, I
would conclude that the Respondent’s polling violated
both Section 8(a)(1) and (2) of the Act.7
Sandra L. Lyons, Esq., for the General Counsel.
Dawn C. Valdivia, Esq. and Kevin Duddlesten, Esq. (Snell &
Wilmer), of Phoenix, Arizona, for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice, a hearing in this matter was held before me in Phoe-
nix, Arizona, on April 1 and 2, 2003. The charge in Case 28–
CA–18282 was filed by David LaValley, an individual, on
November 5, 2002. Thereafter, LaValley filed the additional

6 Cf. Top Job Building Maintenance, 304 NLRB 902, 907 (1991)
(supervisor’s solicitation and witnessing of employee signatures on
decertification petition was unlawful).
7 Accordingly, I do not address the majority’s 8(a)(5) direct-dealing
discussion.
Although I would find that the Respondent’s polling was unlawful, I
would not find it necessary to set aside the contract negotiated by em-
ployee Martin Aldrich, who volunteered to take LaValley’s place as the
Union’s bargaining agent, under the particular circumstances here. The
judge found that LaValley conferred regularly with Aldrich, who
sought his input throughout the negotiations. Thus, there is no indica-
tion that LaValley’s input into the negotiations was significantly dimin-
ished by his loss of status as the Union’s bargaining agent.
captioned charges. On January 30, 2003, the Regional Director
for Region 28 of the National Labor Relations Board (the
Board) issued an order consolidating cases, consolidated com-
plaint, and notice of hearing alleging violations by Alan
Ritchey, Inc. (Respondent) of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (Act). The Respondent, in its
answer to the complaint, duly filed, denies that it has violated
the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel), and counsel for the Respondent. Upon the en-
tire record, and based upon my observation of the witnesses and
consideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Texas corporation with an office and
principal place of business in Valley View, Texas, and a truck
transfer point located at the Little America Truck Stop in Flag-
staff, Arizona. The Respondent is engaged in the business of
transportation of mail for the United States Postal Service
throughout the United States. It is admitted and I find that the
Respondent is, and at all material times has been, an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find, that the Alan Ritchie Mail
Transportation Drivers Mutual Cooperation Association (the
Union or Association) is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent has violated Section 8(a)(3) of the Act by discharging
employee David LaValley; and whether the Respondent has
violated Section 8(a)(5) of the Act by refusing to negotiate with
LaValley for a new collective-bargaining agreement, by refus-
ing to process LaValley’s discharge grievance, and by refusing
to provide LaValley with certain requested information con-
cerning his grievance.
B. Facts
1. Analysis and conclusions
David LaValley was employed by the Respondent as a
truckdriver for 8 years. He was discharged in September
2002.1 In 2000, LaValley was one of the drivers actively in-
volved in forming a group, the Alan Ritchie Mail Transporta-
tion Drivers Mutual Cooperation Association to negotiate with
the Respondent. The drivers as the driver’s representative se-
lected LaValley. LaValley and the Respondent’s operations
manger, Billy Williams, negotiated the agreement, and the par-

1 All dates or time periods herein are within 2002, unless otherwise
indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD248
ties entered into a contract, called the Mutual Cooperative
Agreement, extending from January 30, 2001, “for a period of
twenty-eight (28) months from its effective date[ ].” Thus, the
agreement would have expired on May 30, 2003. LaValley
signed the agreement on behalf of the drivers as “Driver-
Selected Representative.”
The Association is a loose-knit, informal group. It has no of-
ficers, no constitution or bylaws, no dues structure, and no
regular meetings. Although the contract contained a grievance
procedure, no grievances had been filed until LaValley’s dis-
charge, infra.
LaValley’s immediate supervisor, Don Ash, a friend of some
15 years, was also frequently LaValley’s driving partner on
long-distance team runs. Ash is both a driver and a supervisor.
As a driver he is paid the same as the other drivers under the
contract. As a supervisor, he hires drivers and resolves dis-
agreements.
