Bay Area-Los Angeles Express, Inc.

National Labor Relations Board - Board Decisions

Jul 12, 1985

275 N.L.R.B. 1063 (N.L.R.B. 1985)

BAY AREA-LOS ANGELES EXPRESS
Bay Area-Los Angeles Express, Inc. and Brother-
hood of Teamsters and Auto Truck Drivers,
Local No . 85, International ' Brotherhood of
Teamsters, Chauffeurs , , Warehousemen and
Helpers of America . Case 20-CA-18293
12 July 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS "
On 12 October 1984 Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The Respondent filed exceptions and a supporting
brief, to which the General Counsel filed an an-
swering brief. The General Counsel also filed" ex-
ceptions and a brief -in support, td which ' the Re-
spondent filed an answering brief.
The Board has considered the decision. and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings,2
and conclusions and to adopt the recommended
Order, as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of. the administrative law
judge as modified below and orders that the Re-,
spondent, Bay Area-Los Angeles Express, Inc., San
Francisco, California, its officers, agents, succes
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the ,following as paragraphs 2(d) and (e)
and reletter the subsequent paragraphs.
"(d) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
"(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
' We agree with the judge's finding that the Respondent's attempt to
repudiate its statement that striking employees could only return to work
as nonunion members was not effective In so doing, however, we rely
only on the fact that the repudiation letter itself indicated to the employ-
ees that the Respondent was continuing to interfere with employees' stat-
utory rights by refusing to recognize and bargain with the Union, and
thus was not "free from other proscribed illegal conduct" as required by
the Board See Passavant Memorial Area Hospital, 237 NLRB 138 (1978)
2 Both the Respondent and the General Counsel have excepted to
some of the judge's credibility findings The Board's established policy is
not to overrule an administrative law judge's credibility resolutions unless
the clear. preponderance of all the relevant evidence convinces us that
they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd 188 F 2d 362 (3d Cir"1951) We have carefully examined the record
and find no basis for reversing the findings
1063
amount of backpay due under the 'terms of this
Order."
3. Substitute the attached notice for that- of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively in
good faith with Brotherhood of Teamsters and
Auto Truck Drivers, Local No. 85, International
Brotherhood of,Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive rep-
resentative of our employees in the following ap-
propriate unit: '
All employees covered by our 1979-1982 con-
tract with the above named Union, including
truck drivers and dispatchers, but excluding
supervisors as defined by the National Labor
Relations Act.
WE WILL NOT refuse to bargain with the above-
named Union by dealing directly with employees
concerning matters over which we are obligated to
bargain with the Union and by engaging in con-
duct which is directed toward undermining the
Union as the employees' bargaining representative.
WE WILL NOT threaten employees that if they
fail to support our contract proposals rather than
the Union's that they will lose their jobs.
WE WILL NOT threaten employees that if the
Union fails to accept our contract proposals that
we will close our doors and operate nonunion.
WE WILL NOT promise employees that if they
work for us without union representation that we
will grant them the same or better terms and condi-
tions of "employment as they enjoyed with union
representation.
WE WILL NOT tell striking employees that they
cannot return to • work for us if they are union
members, but can only return as nonmembers.
WE WILL NOT in any like or related mariner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE 'WILL, on application, offer to all our em-
ployees engaged • in an unfair labor practice strike,
who were not permanently replaced while econom-
ic strikers, reinstatement to their former jobs or, if
275 NLRB No. 152
1064 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
those.jobs no longer exist, to substantitally equiva-
lent positions, without prejudice to their seniority
or other rights and privileges, discharging, if neces-
sary, any replacements hired-on or after 16 August
1983, when the economic strike was prolonged and
converted into an unfair labor practice strike.
WE WILL make-each of these striking employees
whole for any loss of earnings they may suffer by
reason of. our failure, if any, to reinstate them on
application, with. interest thereon.
WE WILL, on request, bargain collectively with
the above-named union, as the exclusive represent-
ative of all the employees in the above-described
appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment and, if an agreement is
reached, embody such. understanding in a signed.
agreement. .
WE WILL notify each. of them that. we have re-
moved from our files any reference to his or her
discharge and that the discharges will-not be used
against them in any way.
BAY AREA-LOS ANGELES EXPRESS,
INC.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Admnistrative Law Judge. The
hearing in this case, which was held on February 22
through 24, 1984, is based on an unfair labor practice
charge filed on August 11, 1983, by Brotherhood -of
Teamsters and Auto Truck Drivers, Local No. 85 (the
Union) and a complaint issued September -30, 1983, on
behalf of the General Counsel of the National Labor Re-
lations Board (the Board) by the-Regional Director of
the Board, Region 20, alleging that Bay Area-Los Ange-
les Express, Inc. (Respondent) has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act). The
complaint was amended February 9, 1984, and on the
first day of the hearing. Respondent filed an answer and
an amended answer denying the commission of the al-
leged unfair labor practices.'
On the entire record,2 from my observation of the de-
meanor of the • witnesses, and having considered - the
posthearing briefs submitted by the General Counsel and
Respondent, I make the following -
FINDINGS OF FACT
I THE QUESTIONS PRESENTED
The questions presented by the pleadings are as fol-
lows
Whether Respondent was responsible for the conduct
of its dispatcher Joe Davidor and, if so, whether in viola-
tion of Section 8(a)(1) and (5) of the Act Respondent
through Davidor about August 9 and 10, 1983, offered a
contract proposal directly to employees without offere-
ing that proposal to the Union, and whether in violation
of Section 8(a)(1) of the Act Davidor acted as follows:
On August 9 and 10, 1983, threatened employees Re-
spondent would cease operations and employees would
lose their jobs if they did not agree to Respondent's con-
tract proposals. and reject the Union; about August 9,
1983, through August 11, 1983, solicited employees to
resign from the Union and/or revoke the Union's author-
ity to bargain on their behalf.
Whether Respondent through the conduct of its presi-
dent, Ned Hills, violated Section 8(a)(1) of the Act as
follows: In June and July 1983 promised employees im-
proved benefits and management positions if they agreed
to work nonunion; about August 10, 1983, promised
never to fire employees if they would reject the Union as
their collective-bargaining representative; on January 26,
1984, informed striking employees that it would be futile
for them to apply for reinstatement if they desired to
retain the Union as their bargaining representative, there-
by conditioning employees employment on their resign-
ing from the Union.
Whether Respondent, through the conduct of its presi-
dent Ned Hills, violated Section 8(a)(5) and (1) of the
Act by bypassing the Union and dealing directly with its
employees represented by the Union, as follows: In June,
July, and August 1983 promised the employees increased
wages and better-health benefits than those benefits pro-
posed by Respondent to the Union, *about August 25,
1983, told employees they were stupid not-to accept Re-
spondent's contract offer because it was the best offer
they would receive. V
Whether Repsondent'•s refusal since August 16, 1983,
to recognize and bargain with the Union as its employ-
ees' collective-bargaining representative violates Section
8(a)(5) and (1) of the Act
Whether the above-described alleged unfair labor prac-
tices caused the employees of Respondent who were rep-
resented by the Union to cease work concertedly and
engage in a strike on August 10, 1983, and/or prolonged
this strike. -
II. THE ALLEGED UNFAIR LABOR PRACTICES
A The Evidence
i In its answer Respondent admits that it is an employer engaged in
commerce within the meaning of Sec 2(6) and (7) of the Act and meets
the Board's applicable discretionary jurisdictional standard and that the
Union is a labor organization within the meaning of Sec 2 (5) of the Act
2 The General Counsel's 'unopposed motion to correct transcript is
granted • '
1. Background
Respondent is a trucking company which does busi-
ness as a common carrier within the State of California
transporting general commodities between northern and
southern California. Its office and terminal ' is in San
- Francisco, California. Respondent's president is Ned
BAY AREA-LOS ANGELES EXPRESS
Hills, its executive vice president and general manager is
Barry Errington, and its dispatcher is Joe Davidor. Hills,
who establishes Respondent's policies, and Errington,
who is responsible for Respondent's day-to-day oper-
ation, are admittedly, statutory supervisors and agents of
the Company, whereas Davidor's supervisory and
agency status is disputed Hills owns another trucking
company, BJD Trucking Company, located in Los An-
geles, California. The employees of BJD Trucking Com-
pany, unlike Respondent's, are not represented by a labor
organization.
During the time material Respondent employed an as-
sistant disptacher and 12 truckdrivers beside Davidor.
These employees, including Davidor, were represented
by the Union, which has represented Respondent's truck-
drivers and dispatchers since 1970 when Respondent
began doing business The most recent collective-bar-
gaining contract between. Respondent and the -Union
covering these employees was effective April 1, 1979,
through March 31, 1982. This contract which for the
sake of convenience is referred to as the 1979-1982 con-
tract consists of three separate documents: the National
Master Freight Agreement; the Joint Council 7, Pickup
and Delivery Agreement, and the Western States Over-
the-Road Agreement
Pursuant to the terms of the cost-of-living allowance
(COLA) provision included in' the 1979-1982 contract,
Respondent was obligated effective April 1, 1982, to
raise employees' wages 47 cents an hour and to increase
its contributions on behalf of the employees to the con-
tractual health, welfare, and pension trust funds by 25
cents an hour for each employee. Respondent failed to
do this. -
In either the spring of 1982 or June 1982 Hills and Er-
rington unsuccessfully attempted to meet with a repre-
sentative of the Union to negotiate the terms of a succes-
sor contract to the 1979-1982 contract, which by its
terms terminated March 31, 1982 They gave the Union's
business manager, Jim Baker, a copy of Respondent's
contract- proposals and requested a contract negotiation
meeting Baker stated that he did not have time to nego-
tiate with them because the Union was in the process of
negotiating with the larger trucking companies , but that
he would read and consider their contract proposals. Er-
rington asked for-Baker's permission to-give copies of
Respondent's contract proposals to Respondent's em-
ployees so that they could review them and be in a posi-
tion to discuss the proposals intelligently with the
Union's representatives. Baker agreed. Thereafter, within
2 to 3 days, Errington met with the employees and gave
them copies of the Company's contract proposals.
2. The April 26„ 1983 negotiation meeting
On-April 26, 1983, a meeting took place between rep-
resentatives of the Union and Respondent for the pur-
pose of negotiating a successor contract to the 1979-1982
contract. President Hills and General Manager/Vice
President Errington represented Respondent. The Union
was represented by Business Representative Pete Rodri-
guez and Ray Talavera, the Union's newly elected busi-
ness manager. Consistent with the terms of Respondent's
written contract proposals previously submitted in 1982
1065
to the Union, Hills proposed-that there be no increase in
wages for the term of the new 'contract and that "stag-
gered starting times" be permitted 3 Hills also proposed
that Respondent be allowed to pay new hires a lower
wage rate than the current employees and that due to its
poor financial situation that Respondent be excused from
paying the 47-cent-an-hour pay raise due under the
COLA provisions of the, recently terminated contract.
The Union's representatives indicated they were ada-
mantly opposed 'to Hills' proposal that new hires be paid
a lower wage rate than the current employees and, with
respect to Respondent's contract proposals in general, in-
dicated that the Union was still negotiating with the
larger trucking companies and felt that the smaller com-
panies, like Respondent, would have to live with 'the
terms agreed to by the larger companies. However,_ the
union representatives indicated that they might consider
excusing Respondent from complying with the 47-cent-
an-hour COLA pay raise if Respondent withdrew its
staggered starting time proposal . The union representa-
tives stated that they would submit the Company's stag-
gered starting time proposal to the employees
3. Hills' conversation with employee Vestnys
During April and May 1983 the union representatives
met with Respondent's employees whom it represented
and discussed Respondent 's contract proposals . During
these meetings some of the employees supported and
others opposed 'Respondent's proposals. One of the em-
ployees who spoke out against Respondent's proposals
was Michael Vestnys, a truckdriver, who was a union
steward. Sometime during the period of April, May, or
June 1983, President Hills approached Vestnys on the
Company's dock and told him that if he did not stop
"rousing up" the drivers that the drivers would "all be
out of a job." Vestnys replied by stating that he thought
Hills should give the other drivers credit for having their
own thoughts and convictions on the subject of the
Union's activities in the terminal.4
4. The July 22, 1983 negotiation meeting
On July 22, 1983, the parties held their second and
final negotiation session . President Hills and Vice Presi-
dent Errington were Respondent's negotiators and Union
Business Agents Rodriguez and Kelleher and Union
Business Manager Talavera negotiated for the Union.
Consistent with Respondent's written contract proposals
3 "Staggered starting times," also sometimes referred to as flexible
starting times, would permit Respondent to employ employees prior to
the normal 8 a in starting time, as early as 5 or 6 a in , without having to
pay them overtime as required by the 1979-1982 contract
The description of Hills' conversation with Vestnys is based on
Vestnys' testimony Hills initially testified "I told -Mike Vestnys to stop
rousting our drivers on the other side of [Respondent], which was North-
ern,California Magazine, on company time." Then, in response to a lead-
ing question , further testified "He [Vestnys] was talking to drivers of a
different company but on the same dock on my time " I have cred-
ited Vestnys' testimony and rejected Hills' because in terms of his testi-
monial demeanor Vestnys impressed me as a sincere and reliable witness
when he testified about this conversation, whereas Hills' demeanor when
he testified about this conversation was poor and, as described supra, his
testimony was not only inconsistent but in significant part was the prod-
uct of a leading question -
1066 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD _
previously submitted to the Union in 1982, supra, Re-
spondent 's negotiators proposed the following That the
employees' starting times be staggered rather than requir-
ing overtime for hours worked prior to 8 a . m. as re-
quired by the 1979- 1982 contract ; that Respondent's con-
tributions on behalf of the employees into the various
contractual health, welfare and pension trusts remain the
same as they were on the expiration date of the 1979-
1982, contract; and that the maximum number of weeks
of paid vacation be reduced from.the four required by
the 1979- 1982 contract to 3 weeks. Respondent 's nego-
tiators also proposed a 15-percent across-the -board re-
duction in employees ' rates of pay and indicated that Re-
spondent did not intend -to pay the 47-cent-an-hour pay
raise or the 25-cent -an-hour increase in the health, wel-
fare and pension trusts required by the COLA provisions
of the recently expired 1979-1982 contract. In defense of
these proposals and positions Hills and Errington stated
that the Company was in financial difficulty due to the
recession and deregulation of the trucking industry. In
support of this claim of financial difficulties, they gave
the Union's negotiators what purported to be. a profit
and loss statement for Respondent 's operations for the 5-
month period ending May 31, 1983.
The above description of Respondent 's bargaining po-
sition and proposals is not essentially in dispute . In dis-
pute is the manner in which the Union's negotiators re-
sponded to Respondent 's position and proposals and
whether Respondent 's negotiators in advancing its pro-
posals stated that these were Respondent 's final offer. I
have not resolved these disputes because, it is not essen-
tial to . the disposition of this case "for me to determine
whether Respondent 's negotiators stated that Respond-
ent's proposals constituted a final offer. And with respect'
to the Union' s negotiators ' response to Respondent's pro-
posals, regardless of whether Respondent 's - or the
Union 's witnesses ' description of the Union's negotiators'
response is credited , it is undisputed that the Union's ne-
gotiators made it plain to Respondent 's negotiators that
the Union' s negotiators were unsympathetic to Respond-
ent's proposals and for the most part did not intend to
grant Respondent the economic relief that it was request-
ing.
One last matter , however, must be discussed about this
negotiation session . The profit-and-loss statement (G.C.
Exh. 30) presented to the Union' s negotiators by Hills
and Errington in support of their claim that Respondent
was in financial difficulties is a. one-page document con-
taining figures for "Revenue," "Operating Expenses,"
and "Other (Expenses) Income ." It does not include spe-.
cific figures for labor costs and other than the caption
"Year to Date" and an inked in notation "Jan=May 31,
1983" contains no other identifying heading , such as the
name 'of . the company, which suffered the described
losses . But, in this respect , the- record reflects that when
Errington and Hills presented this document to the
Union, supra , and when they presented it to the employ-
ees, infra, they did so in.the context of remarks that were
calculated to lead the Union and the employees to be-
lieve that Respondent needed relief from the obligations
of the Union's collective-bargaining agreement , because
Respondent was losing money. As a matter of fact Hills
testified in effect , that Respondent lost money in both
1982 and 1983 But after being confronted with the finan-
cial statement he, had submitted on behalf of Respondent
to the California Public Utilities Commission which
shows. that Respondent earned a profit in 1982 of over
$180,000 Hills admitted that Respondent in 1982 did not
lose any money - but made a profit and also admitted that
the document that he showed the union negotiators and
the employees - dealt with the financial condition of not
dust Respondent but of both Respondent and BJD Truck-
ing Company , the nonunion company owned by Hills. In
connection with his admission that when he spoke to the
union negotiators and the employees about Respondent's
financial condition he was in fact talking about the finan-
cial condition of both Respondent and BJD Trucking,
Hills gave the following explanation - "I run those com-
panies together" and "we had a loss on the other Com-
pany, BJD, which offset [Respondent 's profit]."
The fact that Hills falsely testified that Respondent
Not money-in 1982 when in fact Respondent earned a
profit ,of over $180 ,000 has persuaded me,'due to the lack
of corroborating evidence , to discredit his testimony that
Respondent lost money in 1983 .-Nor will I presume that
in 1983 , during the time material herein , when Respond-
ent was dealing with the Union and speaking to its em-
ployees about its financial condition , that Respondent
was losing money . Quite the opposite , under the circum-
stances, absent evidence to the contrary I shall presume
that in 1983 during the time material to this case Re-
spondent was earning a profit just as it had done in 1982
and that just as had been the case in 1982 that it was
BJD Trucking Company, not Respondent, which was
the unprofitable enterprise.