LaValley, an excellent driver, had always had a problem
with abusive language and excessive use of profanity and
sometimes exhibited a rather volatile temper. He had been
warned about this behavior. Ash testified that he had given
LaValley many informal-type friendly warnings about his be-
havior and told him that some day his mouth would get him in
trouble. Operations Manager Williams had instructed Ash to
verbally have a talk with LaValley and to try to settle him down
on “more than one” occasion, and Ash had done so. LaValley’s
typical response would be that “he didn’t give a damn, he was
going to say what he wanted to say, the way he wanted to say
it.”2
In September, LaValley was involved in two such incidents
that occurred only several days apart. The first incident in-
volved a reprimand from a supervisor, Eddie Goins, for alleg-
edly failing to remove certain personal belongings from a truck
prior to its use by the next driver. Upon receiving this message
from Goins, LaValley called Goins and left the following voice
mail in a belligerent tone of voice:
This message is to Eddie Goins. This is Dave LaValley. Ron
and I have made an agreement. He doesn’t—it is okay to
leave my stuff in the goddamn truck, so let’s get this stuff
straight, Eddie. This isn’t your damn business. We have—
Ron and I—Ron takes the truck from me, he says leave the
stuff in there, it is okay, and so that’s what I do. You got it?
Keep out of my business.
LaValley would have received only a verbal reprimand for
this conduct.3 However, within a few days LaValley appeared
at a medical clinic to take his annual driver’s physical pursuant
to the terms of his employment and Department of Transporta-
tion regulations. Personnel from the clinic phoned the Respon-
dent to complain about LaValley’s conduct, and the Respon-
dent’s safety committee, comprised of three individuals, inves-

2 In fact, LaValley testified that he believed he had a first amend-
ment right to use any language he pleased, as this was a matter of his
constitutional freedom of speech.
3 Williams, whom I credit, testified that he phoned Ash and in-
structed him to verbally reprimand LaValley about his insubordinate
behavior to a supervisor, and to tell him the Respondent would not
tolerate that type of conduct.
tigated the matter. The safety committee consists of Operations
Manager Williams, Safety Director Tom Riddle, and Human
Resources Director Debra Norwood.
A memorandum prepared by Riddle recounts a September 18
phone conversation with Becky, one of the personnel in the
clinic. When LaValley was told that he would have to pay an
additional $15 for a state form to be filled out and submitted,
[LaValley] cursed loudly and swore at [Becky] and Patricia.
She said he shook his finger at them and was very loud and
intimidating. She said he called them names. She said they
asked him to leave but he just went on and on till they threat-
ened to call the police. She said that they do not want him
back in the clinic.
And the September 19 statement from the other individual in-
volved in the incident, Patricia, is as follows:
Patricia tried to explain [the reason for the additional $15 fee
for filling out the state form] . . . that LaValley got upset and
started swearing in the hall and it escalated through the clinic
al[l] the way to the front office and waiting room where eve-
ryone in the clinic could hear him. She said he went on and
on about doctors in general using language that made the[m]
very uncomfortable. She asked him not to come back. She
asked Candice to call the police while he was yelling. She
said she started to and LaValley left then he came back in
again and she told her to call the police again. She said it was
one of two of the worst situations in the 15 years she had
worked there. She said she did not know how she could have
done better and that she wanted to help him. She said that he
called her a broad and was intimidating. She said that [he]
was yelling “Piss on all the doctors just piss on them all.” She
said there was no point in trying to reach him, he just would
not listen.
As a result the safety committee, without asking for LaValley’s
position, determined that he should be discharged. LaValley,
during the course of his testimony, did not deny creating the
disturbance or using profanity. However, he explained that his
conduct was the result of a number of things that irritated him,
namely, that the clinic personnel required him to wait in the
waiting room and took other patients ahead of him, and re-
quired him to pay for a form that should have been furnished
free of charge; further, he did not like having to take a physical
in the first place and was consumed by anxiety as he had an
intense disrespect for doctors in general because a doctor had
allegedly engaged in malpractice that directly caused his wife’s
death not long before.
After the safety committee made its decision, Williams
phoned Ash and instructed him to discharge LaValley. Ash
suggested a possible suspension instead, and was told that the
decision had already been made.
As noted above, the agreement between the Association and
the Respondent was effective by its terms until May 2003.
However, in October, Williams learned that a new agreement
would have to be completed by January 30, 2003, as this was
the deadline set by the United Stated Postal Service for the
completion of new collective-bargaining agreements. If there
was no new contract in place by that date, then the wage scale
ALAN RITCHEY, INC. 249
of the old contract would have to remain in effect for a year or
two until a new open period, and this would impact the em-
ployees to their detriment.
Williams gave no official notification to LaValley about this
situation, as it was William’s belief that LaValley could not be
a representative of the employees for purposes of negotiations
since LaValley was no longer an employee. However, Wil-
liams let it be known generally that a new agreement had to be
reached by January 30, 2003, to avoid adverse repercussions to
the employees. Upon learning of this, LaValley, who was in-
tending to appeal his dismissal through the contractual griev-
ance procedure, assumed that he would be the Association’s
negotiator, and began contacting employees to obtain their
input for a successor agreement. This caused certain employ-
ees to voice some concern, as they were not comfortable with
the dynamics of having a discharged employee as their spokes-
person, and believed that this could adversely affect the nego-
tiation process.
Ash testified that after LaValley’s termination he talked with
a number of employees who expressed their preference to have
someone else represent them in bargaining negotiations.
Martin Aldrich testified that he had conversations with three
or four drivers who expressed such concerns about LaValley,
and that he also had such reservations.4 He decided to volun-
teer to become the spokesperson for the employees. There-
upon, he called each driver and left a message on their voice
mail stating that it appeared someone other than LaValley
should be the negotiator, and that he would volunteer if no one
else wanted to. He received some positive feedback from some
of the drivers and no negative feedback. Thereupon, he set up
two meetings with the drivers “to get going on this contract . . .
and get a forum or discussion going about it.” However, ac-
cording to Aldrich’s testimony, LaValley attended the meetings
and began conducting them as if the meetings were his idea,
and solicited the drivers who attended the meetings to sign a
petition authorizing him to conduct negotiations.
Ed Bender, a driver, testified that he personally told LaVal-
ley that “I didn’t think it was appropriate that he represent us in
that capacity [since] . . . he was no longer employed by Alan
Ritchey.” Bender testified that most drivers felt the same way.
On December 9, Bender prepared a memorandum to the drivers
entitled “Negotiation Process and Organization,” and sent it to
all the drivers as well as to Williams. The memorandum states:
First of all let me say that I really have nothing person-
ally to gain by this memo in that I will be retiring in a few
months, after over twelve years with the company. I
would like to see better organization which may, in the fu-
ture, avoid the problem we are going through now in the
negotiation process—who will represent us as the “bar-
gaining table.”
1. I think the Flagstaff drivers should have some type
of formal organization—“Flagstaff Drivers Association”
for lack of a better name. It would include a communica-
tion procedure and a method to resolve Flagstaff problems
with the company, and others, and a means to designate

4 At the outset of the hearing Martin Aldrich claimed that he, not
LaValley, represented the employees in this proceeding.
representatives for various concerns which now involves
our rep for negotiation for our new contract. I wish Don
Ash could be involved but he can’t in that is a part of Anal
[sic] Ritchey Management being our “boss” here in Flag-
staff.
2. I personally have a problem with Dave LaValley
representing us in the negotiation process because of his
current status. He represented us well in our previous ne-
gotiations and has some good ideas. But he is no longer
employed by Alan Ritchey and by virtue of him being at
the negotiating table (in his current status) may leave a
sour taste with whomever we negotiate with on behalf of
Alan Ritchey. This “sour taste” could result in our re-
quests not being considered appropriately. Dave may be
re-employed, evidently he has a strong case, but currently
he is not. I personally wish him well in this regard.
As of today, at 10:30 a.m. eight (8) drivers out of
twenty (20) have signed the request by Dave to be our des-
ignated negotiations representative. Whether the other
twelve (12) do not want Dave for our rep or they haven’t
had the time to sign I don’t know. But time is of the es-
sence and we are late now in “getting our act together” in
coming up with our negotiation concerns.