5. Hills' and Errington 's July 1983 meeting with
employees
In July 1983 immediately before or after the July 20,
1983 negotiating session between Respondent and the
Union, Hills and Errington met in Errington's offie with
several of Respondent 's truckdrivers . In most cases as
drivers left work between 5 and 6 p . m., Hills -or Erring-
ton asked, them to _ come into Errington 's office to talk
and in some cases employees went into the office when
they observed, Errington and Hills talking with other em-
ployees. , Present at various points of time during this
meeting for various lengths of time were drivers McGi-
boney, Gary Morini, Vestnys, Melendy, Ravey, and Cas-
tillo. • Employees left when they felt like it. More,_than
one discussion took place at a time, with Errington talk-
ing with employees while Hills talked with others. The
discussion between Hills and Errington with the employ-
ees covered a number of different topics, all of which re-
lated to Respondent's business operation . And even after
Hills or Errington changed topics , it was . not unusual for
the same topic to be brought up again during a later con-
versation. The subject matter discussed was not always
initiated by Hills or Errington , but employees asked
questions which they answered. .
The theme of the July 1983 meeting , as expressed to
the drivers by Hills and Errington, was that Respondent
was suffering from serious financial problems and was
BAY AREA-LOS ANGELES EXPRESS 1067,
losing $10,000 monthly Hills and Errington stated that
they were prepared to show Respondent's financial
records to the employees so as to corroborate their claim
that Respondent was in financial difficulty. They also
asked for the drivers' ideas or suggestions on ways Re-
spondent could save money In response employees of-
fered suggestions. Hills also told the drivers that it was
very important for the drivers to talk to their union rep-
resentatives and to persuade them to move off "the
dime" on Respondent's contract proposals,, particularly
Respondent's staggered starting time proposal Errington
stated that Respondent could not afford to pay the level
of benefits being proposed by the Union. Errington and
Hills also discussed with employees how the drivers
could-save Respondent money on fuel and maintenance
costs. When an employee asked whether BJD Trucking
Company, the nonunion company owned by Hills, was
losing money and whether it paid for the use of Re-
spondent's equipment, Hills stated that BJD was making
a profit and that BJD leased its equipment from Re-
spondent for a fee Also during the meeting when Gary
Morini, one of the union stewards, indicated that he was
leaving the office, Hills accompanied him outside where
he initiated a short conversation. All of the foregoing is
not in dispute. The disputed statements attributed to Er-
rington and Hills are set out and evaluated' hereinafter.
The General Counsel called as witnesses four of the
six employees who attended this meeting- Gary Morini,
who left earlier than most of the others; Solon Castillo;
Michael Vestnys, and George McGiboney. Barry Erring-
ton and Ned Hills testified for Respondent. The testimo-
ny concerning the matters of significance which are in
dispute follow.
McGiboney testified that Errington stated that one of
the reasons Respondent was losing $10,000 a month was
the expense of the Union's health and welfare program,
and further testified that Hills stated that if the employ-
ees went nonunion Hills could give them an equal or
better health and welfare plan than what the Union was
offering them, that Errington suggested that the Union
was not using the money Respondent was contributing
to the health and welfare plan to the employees' advan-
tage. Morini testified that either Hills or Errington stated
Respondent could not afford the current health and wel-
fare program, that it was hurting Respondent financially
and stated that he could get the employees a good plan
which would save Respondent money. Castillo testified
that Hills stated that one of the reasons that Respondent
was losing money was because of the Company's "union
obligations," he stated that if Respondent could replace
the Union's health plan with another plan it would be
cheaper for him and better for the employees. Vestnys
testified that Hills stated that the Union was not doing
the drivers any good and that Hills could provide the
drivers with a better health plan. When asked whether
he remembered discussing anything about health and
welfare, Hills testified- "I did not bring that up I believe
Errington-." He was interrupted at this point-by Re-'
spondent's counsel Thereafter Hills testified that neither
himself nor Errington stated that the Company could
provide a better health plan than the- Union's Errington
likewise testified that neither himself nor Hills stated that
the Company could providea better health plan than the
Union's. He further testified that when someone, whom
he did not identify, mentioned the fact that the benefits
of the current health plan were being decreased while
costs were being increased that Errington responded that
he had done some studies in the past of the costs of
health plans for the employees and the plan that Erring-
ton had purchassed for himself personally contained
better benefits at less cost than the Union's plan.
McGiboney testified that Hills stated, "if he did not get
what he wanted on the contract negotiations that he was
going to have to do something drastic and he mentioned
closing the doors if it got much worse and stated he was
thinking of going nonunion and was going to ask all of
the Company's drivers to go nonunion with him " Cas-
tillo testified that Hills stated that the Company's union
obligation was just too much to bear financially and that
if he did not get financial relief relatively soon that "the
Company would close." Vestnys testified that Errington
stated that the Company was in financial trouble and if
there were no solutions made that "they would have to
close the doors " Vestnys also testified that Hills asked
Gary Morini, the union steward, whether he would
work for Hills as a nonunion employee and that Morini
replied in the negative. Morini did not corroborate
Vestnys" testimony. Both Hills and Errington denied that
Hills made the aforesaid comments.
Castillo testified that, in the context of stating that the
Union was too much of a financial burden on him, Hills
remarked that the drivers could buy their own trucks
and could haul for him as owner-operators McGiboney
testified that Hills at one point stated that if any of the
drivers wanted to buy a truck Hills could help them out.
Neither Hills nor Errington denied that Hils made the
aforesaid remarks
McGiboney testified that at one point during the meet-
ing Hills said that he intended to keep the drivers' pays-,
cale the same and , that at another point' said he would
pay the drivers as much as $14 an hour 5 Errington and
Hills denied that - Hills stated he intended to change the
drivers' rate of pay.
Of the six witnesses who testified about the July meet-
ing, the testimonial demeanor of McGiboney, Castillo,
and Morini. was good, whereas the demeanor, of Hills,
Errington, and Vestnys was poor when they testified
about this meeting. I therefore credit McGiboney's, Cas-
tillo's, and Morini's above-described testimony and reject
Hills', Errington's, and Vestnys', except for Vestnys' tes-
timony concerning Hills' remarks - about the Union's
health plan which was corroborated by McGiboney,
Castillo, and Morini. In crediting McGiboney's, Castil-
lo's, and Morini's testimony, I have carefully considered
all of Respondent's contentions raised in its posthearing
brief which contentions either. singularly or in their total-
ity, in my" view, warrants the conclusion that despite
their impressive testimonial demeanor any one of these
witnesses' was an incredible witness. In evaluating the
credibility of McGiboney, Castillo, and Morini I have es-
5 The record reveals that $14 an hour would constitute an increase in
the drivers' rate of pay
1068 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
pecially considered the fact that there is a variance in the
exact words that they attribute to Hills, that there is no
corroboration of McGiboney's testimony concerning
Hills' statement about the employees' wage rates being
increased, and that the corroboration is skimpy with re-
spect to Castillo's and McGiboney's testimony concern-
ing Hills' remarks about the employees working for Re-
spondent as owner-operators However, unlike the-,usual
situation where an employer speaks to its employees in a
group, where everyone reasonably would be expected to
corroborate each other about what was stated to them
by the employer, here Hills did not address the employ-
ees as a group but spoke to different employees at differ-
ent times and employees came and went at different
times. Under these circumstances, in view of the poor
demeanor of Hills' and Errington's and the impressive
demeanor of employees McGiboney, Castillo, and Morini
when they testified about this meeting, I do not feel that
the variances between the employees' testimony impugns
their credibility, or that the lack of corroboration of
McGiboney's testimony about Hills' pay raise remarks
impugns McGiboney's testimony, or that the skimpy cor-
roboration of Hills' remarks about the drivers working as
owner-operators impugns the testimony of McGiboney
and Castillo on that subject.
Based on the foregoing I find that at the above-de-
scribed July 1983 meeting President Hills made the fol-
lowing statements to various employees- That if the
Union did not accept his contract proposals he would be
forced -to close the doors of the Company because of its
poor financial condition and he asked all of the drivers
to work nonunion; that he intended to increase the driv-
ers' pay to $14 ar hour; that the drivers could buy their
own -trucks and haul for Hills as owner-operators and
that Hills would give financial assistance to those drivers
who wanted to buy a truck; and that one of the reasons
Respondent was losing money was the expense of the
union health and welfare plan and if the employees went
nonunion Hills would give them an equal or, better-
health and welfare plan than what the Union was cur-
rently offering them. -
6. The events of August 9, 1983
On August 9, 1983, between 5:30 and 6 p in. seven of
Respondent's truckdrivers-Tom Ravey, Robert Me-
lendy, Solon Castillo, Gary Morini, Frank Mormi, David
Guernsey, and Gregory McGiboney-met with dispatch-
er Joe Davidor at Davidor's request in the dispatcher's
office. Earlier that, day Davidor told McGiboney that he
wanted to meet with McGiboney and the other drivers
after work because President Hills had informed Davidor
about a decision which had been made and Davidor
wanted to communicate this information to Respondent's
employees.6 - -
'At the start of the August 9 meeting when Davidor
mentioned the contract proposal which Hills was offer-
ing to the employees, Frank Morini stated that he was
6 The description of Davidor's request that McGiboney attend the
August 9 meeting is based on the undenied testimony of McGiboney who
gave the impression of being a credible witness when he testified about
this conversation
leaving because he felt that the meeting was illegal Da-
vidor followed him outside and attempted to persuade
him to return. When Mormi . remained firm in his refusal,
Davidor asked whether he had another job. Morini re-
plied "no." Davidor then stated that "if he doesn't get
this, then he is going to close the doors 11 7 Morini re-
plied , "Let him close the doors."8
Davidor returned to the dispatch office and resumed
talking to the other drivers. He told them that he had a
contract proposal to present to them from Hills, that he
was presenting it to them instead of Hills because Hills'
lawyers had instructed Hills not to speak personally to
the employees about this subject. Davidor at this point
was holding the.General Counsel 's Exhibit 9, a single
sheet of note paper . 9 The bottom half of the, note paper
listed eight holidays - and the top part read as follows:io
12 07/HR Everything After 8 Time & 1/2
8 Pd Holiday
Mutiple .Start Times
3 Wks vac max
Health Welfare-Life Ins
Dental Vision
Sick Leave- 3 days sick leave
No Jury Duty
No Funeral Leave
Straight Time-sat -sun-hol
After reading this proposal to the drivers , Davidor told
them that if they did not accept it "the doors would be
closed by Friday of that week " At this point Davidor
held up another piece of paper dated that day which
The description of Davidor's conversation with Frank Morini is
based on the undenied testimony of Morini who demeanorwise impressed
me as a credible witness when testifying about this conversation
8 Although Davidor did not use President Hills' name, but phrased his
remarks in terms of "he," it is plain from the context in which Davidor,
expressed these remarks, and from the plain meaning of the words used,
that the "he" referred to by Davidor was Respondent's president Hills,
the only person with the authority to close the Company's doors, and
that a reasonable person in Morita's position would have understood that'
Davidor was referring to Hills
8 McGiboney testified that the document which Davidor read from on
August 9 was G C Exh 9 McGiboney's demeanor was- good when he
gave this testimony which Davidor did not deny or otherwise contradict
As a matter of fact Davidor in effect admitted that G C Exh 9 was the
document from which he read to the employees on August 9 Thus,
when asked whether he recognized G C Exh 9 Davidor testified that it
was a "summary" which he prepared from Respondent's original propos-
al
10 The eight holidays listed on the bottom half of the note paper are in
Davidor's handwriting as is that writing on the top half which states,
"Everything after 8 Time & 1/2 " The rest of the writing on the note
pad is in Vice President/General Manager Errington's handwriting The
sole evidence concerning the circumstances surrounding the making of
these notations'by Errington, which Davidor read to the.employees at
the August 9 meeting,, consists of Errington's testimony that while he
knew Davidor came into posession of the note paper, he did not person-
ally give the document to Davidor I recognize that Errington also testi-
fied that when he spoke to Davidor on the morning of August 10 he
wrote down Davidor's account of the wage and benefit proposals which-
Davidor stated he had presented on August 9 to the employees It is sig-
nificant, however, that Errington did not testify that G C Exh 9 was a
copy of what Ernngton wrote during his August 10 conversation with
Davidor His failure to so testify is perfectly understandable because, as I
have found supra, the record establishes that G C Exh 9 was the docu-
ment which Davidor used on August 9 to inform the employees of Hills'
contract proposals
BAY AREA-LOS ANGELES EXPRESS
contained a written statement signed by Davidor -which
read. "I do not want Local 85 Teamsters Union or any
other union to represent -me for any reasons whatso-
ever." Davidor read -this to the drivers and told them
that if anyone wanted to resign from the Union that they
could sign such a statement Davidor declared: "[Hills] is
going nonunion and that's it," whereupon McGiboney,
Gary Morini, and Castillo left the office. Thereafter, it is
undisputed that Ravey-and Melendy before they left the
dispatcher's office-signed a statement identical to the one
signed by Davidor which they gave to Davidor.
Later that evening driver Carl Jackson, who was not
present at'Davidor's meeting with the other employees,
received 'a telephone call from Davidor at his home. Da-
vidor told Jackson that there had been a meeting at the
terminal which Jackson should know about. Davidor in-
formed Jackson that a contract offer had been made to
the employees and he read the offer to him over the tele-
phone. What Davidor read was identical to the offer he
had read earlier that day to the other drivers, namely,
the language contained in General Counsel's Exhibit 9.
Davidor warned Jackson that Hills intended to close the
doors of the terminal on Friday if there was no agree-
ment on a contract.' i -
The description of the August 9 meeting between Da-
vidor and the drivers, supra, is based on a composite of
the testimony of McGiboney, Castillo, and Gary Morini
In significant respects their testimony about these meet-
ings was consistent except for that portion of McGibon-
ey's testimony wherein he testified that Davidor stated
that it was Hills who wanted them to resign from the
Union. I am of the view that it is perfectly understand-
able that McGiboney, who had previously been informed
by Davidor that he was calling the August 9• meeting in
order to relay something that Hills had told him, should
have mistakenly attributed responsibility-to Hills rather
than to Davidor with respect to Davidor's comments to
the drivers concerning the resignation statement, particu-
larly since at the outset of the meeting Davidor in effect
indicated he was merely acting as a messenger for Hills
in relaying Hills' contract proposals. -
i i The description of Davtdor'% August 9 telephone conversation with
Jackson is based on Jackson's testimony Davidor in effect denied phon-
ing Jackson on August 9 but testified that his phone call to Jackson took
place on August 10 at which time he told Jackson that he had gone to
the NLRB about getting out of the Union and that some of the other
drivers had signed statements resigning from the Union and asked wheth-
er Jackson was interested in signing one for Davidor to take to the
NLRB Jackson, on - the other hand, testified that while there was a
phone conversation between - himself and Davidor on August 10 it was in
addition to Davidor's August 9 telephone call,- described supra, and the
August 10 telephone call was initiated by Jackson , not Davidor In this
regard Jackson testified that on August 10 he telephoned Davidor from
home in response to a statement made earlier that day by President Hills ,
that if Jackson was interested in working despite the strike he should
phone Davidor According to Jackson, during his August 10 conversa-
tion with Davidor he told Davidor he wanted to work despite the strike
but wanted assurances that he would be paid his accrued vacation pay
and that Davidor indicated that he felt the bookkeeper could arrange this
and told Jackson to report for work at an address in Union'City, Califor-
nta I have credited Jackson's testimony over Davidor's because in terms
of his testimonial demeanor Jackson impressed me as being a more reli-
able and trustworthy witness than Davidor when testifying about these
disputed conversations' '
1069
In crediting the testimony-of McGiboney, Castillo, and
Gary Morini concerning the August 9 meeting I have
considered that their description of this meeting was con-
tradicted by Davidor whose testimony in this respect
was corroborated in its essential parts by Ravey and
Guernsey. Davidor testified that he told the drivers that
he had made a summary or dotted down some of the
highlights of Respondent's contract proposals which
Hills and Errington had given to the employees early in'
1982. He further testified that he read to the employees
from this summary (G.C. Exh. 9), and that when he fin-
ished reading is when McGiboney, Castillo, and Gary
Mormt left the dispatcher's office. Davtdor testified that
he then told the remaining drivers that he had contacted
the NLRB about withdrawing from the Union and had
been informed by a Board agent that in order to with-
draw an employee should sign a statement indicating he
did not want the Union; that Davidor showed them such
a statement which he had signed and that after asking
questions employees Ravey and Melendy copied Davi-
dor's statement which they signed and gave to Davidor,
who told them that he would take their signed state-
ments to the NLRB.
I have rejected the testimony of Davidor, Ravey, and
Guernsey about what took place at the August 9 meeting
insofar as it conflicts with the testimony of McGiboney,
Castillo, and Gary Morini, because the testimonial de-
meanor of McGiboney, Castillo, and Morini was good
and that of Davidor, Ravey, and Guernsey was poor
when they testified about this meeting I also note that ,a
significant portion of Davidor's testimony concerning
this meeting was demonstrably false. Davidor's essential
contention is that he did not indicate to the drivers that
he was acting pursuant to Hills' instructions in communi-
cating the contract proposals to them,- but that he was
only reminding the employees of the, terms of the con-
tract proposal which Hills previously in 1982 -had shown
the drivers. However, General Counsel's Exhibit 9, the
summary prepared by Errington from which Davidor on
August 9 read to the drivers, indicates that Davidor's
testimony is palpably false A comparison of the summa-
ry with the terms of Respondent's contract proposal, Re-
spondent's Exhibit 1, on which it was supposedly based,
reveals the following significant differences: The summa-
ry lists eight paid holidays, whereas the contract propos-
al lists nine; the summary lists 3 days of sick leave
whereas the contract proposal lists 5 days; the summary
lists no jury duty, leave or funeral- leave, whereas the
contract proposal lists 3 days of paid funeral leave and
10 days of paid jury duty leave.
In crediting the testimony of McGiboney, Castillo, and
Gary Morini concerning the August 9,meeting, I have
considered all the arguments raised by Respondent in its
posthearing brief to,. impugn their credibility. including
the following. They are all interested parties; Castillo's
testimony that Davidor stated that if Hills' contract pro-
posal was not accepted that the doors of the terminal
would be closed by that Friday was not corroborated by
either McGiboney or Morini; McGiboney' s testimony
that Davidor stated that Hills was intent on going non-
union was not corroborated by either Castillo or Gary
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morini;, when McGiboney following Hills' meeting in
July 1983 with the drivers asked Davidor when the
Company was going to go nonunion, Davidor vehement-
ly denied that Hills had any intention of going nonunion;
McGiboney's testimony and the initial testimony of Gary
Morini that Davidor stated that it was Hills who wanted
them to sign resignation letters was contrary to what
they stated in their posthearing ' affidavits submitted to
the NLRB. Nonetheless, based on my observation of the
demeanor of the witnesses when they testified about this
meeting I am persuaded that McGiboney, Castillo, and
Gary Morini were sincere witnesses making a conscien-
tious effort to tell the truth about this meeting, whereas
Davidor, Ravey, arid Guernsey were not, and that the
aforesaid considerations whether viewed singularly or in
their totality are not sufficient to impugn their credibil-
ity.12
7. The events of August 10, 1983
After they left the dispatcher's office on August 9,
1983, Castillo, McGiboney, and Gary Morini met Frank
Morini who had waited in the Company's parking lot
and the four of them went to a local bar where they dis-
cussed Davidor's meeting with the truckdrivers. Later
that evening Frank Morini telephoned Union Business
Representative Rodriguez and told him that Davidor had
made certain contract proposals to the drivers and told
the drivers that if the employees did not accept the pro-
posals and go nonunion that Respondent would close its
doors on Friday. Rodriguez instructed Morini to tell the
employees that the union representatives would meet
with them at Respondent's terminal before they started
work the next day. -
Early in the morning, of August 10 Donald Andrus,
one of Respondent's drivers who did not attend Davi-
dor's meeting the previous evening, was informed by
McGiboney about the meeting. McGiboney told him that
Davidor had given the employees certain proposals and
had told them that they had until Friday, to decide
whether they would work for Respondent on a nonunion
basis or "take a hike." Later that morning about 7:30
a.m., Andrus, shortly after Davidor arrived at the termi-
nal, questioned him about his meeting with the drivers.
This conversation took place in front of the terminal in
the presence of several of the employees plus Union
Business Representative Rodriguez, who had come to
the terminal to meet with the drivers. Andrus asked Da-
vidor what had taken place the previous evening at Da-
vidor's meeting with the drivers. Davidor replied that
Hills had come into Davidor's office with a list of "ulti-
12 I note that Castillo's testimony that Davidor stated that if Hills' con-
tract proposal was not accepted the doors of the terminal would be
closed by that Fnday and McGiboney's testimony that Davidor stated
that Hills was intent on going nonunion is supported by the fact that con-
temporaneously with this meeting Davidor told both Frank Monni and
Carl Jackson in separate conversations that if Respondent's contract pro-
posal was not accepted that Respondent intended to close the doors of
the terminal I also note that since Davidor at the outset of the meeting
indicated that in communicating the contract proposals to the employees
he was asking as Hills' messenger that ' it was not unreasonable for McGi-
boney and Gary Morini to have mistakenly believed that it was Hills,
who in addition to wanting them to accept his contract proposal, also
wanted them to resign from the Union -
matums" including a wage offer of $13.07 an hour plus
several other items including multiple starting times. Da-
vidor stated that he would get Andrus a copy of these
proposals as soon as the employees' meeting with the
union business agents ended. Union Representative Ro-
driguez stated that the proposals Hills had given Davidor
to communicate to the employees were not relevant to
what they were doing that day and that Andrus should
just ignore those proposals. Andrus stated that he would
like to see what Respondent was offering to the employ-
ees. Davidor repeated that he would get a copy for
Andrus when the meeting between the employees and
union business representatives ended. Thereafter, follow-
ing the conclusion of the meeting between the employees
and the union business agents held at approximately. 8
a.m. that morning, infra, Davidor gave to employees
Andrus and McGiboney copies of General Counsel's Ex-
hibit 9, a written summary from which Davidor had read
Respondent's proposals during his August 9 meeting
with the drivers.
On this same morning between 7:30 and 8 a.m., Union
Business Representative Rodriguez with several other
union business agents met with 12 of Respondent's em-
ployees, including dispatcher Davidor, outside the termi-
nal office. Rodriguez informed the employees of the con-
tent of the contract proposal made by Respondent's ne-
gotiators to the Union's negotiators on July 22, 1983, in-
cluding the proposed 15-percent reduction in the em-
ployees' current rates of pay and he recommended that
they -reject Respondent's proposal. When Rodriguez
stated that Respondent's contract offer called for a 15-
percent reduction in wages, employee Jackson, referring
to Davidor's meeting with the drivers the previous
evening, stated that Hills had made a better contract pro-
posal to the employees which did not include a reduction
in their pay. One of the Union's business agents stated
that this proposal could not be considered by the em-
ployees because it had not been submitted to the Union
The union business representatives then, conducted a
secret ballot on Respondent's July 22 contract offer. Ro-
driguez, in this respect, told the employees if they voted
to reject this proposal that the Union would strike Re-
spondent immediately. Davidor stated that he did not
intend to support such a strike. The employees then
voted 12 to nothing to reject Respondent's July 22 con-
tract proposal and immediately thereafter the Union es-
tablished a picket line and certain employees ceased
work and supported the strike.
- It is undisputed that during the morning 'of August 10,
1983, after the start of the strike and picketing, Respond-
ent's president Hills spoke to striking employees who
were picketing and asked them to return to work. Striker
Donald Andrus testified that in response to Hills' request
that he return to work the following conversation took
place. Andrus expressed concern that if the employees
returned to work without union representation Respond-
ent would be able to fire them for trivial reasons such as
not walking fast enough. Hills replied by stating, "I give
you my personal assurance that that will never happen."
Andrus reminded Hills that in March 1983 Hills had
BAY AREA-LOS ANGELES EXPRESS' 1071
fired Andrus for alleged reckless driving.' 3 Hills assured'
Andrus that something like that would not happen be-
cause he knew that Andrus was a good driver.
Hills' version. of his conversation with Andrus differs
He testified that when he solicited Andrus to return to
work Andrus answered that he was unable right then to
make a decision and Hills responded by telling Andrus to
call back later that afternoon to let him know The testi-
mony of Carl Jackson, another striker who' was present
when Hills solicited the strikers, including Andrus to
return to work, does not corroborate Andrus' above-de-
scribed testimony. Rather, Jackson's description of Hills'
remarks, in pertinent part, substantially . corroborates
Hills' description: • . -
In view of Jackson's failure to corroborate Andrus'
testimony and because when he testified about this con'
versation Hills impressed me as a more credible witness
than Andrus, I have rejected Andrus'. above-described-
testimony. '
Also on the morning of August 10, 1983, while asking
strikers to return to work, striker Frank Morini testified
that Hills told Frank and his brother Gary Morini, who
was also a striker, that if they did not return to-work he
would go bankrupt. In this regard Frank Morini testified
that Hills came to where the Morini brothers were pick-
eting and told them "if you don't work with me, I am .
going to go bankrupt." Hills denies stating this. Gary
Morini failed to corroborate his brother's . testimony '
Indeed, Gary Morini's testimony concerning Hills''
August 10 picket line remarks differs substantially from
his brother's testimony. It is for all these reasons that I
reject Frank Morini's aforesaid testimony.,
The General Counsel also contends that on the morn-'
ing of August 10, 1983, when Hills asked the strikers' to,
return to work he informed them that if they decided to
return to work they should telephone Davidor and that
"he [Davidor] will let you know what to do from there."'
This contention is based on McGiboney's testimony.
However, strikers Andrus and Jackson who were present
during the period when Hills on August 10 was soliciting
the strikers to return to work do not corroborate McGi-
boney's version; rather, Jackson testified that Hills told
-him that if he was interested in working to telephone.
Davidor later during the day and that Davidor would
give him the address 'of the terminal where they would
be working. Andrus testified that Hills told him that if he
decided to return to work he should phone Davidor later
that day and inform Davidor of his decision. Under the
circumstances I will not credit McGiboney's testimony
that Hills informed,the employees that if they decided to
return to work they should contact Davidor • and Davi-',
dor would let them know what to,do.
During the morning of August 10, -1983,_Davidor gave
Respondent's vice president and general manager Erring-':
ton the statements previously signed by Davidor, Ravey, '
and Melendy, stating that they did not want the Union
or any other union to,represent them. And. later during,.
August 10 Davidor successfully solicited two more em-
ployees to sign such statements , Aaron Bernstein and Joe'
Quinn, who gave their statements to Davidor who in
turn gave them to Errington that same day.
8. The-events of August 11, 1983
On August 11, 1983, for that day only, Respondent op-
erated under the.name of BJD Trucking Company, Hills'
nonunion trucking company, using a facility in the vicini-
ty of Hayward-Union City, California.
Carl Jackson, who signed a 'statement on August 11
stating that. he did not want the Union or any other
union to represent him and gave this statement to Davi-
dor, testified that he signed it under these circumstances;
that on August 11 shortly after he began working, Davi-
dor spoke to him with two or three of the other, drivers
and told them that in order to continue to work they had
to. sign statements that they did not want the Union or
any other union to represent them.
.Davidor's version of what occurred differs sharply. He
testified that when Assistant- Dispatcher David Guernsey
reported for work August 11 he handed Davidor a state-
ment which he had signed stating that he did not want
the Union or any other union to represent him,' 4 that
Davidor' took Guernsey's signed - statement and asked
Jackson, who was present, whether he wanted to sign
such • a statement . Jackson asked to see what it said. Da-
vidor handed him the statement. Jackson read it and
stated that he would sign such a statement. Davidor gave
Jackson a ' blank sheet of paper onto which Jackson
copied the language contained in' Guernsey's statement
and signed it and gave it to Davidor.
Guernsey testified that on August 11 when he report-
ed for work he handed Davidor the statement which he
had signed which stated he did not'want the Union or
any other union to represent him and that Jackson, who
was standing right behind Guernsey, asked what Guern-
sey was "going to do." Guernsey responded- by taking
his statement back from Davidor and handing it'to Jack-
son stating , "This is what I am going to do." Jackson re-
sponded by stating, "What' do I do?" whereupon Davi-
dor stated, "This is- what everybody else did, but ' you
have to' make up your` own-mind" at which point Guern-
sey observed Jackson -copy= the language from Guern-
sey's statement onto a piece of paper which he signed.
I reject Jackson's version of the circumstances sur-
rounding his signirig of "the' statement' repudiating the
Union.' In' doing so I have'taken into 'account that Jack-
son' is a disinterested witness in the sense'that he refused
to participate in the strike, that he was apparently a
friend of Davidor who on, the evening of August 11
warned" Davidor `that he ' had been'-advised by Gary
Morini that ' the ;Union -intended to engage , in violence
against Respondent, and. that Davidor's- and Guernsey's
testimony concerning- Jackson' s signing of the union re-
pudiating ,statement differs in certain details ' Nonetheless
I 'have credited Dayidoi•'s, testimony concerning the'
19 In March 1983 Hills, based on a complaint from someone who -
stated that he had observed Andrus driving a company truck recklessly, 14 On August 9 when solicited to sign such a statement by Davidor,
discharged him but immediately reinstated him and reduced the discipline. Guernsey copied the language of this statement and indicated-that he
to the issuance of a warning letter `
.
wanted to give the matter further thought- '
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
events which took place on August 11 immediately lead-
ing up to Jackson's signing of his union repudiating state-
ment because when testifying about these circumstances
Davidor's testimonial demeanor was good and Jackson's
was poor.
Either late on August 11 or early on August 12• Davi-
dor gave Vice President and General Manager Errington
the statements which Guernsey and Jackson had signed
stating that they did not want the Union or any other
union to represent them:
9. The events of August 16, 1983
On August 16, 1983, driver Kenneth Blick who had
been on vacation at the time of the strike returned to
work at which time he was solicited by Dispatcher Da-
vidor to sign a statement saying that he did not want the
Union or any other union to represent him. Blick wrote
out the statement, signed it, and gave it to Davidor.
Later on August 16 Davidor gave Blick' s statement tb
Errington who on the same day gave it to Hills with the
other identical statements signed by Bernstein , Ravey,
Melendy, Quinn, Jackson, Guernsey, and Davidor. On
receipt of these statements, Hills wrote the -Union's busi-
ness manager, Talavera,,as follows:
Our company has received objective evidence
which requires us to conclude that your Union no
longer represents a majority of our employees.
In such circumstances our attorneys have in-
formed us that it would be illegal for our company
to continue to recognize your union as the majority,
representative of our employees. Accordingly and
by this letter, we hereby withdraw recognition from
your union as the representative of our employees
for any purposes whatsoever.
Respondent and the General Counsel stipulated that
on August 16, 1983, the date of Respondent's withdrawal
of recognition, the following 12 employees were em-,
ployed in the appropriate bargaining unit herein- Andrus,
Blick, Castillo, Jackson, McGiboney, Melendy, Frank
Mormi, Gary Mormi, Ravey, Sunseri, - Vestnys, and
Quinn. In dispute is the status of three employees: Aaron
Bernstein , Joe Davidor, and David Guernsey. Respond-
ent contends that each of them is a part of the appropri-
ate bargaining unit , whereas the General Counsel urges
that they were not part of that unit. The evidence con-
cerning the status of Davidor and Guernsey is set out in
detail and evaluated infra, but Bernstein's status is dis-r
cussed in this section.
Bernstein, a salesperson, has `only "very limited" con-
tacts with the truckdrivers represented by the -Union '(Tr.
639-640). Only rarely does he communicate with them
about work-related matters. Unlike the other employees'
represented by the Union who, ar6 hourly paid employ-
ees, Bernstein is paid a salary and there is no? showing
whether this, salary is comparable to the amount earned
by the employees represented by the Union. Likewise
there is no showing that Bernstein received the same or
comparable fringe employment benefits, i.e., vacation,
sick leave, health benefits, etc., as those employees repre-
sented by the Union. There is no evidence that Bern-
stein 's terms and conditions of employment were gov-
erned by the 1979-1982 contract between Respondent
and the Union. Indeed, since he was paid a salary rather
than an hourly rate of pay and since the seniority list
which Respondent sent the Union in July 1982 failed to
include Bernstein 's name, it is a fair inference. that Bern-
stein was not covered by the terms of the 1979-1982
contract Lastly it is undisputed that Bernstein only han-
dled merchandise for the Company on those rare occa-
sions when using his own motor vehicle or the,company
pickup truck he delivered a special shipment to a cus-
tomer. These circumstances have persuaded me that
during the time material herein Bernstein did not have a
sufficient community of interest with the other employ-
ees represented by the Union so as to be included within
the appropriate bargaining unit herein, even -though he
voted in the Union's August 10, 1983 strike vote meet-
ing.
10. The events of August 25, 1983
On August 25, 1983, Hills and Errington, in Hills'
automobile, drove to where striker Andrus was picketing
in front of Respondent's terminal. Hills, seated on the
passenger's side, rolled down the window and' asked,
"13.07 an hour does not seem so bad now, does it?" and
without waiting for an answer stated • that the current
trucking industry negotiations taking' place in San Diego,
California, included an $11-an-hour wage proposal. Hills
also stated that Respondent could go bankrupt if it did
not get its proposal Andrus replied by stating that he
had made his decision and walked away. The automobile
followed Andrus and, when it pulled up alongside 'him,
Hills, stated that Respondent needed relief especially in
the areas of starting time-and overtime wages in order to
compete in business against other companies. Andrus in-
dicated that wages were not as important to him as the
other contractual benefits McGiboney, another striker,
who was picketing, joined Andrus at approximately this
time. Hills- in the presence of McGiboney asked why
Andrus was picketing when he could be working and
stated that Andrus was not going to get anything by
picketing. Andrus replied by,stating that he was sorry, _
but that he had made his decision and that he intended to
continue to picket. McGiboney brought and end to the
conversation by indicating that Andrus , and himself
should not be talking' to Hills, but should be picketing
and they walked away from the automobile. The auto-
mobile -continued to move with them, and Hills asked
what Andrus and McGiboney were doing picketing and
when they were going to return to work for him. Larry
Massoni, who was picketing, was on the other side of the
automobile talking to Errington. He asked if Errington
knew who had complained to the police about the pick-
ets. Errington denied contacting the police. Hills got out
of the automobile and walked around to the driver's side
and told Massoni that he was the one who had tele-
phoned the police and challenged Massoni to do some-
thing about it. When it appeared that Hills and Massoni
were about to have a fight, B J Painter, an organizer
for the Union who was in charge of the picket line, who
Just arrived at the site of the picket line; hastened over to
BAY AREA-LOS ANGELES EXPRESS
Hills' automobile, introduced himself to Hills, and with
McGiboney's assistance calmed Massoni down. Hills at
this time remarked that there were persons working for
Respondent earning $13.07 an hour, while the pickets
were standing in the hot sun. Hills also stated " that he
had unsuccessfully tried to negotiate with the Union.
Painter interrupted and stated that what Hills was saying
would not do him much good since.he was talking to the
rank-and-file workers. Painter asked why Hills did not
talk with the Union's officials., Hills stated that he had
tried to meet with them without success. Painter asked.
whether Hills would agree to meet with Union Business
Manager Talavera, if Painter arranged for a negotiation
meeting to be held between them the next day. Hills an-
swered in the affirmative, whereupon Painter left to ar-
range this meeting. Shortly thereafter Painter made the
arrangements for this meeting However, Painter was in-
formed by Errington that Hills would not attend it.
The above description of what occurred on August 25,
1983, is based on a composite of the testimony . of
Andrus, McGiboney, Massoni, and Painter, whose testi-
mony is not denied. Each impressed me in terms of their
demeanor as sincere and conscientious witnesses when
they testified about the above events. I recognize that
there is some variance in their testimony concerning in-
significant matters and that there is some confusion as to
exactly when McGiboney and Painter arrived on the
scene. This does not in my opinion impugn their testimo-
ny. I am persuaded, however, that Ardrus' testimony
that McGiboney and Painter were present at Hills' auto-
mobile for virtually' the entire time is not correct.
Rather, as described above, "the testimony of McGi-
boney, Painter, and Massoni indicates that McGiboney
and Painter arrived on the scene at different times after
Hills had commenced talking to Andrus.
11. Hills' January 26, 1984 statement that the
strikers could only return to work as nonmembers
of the Union •
After Frank Morini went out on strike, he filed for. un-
employment compensation with the California Employ-
ment Development Department. Respondent challenged
Morini's entitlement to unemployment benefits. On Sep-
tember 28, 1983, the department issued a ruling that
Morini was ineligible for benefits because he had left
work because of a trade dispute Morini appealed.