As of this writing I am awaiting a call from Billy Wil-
liams as to what the time line is. Possibly this problem
can be resolved in our meetings this Wednesday and
Thursday, 7:00 pm, At the Little America Coffee Shop. If
you are unable to be at either of these meetings please pass
on your thoughts with someone else or leave them in writ-
ing. We need your ideas and concerns.
Williams testified that he understood there was concern
among the employees about the status of LaValley, and to clar-
ify the situation he instructed Ash, apparently on December 13,
to disseminate the following memorandum and to advise him of
the results:
Dear Employees:
It has recently come to our attention that many of you
do not wish to have Dave LaValley as your bargaining
representative because he is no longer employed by Alan
Ritchey. Please indicate on this letter if this is correct or
not. It is important that we know who your bargaining
representative is so that we may communicate with and
negotiate with that person pursuant to the mutual coopera-
tion agreement. Once you have signed the appropriate
area, return the letter to Don Ash. Thank you for your
time in this important matter.
. . . .
I want Dave LaValley as my bargaining representative.
__________________
employee signature
I do not want Dave LaValley as my bargaining repre-
sentative.
__________________
employee signature
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD250
The drivers returned the forms to Ash, who in turn forwarded
them to Williams. Eight drivers selected LaValley, and 15
drivers voted that they did not want LaValley as their bargain-
ing representative. Apparently, LaValley continued to maintain
that he was the representative. Williams advised LaValley by
letter dated January 3, 2003, as follows:
This letter is in response to your voice messages over the past
weeks. A majority of ARI employees have indicated that they
no longer want you to represent them as their bargaining rep-
resentative; they have chose other representatives. Based
upon this information, I will not be scheduling any upcoming
negotiation sessions with you. These sessions will be held
with the newly selected employee representative(s). If the
employees indicate to me otherwise, I will contact you.5
Aldrich advised Williams that he was the driver’s representa-
tive. Aldrich and Williams negotiated a new 2-year agreement
effective from January 29, 2003, until January 29, 2005. There
is no indication that any of the Respondent’s current drivers
have objected to Aldrich as their representative or to the terms
of the collective-bargaining agreement.6
The General Counsel maintains that the Respondent seized
upon LaValley’s conduct as a pretext for discharge in order to
prevent LaValley from continuing as the employees’ bargaining
representative. Thus, LaValley testified that he often com-
plained to Ash, during their trips together, about one aspect of
the contract that he believed to be unfair to the employees,
namely the Qualcom system. The Qualcom system is a satellite
tracking system installed on each truck that enables the Re-
spondent to determine, in addition to the location of the truck,
precisely how many hours and minutes each truck is being
operated, and therefore the amount of driving time between
stops; this is determinative of the wages to be paid for each trip.
I credit Ash, who favorably impressed me as a very candid
witness, and find that although this was sometimes a topic of
conversation with LaValley as he was also concerned about
wages, he did not advise Williams that LaValley was concerned
about this or intended to make an issue of it during future nego-
tiations. Moreover, at the time of LaValley’s discharge, the
current contract was to continue for some 8 months.
LaValley’s conduct was clearly inappropriate. He had been
warned many times about his inability to control his language
and temper. There is no showing that Williams harbored ani-
mus against LaValley or was concerned that LaValley’s posi-
tion as negotiator would somehow be detrimental to the Re-
spondent’s interests during future negotiations.7 Moreover, I

5 In fact, the aforementioned petition LaValley had circulated among
the employees between December 7 and 14 contains the signatures of
17 drivers who indicated that they wanted LaValley to represent them
in negotiations for the new contract. For some unknown reason,
LaValley did not rely upon this petition or present it to either the Re-
spondent or the other employees.
6 During the course of negotiations, LaValley conferred regularly
with Aldrich, who asked for LaValley’s input; thus, LaValley did in
fact assist Aldrich with contract proposals and other contract matters.
7 I do not credit LaValley’s testimony that Ash told him a particular
applicant had not been hired by Williams because Williams believed he
credit Williams and Riddle and find that LaValley’s status as
negotiator had nothing to do with the decision of the safety
committee to discharge him. I shall dismiss this allegation of
the complaint.