On. January 26, 1984, a hearing was held on Morini's,
appeal before Department Administrative Law Judge
Rosenthal. Frank Morini represented himself. Gary
Morini appeared as a witness for his brother. Respondent.
was represented by its lawyer, Joseph Schwachter, and,
President Hills appeared as a witness on behalf of 'Re-
spondent During the hearing 'Frank -Morini in, response
to, Attorney Schwachter's question, "Is it the reason that
you have stayed out from work, since August.10 because,
of this labor dispute with [Respondent],", testified,, "one
of the reasons is that we cannot go back as a union
member." Previously Frank Morini had testified that
Hills, through dispatcher Davidor, had submitted a con-
tract proposal to employees with the condition-that em-,
ployees agree to go nonunion. Finally near the conclu-
1073
sion of the hearing when Frank Morini was cross-exam-
ining President Hills, the following colloquy took place.
MORINI: Well let me ask you one question, you
got . . . a majority of the drivers are still out, can
they come back as union members?
HILLS: No.
MORINI: In other words, we can come back, but
it has to be as non-union members?
HILLS: Yes, that's right
B. Discussion and Analysis
1. Joe Davidor's supervisory status
a. The applicable principles
Under Section 2(11) of the Act, the term "supervisor,"
includes:
[A]ny individual having authority, in the interest of
the -employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline `other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
The burden of proving supervisory status rests on the
party alleging that such status exists. Tucson Gas & Elec-
tric Co., 241 NLRB 181, and cases cited therein. While
the possession of'any one of the functions enumerated in
Section 2(11) is sufficient to establish supervisory status,
Section 2(11) requires, however, that a supervisor must
perform these functions with independent judgment as
opposed:to in a routine or clerical manner. Walla Walla
Union-Bulletin v. NLRB, 631 F 2d 609, 613 (9th Cir.
1980);, NLRB v.' Harmon Industries, 565 F.2d 1047, 1049
(8th Cir. 1977); NLRB v' Security Guard Service, 384 F.2d
143, 147 (5th Cir. 1967). And isolated and infrequent in-
cidents of supervision do not elevate a rank-and file em-
ployee to supervisory level., NLRB v. Doctors' Hospital of
Modesto, 489 F.2d 772, 776 (9th Cir. 1973). Finally, the
Board, in interpreting Section 2(11), has been instructed
that "[i]t is important for the Board not to construe su-
pervisory status too broadly, for a worker who is
deemed a supervisor loses, his organizational rights."
McDonald Douglas -Corp. v. NLRB, 655 F 2d 932 (9th
Cir. 1981); accord:. Westinghouse Electric Corp. v. NLRB,
424 F.2d 1151, 1158 (7th Cir. 1970) ("The Board has a
duty to, employees to be alert not to construe supervisory
status too, broadly because the employee who is deemed
a supervisor is denied employee rights which the Act is
intended to protect;');: Warner Co. v. NLRB, 365 F.2d
435,437 (3d Cir. 1966). ,
b. Background
During the time material herein Respondent employed
approximately 14 individuals who were represented by
the,Union -and.covered by the"terms of the 1979-1982
contract. These persons were all experienced employees
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who were skilled in their profession .as truckdrivers or
dispatchers As of August 1983 the least senior of these
workers had been in Respondent's employ for approxi-
mately 3-1/2 years The seniority of -the, other workers
was as follows: four over 4 years; two over 5 years; and
seven over 10 years: Due to their length of service and
the routine nature of their work Respondent' s small com-
plement of workers knew what they had to do each day
and did it with only a minimum of supervision.
The employee with the most seniority was dispatcher
Davidor who had been in Respondent's employ since
1970 Initially Davidor was employed as a truckdriver,
but since 1976 had been Respondent's dispatcher. Davi-
dor's immediate supervisor was Respondent's vice presi-
dent and general manager Errington , who was responsi-
ble for the day-to-day operations of Respondent's San
Francisco terminal Errington, whose office is five steps
away from the terminal dock where the employees- in-
volved herein work, spends 'at least 8 hours a day, 5 days
a week at the- terminal and is only rarely away from the
terminal , not having taken.a vacation in over 2-1/2-years
and has only been absent on business for I or 2• days. On
these occasion's Errington•` is inconstant telephone con-
tact with the terminal. `- : _ -
c. Davidor's authority to assignor responsibly direct
employees using. independent judgment
(I),The,evidence
Respondent's' 14 employees represented by the Union
during the tine rhaterial -herein consisted ' of dispatcher
Davidor, assistant -dispatcher . Guernsey, who besides as-
sisting Davidor worked as a local utility driver,-tine local
utility driver, nine 'local drivers', and two line drivers.
The local drivers start work at 8 a .m. at which time they
unload the' freight' which earlier that- morning the line
dirvers had delivered to the terminal from Los Angeles.
The local drivels then load their respective trucks with
this freight and 'spend the remainder of the workday-de-
liverrng it and making 'local pickups. The workday of the
local drivers ends back iii: the terminal where they
unload the freight which they have 'picked up locally
that day: The two line 'drivers, who do not start work
until early evening, deliver-the freight to the Company's
Los Angeles terminal - Which-'the local drivers _' have
picked up that day-and on their return trip from Los An-
geles bring-the' freight which the local drivers will deliv-
er the,following day.
Respondent 'has divided', the -geographical area,*-m
which it makes -pickup and -deliveries" of freight' into four
different routes-Peninsula, East- Bay, Sacramento; and
San Francisco. The nine local drivers' were assigned to
one of 'these 'routes on a regular basis. 15 The only devi-
ation from these regular route assignments occurs when
a driver is absent or when :the amount of freight -on •one
route is too heavy to handle for the regular route' driv-
ers. In these situations Davidor assigns one of the utility
11 There is no evidence or contention that dispatcher Davidor_made
these route assignments initially However, the question of whether Davi-
dor possessed the authority to transfer drivers on a• permanent basis from'
one route to another is discussed infra • ,
drivers to. temporarily work the route. t 6 However, in
these situations if a driver on one of the other regular
routes has an extraordinarily light workload, •Davidor.in-
stead of using a utility driver will use this regular route
driver to substitute for the absent driver or to work the
other route because of the unusually heavy amount of
freight This is a rare occurrence and Davidor makes
such a temporary assignment to a„ regular route driver,
rather than a utility driver, only if the regular driver is
familiar with the new route. Also in making such a tem-
porary assignment to one, of the regular route drivers,
Davidor excludes from consideration those drivers
whose trucks are. equipped with electronic lift gates be-
cause it is company policy-that there be one such truck
operating on each route.
-Vice President-and General Manager Errington, who
is responsible for the day-to-day operation of the termi-
nal, arrives there each morning at the same time or
shortly before the drivers start work. On his arrival- Er-
rington.visits the dock area to check that the freight has-
arrived from Los Angeles undamaged, that the days' de-
livery invoices have , arrived, and that those shipments
which have been marked as urgent on the shipping
papers-are being loaded. Errington occasionally speaks to
the drivers about these urgent shipments. And with re-
spect to those shipments from Los Angeles which must
be delivered into an area which Respondent, does not
regularly make pickups or deliveries, it is Errington who
decides whether Respndent should use one .of its own
drivers to make these deliveries or to "interline" the
shipments through another carrier. r v
When Dispatcher Davidor arrives at work he removes
the freight -bills and manifests from • the computer and
checks these, documents and then separates the freight
bills for delivery by route. When the drivers finish un-
loading the freight which arrived earlier that morning
from Los Angeles, they take the stacks of -freight bills
which Davidor ha_s left for them for their particular
routes. Then those drivers 'who, work a particular route
will-divide their freight bills among themselves. For ex-
ample, the drivers assigned to the San Francisco route
take the San FranciscoI stack of freight bills left for them
by Davidor'and split- them up between themselves so
that each will have an equal share of deliveries. Each
driver then determines the order in which he will make
16 Normally if urgent pickup or deliveries, referred to as "hot" loads,
are required during the day, Davidor will dispatch the two utility driv-
ers, Guernsey. and Quinn, to handle them In view of Guernsey's duty as
assistant dispatcher, Davidor dispatches Guernsey only as a last resort
17 The above description of Ernngton's duties is based on Errington's
testimony Andrus testified that the only persons who gave him instruc-
tions were the dispatchers Frank Mormi testified that Ernngton infre-
quently told the-drivers to unload-trailers, that usually he received his
work, instructions from the, dispatchers and that Errington was not nor-
mally present on the dock at the start of the workday and was there only
2 days a week The latter part of Mormi's testimony is inconsistent with
the testimony of McGiboney and Vestnys who in effect testified that Er-
rington was normally present when they reported for work Errington
did not testify that he ever worded his conversations with the drivers in
terms of instructions This is not surprising in view of the length of time
that the drivers had been working for the Company The record estab-
lishes that the drivers, due to the routine nature -of their work' and their
long.expenence on the job, knew what had to be done and did it with a
minimum of instruction
BAY AREA-LOS ANGELES EXPRESS 1075
his deliveries, i 8 and then loads his truck with the freight
in the order in which he has determined to deliver it.is
Davidor, after sorting out the freight bills and check-
ing the manifests, as described supra, spends the rest of
his workday answering the telephone and performing
various clerical duties.- He occasionally will load and
unload trucks and use a forklift to move freight.
Throughout the day, customers telephone to inquire
about their deliveries or to make arrangements for Re-
spondent to' pick up freight. It is Davidor who usually
handles these phone calls and who records the requests
for pickups on the dispatch sheet. It is Davidor who in-
forms the drivers.about these pickups. Daily at 2:30 p.m.,
pursuant to company policy, each route driver tele-
phones Davidor, who assigns the pickups which have
been telephoned in to him that day. He makes these as-
signments to those drivers who are nearest to the cus-
tomers and who have a type of truck large enough to
handle the pickup Later that day, • pursuant to company
policy, the drivers, after finishing their pickups, tele-
phone Davidor in the event that there is another driver
who needs help with his pickups, or that there is a cus-
tomer who has phoned in with a late pickup. Also the
route drivers at the end of their workday will notify Da-
vidor that they are still waiting for a customer's pickup
which will make them late in returning to the terminal.
Usually Davidor instructs them to wait for the pickup,
but if the hour is so late that any further delay will delay
the truck from leaving for Los Angeles that night, Davi-
dor instructs the driver to return immediately to the ter-
minal with his freight.
The two line drivers telephone Davidor between' 5 and
5.30 p in. to get their trailer numbers and the information
they need to deliver their loads. The line drivers will
also phone Davidor or Errington at home if they are de-
layed on account of the breakdown or bad weather.20
And if any of the local route drivers are delayed due to
a breakdown or other reasons Respondent's policy is that
they telephone, the dispatcher and notify him of the situa-
tion.
18 Vestnys testified that on rare occasions Davidor gave him instruc-
tions about the order in which Davidor wanted Vestnys to make his
urgent deliveries Vestnys' testimony in this respect is not corroborated
Not one of the several other drivers called by the General Counsel to
testify about Davidor's supervisory status indicated that Davidor engaged
in this type of supervision For this reason and because Vestnys' testimo-
nial demeanor was poor when he testified about this matter, I have not
credited this testimony
11 Vestnys and Castillo testified that Davidor occasionally told them if
he thought that their freight was not properly loaded so as to' be in
danger of being damaged and instructed them to reload it Davidor testi-
fied that while on the dock if he observed that something breakable had
been improperly loaded or that it was in danger of being damaged, he
called this to the driver's attention and suggested that the driver reload
the merchandise so that it would not be in danger of being damaged Da-
vidor further testified that other drivers also made similar suggestions to
their fellow drivers Castillo corroborates this aspect of Davidor's testi-
mony
20 Line driver Andrus testified that, on one occasion when bad weath-
er made it impossible to use the highway that he normally used to get to
Los Angeles, he phoned Davidor for advice and Davidor told him to use
another route Andrus further testified that one of the reasons that he
contacts the dispatcher about truck breakdowns or delays caused by the
weather is so that the dispatcher can relay this information to the cus-
tomers who are waiting for the freight
Under the terms of the 1979-1982 contract all the
truckdrivers were obligated to work 1 hour of overtime
daily. Normally all of them remain to work overtime. In
those instances when the drivers observed there was no
need for all of them to work overtime because of a light
workload, some of the drivers voluntarily punched out at
5 p.m. In those instances when one or more of the driv-
ers were not able to work overtime because of personal
reasons, despite the fact that they were needed, Davidor
helped unload the trucks and the remaining truckdrivers
worked longer in order to finish the work. In other
words whether drivers worked overtime was handled in
a cooperative and on a voluntary basis.21
(2) Ultimate conclusions
I am persuaded that when Davidor assigned employees
that he exercised this function in a routine or clerical
manner without exercising the type of independent ,judg-
ment required under Section 2(11) of the Act. The local
route drivers worked in prearranged geographical areas
and the drivers themselves established the order of their
deliveries. And when the route drivers telephoned Davi-
dor for their pickups, Davidor did not exercise any dis-
cretion in determining which driver would make the
pickup, but assigned it to the driver with a suitable truck'
closest to the customer's place of business. Davidor's dis-
patching of the local utility drivers, Quinn and Guern-
sey, was controlled by the arrival of a customer's order
which Davidor simply relayed to the drivers. Since
Guernsey was the assistant dispatcher and as such was
needed in the terminal to assist him, Quinn was dis-
patched first in order when the services of a utility
driver was required Regarding the work assignments of
the two line drivers, there is no evidence that in issuing
them their trailer numbers and other information con-
nected with their nightly loads, Davidor was performing
anything more than a ministerial function or was other-
wise exercising his independent judgment. Also in deal-
ing with situations which required a deviation from the
terminal 's standard operating procedure in making work
assignments , there is a lack of evidence that Davidor ex-
ercised the type of discretion which can be characterized
as independent judgment as that phrase is used in Section
2(11) of the Act. Thus, when a driver is needed for one
of the regular routes due to the absence of a regular
route driver or an extraordinary heavy workload, Davi-
dor routinely assigns one of the two utility drivers to this
route for the day and, when the workload on one of the
other routes was very light, may assign this work to one
of the route drivers on the light route provided that the
route driver knows that route and did not drive a truck
with an electric lift gate. '
I am also persuaded that Davidor's direction of the
drivers consisted of nothing.more than relaying informa-
2i.The above description of the manner in which overtime is worked
is based on Davidor's testimony To the extent that the testimony of
Vestnys, Castillo, and McGiboney warrants an inference that Davidor re-
quired employees to work the hour of daily' overtime required by the
contract, even when employees did not want to do so, I have rejected
their testimony because Davidor on this 'subject impressed me as a more
credible witness -
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion from the customers to the drivers Other than. as
noted, infra, there is no evidence that Davidor is in-
volved in the manner in which the drivers pick up
and/or deliver their merchandise. Although Davidor
suggests that drivers reload their trucks if he observed
that freight was improperly loaded so that it was in
danger of being.damaged, there is no evidence- that the
drivers faced disciplinary action if they refused to do
this. In fact it is undisputed,that the drivers themselves
made similar suggestions to their fellow drivers Also,
the fact that on one occasion Davidor instructed a line
driver to take a detour when that driver told him that
inclement weather had made it impossible to take his
usual route to Los Angeles does not establish supervisory
status under the Act, -but at most is a common sense re-
sponse to an isolated emergency situation. Likewise the
fact that Davidor allows Sacramento route driver Jack-
son to drive his truck home at the` end of the workday
instead of back to the terminal is simply a common sense
response to that particular situation 22 Lastly, when a
driver telephones Davidor at the end of the workday
and reports a delay in a customer's pickup, Davidor's re-
sponse is 'routine and automatic. A short delay is auto-
matically tolerated. However,' where the time reveals
that a delay will hold up the departure of the Company's
truck carrying the overnight freight to Los Angeles, Da-
vidor automatically' informs the driver to immediately
return to the terminal -
It is for the foregoing reasons that I find that the Gen-
eral Counsel has failed to establish that Davidor exer-
cises the authority to assign or direct employees, as those
terms are defined in Section 2(11) of the Act.
d Davidor 's authority to transfer employees or
effectively to recommend such action -
The General Counsel presented - the testimony of driv-
ers Vestnys , Castillo, McGiboney , and Gary •Morini con-
cerning their job transfers. Their testimony follows
In approximately 1982 Vestnys was transferred from
his Mann route to the position of utility driver under
these circumstances . Quinn , who lives in Marin County,
asked Vestnys if he could have Vestnys' Marin route.
Vestnys indicated he had no . objections to switching jobs
with Quinn . Shortly after this Davidor told Vestnys that
the Marin route would not be given to Quinn if Vestnys
wanted to , keep it . Vestnys • stated that it did not make
any difference to him and that ! if Quinn wanted the
Marin route he. should be -given it . Thereafter Vestnys
was transferred from his newly acquired . utility driver
position to the San Francisco route when one of the
drivers on .that route retired . Vestnys . testified that after
filling in for the retired driver for I month Davidor told
him that he had been doing a,good job, on that route and
that "he. [Davidor] was going to leave me on that route."
22 Jackson's route was situated approxi'mately' 80 miles from the Com-
pany's terminal, thus the record reveals, that. when he finished his deliv-
eries he would not have arrived back to the terminal until approximately
7 or 7 30 p m Accordingly, the understanding between Davidor and
Jackson that Jackson could drive his truck home at the end of the work-
day was not a matter involving, independent judgment but simply a
matter dictated by common sense
In approximately 1979 Castillo was transferred from
utility driver to the Peninsula route In response to the
General Counsel's, question, "Who transferred you from
[utility assignment] to the Peninsula assignment?" Castillo
testified, "Joe Davidor."
In approximately 1981 McGiboney was transferred
from utility driver to the East Bay -route when due to an
increase in business on that route Respondent decided
that a third driver was needed there. McGiboney testi-
fied that it was Davidor who notified him that he would
be the third man on the route.
In approximately 1978 Gary Morini was transferred
from the East Bay to the Peninsula when freight in-
creased on that route. When asked who spoke, to him
about this transfer, Morini testified that he thought that it
was Davidor and that Davidor told him. "I will put .you
on this route. You have ran it before and you know a lot
of the customers, and it is always a good policy to keep
good relations that way." -
In summation, the -General Counsel apparently urges
that Davidor's authority to transfer employees is estab-
lished by the following circumstantial evidence: Vestnys'
testimony that in connection with his transfer to the San
Francisco route it was Davidor who told him that "he
[Davidor] was going to leave me on that route"; Castil-
lo's conclusionary testimony that Davidor transferred
him to the' Peninsula route; and Gary Mormi's testimony
that when he was transferred to the Peninsula route he
thinks that it was Davidor who told him, "I will put you
on this route." Davidor, on the other hand, testified that
the decision to transfer drivers from one route to another
was made by Vice President and General Manager Er-
rington, not Davidor, and that Errington selected a par-
ticular driver for a particular route based on the driver's
familiarity with that route. When he gave this testimony
Davidor's demeanor was good. The fact that when Davi-
dor informed certain drivers of their transfers that he
gave them the impression by what he said that it was
Davidor. who made that decision to transfer them is not
sufficient to impugn his testimony that he was .merely
carrying out Errington's orders
It is for the foregoing reasons that I find that the Gen-
eral Counsel has failed to establish that Davidor exer-
cised the authority to transfer employees or effectively
to recommend such action.
g. Davidor 's authority to adjust employees ' grievances
or to effectively recommend such action
The evidence pertinent to Davidor 's alleged authority
to-adjust employees ' grievances or to effectively recom-
mend such action follows. -
Early in 1983 Vestnys complained to Davidor about
not being paid overtime when he worked during his
lunch- hour. Davidor responded by. referring to an agree-
ment- between the employees and President Hills reached
in November 1981 wherein the employees agreed to
work during their lunch hour without compensation
In April 1983 Union Respresentative Rodriguez tele-
phoned the terminal and complained to Davidor that Re-
spondent that day violated its contract with the Union
by hiring a casual driver from the street rather than from
BAY AREA-LOS ANGELES EXPRESS
the Union's hiring, facility. Davidor responded by stating
that the casual in question was a nephew of, one of Re-
spondent's regular drivers and that it.would not happen
again.
Early in, 1983 or late 1982 on two or three occasions
Union Steward Vestnys complained to Davidor that non-
employees were driving forklifts on 'the dock of the ter-
minal and told Davidor that this was a violation of the
union contract Davidor responded by stating that "it
was isolated incidents and it would not happen again."
In 1982 and 1983 Union Steward Gary Morini on ap-
proximately 20 different occasions complained to Davi-
dor that employees from other companies were using
Respondent's forklifts which violated the union contract.
In response Davidor some of the time stated, "I will take
care of it," and other times told Morini to tell the person
to get off the forklift
There is no evidence that Davidor participated for Re-
spondent in the adjustment of grievances under the
1979-1982 contractual grievance procedure
In summation, the record reveals that an employee on
one occasion brought his work complaint to Davidor
and that the- union business agent on one occasion com-
plained to Davidor about a contract violation and that
the union stewards on a number of occasions complained
to Davidor about alleged contract violations. However,
under no stretch of the imagination 'do Davidor's re-
sponses to these complaints warrant an inference that he
possessed the authority to adjust employees'. grievances
as that phrase is used in Section 2(11) of the ct or that
he possessed the authority to effectively recommend
such action. The record at most indicates that Davidor
did not have the power to do anything more than merely
attempt to pacify the complaining employees or business
agent.
f Davidor 's authority to discipline employees or
effectively to recommend such action
The record establishes , despite the General Counsel's
contention to the contrary , that Davidor does not have
the authority to discipline employees or effectively. to
recommend such action . The agreed -upon procedure for
disciplining employees was set forth in the 1979-1982
contract . Under the contract , except in cases of certain
egregious misconduct , Respondent was required to have
issued at least one warning letter to the employee, with a
copy to the Union , within the preceding 9-month period
in order to discharge or suspend the employee . A verbal
warning or reprimand had no effect on the employee's
disciplinary . record . The record reveals that all the warn-
ing letters issued to employees by Respondent were
signed by Errington who also conducted the investiga-
tion which led up to the issuance of the letters. There is
no evidence - that Davidor ever issued - a warning letter
and the sole evidence that Davidor even verbally repri-
manded an employee is that, according to Castillo, 'once
in 1981 or 1982 Davidor orally reprimanded .him for fail-
ing to call in at 2:30 p.m . to see whether there -were any
pickups. Davidor denies that he ever verbally reprimand-
ed Castillo for this, but testified that he simply asked
Castillo why he had failed to telephone in at 2.30 p.m as^
required . In any event , there is no showing that this oral
1077
reprimand had any impact on Castillo's employment
status. Quite the opposite, under the terms of the existing
1979-1982 contract, this verbal reprimand had no impact
whatsoever on -Castillo's employment status. Lastly,
there is no evidence that Errington in issuing disciplinary
letters to employees or in otherwise disciplining employ-
ees relied in whole or in part on Davidor's recommenda-
tions or that Davidor even made any recommendations
to him
It is for the foregoing reasons that I reject the General
Counsel's contention that Davidor possessed the author-
ity to discipline employees or to effectively recommend
such action.
g. Davidor's authority to hire or effectively to
recommend the hiring of employees
The General Counsel urges that Davidor effectively
recommended 'the hire of drivers Vestnys and Andrus
and hired casual employees . The evidence pertinent to
these contentions is set forth and evaluated herein.
In 1979 Vestnys was hired after having previously
worked as a truckdriver for one of Respondent's sub-
haulers, Mike Fisher Vestnys testified that he was hired
under the following circumstances . Fisher submitted a
recommendation on Vestnys' behalf Vestnys spoke to
Davidor and told him that he had heard Respondent
needed a driver and asked Davidor for a job Davidor
responded by stating he would "think about it." On a
later date Davidor telephoned Vestnys and told him that
he was hired.
Davidor testified that when Vestnys asked about a job
that Davidor told him there might be a position open for
him, but that Davidor would have to speak with Erring-
ton _ about the matter. Davidor further testified that when
he told Errington that Vestnys had asked about a job,
Errington responded by stating that since subhauler
Fisher and another person had said that they thought
Vestnys was capable of doing a good job for Respond-
ent, that •Errington thought Vestnys would be a good
man to hire for Respondent's job vacancy and instructed
Davidor to hire him.
Errington testified that Davidor did not recommend
that he hire Vestnys, but that Errington decided to hire
him because Respondent's subhauler Fisher had indicated
that he thought highly of Vestnys and that Errington
himself was personally familiar with Vestnys' work as
occasionally Vestnys worked for Respondent as a casual.
So when Vestnys indicated he wanted to work for Re-
spondent, Errington testified he decided to hire him.
In testifying. about - the circumstances surrounding
Vestnys' hire, Davidor ' and 'Errington impressed me as
credible w itnesses . I also note that even assuming that
Davidor told - Vestnys that "he would think about"
Vesinys' employment application, as Vestnys testified;
rather than specifically stating that he would have to
refer the matter to Errington; as Davidor testified, that
Vestnys' testimony is not inconsistent with the testimony
of Errington and Davidor that it was Errington who de-
cided to hire Vestnys based on Errington's independent
evaluation of Vestnys' qualifications and not on Davi-
dor's recommendation. -
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In January 1980 Andrus was employed by Respondent
as a line driver. Previously he was employed by United
Truck Lines, a trucking company located across the
street from Respondent's terminal . Late in 1979 Andrus
spoke to Davidor and told him that work was slow at
United Truck Lines, that as a result he was not working
steady and was looking for steady work and. asked
whether Respondent had any job 'openings Davidor
went to Errington and told him that Andrus was looking
for steady work. Errington replied that Respondent
could not use him on a full-time basis but that Davidor
could use him as a casual driver when regular drivers
were either sick or on vacation and instructed Davidor
to use him in that capacity. Thereafter Andrus worked
intermittently on a casual basis for Respondent. Then in
January 1980 when Andrus learned that one of Respond-
ent's line drivers was quitting, he applied for this job.
Andrus testified that in January 1980 when he learned
that one of Respondent' s line drivers was quitting he
spoke to Davidor and asked about his chances of getting
the line driver's job and Davidor responded by stating:
"As far as I'm concerned you're hired, but I'll have to
talk to Ned Hills." Andrus further testified that later the
same day Davidor telephoned him and stated that "they
had hired me."
Davidor testified that when Andrus spoke to him in
January 1980 about the vacant line driver's job that Da-
vidor told him that Davidor would have to clear his em-
ployment with Errington. Davidor further testified that
he then went to Errington and stated that Andrus
wanted to replace the line driver who was quitting and
asked whether Errington wanted Davidor to hire him.
Errington answered in the' affirmative He explained to
Davidor that his reason for hiring Andrus was that he
thought Andrus had been doing a good job for the Com-
pany on those occasions he had worked for it as a casual
driver.
In testifying about the circumstances surrounding
Andrus' employment, Davidor-impressed me as a credi-
ble witness. Even assuming that Davidor told Andrus
that "as far as I'm- concerned you are hired but I'll have
to talk to Ned Hills," as Andrus testified, rather than that
he would have to clear Andrus' employment with Er-
rington, as Davidor testified, Andrus' testimony is not in-
consistent with Davidor's testimony that it was Erring-
ton who made the decision-to employ Andrus based on
Errington's independent evaluation of Andrus' qualifica-
tions and not on Davidor's recommendation
Regarding the employment of casual drivers, the
record reveals that when Respondent's regular 'drivers
are absent from. work on some occasions Davidor will
hire temporary drivers, known as casuals , to take their
places.. In hiring these casuals Davidor relies on a list of
drivers who have worked for Respondent as casual driv-
ers and who are all equally qualified. In selecting, a
casual Davidor randomly goes through. his list of names
and if the first person he telephones is not 'home or oth-
erwise unavailable Davidor picks another man at random
from the list until he succeeds in employing someone for
the casual work. Under the circumstances;, I am of the
opinion that in hiring casuals Davidor does not exercise
independent judgment within the meaning of Section
2(11) of the Act
Based on the foregoing I find that the General Coun-
sel has failed to prove that Davidor effectively recom-
mended the hire of Vestnys or Andrus or that in hiring
casuals Davidor exercises independent judgment within
the meaning of Section 2(11) of the Act I further find
that the record does not establish that Davidor has the
authority to either hire or to effectively recommend the
hire of employees.
h. Davidor's authority to suspend, layoff recall,
promote, discharge, or reward employees or to
effectively recommend such actions
There is no contention or evidence that Davidor has
any of the above-described authority.
i. Ultimate conclusion as to whether Davidor possesses
any of the statutory authority set forth in Section 2(11)
of the Act
I am of the opinion for the reasons set forth supra, that
the General Counsel, has failed to establish that Davidor
possesses any of the indicia of statutory authority enu-
merated in Section 2(11) of the Act. -
j Secondary indicia of statutory authority
1. Davidor's authority to refuse employees
permission to take time off from work
Respondent's drivers take their requests for time off to
Davidor, whether the requests involve personal time off,
i.e., medical appointments, or requests concerning one of
the three personal holidays under the terms of the 1979--
1982 contract Vestnys and Andrus testified that when
they have asked Davidor for permission to be absent for
personal business on a few of these occasions he has re-
fused their requests. Other than this conclusionary testi-
mony they offered no specifics about their conversations
with Davidor during which he denied their requests.
McGiboney testified that once Davidor refused to grant
his request to be absent from work for personal business
and this occurred in December 1982 when, in response
to McGiboney's request, Davidor told him that he could
not give him the day off because -Respondent was either
too busy or that too many other drivers were going to
be off. McGiboney also testified that occasionally Davi-
dor refused to allow him to take one of his contractual
personal holidays on the date he wanted. Other than this
conclusionary testimony McGiboney offered no specifics
of his conversations with Davidor during which Davidor
refused to allow, him to take a personal holiday on the
day .requested :Lastly Castillo testified that occasionally
Davidor refused-to allow him to take one of his contrac-
tual personal holidays on the date requested. However;
when Castillo was asked to give a more specific account
of these conversations, he was unable to do so and was
vague and evasive., -
Davidor testified when the drivers advised him that
they intended to be absent on a certain day, either for
personal business or to take one of their contractual per-
sonal holidays, that Davidor never told any one of them
BAY AREA-LOS ANGELES ' EXPRESS ' •1079
that they could not take the requested day off However,
if the workload during the time in question was heavy
enough so that the employee's absence would adversely
affect Respondent's business operations, Davidor testified
that he asked whether the employee could postpone his
absence to another day when it would be more conven-
ient for the Company. If the employee answered in the
negative, Davidor testified that he did' not press the
matter any further and that if in fact the employee went
ahead and took the day off that the employee was not
disciplined. Since Davidor impressed me as a more credi-
ble witness than either Andrus, Vestnys, Castillo, or
McGiboney when they testified concerning the subject
matter involved- herein, .1 have credited Davidor' s testi-
mony. I therefore find that Davidor did not refuse em-
ployees' requests for time off from work.
Castillo, who-was eligible for 3 weeks of paid vaca-
tion , asked 'Davidor whether he could take an extra
week of vacation so that he could leave the country and
visit his family. Castillo testified that Davidor replied
that he would think about the request and that 1 week
later Davidor told him that " it was all lright." Davidor
testified that when Castillo made this request Davidor
told him that it would depend on what President Hills
had to say about the request and Davidor spoke to Hills
about the matter and Hills instructed Davidor to let Cas-
tillo have the additional week of -vacation if business was
slow at the time. Davidor impressed me as a credible
witness when he gave his testimony. I therefore find that
in agreeing to let Castillo have an additional week of va-
cation Davidor was merely following Hills' instruction.
(2) Miscellaneous
Although Davidor was classified by Respondent as its
dispatcher and -Respondent's other employees refer to
him by this title, Davidor carried business cards which
identified him as Respondent's 'vice president of oper-
ations and terminal manager . These cards which were
imprinted with the same logo as the Company's other
business cards were ordered by Davidor from the same
printer which does Respondent' s 'printing and the cards
were in fact paid for by Responde'nt.23 Davidor was not
the Company's vice president of operations or its termi-
nal manager and although some of the drivers during the
period from 1979 to 1983 observed these cards and
kidded Davidor about them, no one from management
knew about the cards until late in August 1983 when Er-
rington, upon learning of the cards, confiscated them and
verbally reprimanded Davidor for having them' printed.
Davidor testified that the reason he had-the cards printed
was so he could use them to impress his friends;
Respondent is required by law 'to certify that its truck-
dnvers possess the skills to operate its trucks (Certifica-
tion of Road Test) and -have successfully completed the
written examination required by `the - Motor Carrier
Safety Regulations (Certification of Written - Examina-
tion). Respondent issues drivers.a card entitled "Certifi-
cation of Written Examination" stating that they ' have
23 The cards which were ordered by Davidor himself were delivered
with a shipment of other printed material and the cosi was included in
the same invoice as the other printed materials '
successfully completed the written examination required
by the Motor Carrier Safety Regulations. A representa-
tive of Respondent is-required to sign the aforesaid certi-
fications as well as the cards which Respondent issues to
the drivers showing that they have passed the written
examination . Between 1977 and 1983 the certifications
for at least 10 of the truckdrivers were signed by Davi-
dor who also signed the cards issued to the drivers.
When Davidor signed these certifications and cards he
signed them as Respondent's "vice-president of oper-
ations." Virtually all the drivers who received said certi-
fications and cards were employed by Respondent
during the time material to this case. There is no direct
evidence that either Errington or Hills knew that Davi=
dor had been signing the certifications or cards as the
Respondent's vice president of operations. Nor does the
circumstantial evidence warrant such an inference. Davi-
dor signed such certifications and cards as vice president
of operations pursuant to instructions from Ben Joyce
who, in late 1977, was hired by Respondent to bring its
certification records up to date after Respondent failed
to pass a Department of Transportation audit. Thereafter
whenever Davidor signed the certifications and cards, he
signed them as Joyce in 1977 instructed him.
Although Davidor was represented by the. Union as
part of the 1979-1982 contractual bargaining unit and
was paid the wages and received all of the other benefits
called for -under the terms of that contract and was a
member of the Union who attended the union meetings
dealing with the Union's, representation of Respondent's
employees, Davidor received certain additional benefits
of employment from Respondent which the other em-
ployees did not receive. Besides being paid the highest
contractual hourly rate of pay. and overtime pay as
called for by the contract, Davidor was paid a monthly
salary, of- $350. When business was slow, usually on
Thursday, afternoon, Davidor was permitted to'take part
of the- day off without any loss of-pay. Davidor was al-.
lowed to use one of 'the Company's pickup, trucks to
drive to and from- work daily and -for his own personal
use during his nonworking hours and was allowed to op-
erate it for, his personal use using gas from the Compa-
ny's gas pump. -
Davidor, before taking the local- drivers' weekly time-
cards and the line drivers' ' trip reports to Errington,
checked them for accuracy -and initialed them to indicate
to Errington that he had checked them. After reviewing
the cards Ernngton then sent 'them- to the bookkeeping
department. . . • " ' • , ' . -
r - In 1983 Davidor attended' a business convention with
Hills because Hills thought that it' would be a good idea
for Davidor. to meet face-to-face with some of Respond-
ent-'s customers" whom Davidor had been talking to-over
the telephone-for the- past- several years: In 1982 Davidor
went on, an overnight trip twith Errington to visit one of
Respondent's larger- accounts :because it was having
pickup and delivery problems and -Errington felt • that it
was advisable under the circumstances that Davidor
meet personally with the person from that company
whom' he dealt with- daily concerning the pickups and
deliveries. Also the record reveals that early in 1983 Da-
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vidor spent 3 days at the terminal of BJD Trucking
Company, the nonunion trucking company in Los Ange-
les owned by Hills, where he worked as a dispatcher in
place of the regular dispatcher who was absent.
Lastly, Vice President and General Manager Erring-
ton, who is responsible for Respondent's daily oper-
ations, leaves the terminal before the drivers return to
unload their trucks.