The General Counsel maintains that the Respondent was ob-
ligated to bargain with LaValley unless it had a good-faith
doubt that a majority of unit employees no longer wanted
LaValley to act as their negotiator. However, the General
Counsel has cited no cases for this proposition. The cases cited
by the General Counsel are inapposite as they involve Struk-
snes,8 polls to determine whether the employees desire to con-
tinue being represented by a particular labor organization. Here
the Respondent was not attempting to withdraw recognition.
It is clear that the Respondent, receiving conflicting informa-
tion, was attempting to discern whether the drivers wanted
LaValley to negotiate the successor contract. In the typical
situation this is not a problem as the union designates the nego-
tiator and the employer must comply. However, here it seems
the Association abdicated its responsibility and left it to the
machinations of individual employees to determine whether
LaValley or some other individual would be authorized to do
the negotiating. This presented the Respondent with a di-
lemma. Under the circumstances, I find that the Respondent’s
poll was noncoercive: time was of the essence; the drivers were
clearly involved in an intraunion dispute; the poll was con-
ducted for a legitimate reason; it was factual and the Respon-
dent did not indicate a preference for one negotiator over an-
other; all the drivers were aware of the surrounding circum-
stances; there was no antiunion animus by the Respondent; and
there were no contemporaneous unfair labor practices that
would cause the Respondent’s motives to be suspect. Under
the circumstances, the poll was simply tantamount to a letter to
each member of the Association asking the group, collectively,
to designate a negotiator for a successor agreement.9 This is
something the Association should have done on its own voli-
tion.10 The Respondent, for the benefit of the drivers, was anx-
ious to begin negotiations; and it simply and legitimately

was a union advocate. I credit Ash’s denial that he made such a state-
ment.
8 Struksnes Construction Co., 165 NLRB 1062 (1967).
9 Indeed, it remains unclear who represents the Association in this
proceeding. As there are no officers of the Association, it would appear
that any particular driver has equal authority. The petition signed by a
majority of employees simply authorizes LaValley to “represent me on
the Mutual Cooperative Agreement negotiations for the 2003–2004
Contract with Alan Ritchey Inc.” It does not give LaValley the author-
ity to file charges or speak for the Association regarding any other
matters. Similarly, it appears that Aldrich’s authority only encom-
passes his negotiating capacity. It is likely that the remedy proposed by
the General Counsel and LaValley, namely that certain portions of the
contract should be renegotiated by LaValley, is detrimental to the inter-
ests of the drivers. Insofar as the record shows, only LaValley, a non-
employee, is not happy with the contract negotiated by Aldrich.
10 Bender’s analysis of the situation in the December 9 memorandum
he sent to each employee was entirely correct: the Association should
develop a “communication procedure and a method to resolve Flagstaff
problems with the company, and others, and a means to designate rep-
resentatives for various concerns which now involves our rep for nego-
tiation for our new contract.”
ALAN RITCHEY, INC. 251
wanted to know with whom to negotiate. I shall dismiss this
allegation of the complaint.
Following his discharge on September 20, LaValley timely
filed a grievance under step one of the contractual grievance
procedure. This was the first grievance ever filed under the
contract. His step one grievance was denied. The Respondent
maintains that LaValley did not timely file his step two appeal.
The step 2 appeal was required to be filed by October 4. The
General Counsel claims that in fact LaValley did timely file the
step 2 appeal. Thus, on September 27, LaValley sent a 15-page
fax to the Respondent. However, the first page states as fol-
lows:
To: Ken Brown
This is where I am forced to to [sic] go for my illegal
discharge. My 1st Amendment rights have been violated
by the company, Which [sic] holds a government contract
and can not discriminate under the A.D.A. Act, Or [sic]
violate my Constitutional Rights.
The Respondent employs no person by the name of Ken
Brown. In fact, LaValley testified that he was intending to send
the fax to Craig Brown, the Respondent’s attorney. Pages 2
through 8 of the fax are missing from the exhibit. Neither
LaValley, nor the General Counsel, nor the Respondent can
account for the missing pages and there is no reliable record
evidence concerning their substance. Pages 9 through 12 con-
tain news bulletins from the American Civil Liberties Union
regarding free speech matters. Pages 13 and 14 contain infor-
mation about the Americans with Disabilities Act. Page 15 is
as follows:
To: Billy Williams
[I]f [sic] this illegal discharge is going to continue
please start the final step, arbitration.