(3) Ultimate conclusions regarding secondary
indicia
The General Counsel contends that the above-de-
scribed secondary supervisory indicia show that Davidor
is a statutory supervisor . However, "secondary indicia of
supervisory status . . . are in themselves not control-
ling." Memphis Furniture.Mfg. Co., 232 NLRB. 1018,
1020 (1977). Accord: St. Alphonsus Hospital, 261 NLRB
620 (1982). See also NLRB v. Harmon Industries, -565
F.2d 1047, 1049 (8th Cir. 1977) (in order to be held a su-
pervisor, independent judgment contemplated by Section
2(11) "must be exercised with respect to one of the enu-
merated functions under the statute and not with respect
to some other aspect of the individual 's work").- Thus,
where, as here , there is no showing that Davidor pos-
sesses any of the authority set forth in Section 2(11) of
the Act the several miscellaneous secondary indicia,
supra , pointed to by the General Counsel are insufficient
to support a finding of supervisory status . Moreover, a
close examination of the alleged secondary indicia relied
on by the General Counsel establishes that , under the
circumstances of this case , whether viewed separately or
together they do not warrant an inference that Davidor
was a statutory supervisor . This conclusion is based on
the following considerations.
Davidor routinely okayed drivers' requests for time off
and- was without authority to expressly refuse the re-
quests. Thus a driver was not disciplined or otherwise
reprimanded if he ignored--Davidor's suggestion that he
take another day-off rather than the one the driver re-
quested . And in the matter of Castillo's extra week of va-
cation , Davidor merely acted as President Hills' conduit.
Although Davidor checked the employees ' timecards
for accuracy, Vice President and General Manager Er-
rington conducted an independent check of the cards
prior to sending them to the bookkeeping department.
The fact that in connection with his duties as dispatch-
er. Davidor once attended a business convention with
President Hills and on another occasion visited a custom-
er's premises with .Vice President and General Manager
Errington hardly indicates supervisory status nor does
the fact that Davidor was once assigned by Hills to work
as a dispatcher for 3 days at another company owned by
Hills.
The fact that Davidor receives substantially more
money than the other employees and receives other em-
ployment benefits they do not receive is not inconsistent
with employee status. Thus, Davidor was the Company's
most senior employee who due to the nature of his job
was required to work. substantial amounts of overtime. I
also note that the law is settled that the disparity of com-
pensation as well as other employment . benefits cannot be
"accorded litmus paper significance in the absence of
solid evidence or possession of supervisory responsibil-
ity." Oil Workers v. NLRB, 445 F.2d 237,242 (D.C. Cir.
1971).
The fact that if Davidor, is not a statutory supervisor
that the truckdrivers would have no supervision during
the part of the workday when they unload their trucks
does not warrant an inference that Davidor is a statutory
supervisor where , as here , only a limited part of the em-
ployees ' working time is involved and the work involved
is routine work performed by a small number of workers
all of whom are veteran employees with several years of
experience working for the Company In addition the
record reveals that Errington when he is not present at
the terminal can be reached by telephone in the case of
an emergency.
Although Davidor in connection with the truckdriv-
ers' certifications represented - himself as Respondent's
vice president of operations and on his business cards
represented himself as the terminal manager as well as
vice president of operations, there is insufficient evidence
to establish that Respondent authorized or ratified this
conduct . In any event the law is settled that "whether an
individual is a supervisor within the Act's. definition
cannot be determined simply by referring to a job title."
Ross Porta-Plant, 166 NLRB 494, 496 (1967).
Lastly I note that the several secondary indicia relied
on by the General Counsel to show that Davidor is a
statutory supervisor are more than offset by the undis-
puted evidence that during all times material to this case
Davidor was a• member of the Union who was represent-
ed by the Union in the same bargaining unit as Respond-
ent's truckdrivers and whose terms and conditions of em-
ployment, like the truckdrivers', were governed by the
terms of the 1979- 1982 contract and who, like the other
employees covered by that contract, attended union
meetings where matters concerning the employees' terms
and conditions of employment were discussed.
It is for all the foregoing reasons that I am of the opin-
ion that the various secondary indicia of supervisory
status relied on by the General Counsel fails to establish
that Davidor is a supervisor within the . meaning of Sec-
tion 2(11) of the Act. '
2. David Guernsey 's supervisory status
David Guernsey is Respondent 's assistant dispatcher
He assists dispatcher Davidor and takes Davidor's place
when Davidor is absent . The General Counsel urges that
Guernsey is a supervisor within the meaning of Section
2(1,1) of the Act. This argument is based on the further
contention that Davidor is a statutory supervisor . Since I
have found , supra , that Davidor is not a supervisor but a
rank-and-file employee, it follows that the General Coun-
sel has failed to establish that Guernsey is a statutory su-
pervisor . I therefore find that during the time material
herein that Guerney who was represented by the Union
and covered by the 1979-1982 contract was a rank-and-
file employee.
3 Hills threatens Vestnys
As I have found supra, on an unknown date between
April and June 1983, President Hills, while on the Com-
BAY AREA-LOS ANGELES EXPRESS
pany's dock, spoke to Michael Vestnys, a truckdriver
who was a union steward , and told him that if he did not
stop "rousing up"24 the drivers, that the drivers would
"all be out of a job." Vestnys replied by stating that Hills
should give the other drivers credit for having their own
thoughts and convictions on the subject of the Union's
activities at the terminal . Previously Vestnys had spoken
out against Respondent 's contract proposals at union
meetings.
, The General Counsel contends that Hills' threat vio-
lates Section 8 (a)(1) of the Act because it has a reasona-
ble tendency to interfere with the right of Vestnys to
speak against Respondent 's contract proposals when talk-
ing with his fellow employees . Respondent urges that
Hills' threat is too vague to constitute a,violation of Sec-
tion 8(a)(1).
Viewed in the context in, which this threat was
made`-Vestnys' public opposition to Respondent's con-
tract proposals-I am persuaded that Hills' above-de-
scribed statement on its face 'was reasonably calculated
to lead Vestnys to believe that it was a threat aimed at
dissuading him from continuing to express his opposition-
to Respondent's contract proposals . As a matter of fact
Vestnys' reply to the threat makes it abundantly clear
that he felt that it was directed against his outspoken op-
position to 'Respondent 's contract 'proposals . It is for
these reasons that I find Respondent violated Section
8(a)(1) of the Act when sometime between April and
June 1983 President Hills threatened employee Vestnys
that Vestnys and the other drivers would lose their, jobs
if Vestnys succeeded in persuading the other drivers not
to support Respondent 's contract proposals.
4. Hills deals directly with employees , threatens
them , and promises them benefits
In the latter part of July 1983 Hills and Errington held
an impromptu meeting in Errington 's office with six of
the Company's - drivers-McGiboney, Gary Morini,
Vestnys, Melendy, Ravey, and Castillo-who stayed for
various lengths of time. More than one discussion oc-
curred. Errington talked to some employees while Hills_
talked to others . Hills and Errington told drivers that
Repondent was suffering from serious financial problems,
was losing $10,000 monthly, and asked them for ideas or
suggestions on ways the Company could save money. It
was also stated that it was very important for the drivers
to talk to their union representatives and persuade them
to move off "the dime", on Respondent 's contract pro-
posals. Errington stated that Respondent could not
afford to pay the level of benefits being proposed by the
Union.
In addition to these undisputed statements made to em-
ployees during this meeting , Hills, as I have found supra,
in his several conversations with employees also stated to
one or more of the employees that if the Union failed to
accept Respondent 's contract proposals he would be
forced to close the doors of the Company because of its
poor financial condition and he asked the employees to
work for Respondent without union - representation Hills
24 The 1964 college edition of Webster 's New World Dictionary defines
"rouse" as follows "to stir up , as to anger or action , excite "
1081
also told employees that one of the reasons Respondent
was losing money was the expense of the Union 's health
and welfare plan and stated that if the employees went
nonunion Hills would give them an equal or better
health and welfare plan than the Union was currently of-
fering; that Hills intended to increase the drivers' pay to
$14 per hour ; and that the drivers could buy their own
trucks and haul for Hills as owner -operators and that the
drivers who wanted to buy their own trucks would be
given financial assistance by Hills in purchasing their
trucks It is the position of the General Counsel that
these statements violated Section 8(a)(1) and (5) of the
Act. I agree.
Here Hills did more than urge employees to prevail on
the Union to accept Respondent 's bargaining demands.
Hills impressed on the employees that if the Union re-
fused to accept Respondent 's contract proposals the em-
ployees would lose their jobs and Respondent would op-
erate nonunion ; he stated that if the employees agreed to
work nonunion Respondent 'would grant them a health
and welfare plan which ' was as good or better than the
plan being currently offered by the Union , increase their
rate of pay , and would help those drivers who wanted to
work as owner -operators purchase their trucks . Hills'
aforesaid threats and promises of 'benefits on the face
were intended to exert pressure on the employees to
force the Union to accede to Respondent 's bargaining
position . In effect , Hills was attempting to wean the em-
ployees away from the Union and to deal directly with'
them concerning matters on which Respondent was obli-
gated ' to bargain with the Union . Or phrased another
way, Hills' threats and promises were reasonably calcu-
lated to impress on the employees that their ' continued
employment would be adversely affected by the Union's
contract demands and that they would do better for
themselves as employees without the Union representing
them . By engaging in such conduct Respondent through
its President Hills not only interfered with employees'
Section 7 rights in violation of Section 8(a)(1) of the Act,
but also undermined the Union and its bargaining posi-
tion in violation of Section 8(a)(5) and ( 1) of the Act.
Based on the foregoing I find that in late July 1983
Respondent, through its President Hills, violated Section
8(a)(1) and (5) of the Act by engaging in the following
conduct : dealing directly with employees represented by
the Union , threatening employees that if the Union did
not accept Respondent 's contract proposal Respondent
would close its doors and operate nonunion ; promising
that if - the employees worked without union representa-
tion Respondent would increase their wages, grant them
a health and welfare plan which was as good or better
than their current plan , and assist them financially in
buying their own trucks if they wanted to work for Re-
spondent as owner -operators.25
25 I realize that the above -described threats while alleged in the com-
plaint as having violated Sec 8(a)(l) of the Act were not specifically al-
leged to have violated Sec 8(a)(5) Only Hills' promises of benefits were
alleged to have violated Sec 8(a)(5) of the Act , as well as Sec 8(a)(1)
However, "it is well established that a violation not alleged in the com-
plaint may nevertheless be found where, as here, the unlawful activity
was related to and intertwined with the allegations of the complaint, and
the matter was fully litigated before the Administrative Law Judge "
Doral Hotel & Country Club , 240 NLRB 1112 fn 3 (1979)
1082 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
In concluding that Respondent violated the Act when
Hills stated that if the Union did not accept Respondent's
contract proposals'he would be forced to close the Com-
pany's doors and operate nonunion because of the Com-
pany's poor financial condition, I have considered 'Re-
spondent's argument that this statement was protected by
Section 8(c) of the Act because Hills "did nothing more
than objectively predict the economic consequences
which might reasonably be expected to result from full.
implementation of the -Union's excessive demands." I
reject this contention for these reasons . In NLRB v.
Gissel Packing Co., 395 U.S. 575, 618-619 (1969), the Su-
preme Court established the standard by which employer
predictions about. the effects of unionization , such as
Hills', are to be assessed. Such predictions
. .. must be carefully phrased on the basis of objec-
tive fact to convey an employer's belief as to de-
monstrably probable consequences beyond his con-
trol . . . . If there is any implication that an em-
ployer may or may not take action solely on his
own initiative for reasons unrelated to economic ne-
cessities and known only to him, the statement is no
longer a reasonable prediction based on available
facts but a threat of retaliation based on misrepre-
sentation and coercion . . . .
Here while Hills and Errington stated to the drivers that
Respondent was `suffering from serious. financial prob-
lems and was losing $10,000 monthly, Respondent did
not substantiate these assertions. Quite the opposite, the
record indicates that Respondent, during the period in
question, the first 6 months of 1983, was not losing
money or,otherwise in financial difficulties. As I have
found supra, Hills falsely testified that Respondent, lost
money in 1982 when in fact in 1982 Respondent earned a
profit of over $180,000 and there was no evidence to es-
tablish that in 1983 Respondent was losing money during
the time in question or was in financial difficulties during
that period Indeed, as I have found supra , there is no
reason to believe that in 1983 during the time material to
this case that Respondent was not earning a profit just.as
it had done in 1982 and that just as was the case in 1982
that it was Hills' nonunion trucking company, BJD
Trucking Company, which was the unprofitable enter-
prise rather than Respondent. Moreover, Hills' statement
that if the Union did not accept Respondent's contract
proposal he would be forced to close the Company's
doors and operate nonunion was'expressed at the same
time as Hills' illegal statement that if the employees
agreed to work as nonunion workers Respondent would
grant them a health and welfare plan which was as good
or better than the Union's plan, increase their rate of
pay;' and' would help those drivers who desired to work
as owner-operators purchase their trucks., Thus,,, when
Hills' -disputed statement is viewed in the light of -his
other contemporaneous illegal statements -it- would be'
grounds' 'for the employees reasonably to' infer that the
intended and understood import of Hills' message was
not a prediction but a threat of retaliation. In other
words, Hills' other • contemporaneous conduct clearly
suggested to the employees that the Company would act
"solely on [its] own initiative for reasons unrelated to
economic realities." NLRB v. Gissel Packing Co., 395
U.S. 575, -618, 619. It is for all. these reasons that I reject
Respondent's argument that Hills' threat to close the ter-
minal and operate nonunion was protected by Section
8(c) of the Act.
5. Davidor's alleged illegal conduct
- _F
As I have described in detail supra, Dispatcher Davi-
dor engaged in the following conduct which the General
Counsel contends was attributable to Respondent and
violates Section 8(a)(1) and (5) of the Act.
On August 9, after working hours, several 'of Respond-
ent's truckdrivers-Ravey, Melendy, Castillo, Gary and
Frank Morini, Guernsey, and McGiboney-met with
Davidor at his request in the dispatcher's office. Davidor
told them that he had a contract proposal to present to
them from Hills, that he was presenting it to them in-
stead of Hills because Hills' lawyer had instructed Hills
not to speak personally to the employees about this sub-
ject. Davidor read-from a sheet of note paper certain
proposals dealing with employees' wages, hours, vaca-
tions, holidays, health and welfare and insurance, and
other terms and conditions of employment. Davidor told
the employees' that if they did not accept this contract
proposal "the doors would be closed by Friday of that
week." Davidor asked the employees to sign statements,
like one he had already signed , which stated that 'the em-
ployees did not want the'Union or any other union to
represent them. Davidor told them that' if they wanted to
resign from the Union they could sign such a statement.
He also declared:. "[Hills] is- going nonunion and that is
it." -
During the beginning of the meeting when Frank
Morini left the dispatch office, Davidor followed him
outside and 'told him that if' Hills did' not get the afore-
said contract- 'proposal' Hills intended to "close the
doors" and indicated that Morini would be out of a job.
Following Davidor's above-described statements,
Ravey and Melendy 'before leaving the dispatch office
signed statements similar to Davidor stating that they did
not want the Union or any other union 'to represent
them:' They gave their signed statements to Davidor.
Later that evening Davidor 'telephoned employee
Jackson and advised him of the identical contract pro-
posal as he had 'communicated to the other--employees
earlier that evening .and told Jackson that Hills intended
to close the doors of the terminal do Friday if there was
no agreement reached on`a'contract. '
The next morning, August 10, Davidor successfully so-
licited salesman Bernstein and truckdriver Quinn to 'sign
statements identical to the ones sighed . by Davidor,
Ravey, and Melendy: Quinn gave his signed statement'to
Davidor. Thereafter= on August 11 Davidor successfully
solicited Jackson to sign' such a'statement'which' Jackson
left with Davidor'and at the same time Guernsey,. who
had previously been solicited by Davidor on November
9 to sign a statement similar to Davidor's, not gave Da-
vidor such a statement Finally on August 16 Davidor,
when employee Buick returned from vacation, successful-
ly solicited him to sign a statement identical to the ones
BAY AREA-LOS ANGELES EXPRESS 1083
Davidor and the other employees had signed. Blick gave
his statement to Davidor.
If Davidor was acting as an agent of Respondent then,
when, as I have found supra, he communicated the con-
tract proposal to the employees on August 9, 1983, and
threatened that if they-did not accept the proposal Re-
spondent intended to close its doors and operate non-
union, Respondent violated Section 8(a)(1) and (5) of the
Act inasmuch as this conduct was reasonably calculated
to undermine the Union as the employees' collective-bar-
gaining agent and to discourage the employees from sup-
porting-the Union's' bargaining -position. Also, Davidor's
further conduct of soliciting employees to sign state-
ments repudiating the Union as their collective-bargain-
ing representative -violated Section 8(a)(1) of the Act and
since this conduct took place in the context of Davidor's
direct dealings with the. employees and in derogation of
the Union's status as the employees' collective-bargaining
representative,, it also violated ' Section 8(a)(5). and (1) of
the Act 26 Thus the essential question presented is
whether the General Counsel has established that Re-
spondent was responsible for Davidor's above-described
conduct, even though Davidor, as I have found supra,
was a rank-and-file employee represented by the Union
and covered by the 1979-1982 collective-bargaining con-
tract. I am of the opinion for the reasons set forth herein-
after that the General Counsel has failed to establish that
Respondent was responsible for Davidor's above-de-
scribed conduct.
An employer is liable for unfair labor practices com-
mitted by an employee who acts as an agent of the em-
ployer. See Machinists v. NLRB, 311 U.S. 72, 80-81
(1940). In determining whether an employee is acting as
an employer's agent with respect to improper conduct
under the Act, the question of whether the specific acts
performed were actually authorized or subsequently rati-
fied is not controlling, rather the general rules of agency
and particularly the rules of apparent authority are appli-
cable. NLRB v. Bel-Air Mart, 497 F.2d 322, 324 (4th Cir.
1974), NLRB v. Johnson Sheet Metal, 442 F.2d 1056, 1060
(10th Cir. 1971).