Thank you
Dave LaValley
cc: ACLU PHX Office
Williams testified that he did not know what to make of this fax
and did not know that the fax was for the Respondent’s attor-
ney. He did not consider it to be a request for the step 2 appeal,
as it says nothing about a step 2 appeal; rather, it speaks of
arbitration. He noticed that page 15 was copied to “ACLU
PHX Office” and surmised that LaValley was attempting to
resolve the matter through the ACLU.
On October 3, still within the time limitation for the step 2
appeal, LaValley sent identical letters by certified mail to each
member of the safety committee, as follows:
I respectfully request you to reply in written form within 7
days of receipt of this letter why you discharged me from my
employment with Alan Ritchie Inc. Please include all infor-
mation that you considered in your decision, including all per-
sons and entities you had contact with in this matter.
LaValley testified that he considered this letter to constitute the
step two appeal that would commence the step 2 process.11
Williams testified that he regarded the letter only as a request
for information, as it says nothing about a step 2 appeal. Wil-
liams furnished LaValley with certain information.
In a fax to Williams dated October 9, LaValley states that:
I sent the letters requesting the information on my discharge
to you, Debra Norwood, and Dan Riddle. Will you please
advise me when I will have my replies and when we can set
the time for the second step of the appeal process?
Williams replied by letter dated October 14, advising, inter
alia, as follows:
When I received your request to move to Step II proceedings
of the appeal process, I noticed your request was not made
within the five days mandated in the Mutual Cooperative
Agreement. Since the appeal process has concluded, there
should be no reason for you to wait in filing your complaint
with the ACLU.
Thereafter, LaValley requested certain additional informa-
tion regarding his dismissal, and the Respondent has taken the
position that since the matter is closed it has no obligation to
furnish the information.
I shall dismiss the complaint allegation that the Respondent
has failed and refused to process LaValley’s discharge griev-
ance for discriminatory reasons. As found above, the discharge
of LaValley was not discriminatorily motivated. Moreover, the
Respondent, as shown by the exchange of documents set forth
above, had legitimate reasons for concluding that LaValley had
not timely filed a step 2 grievance. Therefore, I find that the
Respondent’s refusal to continue with the grievance process
was not discriminatorily motivated. Finally, because the appeal
process had been concluded, I find the Respondent was under
no continuing duty to furnish further information to LaValley
regarding his termination.
The complaint alleges that the Respondent unilaterally,
without bargaining with the Association, modified the hours of
work and the manner of computing wages by instituting the
Qualcom system. The record evidence shows that during the
negotiation of the first contract in 2001, this matter was dis-
cussed between Williams and LaValley. Thus, Williams testi-
fied:
Whenever we negotiated our first contract, Dave LaValley
and I, we sat down, we discussed Qualcom, and we adjusted
those routes to where we could get them just as close as we
could to the time it actually takes to get from Flagstaff to
Wasco.
Williams testified that at that time, even though the Qualcom
system had not yet become operative, the Flagstaff drivers were
concerned that Qualcom would result in a pay reduction, and
that this was discussed. Williams testified that it was going to
be a few months before Qualcom was turned on, and he advised
LaValley during negotiations:

11 He did not testify that he considered the September 27, 15-page
fax, to constitute the step 2 appeal.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD252
I said, “Dave, we need to make sure that we get this schedule
accurate so that it doesn’t hurt the drivers whenever we flip
the switch and start paying them off Qualcom.”
I credit Williams, and find that the Qualcom matter had in fact
been negotiated. Moreover, the management rights provision
of the collective-bargaining agreement specifically permits the
Respondent to “introduce new equipment, technologies and
supplies” and “to introduce technological change to existing
services, techniques or equipment”; and the wages and benefits
section of the agreement states that “[t]he hours to be paid to
each Driver per run will continue to be set by the Company.” I
shall dismiss this allegation of the complaint.
Accordingly, I shall dismiss the complaint in its entirety.
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. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the
complaint.
On these findings of fact and conclusions of law, I issue the
following recommended12
ORDER
The complaint is dismissed in its entirety.

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.