"To establish that an agent had apparent authority to
bind its principal it must be shown that the principal
knowingly- permitted the agent to exercise the authority
in question, or in some manner manifested its consent
that such authority be exercised." Travelers Insurance Co.
v. Morrow, 645 F.2d 41, 44-45 (10th Cir. 1981). See also
Restatement 2d, Agency § 8 (1958), quoted with approval
in American Society of Mechanical Engineers v. Hydrolevel
C o r p . , 456 U S 556, 566 fn. 5- (1982) (apparent authority
is "the power to affect the legal relations of another
person by transactions, with third persons, professedly as
agent for the other, arising from- and in accordance with
the other's manifestations to such third persons"). "The
principal's manifestations, giving rise to apparent author=
ity may consist of direct statements to the third person,
26 Davidor's solicitation of the employees to repudiate the'Union was
alleged in the complaint as having violated Sec 8(a)(1) of the Act It was
not alleged as an 8(a)(5) violation However, the 8(a)(5) aspect of this
conduct was inextricably intertwined with the 8(a)(1) allegation of illegal
solicitation and with other 8(a)(1) violations and the matter was fully liti-
gated
directions to the agent to tell something to the third
person, or the granting, of permission to'the agent to per-
form acts under circumstances which create in him a
reputation of authority in the area in which the agent
acts . .. ." NLRB v. Donkin's Inn, 532 F 2d 138, 141
(9th Cir. 1976).
Consistent with the above-described principles of
agency the Board has long held that where'an employer
places an employee in a position where employees could
reasonably believe that the employee spoke on behalf of
management, the'employer has vested the employee with
apparent authority to act as the employer's agent, and
the employee's actions are attributable to the employer.
E.g., NLRB v. Solboro Knitting Mills, 572 F.2d 936, 940-
941a (2d Cir. 1978); Helena Laboratories Corp. v. NLRB,
557 F.2d 1183, 1187 (5th Cir. 1977) I realize that in cases
of this nature in.attributing a rank-and-file employee's
conduct to an employer the Board often takes into ac-
count the context in which the employee's conduct
occurs, i e., the employee's conduct was consistent with
other contemporaneous unfair labor practices committed
by management; however, I know of no case where the
Board has held that an employer was responsible for a
rank-and-file employee's conduct, absent evidence of
conduct by the employer which placed the employee in
a position where other employees could reasonably be-
lieve that the employee acted on behalf of management.
This conduct of the employer has generally consisted of
assigning the employee. to a job with duties which were
reasonably calculated to cause the other employees to
believe that he was acting on behalf of management; di-
recting the employee to serve as a conduit between man-
agement and the employees or-as the eyes and ears of
management; acquiescing in the employee's conduct
which occurred in the presence of admitted supervisors;
and by engaging in conduct which was calculated to
lead the other employees to believe that the employee
was acting as the company's emissary See, e g., Bohe-
-mia,' Inc , 266 NLRB 961 (1983), Jules V. Lane, D.D.S.,
262 NLRB 118 (1982); -Propellex Corp, 254 NLRB 839
(1981); Com,nunity Cash Stores,-238 NLRB 265 (1978);
Schulte's, IGA Foodliner, 241 NLRB 855 (1979); Broyhill
Co., 210 NLRB 288 (1974), and Aclang, Inc., 193 NLRB
86 (1971).
Here the General Counsel contends that Respondent
was responsible for Davidor's above-described conduct
because Respondent placed him in a position where the
employees-could have reasonably believed that he was
speaking on behalf of management In support of this
contention the General Counsel apparently relies on the
following evidence: On August 9 when he submitted that
he was presenting it on behalf of President Hills, the
contract proposal was written on a piece of paper in the
handwriting of Vice President and General Manager Er-
rtngton; Davidor's conduct was consistent with President
Hills' contemporaneous threat to the..employees that, if
the Union did not accept Respondent's contract de-
mands, it would close its doors and operate nonunion.
The General Counsel also urges that Respondent ratified
Davidor's conduct when on August 10 Davidor told Er-
rington that the previous evening he had met with the
1084 - DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
other employees and talked to them about dropping out
of the Union and also told Errington that he had made a ,
little summary of Respondent's 1982 contract proposal
which lie had, submitted to- the employees and asked
whether Errington thought that this proposal would still
be acceptable to the Company. Errington, who indicated
he was dumbfounded by what Davidor was telling him,
remained silent except that, when Davidor asked wheth-
er the contract proposal Davidor, had submitted to the
employees would still be acceptable to the Company,,Er-
rington replied that he would talk it over with President
Hills.
The General Counsel' s contention that' Erringtton's
above-described August 10 conduct ratified Davidor's
disputed conduct so that Respondent became responsible
for it is too frivolous to warrant discussion . The more in-
teresting and difficult question is whether the evidence
relied on by the General Counsel warrants a finding that
Respondent engaged in' conduct which' placed Davidor
in a position so that the employees to whom he spoke
about the Union could have reasonably believed that he
was speaking on behalf of management . The 'fact that
Davidor represented to the employees that he was speak-
ing to them on behalf of President Hills was obviously
not Respondent's conduct. Nor, as I have indicated
supra, does the fact that Davidor' s conduct - occurred in
the context of President Hills' similar contemporaneous
unfair labor practices warrant a finding that Respondent
is responsible for Davidor's conduct , absent evidence
that Respondent by its conduct placed Davidor in a posi-
tion where employees could reasonably have believed he
was acting on behalf of management. In this regard there
is no showing that by virtue of his duties as dispatcher or-
his other duties Davidor had been placed in a position so
that the employees could have reasonably believed that
when he-spoke to them about the Union he was speaking
on behalf • of management .27 -The Isole evidence from
which a respectable argument can be fashioned that Re
-spondent placed Davidorin a position, so that his disput-
ed conducted herein may be attributable to it , is the un-
disputed fact that the writing on the piece of paper used
by Davidor to communicate the contract - proposal to the
employees was,Errington' s. On questioning by the Gen-
eral Counsel Errington testified that'he did not give this
document to Davidor and in response to the General
Counsel's further question,- "Do you.know if Davidor
came into possession'of that document?" testified, "Yes,
he did." Other than Errington's aforesaid testimony there
is no evidence concerning the circumstances surrounding-
Davidor's possession of this document . Under these cir-.
cumstances I do.not believe that the state of the'record
warrants an inference that Respondent either directly or
by implication authorized Davidor to communicate the.
context of the document to the other employees. For it is
,lust -as :likely or even more than likely that Respondent
allowed' Davidor to have or gave him this document for
27 I also note that while the record , as described supra, reveals that
Davidor represented, himself as the Company's vice president of oper-
ations and terminal manager there is insufficient evidence that manage-
ment either authorized this conduct or ratified it Also, the record reveals
that when other employees observed Davidor's business cards bearing
these titles they -did not take his titles seriously -
his own personal consideration, rather than with instruc-
tions that he communicate its contents to the other em-
ployees. In this regard I note that if an employer, either
in writing or verbally, violates Section 8(a)(1) when
communicating with an employee and that subsequently
this employee relays the employer' s illegal message to
other employees, it does not follow- that this subsequent
communication by the employee to the other employees
is attributable to the employer, absent evidence that th'e
employee was authorized to relay the employer's mes-
sage or was acting with apparent authority.28 It is for
this, reason that I will not presume -that when Davidor
came into possession of Errington's handwritten contract
proposals he was given authorization to relay these pro-
posals to the other employees. Thus, absent a showing
that Davidor was authorized to relay the message con-
tained in Errington's handwriting to the other employees
or was acting with apparent authority, the fact that the
contract proposal made to the employees by Davidor
was written in Errington's handwriting is insufficient to
establish Respondent's responsibility for Davidor's con-
duct.
Based on the foregoing I find that the General Coun-
sel has failed to establish that on.August 9 and 10, 1983,
when Davidor, as described supra, spoke to the employ-
ees about the Union he was acting as Respondent's
agent. I therefore shall recommend the dismissal of those
allegations of the complaint which attribute unfair labor
practices to Respondent based on- Davidor's conduct.
6. Hills' alleged illegal conduct committed in
August 1983
The General • Counsel contends that on August 10,
1983, Respondent violated Section 8(a)(1) of the Act
when President Hills, promised striker Andrus a guaran-
tee against discharge if he returned to work and that
-later that same day further'violated Section 8(a)(1) when
Hills told strikers Fred and Gary Mormi that if they did
not return to work Respondent would-'go bankrupt.
These contentions are without merit because, as I have
found supra, Hills did not engage in this conduct.
• The General Counsel contends that Respondent on
August 25, 1983, violated Section 8(a)(1) of the Act inas-
much as, on that day, Hills in an effort to get striker
Andrus to return to work threatened Andrus that Re-
spondent would go bankrupt. This contention is not en-
compassed by the pleadings nor is it related to the allega-
tions in the complaint that on August 25 Hills violated
Section 8(a)(5) by bypassing and dealing directly with
the employees by telling- them that they were stupid not
to accept Respondent's contract offer because it was the
best offer they would receive 29 Thus, it is not surprising.
28 1 also note that there is no showing that` 'when Davidor showed the
document in question to the other employees they realized that the hand-
writing contained in the document was Errington's -
29 The General Counsel's postheanng brief does not urge that the
record supports this allegation As a matter of fact, the evidence , supra,
fails to support it While Hills on August 25 solicited the strikers to
return to work, he made no attempt to deal with them concerning em-
ployees' terms and conditions of employment Rather , Hills appears to
have been attempting to justify the Respondent's bargaining position
which had resulted in the employees' ceasing. work and striking I shall
therefore recommend that this allegation be dismissed
BAY AREA-LOS ANGELES EXPRESS
that Respondent failed to litigate this issue In any event,
accepting Andrus' uncontested _ testimony, described
supra, it does not appear that when Hills stated that Re-
spondent "could go bankrupt" it was said in an effort to
-solicit Andrus to return to work. Rather, it was merely,
an indication by Hills that he felt that the Union's con-
tract proposals-were so unreasonable that they would
have driven Respondent into bankruptcy. It is for all of
these reasons that.I reject the General Counsel' s conten-
tion that Respondent violated Section 8(a)(1) on August
25, 1983, by threatening striker Andrus that Respondent
would go bankrupt. -
7. Respondent withdraws recognition from and
refuses to bargain with the Union
On August 16, 1983, as described supra , Respondent
withdrew recognition from the Union as the collective-
bargaining representative of the Respondent 's employees
covered 'by the 1979- 1982 contract and has since that
date refused" to recognize and bargain with the Union for'
a successor contract.
It is settled that an incumbent union at the termination
of its contract - with an employer has a rebuttable pre-
sumption that it represents a majority of the employer's
unit'-employees . NLRB v. Pioneer Club , 546 F . 2d 828, 829
(9th Cir . 1976). The employer, however ; may rebut this
presumption of continuing majority status and legally
withdraw recognition from the union and refuse to nego-
tiate for a new contract by a clear and convincing show-
ing of either actual loss of majority status or of objective
factors sufficient to support a reasonable good-faith
doubt of the union 's majority . NLRB v. Tahoe Nugget,
584 F 2d 293 , 297 (9th Cir . 1978), and cases cited therein.
However , it is equally well settled that an employer may
not justify a refusal to bargain premised on the basis of a
loss of union majority support reasonably attributable to
the employer 's -own unfair labor practices ; to hold other-
wise would be an invitation to violate the law in order to
create such a loss of support . CLear Pine Mouldings v.
NLRB, 632 F.2d 721, 730 (9th Cir. 1980); NLRB v. Sky
Wolf Sales, 470 F.2d 827, 830 (9th Cir . 1972).
As I have found supra, -on August 16, 1983, the -date
Respondent withdrew recognition from the Union, the
collective -bargaining unit involved in this case consisted
of 14 employees of whom 7 had signed statements saying
they no longer wanted the Union to represent them Re-
spondent 's August 16 withdrawal of recognition is based
on these statements , Normally this would be sufficient to.
rebut the presumption of the Union 's majority status.
The General Counsel , however , argues that Respondent
is not privileged to question the Union's majority status
based , on -these , employee statements because they were
solicited by dispatcher Davidor who was either a statuto-
ry supervisor or was acting as Respondent 's agent when
he solicited the -statements I have found , supra, that Da-
vidor was a rank -and-file employee and was not acting as
Respondent 's agent when he solicited these statements.
This does ' not end , the matter , for the General Counsel
also contends that in withdrawing recognition from the
Union Respondent could not rely on the employees'
statements that they did not want union representation
because these 'statements were . tainted . by Respondent's
1085
prior unfair labor practices. Respondent takes the posi-
tion that its prior unfair labor practices were not suffi-
ciently 'flagrant or egregious so as to have tainted the
employees' statements that they did not want union rep-
resentation and that, in any event,_ there is no showing
that the unfair labor practices affected or influenced the
employees who signed the statements. The evidence per-
tinent to the question of whether the unfair labor prac-
tices committed prior to the employees' union repudiat-
ing statements precluded Respondent's use of these state-
ments as a basis for its withdrawal of recognition is set
forth and discussed below. -
As I have found supra, sometime between April and
June 1983, Respondent's president Hills violated Section
8(a)(1) of the Act by threatening employee Vestnys that
Vestnys and. other employees would lose their jobs if
Vestnys succeeded in persuading the other employees
not to support Respondent's, contract proposals. This'
unfair labor practice, which took place possibly as much
as 4 months prior to the employees' signing of the union
repudiating statements and which did not involve any of
the seven employees who signed such statements, is in-
sufficient to taint any one of the seven union repudiating
statements relied on by Respondent.
The subsequent unfair labor practices committed by
President Hills which predate the union repudiating
statements are an entirely different matter As I have
found supra, approximately 3 weeks prior to the signing
of the seven union repudiating statements , President Hills
at a meeting attended by 6 of the 14 unit employees-
Mormi, McGiboney, Vestnys, Castillo, Ravey, and Me-
lendy-violated Section 8(a)(1) and (5) of the Act by
dealing directly with the employees, by threatening em-
ployees that if the Union did not accept Respondent's
contract proposals Respondent intended to close its
doors and operate, nonunion , by promising the employees
that if the employees worked nonunion that Respondent
would increase their wages, grant them a health and wel-
fare plan which was as good or better than the current
plan, and assist them financially to buy their own trucks
if they wanted to work for Respondent as' owner-opera-
tors. "
I am persuaded that Hills' aforesaid unfair labor prac-
tices were sufficiently egregious and flagrant to warrant
the inference that the Union's loss of majority status was
reasonably attributed to them. Thus, Hills dealt directly
with' the employees concerning their terms of employ-
ment in derogation' of the Union's representative status,
warned employees that. if they supported the Union's'
bargaining position they would lose their jobs, and prom-
ised employees that if they agreed 'to work for Respond-
ent without a union that Respondent would grant them
better terms of employment than they presently enjoyed.
On its fact Hills' illegal conduct was designed to cause
employee disaffection with the Union, with the erosion
of majority status the probable result, and I find that this
was Hills' intent. Moreover,, the misconduct occurred
during a meeting attended by 6 of the 14 unit employees,
2 of whom later signed union repudiating statements, and
was engaged in by Respondent's highest ranking official,
not long before the employees signed their statements re-
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pudiating the Union The foregoing circumstances per-
suade me that the General Counsel had proven that
Hills' above-described unfair labor practices were the
proximate cause of at least one of the employee union re-
pudiating statements relied on by Hills as the basis for
Respondent's withdrawal of recognition.- and refusal to
bargain.30
In concluding that Hills' misconduct was the proxi-
mate cause of at least one of the employee union repudi-'
-ating statements relied on by Respondent, I have careful-
ly considered Respondent's argument that Hills' illegal
conduct could not have caused the employees to repudi-
ate the Union because there is no evidence that they
knew about these unfair labor practices. Two of the
statement signers, Ravey and Melendy, attended the
meeting where Hills engaged in his illegal conduct. I rec-
ognize that, since employees came and went at various
times and that since Hills spoke to different employees at
different times during the meeting, it is possible that
either Ravey or Melendy heard only some or none of
Hills' illegal statements, but in view of the small size of
the bargaining unit and the fact that a substantial per-
centage of the unit employees were present during this
meeting, I think that it is a fair inference that if Ravey.
and Melendy did not personally hear Hills' illegal state-
ments in whole or in part during the meeting they were
informed of his statements thereafter by other employees.
Indeed, it is a fair inference that, of the other employees
.who did not attend Hills' July meeting and who signed
union repudiating statements, some or all of them learned
of his illegal statements from their fellow workers. For
according to employee Castillo, who impressed me as a
credible witness demeanorwise when he gave his testi-
mony, the day following Hills' July meeting "the compa-
ny was abuzz about" the meeting as the employees dis-
cussed among themselves what had taken place there.
This is not suprising for. as the Board has noted: "We
cannot discount the teaching of experience and common-
sense that employees who . . . have constant contact
with each other at their place of work are not likely to
refrain from discussing their employer's demonstrations
of hostility to a union."3 i Warehouse Market, 216 NLRB
216, 217 (1975). It is for these reasons that I am persuad-
ed that the evidence warrants an inference that at least
one of the employees who signed the union repudiating
statements relied on by Respondent learned about Hills'
illegal statements by.being present when they were made
or by being informed by other employees about the
statements.
In concluding that the unfair labor practices commit-
ted by President Hills tainted at least one of the seven
employee - statements repudiating the Union, I have in-
ferred that a proximate cause of at least one of the em-
ployees signing his statement was Hills' misconduct. I
30 Since 7 of the 14 unit employees signed union repudiating state-
ments, if only I employee was improperly coerced into signing his state-
ment, Respondent's withdrawal of recognition would have been based on
statements of less than an uncoerced majority
Si Although Respondent's two linedrivers have very little contact with
Respondent's other drivers, the record reveals that Respondent's other
drivers spend between 2 and 3 hours daily working together at the termi-
nal unloading and loading their trucks -
recognize that there are situations where such an infer-
ence of causation would be improper, but considering
the serious nature of Hills' unfair labor practices and the
short period of time between the commission of the
unfair labor practices and the employees' signing their
union repudiating statements, I am persuaded that it is
proper in this case to draw such an inference absent evi-
dence indicating that the employees in signing their state-
ments were not influenced by Hills' misconduct' In other
words where, as here, an employer engaged in the type
of misconduct which is reasonably calculated to cause
employees to repudiate the union and shortly thereafter
the majority of the employees, after learning of the em-
ployer's misconduct, in fact repudiated the union, it is
the respondent, the tortfeasor who created this situation,
that must show that the intended effect of its misconduct
was not the proximate cause of the employees' decision
to repudiate the union. Here evidence was presented
about the state of mind of one of the employees who
signed a union repudiating statement Employee Ravey
testified that the reason he signed his statement. was that
he did not feel that the Union was doing a proper job
representing the employees.32 However, the United
States Supreme Court in NLRB v. Gissel Packing Co.,
395 U.S. 575, 608 (1969), and the Board in Anvil Prod-
ucts, 216 NLRB 158 (1975), have rejected evidence of
this nature because it "requires a probe of an employee's
subjective motivations" which "involv[es] an endless and
unreliable inquiry." Gissel Packing, 395 U.S at 608. In
any event, assuming Ravey's testimony is reliable it is in-
sufficent to establish that the signing of any of the other
union repudiating statements relied on by Respodnent
was similarly. motivated. Nor does the record contain ob-
jective evidence which indicates that in signing their
union repudiating statements the employees were not in-
fluenced by Hills' misconduct.33 Quite the opposite, the
objective conduct of one of the employees, dispatcher
Davidor, indicates that Davidor in signing his union re-
pudiating statement was influenced by Hills' misconduct.
Thus, as I have found -supra, simultaneous with signing
his statement Davidor showed it to a group of employees
and in the course of soliciting them to sign, identical
statements repeated in large part what Hills had person-
ally told the employees late in July 1983, namely, that
Hills would close the terminal and operate nonunion if
32 Ravey, Respondent 's witness , who was present during the July 1983
meeting between President Hills and the other employees, was not asked
whether he was present when Hills committed his unfair labor practices
or whether he otherwise learned of them from other employees
33 I recognize that, despite Hills' threat to close the terminal and oper-
ate nonunion if the employees did not accept Respondent's contract pro-
posals, the unit employees on August 10, 1983, -voted 12 to 0 to reject
Respondent's contract proposals However, the record reveals that in
voting against Respondent's proposals the employees were voting against
a 15-percent reduction in their current pay, whereas Hills had-indicated
to them that if they agreed to work- without union representation they
would receive a pay raise Also, only the day before dispatcher Davidor
had presented a contract proposal to the employees which he said had
originated with the Employer which did not call for a reduction in the
employees' pay Under these circumstances the fact that the employees
rejected Respondent 's contract proposals does not warrant an inference
that Hills' unfair labor practices did not have an impact on their decisions
to sign the union repudiating statements Also I note that two of the em-
ployees who signed such statements-Quinn and Blick-did not vote
BAY AREA-LOS ANGELES EXPRESS
they did not accept Respondent's contract proposals. It
is for all of the foregoing reasons that I am of the opin-
ion that there is insufficient evidence to rebut the Gener-
al- Counsel's showing that the proximate cause of at least
one of the union repudiating statements relied on by Re-
spondent was Hills' illegal conduct. -
For all the foregoing reasons, I am of the opinion that
Respondent's withdrawal of representation from the
i Union.on,August.l6, 1983, and its refusal to bargain with
the Union, violated Section 8(a)(5) and (1) of the Act as
the nature of Respondent's July 1983 unfair labor prac-
tices found herein precluded Respondent from exercising
a reasonably, based doubt of the. Union's majority status.-
8. The nature of the employees' strike
The General Counsel contends that the strike by Re-
spondent's employees which began August 10, 1983, was
an unfair_labor practice strike from its inception. I do not
agree. Although, as I have found-supra, Respondent vio-
lated Section 8(a)(l)-and (5) prior to the strike by virtue
of certain conduct engaged in by its President Hills, the
record does not establish that these unfair labor practices
were a contributing -cause of the strike.34 Thus, the
unfair labor practices found herein were not included as
a reason for the August 10 strike vote, nor was there any
discussion of the unfair labor practices at the strike vote
meeting nor does the record reveal other employee con-
duct which occurred before or after the strike which in-
dicates that a contributing cause of the strike was Re-
spondent's illegal conduct engaged in prior to the strike.
Rather, the sole evidence pertaining to the reason for the
strike is'that the union representatives met with the em-
ployees August 10 so that the employees could vote on
the most recent contract proposal Respondent had made
to the Union.- And during the course of 'this meeting
Union Representative Rodriguez told the employees that
a vote , to reject the Respondent's contract piojiosal
would also be a vote to cease work and engage in a
strike. Under the circumstances, 'I am of the view that
the strike which began August 10 was motivated by the
desire of the Union and the employees it represented to
place economic pressure on-Respondent to secure what
the Union and the- employees considered an acceptable
contract. As such it was an economic strike.
I agree with the General Counsel's further contention
that the strike was converted into an unfair labor prac-
tice strike on August 16, 1983, when, as I have found
supra,. Respondent. violated Section 8(a)(5) and (1) of the
Act by withdrawing -recognition from, and refusing to
bargain with, the Union. In this regard the law is settled
that, by committing an unfair--labor practice. that pro-
longs an economic strike, an - employer converts the
strike into an unfair labor practice strike. NLRB v. Pacif-
34 A stnke is •an unfair labor practice strike if the record as a whole
shows that the employer's unfair labor practices were.a contributing
cause of the strike E g, Colonial Haven Nursing Home, 218 NLRB 1007,
1009 (1975) I recognize that the `Board in Tarlas Meat Co, 239 NLRB
1400 (1979), has stated that under certain circumstances it will "infer that
the unfair labor practices contributed to the decision to strike and it is
not necessary to adduce specific proof of, the casual connection between
the Respondent's actions and the strike "However, the circumstances in
the instant case do not warrant such an inference
1087
is Grinding Wheel Co., 572 F.2d 1343, 1349' (9th Cir.
1978). Here, on August 16, 1983, when Respondent in
violation of Section 8(a)(5) and (1) of-the Act terminated
its collective-bargaining relationship with the Union, the
Respondent put an end to any possibility of a negotiated
resolution of the dispute. Accordingly, by illegally with-
drawing recognition from, and refusing to bargain with,
the Union, Respondent converted the strike into 'an
unfair labor practice strike August 16, 1983. NLRB v.
Giustina Bros. Lumber Co, 253 F.2d 371, 373-374 (9th
Cir 1958) (employer's "unjustified" refusal to'. bargain
with the union, "on the ground that its [majority] status
had been put in doubt by a ,petition for decertification
.. . converted an economic strike into an unfair labor
practice strike"). NLRB v. Reliance Clay Products Co.,
245 F.2d 599 (5th Cir. 1957) (employer's withdrawal of
recognition from the union prolonged the strike and con-
verted' it into an unfair labor practice strike for "[w]hile
it is conjectural whether additional meetings . . . would
have resulted in a resolution of the differences between
the parties in a termaination of the strike, it is certain
that there can be no resolution of those differences so
long as the [employer] deliberately remains unavailable
for discussion"). See also Vulcan Hart Corp. (St. Louis
Division) v. NLRB, 718 F.2d 269, 276 (8th Cir. 1983)
("[employer's unlawful] withdrawal of recognition clear-
ly prolonged the strike, because it put an end to contract
negotiations").
9. Hills' statement that strikers can return to work
only as nonmembers of the Union
As I have described in detail supra, on January 26,
1984, at a hearing before an administrative law judge of
the State of California concerning the appeal of striker
Frank Morini from the State's denial of his claim for un-
employment compensation, President Hills, in response
to questions posed by Frank Morini, in the presence of
striker Gary Morini, stated that the striking employees
could not return to work for Respondent as union mem-
bers but could return to work only as nonunion mem-
bers. This statement had a reasonable tendency to coerce
Frank and Gary Morini from exercising their statutory
rights of maintianing their membership in and support of
the Union. Hills' testimony, that he really did not intend
to say this but "what I meant to say was they could
come back as union members but without the union con-
tract," does not make Hills' statement any less 'coer-
cive.35 For, "It is too well settled to brook dispute that
the test of interference, restraint, and coercion under
Section 8(a)(1) of the Act does not depend on an em-
ployer's motive . . . . [r]ather, the illegality of an em-
ployer's conduct is determined by whether the conduct
may reasonably be said to have a tendency to interfere
with the free exercise of employee rights under the Act."
El Rancho Market, 235 NLRB 468, 471 (1979), and the
cases cited therein. I therefore find that Respondent vio-
lated Section 8(a)(1) of the Act when on January 26,
as I also reject as frivolous Respondent's contention that Hills' above-
described statements were not coercive because they were made by him
in response to Frank Morini's questions
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1984, President Hills stated that striking employees could
not return to work for Respondent as members of the
Union, but could only return to work as nonmembers.36
As I have found supra, Hills on January-26, 1984,
stated to the Morini brothers that the strikers could not
return to work for Respondent as union members but
only as nonmembers. Thereafter on February 23, 1984,
the second day of the hearing in this case, Hills mailed
identical letters to the Morini brothers and to employees
Andrus, Vestnys, Castillo, and McGiboney who were
apparently the only employees of Respondent still on
strike. These letters read as follows:
The other day I learned that certain remarks
have been attributed to me as a result of my giving
testimony at one of our employee's unemployment
compensation hearings. For the record, I want all
to- be clear that it is true now and has always been
true that all of you may work here, regardless of
your union membership. As you know, the Union's
contract is not- now in effect and we do not present-
ly recognize any union-as the representative of-our
-employees. In such circumstances, my remarks at
the hearing were intended to indicate that union
membership was not an employment requirement
and that union contract provisions would not apply.
To the extent that remarks not reflecting the above
have been attributed to me, they are hereby with-
drawn, repudiated and revoked.
Respondent argues that Hills' February 23, 1984 letters
effectively repudiated Hills'. January 26, 1984 coercive
statement. The standards for effective repudiation were
set forth in Passavant Memorial Area Hospital, 237 NLRB
138 (1978), as follows:
To be effective . . . such repudiation must be
"timely," "unambiguous," "specific in nature to the
coercive conduct," and "free from other proscribed
illegal conduct." Douglas Division, The Scott &
Fetzer Company, 228 NLRB 1016 (1977), and cases
cited therein at 1024. Furthermore, there must be
adequate publication of the repudiation to the em-
ployees involved and there must be no proscribed
conduct on the employer's part after the publica-
tion. Pope Maintenance Corporation, 228 NLRB 326,
86 This allegation was included in the complaint by virtue of an
amendment of the first day of the hearing The complaint as amended al-
leges that Hills' above-described January 26, 1984 conduct interfered
with, restrained, and coerced employees in the exercise of their Sec 7
rights, thus violating Sec 8 (a)(i) of the Act There was no allegation or
indication by the General Counsel that the General Counsel was contend-
ing that by engaging in this conduct Respondent had discriminated
against strikers with respect to their employment in violation of Sec
8(a)(3) of the Act However, at the conclusion of the hearing, after all
parties had rested, the General Counsel mentioned that "we will also be
seeking a backpay remedy as a result of the statements Hills made at the
unemployment hearing " And in his posthearing brief the General Coun-
sel urges that Hills' above-described January 26, 1984 conduct violated
Sec 8(a)(3) as well as Sec 8(a)(1) of the Act and that in conjunction
with the violation of Sec 8(a)(3) I recommend a remedial backpay order
The General Counsel's request that I find Hills' conduct violated Sec
8(a)(3) of the Act and recommend an appropriate backpay remedy for
this violation is rejected because this issue was not encompassed by the
pleadings and Respondent was otherwise not afforded an opportunity to
fairly litigate it
340 (1977) And, finally, the Board has pointed.out
that such repudiation or disavowal of coercive con-
duct should give assurances to employees that in
the future their employer will not interfere with the
exercise of their Section 7 rights. See Fashion Fair,
Inc., et al., 159 NLRB 1435, 1444 (1966); Harrah's
Club, 150 NLRB 1702, 1717 (1965).
Applying these criteria to Hills'. February 23, 1984
letter I am of the opinion that the purported disavowal
of Hills' statement, that striking employees could not
return to work as members of the Union but only as non-
members, was ineffective to relieve Respondent of liabil-
ity and to obviate the need for further remedial action.
First, the attempted retraction was untimely. As noted
supra, although Hills' illegal conduct occurred January
26, 1984, his alleged retraction was not offered until. 4
weeks later, after the start of the hearing in this case.
Second, at the time of Hills' February 23 letter 'Respond-
ent, as I have found supra, was continuing to interfere
with employees' statutory rights by refusing to recognize
and bargain with the Union as the employees' collective-
bargaining agent in violation of Section 8(a)(5) and (1) of
the Act. As a matter of fact the letter itself emphasizes to
the recipients that Respondent no longer recognized the
Union as the employees' collective-bargaining agent.
Third, Hills' letter was neither sufficiently clear nor spe-
cific. It did not specifically state that Respondent would
refrain from saying that the strikers could return to work
only as nonunion members. Rather, the letter merely in-
formed the strikers that "certain remarks have been at-
tributed to [Hills]" and explained what Hills had really
intended these remarks to mean. Finally, the letter did
not assure the employees that in the future Respondent
would not interfere with the exercise of their Section 7
rights by such coercive conduct. It is for all these rea-
sons that I find Hills' letter of February 23, 1984, did not
dispel the coercive impact of his statement that the strik-
ers could not return to work- as members of the Union,
but only as nonmembers.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged ,in- commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is ,a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees employed by Respondent covered by
the Respondent's 1979-1982 contract with the Union, in-
cluding truckdrivers and dispatchers, but- excluding su-
pervisors as defined in the Act, constitute a unit appro-
priate for purposes of collective bargaining within the
meaning of Section 9(b) of: the Act. '
4. At all times material the Union has-been and is the
exclusive collective-bargaining representative of all- the
employees in the aforesaid bargaining unit for the pur-
pose of collective bargaining within'-the meaning of Sec-
tion 9(a) of the Act.
5. By threatening an employee that if the employees
represented by the Union did not support Respondent's
contract proposals that the employees would lose their
BAY AREA-LOS ANGELES EXPRESS
jobs, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. By dealing directly with employees represented by
the Union, by threatening the employees that if the
Union did not accept Respondent's contract proposals
Respondent would close its doors and operate nonunion,
by promising employees that if they worked for Re-
spondent without- union representation Respondent
would increase their wages, grant them a health and wel-
fare plan which was as'good or` better than their current
plan, and assist them financially in buying their own
trucks if they desired to work for Respondent'as owner-
operators, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act.
7. By telling striking employees that they could not
return to work if they were union members, but could
only return as nonmembers, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
8. By withdrawing recognition from, and refusing to
bargain with, the Union as the representative of the em-
ployees in the aforesaid unit, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
9. Respondent's conduct in paragraph 8 above pro-
longed the strike of the unit employees and converted
the strike into an unfair labor practice strike on August
16, 1983.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act. -
11. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, I shall recommend that Respondent be or-
dered to cease and desist therefrom and from in any like
or related manner infringing upon its employees' Section
7 rights, and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that Respondent unlawfully withdrew
recognition from, and refused to bargain with, the
Union, I shall therefore recommend that it be ordered to
bargain collectively with the,Union, on request, concern-
ing rates of pay, wages, hours, and other terms and con-
ditions of employment, and embody in a signed agree-
ment any understanding reached.
Having found that an economic strike was prolonged
and converted into an unfair labor practice strike on
August 16, 1983, by Respondent's conduct in violation of
the Act, I shall therefore recommend that Respondent be
ordered to offer, on application, to all the striking em-
ployees who were not permanently replaced while eco-
nomic strikers, reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges, discharging, if necessary, any re-
placements hired on or after August 16, 1983, when the
economic strike was prolonged and converted into an
unfair labor practice strike, and to make each of these
1089
striking employees whole for any loss of earnings they
may suffer as a result of Respondent's refusal, if any, to
reinstate them, by payment to each of them a sum of
money equal to that which each would have earned as
wages during the period commencing 5 days after the
date of which each one unconditionally offers to return
to work to the date of Respondent's offer of reinstate-
ment, less any net earnings during such period, with
backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
On 'these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed37 -
ORDER
The Respondent, Bay Area-Los Angeles Express, Inc.,
San Francisco, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith with
Brotherhood of Teamsters and Auto Truck Drivers,
Local No. 85, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of its employees in the fol-
lowing appropriate unit:
All employees employed by the Respondent cov-
ered by the Respondent's 1979-1982 contract with
the above described Union, including truck drivers
and dispatchers, but excluding supervisors as de-
fined by the Act.
(b) Refusing to bargain with the Union by dealing di-
rectly with employees concerning matters over which it
is obligated to bargain with the Union and by engaging
in activities with respect to its employees which are di-
rected toward undermining the Union as the employees'
bargaining representative.
(c) Threatening employees that if the employees fail to
support Respondent's contract proposals they will lose
their jobs.
(d) Threatening employees that if the Union failed to
accept Respondent's contract proposals it would close its
doors and operate nonunion.
(e) Promising employees that if they worked for Re-
spondent without union representation Respondent
would grant them the same or better terms and condi-
tions of employment than they had enjoyed with union
representation.
(f) Telling striking employees that they could not
return to work if they were union members, but could
return only as nonmembers.
39 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
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) On request, bargain collectively with the above-
named Union, as the exclusive representative of all,the
employees in the aforesaid appropriate unit with respect
to rates of pay, wages, hours'of employment, and other
terms and conditions of employment and, if an agreement
is reached, embody'such understandindin a signed agree-
ment.
(b)' Upon application, offer to all employees engaged in
an unfair labor practice strike, who were not permanent-
ly replaced while economic strikers,' reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights and privileges, discharging,
if necessary, any replacements hired on or after August
16, 1983, .when the economic strike was prolonged and
converted into an unfair labor practice strike. -
(c) Make each of these striking employees whole for
any loss of earnings they may have suffered by reason of
Respondent's failure, if any, to reinstate them, on appli-
cation, in the manner set forth in the section of this deci-
sion entitled "The Remedy."
(d) Post at its premises in San Francisco, California,
copies of the attached notice marked "Appendix."38
Copies of the notice, on forms provided by the-Regional
Director for Region 20, after being signed by, the Re-
spondent's authorized representative, 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material..
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges that the Respondent violated
the Act other than as found herein.
38 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "